Karnataka High Court
The State Of Karnataka vs Manjappa @ Manjenath S/O Shekappa ... on 17 January, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 2801 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 2801 OF 2012
BETWEEN:
THE STATE OF KARNATAKA
BY MULUGUND P S GADAG
REPRESENTED BY
ADDITIONAL STATE PUBLIC PROSECUTOR
HIGH COURT CIRCUIT BENCH DHARWAD
.....APPELLANT
(BY SRI. RAMESH CHIGARI, HCGP)
AND:
MANJAPPA @ MANJENATH S/O SHEKAPPA BENCHI
AGE: 22 YEARS R/O HEBBAL, TQ: SHIRAHATTI @
NAVALUR TQ: DHARWAD
.....RESPONDENT
(BY SRI. VIDYASHANKAR G. DALAWAI, AMICUS CURIAE)
Digitally signed by
THIS CRIMINAL APPEAL IS FILED U/SEC. 377(1)(b) OF CR.P.C.
SUJATA SUBHASH
PAMMAR
Location: HIGH
COURT OF
KARNATAKA,
SEEKING TO ALLOW THIS CRIMINAL APPEAL AND MODIFY THE
DHARWAD
BENCH,
DHARWAD.
SENTENCE IMPOSED BY THE PRESIDING OFFICER, GADAG IN
S.C.NO.18/2011 DATED 29.02.2012 AND IMPOSED SENTENCE
PRESCRIBED FOR THE OFFENCE P/U/SEC. 366(A), 376 AND 342 OF
IPC.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 2801 of 2012
JUDGMENT
This appeal is filed by State under Section 377 (1)
(b) of the Code of Criminal Procedure (for short, hereinafter referred to as 'Cr.P.C.') challenging the sentence of imprisonment imposed against the accused by the learned Fast Track Court, Gadag in S.C. No.18/2011 and sought for enhancement of the sentence for the offences punishable under Sections 366(A), 376 and 506 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for short).
2. The brief factual matrix leading to the case are that the victim girl is aged about 17 years and on 30.10.2010 when she had been to attend nature's call along with her friend in Kallur village, the accused/respondent herein enticed her and kidnapped her under the pretext marrying her and he kept her in Jagadish Nagar, Hubballi in a rented house till 21.11.2010 and continuously raped her in this period. Later on when he got the knowledge that she is minor and though he intended to marry her, he sought legal opinion from his -3- CRL.A No. 2801 of 2012 counsel and the counsel has adviced him to release the victim and accordingly he sent back the victim and in this regard, a complaint came to be lodged. The victim girl was subjected to medical examination and the Investigating Officer after investigation, submitted the charge sheet for the offence punishable under Sections 366A, 376, 342 and 506 of IPC. The respondent/accused was arrested and was remanded to judicial custody. The charge was framed against him and he pleaded not guilty. The prosecution has examined in all 31 witnesses and 19 documents were marked. During the cross-examination of PW-6, Exs.D-1 to D-5 were marked. After the conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded and the case of the accused is of total denial.
3. After hearing the arguments and after appreciating the oral and documentary evidence, learned Sessions Judge has convicted the accused for the offence punishable under Sections 366A, 376 and 342 of IPC. The -4- CRL.A No. 2801 of 2012 accused was sentenced to undergo simple imprisonment for 2 years for the offence punishable under Sections 366A and 376 of IPC and for the offence punishable under Section 342 of IPC, he was sentenced to undergo simple imprisonment for six months. Being aggrieved by the order of sentence, the State has come in appeal.
4. Heard the arguments advanced by the learned H.C.G.P. for the appellant-State and learned Amicus Curiae for the respondent/accused. Perused the records.
5. Learned H.C.G.P. for the appellant would contend that the offence under Section 366A of IPC is punishable with imprisonment extending up to 10 years along with fine but the learned Sessions Judge has not imposed any fine and no reasons were offered. He would further contend that the offence under Section 376 of IPC, prior to impediment of the Section in 2013, the minimum imprisonment of 7 years was prescribed which may extend to life and fine but the learned Sessions Judge has not even imposed minimum sentence along with fine. Hence, -5- CRL.A No. 2801 of 2012 he would submit that the entire approach of the learned Sessions Judge is erroneous and he has not followed the sentencing policy and has not appreciated the factual aspects. Hence, he would request to enhance the sentence by imposing at least the minimum sentence prescribed under the law by allowing the appeal.
6. Per contra, learned Amicus Curiae would submit that the records themselves disclose that the victim is aged about 17 years and has voluntarily accompanied the accused/respondent herein. He would further submit that the evidence also discloses that it was out of love affair and now the victim is married somewhere else and the respondent/accused is also married having minor children and hence, he would contend that even this Court is empowered to exercise the discretion under the proviso of Section 376 of IPC by considering the mitigating circumstances for issuing lesser sentence. Hence, he would seek for dismissal of the appeal.
