Karnataka High Court
The State By Puttur Town vs Thaniyappa Purusha on 22 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.1064 OF 2017
ALONG WITH
CRIMINAL APPEAL NO.1066 OF 2017
In Criminal Appeal No.1064 of 2017:
BETWEEN:
The State by Puttur Town
Police Station,
Represented by State
Public Prosecutor,
High Court Building,
Bengaluru - 560 001. ...Appellant
(By Shri B.N.Jagadeesha, Additional State Public Prosecutor)
AND:
Thaniyappa Purusha
Son of late Annappa Purusha,
Aged about 53 years,
Coolie by work,
Residing at Thirthara Kadu Site Mane,
Mudipu, Kairangala Village and Post
Bantwal Taluk - 574 211 ...Respondent
(Shri Suyog Herele.E., Advocate)
2 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
This Criminal Appeal filed under Section 378(1) and (3) of
Cr.P.C praying to appeal against the impugned judgment and
order of acquittal dated 28.09.2016 passed by the VI Additional
District and Sessions Judge, D.K., Mangaluru in S.C.No.50/2016
- acquitting the Respondent for the offences punishable under
Sections 376 and 506 of IPC.
In Criminal Appeal No.1066 OF 2017:
BETWEEN:
The State of Karnataka
by Puttur Town Police Station,
Represented by State Public Prosecutor,
High Court Building,
Bengaluru - 560 001. ...Appellant
(By Shri B.N.Jagadeesha, Additional State Public Prosecutor)
AND:
Thaniyappa Purusha
Son of late Annappa Purusha,
Aged about 53 years,
Coolie by work,
Residing at Thirthara Kadu Site Mane,
Mudipu, Kairangala Village and Post
Bantwal Taluk - 574 211 ...Respondent
(Shri Suyog Herele E., Advocate)
This Criminal Appeal filed under Section 377 OF Cr.P.C.
praying to modify the Judgment and Order dated 28.09.2016
passed by the VI Additional District and Sessions Judge, D.K.,
Mangaluru in S.C.NO.50/2016 in passing inadequate sentence
for the offence punishable under Section 417 of IPC and impose
proper adequate sentence for the offence punishable under
Section 417 of IPC.
3 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
These Criminal appeals coming on for further arguments,
having been heard through physical hearing/video conferencing
and reserved for judgment on 06.12.2023, coming on for
pronouncement this day, UMESH M ADIGA J., delivered the
following :
JUDGMENT
Both these appeals are filed by the State under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'the Cr.P.C.'), challenging impugned judgment passed in S.C.50 of 2015 dated 28.09.2016 by the VI Additional District and Sessions Judge, Dakshina Kannada, Mangaluru (hereinafter referred as 'Trial Court' for short) wherein the accused was acquitted for the offence punishable under Sections 376 and 506 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') and convicted for the offence punishable under Section 417 of IPC.
Crl.A.1064 of 2017 is filed challenging the acquittal of the accused for the offence punishable under Sections 376 and 506 of IPC and Crl.A.No.1066 of 2017 is filed for enhancement of sentence imposed against accused for the offence punishable under Section 417 of IPC. 4 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017
Hence both the appeals are taken up together for disposal.
2. Brief facts of the case of the prosecution are that, PW-1 victim girl is daughter of PW-2/Smt.Devaki and CW-2/Ganesha Purusha. Accused is a distant relative of PWs-2. Prior to the incident, he was oftenly visiting the house of PWs-1 to 3. He was assuring and promising PW-1 that he would marry her.
3. On the fateful day, when PW-1 was alone at home, accused came to her house and persuaded her to have sex with him and forcefully had sex with her, inspite of her refusal. He also threatened her with dire consequences, if she tells the said information to her parents or others. The accused had committed similar acts few more times against her wish and assured her that he would marry her. She conceived and she informed the said fact to the accused and requested him to marry her. Accused initially postponed the marriage on one or other pretext and later on refused to marry her and threatened 5 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 her of dire consequences, if she informs the same to others.
4. On one day, while giving bath to PW-1, PW-2 came to know that PW-1 was pregnant and on enquiry, PW-1 revealed above facts and also told her that due to threat of the accused and also his promise to marry her, she did not reveal these facts to anybody. On 21.11.2013 PW-1 delivered baby boy at Government Hospital, Puttur. Medical officer enquired name of her husband. PW-1 revealed all the above facts to the doctor. Hence, the said doctor informed to the Police. Police came to the hospital and recorded statement of PW-1 as per Ex.P1 and on that basis, registered a case in Crime No.14 of 2013 dated 21.11.2013 for the offence punishable under Section 417 and 506 of IPC.
