Karnataka High Court
State Of Karnataka By vs Nagendra S/O Sangappa on 16 August, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 16th day of August, 2012
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE B V PINTO
Criminal Appeal No 197 of 2007 (DB-A)
BETWEEN:
STATE OF KARNATAKA BY
K.R. PET POLICE ... APPELLANT
[By Sri N S Sampangiramaiah, HCGP]
AND:
NAGENDRA
S/O SANGAPPA
AGED ABOUT 28 YEARS
AGRICULTURIST
R/O BASAVANAHALLI VILLAGE
K.R. PET TALUK ... RESPONDENT
[By Sri K L Srinivasa, Adv.]
THIS CRIMINAL APPEAL FILED UNDER SECTIONS 378[1] & (3)
OF CODE OF CRIMINAL PROCEDURE, BY THE SPP FOR THE STATE
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO GRANT
LEAVE TO FILL AN APPEAL AGAINST THE JUDGMENT DT. 30.6.2006
PASSED IN S.C. NO.78/98 ON THE FILE OF THE PRL. S.J., MANDYA
- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 376 AND 417 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR HEARING, THIS DAY, B.V.
PINTO, J., DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal is filed by the state under Section 378(1) and (3) of Code of Criminal Procedure [CrPC], challenging the judgment dated 30-6-2006, passed by the Principal Sessions Judge, Mandya in SC No 78 of 1998, acquitting the respondent-accused of the offence punishable under Section 376 IPC.
2. It is the case of the prosecution that the daughter of complainant one Maniyamma was subjected to frequent sexual intercourse by the accused when she was alone in the house and that when his daughter was complaining about stomach ache, she was taken to hospital, where the doctor, after examining the daughter of the complainant, opined that she was pregnant and hence it is the case of the complainant that he had advised his daughter to undergo abortion. When questioned, his daughter informed him that the accused is the cause for such pregnancy and hence being not aware as to whom to give a complaint, he 3 approached the superintendent of police, Mandya with a complaint on 27-11-1993. The said complaint was transmitted to the police station concerned at K R Pet on 28-11-1993 and a case was registered in Crime No 180 of 1993 for the offence punishable under Section 376 IPC.
3. The police after conducting investigation, found the victim Maniyamma had been subjected to forcible sexual intercourse by the accused, as a result of which she delivered a child and the child was abandoned in the hospital at Hunsur where she gave birth to the child. The child was subsequently traced and it was found that the same was a female child and in view of the fact that the accused denied having any relationship with the victim, police subjected the child, mother and the accused to medical examination and also a DNA test. It was opined at the first instance that the accused was capable to perform sexual act and subsequently the result of DNA test was 'positive', in the sense that the centre for DNA 4 fingerprinting and diagnostics at Hyderabad has reported that the accused is the biological father of baby Ramya, beyond any reasonable doubt. On the basis of said certificate issued by the centre, police filed charge sheet against the accused for the offence punishable under Section 376 read with 417 IPC.
4. During the trial, the prosecution has examined in all 16 witnesses and got marked 9 documents. The defence of the accused was one of total denial. However, the defence has got marked ExD1 to 8 being certain portions of the statement of witnesses before the police. By the impugned judgment, the learned sessions judge, after hearing the prosecution and the defence, held that the prosecution has failed to prove either the offence punishable under Section 376 or 417 IPC and acquitted the accused of both the offences. The state has preferred this appeal against the respondent, who was the sole accused in the sessions case.
5. During the trial before the sessions court, PW1 - Maniyamma - has stated in detail about her relationship 5 with the accused. It is categorically stated by her that the accused was a neighbour and he used to sit in the pial (dUÀ°) of the house while her mother and brother were going to work in the field. It is the case of PW1 that her real mother has expired and her father had married another woman by name Nagamma. She has deposed that while the accused was sitting in the pial of her house, he used to tease her and was pelting stones and he started advancing towards her and subsequently he has approached her for physical intimacy. It is her evidence that subsequently the accused came inside her house and by taking her to the backyard of the house and though she was not interested in marrying the accused, he insisted her to marry him and that he raped her one day at a place where there was a ragi grinding stone. The time at which she was raped was about 3 pm and nobody was in the house at that time and it is the case of the victim that the accused repeatedly entered her house when nobody else was in the house and committed sexual intercourse with her. When she 6 informed the fact that she was pregnant, the accused threatened to kill her. Hence, she kept quiet. Thereafter, the accused was coming to the house only once in fifteen days or thirty days and during the said arrival the accused used to promise to marry her and threatened her not to disclose about the acts committed by him with her. PW1 deposed that when she was seven months pregnant, she insisted upon the accused to marry her, but the accused refused. Thereafter, when the pregnancy crossed nine months, her father came to know about it and thereafter she disclosed the fact to her parents. She was taken to K R Hospital, Mysore for undergoing abortion, but the doctor advised that since the pregnancy was in an advanced stage, she cannot be aborted. It is the evidence of victim that one Ningappa of the village convened a panchayat in the village, but the accused did not attend the same. Thereafter, the said Ningappa advised them to go to court. Her father after checking out of K R Hospital, took her to a hospital at Hunsur, where she stayed for three days and during that 7 period she delivered a female child. She left the said hospital and returned to her village along with her parents and informed the said Ningappa about the happenings. Ningappa advised them to file a compliant and thereafter her father filed a complaint before the police. It is in her evidence that while the accused was in the K R Pet police station, again he agreed to marry the victim. However, at the instance of his maternal uncle and other relatives, the accused refused to marry her. Hence, the case was continued. It is her evidence that during the pendency of investigation, blood samples of hers and her child and of the accused were collected and sent for examination.