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7. Having heard the arguments and after perusing the records, it is evident that the Trial Court after appreciating the oral and documentary evidence and considering the defence raised by the accused has convicted the accused for the offence under Section 366A, 376 and 342 of IPC. The judgment of conviction is not challenged by the accused/respondent and it has reached the finality. The State is aggrieved only regarding the sentence imposed by the Trial Court on the ground that the minimum sentence though fixed by the statute along with fine, the same was not imposed on the accused and the Trial Court has not even recorded any special reasons for imposing lesser sentence than minimum sentence as provided in the proviso of Section 376 of IPC.
8. From the proviso to Sections 366A and 376 of IPC, it is evident that imposition of fine along with sentence is mandatory. Interestingly in the present case, no fine was imposed and no reasons were given by the learned Sessions Judge. Even he has not made any -7- CRL.A No. 2801 of 2012 provision for compensation to the victim. Section 366A of IPC reads as under:
366A. Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
(underlined by me)
9. Hence, as per the statute, enticing a girl aged under 18 years is punishable with imprisonment which may extend to 10 years and shall also liable to pay the fine. The words used in the section is 'shall' regarding fine. Hence, there is no option for the Court to waive any fine amount. No minimum sentence is prescribed for the offence punishable under Section 366A of IPC but regarding imposition of fine, it is mandatory but in the present case, no fine was imposed by the learned Sessions Judge. This approach of the learned Sessions Judge is -8- CRL.A No. 2801 of 2012 erroneous. On verification of the impugned order, it is evident that the learned Sessions Judge has not even discussed the minimum sentence prescribed under the provisions or fine mandated by the statute. Only on the ground that the accused/respondent herein was in custody for 14 months, he proceeded to impose imprisonment of 2 years each for the offence punishable under Section 366A of IPC and offence punishable under Section 376 of IPC and further directed that the sentence shall run concurrently. Even he has not discussed the sentencing policy.
10. Section 376 of IPC was amended in the year 2013 by Act 13 of 2013. Admittedly, the statute mandates that the imprisonment for the offence under Section 376 of IPC shall not be less than 7 years but may extend to life for a term which may extend to ten years and shall also be liable to pay fine. The proviso also gives the power to the Court for adequate and special reasons to be mentioned Court may impose sentence of imprisonment for a term -9- CRL.A No. 2801 of 2012 less than 7 years. But on perusal of the impugned order, as observed above, no special or adequate reasons were assigned except observing that accused/respondent has undergone imprisonment for 14 months as under trial prisoner and proceeded to impose minimum sentence of 2 years. Even the learned Sessions Judge has not given any reasons for not imposing the fine since the victim is not his wife so as to waive fine amount as per the mandate of statute. Hence, it is evident from the records that there is absolutely no application of mind by the learned Sessions Judge while imposing the sentence.
11. Learned Amicus Curiae would contend that it was out of love affair and the evidence discloses that the victim has not raised any hue and cry while accused was taking her along with him in a bus and while she was staying in a rented house with him. No doubt, in the cross-examination it is elicited that she has not raised any objections but on perusal of the cross-examination of the victim, who is examined as PW-6, there is no suggestion
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CRL.A No. 2801 of 2012 that she accompanied him voluntarily due to love affair. No such defence is put forward by the accused in entire case. Even the statement of accused under Section 313 of Cr.P.C. is silent in this regard. Only during the cross- examination of victim, it is elicited that she did not raise any hue and cry and at this point, it is argued that the victim is a consenting party and she is capable of understanding the things as she was aged about 17 years. In this context, learned Amicus Curiae has placed reliance on a decision of the Hon'ble Apex Court in Crl.A.No.1516/2010 in the case of Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi) wherein for similar offence under Section 376 of IPC, the High Court has imposed sentence of 5 years which was less than minimum sentence prescribed under the statute and relying on this citation, he would contend that this Court is empowered to do so. However, the facts and circumstances of the said case are entirely different. In the said case, initially the accused was convicted for the offence under Sections 376 and 366 of IPC and for the
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CRL.A No. 2801 of 2012 offence under Section 376 of IPC, he was sentenced to undergo rigorous imprisonment for a period of 7 years with fine of Rs.3,000/-. Against the said conviction, the accused preferred an appeal before the High Court and the High Court after appreciating the evidence, upheld the conviction. However, considering the period of prosecution, that incident took place in 1989 and appeal itself was pending for 10 years and other mitigating circumstances, has reduced sentence to 5 years. Against the said conviction, the accused preferred the appeal and the appeal came to be dismissed by the Hon'ble Apex Court upholding the order of the High Court on the ground that the High Court has considered the mitigating circumstances. In the instant case, the accused has not challenged the judgment of conviction at all. In the said case, the learned Sessions Judge has imposed minimum sentence prescribed under the law but in the present case, the learned Sessions Judge has not imposed minimum sentence. Further in the said case, fine was also imposed but in the instant case, though statute mandates fine, the
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CRL.A No. 2801 of 2012 learned Sessions Judge has not imposed the fine. Considering these aspects, the principles enunciated in the above cited decision cannot be made applicable to the facts and circumstances of the case in hand.