5. The Complainant-Police investigated the case and submitted charge-sheet against accused before the jurisdictional Magistrate, for the offences punishable under Sections 376, 417 and 506 of IPC. The learned Magistrate 6 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 took cognizance of the offence; secured presence of accused; supplied copy of charge-sheet to the accused. The offence punishable under Section 376 of IPC is triable by the Court of Sessions and hence, learned Magistrate committed the case to the Court of Sessions.
6. The learned Sessions Judge on receipt of charge sheet from Committed Court, re-registered the case. Heard both the accused and prosecution and framed charges for the offences punishable under Sections 376, 417 and 506 of IPC. The accused pleaded not guilty and claimed to be tried.
7. The prosecution in support of its case, has examined PW-1 to PW-14 and got marked Exs.P1 to P19 and closed its evidence. The learned Sessions Judge examined the accused under Section 313 of Cr.P.C. and his answers were recorded. The accused did not lead defence evidence.
7 Crl.A.No.1064/2017 a/wCrl.A.No.1066/2017
The defence of the accused is of total denial and in the alternative, he had contended that it was a consensual sex.
8. The learned Sessions Judge heard the arguments on both sides and formulated following points for his determination:
1. Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt that in the first week of February, 2013 he had been to the house of PW-1 in Narimogaru village, where he promised her that he would marry her with an intention to have sexual intercourse and had forcibly sexual intercourse on her, without her consent. So he has committed an offence punishable under Section 376 of IPC?
2. Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt that in the first week of February, 2013 he had been to the house of PW-1 in Narimogaru village, where after the sexual intercourse on her, he gave life threat to kill her, if she informed the matter to others. So he has committed an offence punishable under Section 506 of IPC?8 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017
3. Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt that in the first week of February, 2013 he had been to the house of PW-1 in Narimogaru village, where he had forcibly sexual intercourse on her stating that he would marry her.
Thereafter, even she was pregnant he refused to marry and cheated her. So he has committed an offence punishable under Section 417 of IPC?
4. What order?
9. The learned Sessions Judge appreciating evidence on record, answered Point Nos.1 and 2 in the negative and Point No.3 in the affirmative. The learned Sessions Judge by the impugned judgment convicted the accused of the offence punishable under Section 417 of IPC and acquitted him of the offence punishable under Sections 376 and 506 of IPC. The learned Sessions Judge after hearing the accused and the prosecution sentenced the accused to undergo imprisonment for two months and pay compensation of `20,000/- and in default of payment of the same, he shall undergo simple imprisonment for two months. The benefit of Section 428 of Cr.P.C. was also 9 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 given to the accused. The same is challenged in the present appeals.
10. The learned Additional State Public Prosecutor has vehemently contended that the Sessions Court has not appreciated the evidence properly. PW-1 in her evidence has repeatedly stated that inspite of her refusal, the accused had forceful sex with her not only once, but thrice, on different days. He assured her that he would marry her. PW-1 is innocent, not having worldly knowledge, believed the words of the accused and did not disclose these facts to her parents. Due to the threat of accused, even she did not inform to her parents about her pregnancy. When she was about eight (8) months pregnant, her mother noticed and during enquiry, PW-1 revealed her all these facts. Thereafter also, PW-1 requested the accused to marry her; However, the accused postponed to marry her on one or the other pretext and also threatened her of dire consequences, if she informs the same to others. In view of these reasons and also due to fear of social stigma she kept quiet. When she delivered a baby boy, on enquiry by 10 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 the concerned Doctor of the hospital, she informed the said fact, who in turn informed the same to the police and a case was registered against the accused. The facts and circumstances of the present case clearly reveals that PW-1 is innocent and has no worldly knowledge. She did not take action immediately against the accused. That cannot be considered as consent for sexual acts by the accused.