6. In the cross-examination, it was suggested to PW1 that the accused never contacted her; that the accused was never coming to the house of the victim. It was also suggested that the victim had also filed complaints against some other persons by name Shivananjappa, Shankarappa, Giri, Dilip, Somashekar, Muralidhar, alleging rape against 8 them. All these suggestions have been denied by her. It was also suggested that the complaint given by the complainant is false and that the accused is not responsible for the pregnancy or delivery of child by the victim. Though this witness was cross-examined at length, no useful defence statement has been elicited from PW1 to dislodge her statement that the accused is the cause of pregnancy and delivery of child of the victim.
7. PW2 - Sangappa - has also identified the accused before the court. He has also stated the facts mentioned by PW1 regarding pregnancy of PW1 and linking the pregnancy to accused and subsequent refusal of the accused to marry the victim. It is in the evidence of this witness as to how the female child born to PW1 was secured on his information and thereafter the child was secured by the police.
8. PW3 - Nagamma - is the stepmother of PW1-victim. She has also stated regarding the visit of the accused to the 9 house of victim in the presence of herself and her husband. She has stated that her daughter has informed her about the sexual intercourse committed by the accused and subsequent result of pregnancy. She has also stated regarding the victim being taken to Chaluvamba hospital and the doctor's inability to conduct abortion having regard to the fact that the fetus was developed more than six weeks and the subsequent delivery of a female child. It is in her evidence that her granddaughter - child of PW1- victim - was handed over to PW2 Sangappa. Thereafter, it is in her evidence that they had brought the child back to the house and the child was 12 years old at the time of giving evidence before the court. The defence has suggested that a false case has been filed against the accused.
9. PW4 - Prema - has supported the case of the prosecution to the effect that the accused is a neighbour of the victim and that victim Maniyamma was aged about 17 10 to 18 years and the accused and victim belong to same community and they were in visiting terms. However, in so far as the act of rape is concerned, PW4 has turned hostile to the case of prosecution.
10. PW5 - B D Ningappa - is also a neighbour of PW1. He has also supported the case of the prosecution that the accused and the victim were known to each other and the fact of victim-Maniyamma being not married. He has also stated regarding facts subsequent to coming to know of the fact of pregnancy of the victim. He has stated that he accompanied the complainant to police station and other places and assisted the complainant in filing a complaint to the police.
11. PW6 - Basavarajappa, PW7 - Sangappa and PW8 - Shankarappa - have turned hostile to the case of prosecution.
11
12. PW9 - T K Mallaiah - is a head constable who has arrested the accused.
13. PW10 - Yoganarasimhamurthy - has stated that he had taken the accused to Hyderabad on 15-2-1997 and on 17-2-1997 blood sample of the accused was taken and he had returned to the station thereafter.
14. PW11 - K B Jagadish - is a district surgeon, who has stated that he has examined the accused on 28-11-1993 and has issued certificate as per ExP3 stating that there is no disability in the accused to perform sexual act. It is suggested to this witness in the cross-examination that the accused is unfit to perform sexual intercourse, but the witness has answered the same in the negative.
15. PW12 - T Nagaraj - is the circle inspector of police who had registered a case in Crime No 180 of 1993 against the accused for the offence punishable under Section 376 IPC and transmitted the FIR to the court.
12
16. PW13 - Meer Mohammed Moqthar - was circle inspector of police during the relevant point of time. He had conducted investigation in this case, arrested the accused and secured documents from the hospital regarding delivery of PW1 of a female child. He has further obtained permission from the court for drawing blood sample from the accused, victim and the child and obtained necessary certificates from the forensic science laboratory in respect of the result of examination of blood samples of the victim, her child and the accused.
17. PW14 - Rukmini - is a senior gynecologist at K R Hospital, Mysore, who has deposed that on 28-11-1993 she had examined PW1 and has opined that PW1 was subjected to recent abortion/delivery and she has issued certificate in this regard as per ExP7.
18. PW15 - N M Chandramanidevi - is a doctor at general hospital, Hunsur and she has produced the records regarding delivery of PW1 on 16-1-1993.
13
19. It is from the above evidence of the prosecution witnesses that the learned Sessions Judge has found that the material placed on second is not sufficient to convict the accused either for an offence under section 376 IPC or for section 417 IPC and recorded a judgment of acquittal.
20. Heard Sri N S Sampangiramaiah, learned High Court Government Pleader, appearing on behalf of the appellant- state and Sri K L Srinivasa, learned counsel for the respondent-accused.