12. Leaned Amicus Curiae for respondent/accused has further placed reliance on a decision of the Delhi High Court in Crl.A.No.460/1999 in the case of Ramvir Vs. State, dated 04.11.2009. In the said case, the victim was also a minor aged about 13 years but considering the mitigating circumstances, rigorous imprisonment of 5 years with fine of Rs.10,000/- was imposed for the offence under Section 376 of IPC. But in the instant case, nothing was discussed by the learned Sessions Judge in this regard.
13. Admittedly, the judgment of conviction is not challenged by the accused and it has reached finality. On the contrary, the decision relied on by the learned Amicus Curiae, in the case of State of Rajasthan Vs. Vinod Kumar in Crl.A.No.1887/2007 dated 18.05.2012, the
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CRL.A No. 2801 of 2012 Hon'ble Apex Court had an occasion to consider this issue and observed that casual manner of reducing criminal justice delivery system amounts to mockery of judicial process. In the said case, the High Court has reduced the sentence of imprisonment for the offence punishable under Section 376 of IPC from the period of 7 years to the period of 11 months 25 days which was already undergone by the accused and in this context, the Hon'ble Apex Court has come down heavily and set aside the order of the High Court and restored the sentence awarded by the Trial Court. In the present case, the learned Sessions Judge has not at all considered any factual aspects. Neither he has discussed the mitigating circumstances nor he has considered the gravity factor and circumstances to impose minimum sentence prescribed under the statute which is permissible only in exceptional cases and that too after recording the special and adequate reasons as per the proviso to Section 376 of IPC. None of these aspects are forthcoming in the instant case and hence, it is evident that the judgment of the learned Sessions Judge regarding
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CRL.A No. 2801 of 2012 sentence is erroneous and calls for interference by setting aside the same.
14. Learned Amicus Curiae would further contend that this Court now can consider the mitigating circumstances and may give adequate reasons but what are the special reasons are not at all forthcoming. No doubt, the accused might have married and the victim might have married, but the fact remains that no specific defence was taken in the cross-examination of the victim that she has voluntarily accompanied and only formal denial is made on the ground that it is only a love affair. However, the cross-examination of the victim does establish that she has fully supported the case of the prosecution. However, her cross-examination reveals that she has not raised any hue and cry while she was being kidnapped and while she was accompanied the accused in the bus and stayed in a rented house with him. Hence, to some extent it can be presumed that victim being aged 17 years has voluntarily accompanied the accused and it
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CRL.A No. 2801 of 2012 might be out of love affair but imposing sentence of only 2 years appears to be mockery of judicial process as observed by the Hon'ble Apex Court. Considering the conduct of the victim in voluntarily accompanying the accused and considering the fact that the accused was in custody for 14 months and victim not alarming anybody while she was traveling with him, it is established that she is a consenting party. Now it is also submitted that both are married independently and accused is having kids. Considering these aspects as special circumstances and adequate reasons, at any stretch of imagination, minimum sentence of 7 years cannot be reduced to 2 years. Looking to the nature and gravity of the offence and considering the observations made by the Hon'ble Apex Court in the above cited decision, in my considered opinion, considering the mitigating circumstances, the accused/respondent herein is required to be sentenced to rigorous imprisonment of 5 years with fine of Rs.15,000/- for the offence punishable under Section 376 of IPC with default clause.
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CRL.A No. 2801 of 2012
15. Imposition of sentence by the learned Sessions Judge for the offence under Section 342 of IPC does not call for any interference. As regards the offence punishable under Section 366A of IPC, it calls for interference as the imposition of fine is mandatory and for the offence punishable under Section 376 of IPC, the accused is required to undergo rigorous imprisonment for a period of 5 years with fine of Rs.15,000/- with default clause which will serve the purpose. Accordingly, the appeal needs to be allowed in part and hence, I proceed to pass the following:
ORDER The appeal is allowed in part.
The sentence imposed by the learned Sessions Judge for the offence punishable under Section 342 of IPC stands confirmed.
The sentence imposed by the learned Sessions Judge for the offence punishable under Sections 366A and 376 of IPC are set aside and modified as under:
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CRL.A No. 2801 of 2012 The respondent/accused is sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.15,000/- for the offence punishable under Section 366A of IPC and in default, he shall undergo simple imprisonment for a period of 6 months.
For the offence punishable under Section 376 of IPC, the accused shall undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.15,000/- in default, he shall undergo simple imprisonment for a period of one year.
All the sentences shall run concurrently. Send back the records to the Trail Court along with a copy of this judgment with a direction to the Trial Court to secure the presence of the respondent/accused for serving the remaining sentence.
The fees of the learned Amicus Curiae is fixed at Rs.2,500/-.
Sd/-
JUDGE SSP/NAA List No.: 1 Sl No.: 37