11. The learned State Public Prosecutor further submits that PW-1 in her evidence has stated in detail about these facts. Her evidence is corroborated by PW-2. PW-3 has stated about delivery of baby boy by PW-1. With the permission of the Court, blood sample of the accused was obtained in the open Court and sent for DNA test along with blood sample of PW-1 and her baby boy. The DNA Centre of Forensic Science laboratory (for short, FSL), Bengaluru gave report as per Ex.P11, stating that accused is the biological father of the said child of PW-1 by name Sandeepa. These facts undoubtedly prove that the accused is responsible for birth of the said child, through PW-1. 11 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017
The learned Additional SPP would further submit that in the cross-examination of PW-1, accused admitted of having sex with PW-1. However he has stated that with the consent and without any assurance, he had sex with PW-1. The onus lies on the accused to prove that victim girl has consented for sexual acts. Under Section 114-A of the Indian Evidence Act, the Court shall presume, in such cases, that the victim had not given consent, if she denied such consent, during the course of the trial. Therefore, Section 114-A of the Indian Evidence Act would help the prosecution to prove the guilt of the accused.
12. The learned Additional State Public Prosecutor has further submitted that in the cross-examination of PW- 1, by the accused, she has stated that she refused to have sex with accused till he marries her. She stoutly refused for the same, shouted for help and repeatedly begged accused not to spoil her life but accused did not listen to her and had sex with her. Her house is situated at isolated place and her neighbours had no good relationship with them. Therefore, nobody came to her rescue. She has also stated 12 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 in her cross-examination, that, at another time, even she refused to open the door; thereafter, when the dogs started barking, just to see the same, she opened the door and by that time, accused gained entry in the house and promised her that he would marry her and had sex with her inspite of her refusal. These facts were not considered by the Trial Court in the impugned judgment.
13. The learned Additional State Public Prosecutor would further submit that the Sessions Judge in the impugned judgment accepted that the accused had sex with the victim girl and that was reason for her pregnancy. However, the Sessions Judge accepted the defence of the accused that, with false promise of marriage, PW-1 had given consent for having sex with her. Hence, he convicted the accused for the offence punishable under Section 417 of IPC. The accused did not challenge the said verdict of the Sessions Court and therefore, he has accepted the findings of the Sessions Court. PW-1 by her evidence proved that she did not give consent for sexual act by the accused. Under these circumstances, the essential 13 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 ingredients under Section 376 of IPC is clearly proved by the prosecution.
14. The learned Additional State Public Prosecutor has further submitted that PW-1 in her evidence has stated that the accused had given threat to PW-1 and prevented her from disclosing these facts as well as her pregnancy to others, including her parents. It appears from the conduct of the PW-1 and PW-2 that due to said threat, PW-1 did not inform the fact of sexual assault on her by the accused and her pregnancy to PW-2. These facts prove that the accused had given serious threat to PW-1 and thereby, prosecution proved that accused had committed an offence punishable under Section 506 of IPC.
15. The learned Additional State Public Prosecutor has further submitted that for the offence punishable under Section 376 of IPC, the Court shall not expect corroboration of the evidence of the victim and the evidence of victim has to be considered. In this case, as per the case of the prosecution, most of day time, PW-1 was living alone in her 14 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 house. Accused being a distant relative of PW-2 and familiar with the affairs of house of victim by frequently visiting to the said house, hatched a plan and committed alleged offences on innocent girl. Considering these facts, the Sessions Court ought to have convicted the accused for the said offences. However, the Sessions Judge convicted the accused for a minor offence of the Section 417 of IPC. The Sessions Court even not sentenced the accused adequately, on the contrary, sentenced the accused to undergo imprisonment for a period of two months and to pay compensation of `20,000/-, which is highly disproportionate and inadequate to the offence committed by the accused. Therefore, prayed to allow the appeals by convicting the accused for the offence punishable under Section 376 and 506 of IPC and enhance the sentence of the accused under Section 417 of IPC.
16. The learned advocate appearing for the respondent-accused has vehemently contended that prosecution has not proved the alleged offence punishable under Section 376 and 506 of IPC. The accused was not a 15 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 stranger and known person to the family of PWs-1 and 2. The accused was aged about 54 years as on the date of the alleged incident. The age of victim as per Ex.P7 was 22 years. It is admitted by PW-2 that they received marriage invitation of daughter of accused. It is the case of accused that he used to attend religious functions of the family along with his wife and children and these facts were known to both PW-1 and PW-2. Hence, it is difficult to accept the contention of the accused that she accepted or believed the alleged promise of the accused to marry her. Therefore, the said contention is not acceptable.