21. Learned government pleader submits that from the evidence of PW1 alone it is sufficient to hold that the accused has committed sexual intercourse on PW1 and that having regard to the fact that the said act of the accused was against the will of the victim, an offence punishable under Section 376 IPC is clearly made out. He further submits that by a false promise to PW1 that the accused would marry her, the accused has committed 14 sexual intercourse and as a result of such act of the accused, a child has been born to the victim. ExP10 clearly indicates that the accused is the biological father of the said child and therefore it is his contention that the accused has further cheated the victim by his act of sexual intercourse on the false promise of marriage. It is his further submission that when opportunity was given both in the police station and in the panchayat to marry the victim, the accused rescinded from the solemn promise and therefore the accused deserves to be convicted.
22. On the other hand, learned counsel for the respondent-accused, submits that the victim was aged 18 years and was an adult; that she has not complained about the act of accused until the doctor found that she was pregnant for nine months and therefore it is obvious that she was a consenting party, even if it is admitted that the accused has committed sexual intercourse with the victim. He has further submitted that the author of ExP9 has not 15 been examined before the court and therefore the fact that the accused is the biological father of the child has not been established by the prosecution and therefore offence under Section 417 IPC is also not clearly made out by the prosecution and therefore he submits that the accused has been rightly acquitted by the trial court.
23. We have carefully gone through the impugned judgment. While we fully agree with the reasoning of the learned sessions judge in so far as the offence under Section 376 IPC is concerned that the victim would have been a consenting party to the sexual intercourse committed by the accused, we disagree with the finding of the learned trial judge in so far as the offence under Section 417 IPC is concerned. It is seen that when PW16 was examined before the court, ExP9 DNA report was marked. PW16 has stated that DNA report ExP9 has been signed by an expert. There is absolutely no cross- examination in so far as either the contents of ExP9 or the 16 evidentiary value of the document, which is issued by an expert. Section 293 CrPC permits courts to take into account evidence of experts which is given in the form of certificates and therefore in the absence of any challenge to the certificate at ExP9, it has to be held that ExP9 is admissible in evidence, which is necessarily relating to the facts of this case. Hence, court can admit ExP9 and the contents of the said document as evidence. The said certificate contains the fact that the accused is the biological father of baby Ramya beyond reasonable doubt. The evidence of an expert is only of corroborative value to the evidence of victim, who has stated that the accused is the father of her child. In this case, we find that the evidence of PW1 in so far as the relationship of the accused with her is concerned is acceptable and believable. No Indian woman would name a wrong person as father of her own child. In this case, the statement of PW1 is corroborated by certificate ExP9 and under the circumstances, we have no hesitation to hold that the 17 accused is the biological father of baby Ramya born to PW1 victim.
24. From the evidence of PW1, 2 and 6, it is clear that the accused had promised to marry PW1 not only secretly to PW1, but also openly in the panchayat held and further also in the police station, where even preparations were made to perform the marriage of PW1 with the accused. However, it is in the evidence that relatives of the accused have pressurized him not to marry PW1 and therefore it is a clear case of having sexual intercourse with a woman on the promise of marrying her and breach of promise to marry, as a result of which, the victim had become pregnant and delivered a child and the child was 12 years old at the time of recording evidence.
25. From the above discussion, we hold that the prosecution has established a case under Section 417 IPC against the accused and he deserves to be convicted for the said offence.
18
26. We have heard Sri Srinivas, learned counsel for the respondent-accused and the learned government pleader for the appellant-state on the question of sentence. It is seen that the incident had taken place in the year 1993 and almost 19 years have elapsed from the date of offence. No purpose would be served if the accused is sent to jail at this belated stage. However, the child born to the accused has to be looked after by the PW1 and therefore a compensation is to be paid to the PW1 in the interest of justice. It is submitted by the learned counsel for the respondent-accused that the accused is an agriculturist. The child of PW1 requires to be looked after and being a female child, is required to be got married at the appropriate age, besides giving appropriate education. However, having regard to the fact that the accused is an agriculturist, we deem it fit to impose a fine of Rs 1.00 lakh on the accused, which shall be paid to the PW1 as compensation.
19
27. Hence, we pass the following:
ORDER Appeal filed by the state is hereby allowed in part. The order of acquittal passed by the trial court for the offence punishable under Section 376 IPC is hereby confirmed and the order of acquittal for the offence punishable under Section 417 IPC is set aside and the accused is convicted for the said offence and he is directed to pay fine of Rs 1.00 lakh [Rupees one lakh only]. In default of payment of fine, he shall undergo simple imprisonment for a period of one year. The entire fine of Rs 1.00 lakh, if recovered, shall be paid to PW1 as compensation under section 357 CrPC and the same shall be deposited in a fixed deposit with a nationalized bank in the joint names of PW1-victim and baby Ramya and it is hoped that the amount will be utilized for the betterment of the female child Ramya. The accused is granted eight weeks' time to deposit the fine amount, failing which the 20 trial court is directed to execute the default sentence as hereinabove mentioned. The trial court is also directed to recover the fine amount as arrears of land revenue as provided under section 421 of the CrPC.
Appeal partly allowed.
Sd/-
JUDGE Sd/-
JUDGE *pjk