17. The learned advocate for the respondent- accused further submitted that if accused had committed sexual offences on her, then, she should have intimated this fact atleast to her mother and initiated action against the accused. PW-1 was not at the mercy of the accused. Under these circumstances, nothing was prevented her to lodge the complaint against the accused. Legal action was taken after about nine (9) months from the alleged incident of rape. In Ex.P1 or Ex.P3, delay is not properly explained 16 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 by the prosecution to lodge the complaint. Even there is no reference about alleged forceful sexual acts on PW-1 inspite of her refusal or alleged threat said to be given by the accused. These facts were stated in the evidence, that indicates, the prosecution improved its version during evidence. Hence, the said evidence is not acceptable.
18. The learned advocate for respondent would further submit that the accused did not challenge the impugned judgement of conviction against him for the offence punishable under Section 417 of IPC, does not mean that he had admitted of having committed an offence punishable under Section 376 of IPC. Even if it is believed that he had sexual acts with PW-1, then at the worst, it might be with her consent. Facts and circumstances of the present case indicates that she had consented for sexual acts with the accused and hence, it does not attract the provisions of Section 376 of IPC.
19. The learned Sessions Judge, after hearing the prosecution and the accused and considering the mitigating 17 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 circumstances, sentenced the accused for the offence punishable under Section 417 of IPC. The maximum sentence of imprisonment prescribed for the offence punishable under Section 417 of IPC is for one (1) year. Therefore, enhancement of the same do not arise. Therefore, prayed to dismiss both the appeals.
20. The following points emerges for our determination:
1. Whether the prosecution has proved beyond reasonable doubt that during February, 2013, at Markaru Dasara Mane of Narimogaru village, Puttur Taluk, the accused has repeatedly committed rape on victim on different days, when she was alone at her house, against her will and wish and committed an offence punishable under Section 376 of IPC?
2. Whether the prosecution has proved beyond reasonable doubt that on the above place, date and time mentioned at Point No.1, the accused criminally intimidated the victim given threat to her life if she informs the alleged act of rape to anybody and thereby, accused had committed an offence punishable under Section 506 of IPC?18 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017
3. Whether the sentence imposed by the learned Sessions Judge for the offence punishable under Section 417 of IPC is inadequate and interference in the said finding is required?
4. Whether findings of learned Trial Judge is arbitrary, absurdity and perverse and interference is required?
5. What Order?
The above points are taken up together for discussion since Point Nos.1 to 4 are inter-connected.
21. Main and star witness of this case is PW-1. In her evidence, she narrated facts of the case. According to her, prior to the incident, the accused was frequently visiting her house, who is a distant relative of her mother. Accused told her that he would marry her. Thereafter, on one day, when she was alone at home, the accused forcefully and not heeding to her request, against her wish had sexual intercourse with her. He also threatened her of dire consequences, if she disclose the said facts to others. Thereafter, on different dates, when she was alone in the 19 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 house, he gained entry to her house and forcefully had sexual intercourse with her, inspite of her resistance. She became pregnant and again requested the accused to marry her as per his promise. However, he postponed on one or the other pretext. When she was about eight (8) months pregnant, her mother noticed that she was pregnant and on enquiry by her mother, she told about the incident of forceful sexual assault on her by the accused and also his promise to marry her.
22. It is further evidence of PW-1 that she delivered a baby boy in Government Hospital at Puttur and was subsequently named as "Sandeep". PW-3, Dr.Dinesh Kamath, Medical Officer of Government Hospital, Puttur informed the said fact to the police and police came to the hospital and recorded the statement of PW-1 as per Ex.P1 and she signed Ex.P1(a). After discharge from the hospital, she showed the police place of incident wherein the accused committed rape on her and police drew mahazar and obtained her signature. She also stated about taking her blood sample as well as of her son, in the Court. She 20 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 also stated about recording of her statement by the learned Magistrate as per Ex.P3 and her further statement by the concerned police.
23. It is the further evidence of PW-1 that when accused was visiting her house frequently, she had no knowledge that he was married. She has not filed the complaint immediately after the incident, due to threat of the accused.
PW.1, in her cross-examination has elaborated about incidence. The accused had sex with her three to four times. When accused came to her house to have sex with her, she refused to have physical relationship with him and tried to prevent him. She had also shouted for help. However, nobody were near her house to rescue her. Her uncle's house was situated nearby her house, but they were not in good terms with them. She did not inform about incident to the members of the family.
24. In the further cross-examination, PW-1 has stated that four months after the first incident, when she 21 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 was alone at home, the accused came to her house. Normally, she used to close the door of the house when she was alone. On that day, she did not allow the accused to gain entry to the house. After sometime, she heard dogs barking and hence opened the door, by that time, accused gained entry in the house and had forceful sex with her, against her wish. When he came for the second time, she conceived. She told to the accused that she was pregnant and asked him to marry her. However, accused threatened her. She has also stated that even though her parents were trying to arrange her marriage, the accused did not allow her to marry others. Due to threat of the accused, till her mother noticed that she was pregnant, she did not inform anybody.
25. There are no reasons to disbelieve the evidence of PW-1. On plain reading of evidence of PW-1, one can understand her innocence and helplessness. It clearly indicates misuse of her innocence by the accused. Evidence of PW-1 inspire confidence in the mind of prudent person. 22 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 The learned Trial Judge accepted and believed her evidence, but erroneously held that it was consensual sex.
26. In Ex.P1, which is recorded by PSI on 21.11.2013, it is stated that the accused use to come to her house when she was alone and promised her to marry her and had physical relationship. Her statement was recorded by learned Magistrate under Section 164 of Cr.P.C., on 30.12.2015, wherein she has stated that the accused had assured her that he would marry her and on the said false assurance he had physical relationship with her, inspite of her refusal. She had also stated before the learned Magistrate that due to criminal intimidation of the accused, she did not lodge the complaint to the police or informed her parents, against accused.
27. The learned counsel for respondent-accused contends that in Ex.P1, it is not stated that accused had sex with her against her wish and in Ex.P3 as well as during evidence, she had improved her case. Therefore, the said evidence is not reliable.
23 Crl.A.No.1064/2017 a/wCrl.A.No.1066/2017
The said submission is not acceptable. It is pertinent to note that on 21.11.2013, the said victim gave birth to a baby boy and within a short time her statement was recorded by the police. One has to evaluate the trauma she had been suffering at that point of time. She was cheated by accused; She had social stigma of having delivered a baby without marriage and immediately thereafter, enquiry by police. At that point of time, it cannot be expected that she could give details of the incidents. It is not in serious dispute that accused had sex with her. Hence, absence of said facts in Ex.P1 do not injure credibility of her evidence before Court which is subject to cross-examination.
28. PW-1 was a young lady aged about 20 years at the time of incident, became pregnant and delivered a baby without marriage. She was residing in a small village of Puttur Taluk. She suppressed her pregnancy and even she did not inform to her mother. She appears to be studied till VII standard and thereafter she remained at house doing house hold work and rolling beedis. She had no social or public interactions. It appears that she had no worldly 24 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 knowledge. The accused was aged about 54 years. He promised to marry her and misused her innocence. She innocently believed it. Even she did not inform her pregnancy to her mother or complained to police. She might be having a ray of hope in her mind that the accused would give life to her and the child born out of the said physical relationship. But inspite of lodging a complaint, the accused did not agree to marry her and look after her and her son. All these facts shows that evidence of PW-1 is trust worthy.
29. The scientific evidence i.e., DNA report prove that accused is genetic/biological father of the said child, born to the victim. Hence, the contention of the accused that PW1 had worldly knowledge and it was consensual sex, is untenable. Accused could not get any admission of the fact that PW-1 has knowledge that accused was married and having children.
30. It is the contention of the accused that "he was already married and having children and he is the distant 25 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 relative of PW-2. He had sent marriage invitation of his daughter to PW-2, which was admitted by her in her cross- examination. The accused used to attend the family functions along with his wife and children, where PW-2, her husband and children had also participated. PW-1 also knew that accused was married. Therefore, allegation that accused had sex with her by deceitful means is not believable".
Looking to the materials available on record, it appears that there is communication gap between PWs-1 and 2 as well as father of PW-1. There is no evidence on record to show that PW-2 had informed about marriage of daughter of accused and receipt of marriage invitation to PW-1. She has not stated in her evidence that she and PW- 1 attended the marriage ceremony of daughter of accused. There is no legal presumption that if marriage invitation is sent to the members of a family, then each member has knowledge of the same. From the evidence of PWs-1 and 2, it shows that there is a communication gap between them. PW-2 did not notice that PW-1 was pregnant till the 26 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 completion of eight months of her pregnancy. All these circumstances, indicate that what ever information got by PW-2, were not conveyed to PW-1. Under such circumstances, PW-2 received marriage invitation card of daughter of accused, cannot be a ground to believe that PW-1 had knowledge that accused is married having children, prior to the incident.
For sake of discussion, even if it is accepted that PW-1 had knowledge of marriage of accused it does not make much difference. There are no reasons to PW-1, for falsely implicate the accused. Even if accused was intended to marry PW-1 it would not permit him to commit offence of rape. PW-1 unequivocally deposed that she has not consented for sexual intercourse and accused forcefully had sex with her against her wish, under Section 114A of Indian Evidence Act, the Court shall believe that she did not give consent for sexual acts. By the evidence of PW-1, prosecution is able to prove that accused had sexual intercourse with PW-1, against her wish and due to threat of accused, she did not tell the said facts to others. 27 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017
31. Prosecution has examined PW-2, who is the mother of PW-1. In her evidence, PW-2 has narrated about her blood relationship with accused and PW-1. She has stated that while giving bath to PW-1, she came to know that PW-1 was pregnant and she took PW-1 to the hospital and got confirmed it. On enquiry with PW-1, she told that accused was responsible for her pregnancy and he threatened her, therefore, she did not reveal the said facts to others. In her detailed cross-examination, she has elaborated the facts of the case and marital status of accused. The said cross-examination is not helpful for the accused to disbelieve her evidence. PW-2 fully corroborated the evidence of PW-1. She is not an eye-witness. Therefore, her evidence corroborate the prosecution to prove that usually PW-1 will be alone at home from morning till evening and her house is at an isolated place.
32. PW-3 is medical officer, who has stated about delivery of baby boy by PW-1 on 21.11.2013. Accordingly, 28 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 he issued a certificate as per Ex.P6. The birth of a boy to PW-1 on 21.11.2013 is not seriously disputed.
33. PW-4 is medical officer of Government Hospital, Puttur. He has also stated about delivery of baby boy by PW-1 on 21.11.2013 and on enquiry to PW-1 about name of father of baby, PW-1 revealed the facts and acts of accused. PW-4 got it confirmed from PW-2. Therefore, he reported the said information to Puttur Police Station under Ex.P7. He gave inpatient medical records as per Ex.P8 and OPD chit as per Ex.P9 to police. He has also stated that on 23.11.2013, PW-1 was discharged from the hospital. The said facts was not denied in his cross-examination. The evidence of PW-3 and PW-4 corroborate the evidence of PW-1 about the delivery of baby boy and the issue of birth certificate of a baby.
34. PW-7/Rohini is witness to spot mahazar. She has stated about visit of police to the house of PW-1, drawing of Ex.P2 and obtaining her signature on Ex.P2. She enquired with PW-1 and got information that accused 29 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 raped her, due to which, she became pregnant and delivered the baby boy and she corroborated case of prosecution about drawing of mahazar.
35. After arrest of the accused, he was produced before the Medical Officer of Government Hospital, Puttur, i.e., PW-5. She has examined the accused and given certificate as per Ex.P10, opining that there were no evidences to suggest that accused was incapable of performing the sexual intercourse. Accused has not denied evidence of PW-5 and Ex.P10. It is pertinent to note that in the cross-examination of PWs-1 and 2, the accused had suggested that he has wife and children indicating about his potentiality to have sexual intercourse. Evidence of PW-5 helped prosecution to prove the same.
36. PW-5 had also obtained the blood sample of the accused in the open Court of JMFC, Puttur and sent through police to DNA Centre. She has deposed the same before the Court. In her cross- examination, nothing is brought out to discard her evidence. The evidence of PW-5 proves 30 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 that blood samples of the accused, PW-1 and her baby boy Sandeep was obtained in the open Court on 18.03.2014.
37. The prosecution examined PW-6, who was in- charge Head Master of Karnataka Higher Primary School. He has stated that he gave date of birth certificate of PW-1 on 15.12.2013 as per Ex.P12 and her date of birth was 03.01.1991 as per school register. It is not in dispute that she was a major as on the date of the alleged incident. Therefore, evidence of PW-6 is not of much importance and the accused has not cross-examined PW-6.
38. PW-12/Dr.Vinod J Lakkappa is Assistant Director of FSL. He has stated about examining the blood samples of PW-1, her baby boy and accused and gave DNA report stating that as per the said DNA report, "accused is biological father of son of PW-1, by name, Sandeepa and he gave certificate in this regard as per Ex.P13". In his cross-examination, some technical questions were asked not pertaining to the DNA report, but regarding the other 31 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 procedures, but they do not help to demolish the evidence of PW-12 or disbelieve DNA report - Ex.P13.
39. PW-8 is not so important witness. He received DNA report from the office of the Deputy Superintendent of Police as per Ex.P13(a).
40. PW-9 has drawn Ex.P2 in the house of PW-1 and has stated about the same. His evidence corroborate case of prosecution and evidence of PW-7.
41. PW-10 is Police Constable who handed over blood samples of PW-1, her son and accused to the FSL and is not material witness.
42. PW-13 is Assistant Police Inspector and Station House Officer of Puttur Town Police Station has stated that on 21.11.2013, he received memo from the Government Hospital, Puttur and thereafter, he went to Government Hospital, recorded statement of PW-1 and on that basis registered FIR as per Ex.P19 and handed over file to his superior officer.
32 Crl.A.No.1064/2017 a/wCrl.A.No.1066/2017
43. PW-11 is Investigating Officer who has partly investigated the case. He has also stated that he submitted Ex.P17 to the Court and added Section 376 of IPC in the FIR. On 14.09.2015, he arrested the accused and produced before the Court. He recorded further statement of PW-1 and other witnesses and submitted the charge-sheet to the Court. In his cross-examination, nothing is brought out to discredit his evidence.
44. PW-14 is Sub-Inspector of Police who had partly investigated the case. She has narrated about part of investigation done by her, i.e., taking up blood sample of the accused with the permission of the Court, drawing up of the mahazar, securing the date of birth certificate from school records of PW-1, producing the accused before the medical officer for clinical test. In her cross-examination, nothing is brought out, that favours accused.
45. By the evidence of PW-1, prosecution proved that accused has made false promise of marriage to PW-1, had close intimacy with her and had forceful sex with her, misusing her innocence and threatened her with dire 33 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 consequences, if she reveal the said fact to others. The accused had sexual intercourse with her three to four times. When she conceived, he went on dodging his marriage with PW-1. She delivered baby boy in Government Hospital, Puttur by name Sandeepa. The blood sample of PW-1, her son and accused were taken for securing expert opinion, i.e., DNA report. The DNA report also proved that the accused is biological father of the said boy. In the defence, accused accepted that he had sex with PW-1. But his contention is that, it was consensual sex. The said contention was denied by PW-1. Evidence on record also prove that she did not give consent for sexual intercourse with her. All these circumstances prove beyond all reasonable doubt that the accused had committed an offence punishable under Section 376 of IPC.
46. It is the evidence of PW-1 that accused has given threat to her/criminally intimidated her of dire consequences if she disclosed the incident to others. Therefore, she did not inform anybody including her mother or she has not filed any complaint against accused. In the 34 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 cross-examination, there is no specific denial about evidence given by PW-1. Even in her cross-examination by the accused, she has stated that accused has given threat to her, not to disclose the fact of sexual assault on her to others, including her mother. In the cross-examination, she has stated that due to threat of the accused, she has not informed about the incident to police or her mother. There are no reasons to disbelieve the said fact.
47. It is pertinent to note that accused is none other than distant relative of PW-2 and most of the time PW-1 alone was at home during day time. Therefore, she might have feared that accused may materialise threat given to her and hence, she did not inform the incident to the police or her parents.
48. PW-2 also in her evidence has stated that due to threat of accused, PW-2 did not inform her. The evidence of PW-1 is corroborated by PW-2. In the cross-examination of PW-2, said fact was not denied by accused. From the said facts and circumstances of this case, it is proved that due 35 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 to threat of accused, PW-1 did not inform the illegal acts of accused either to police or to her mother. PW-1 had right to lodge complaint to police regarding offence committed by the accused. Due to his threat she was prevented from exercising said right. Hence prosecution is able to prove that accused has committed an offence punishable under section 506 of IPC.
49. The learned Additional State Public Prosecutor has relied on a judgment in the case of Phool Singh Vs. State of Madhya Pradesh1 wherein the Hon'ble Apex Court held that "there can be conviction on the sole testimony of the victim/prosecutrix, when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality as a general rule, if credible, conviction of an accused can be based on the sole testimony, without corroboration. Sole testimony of the prosecutrix should not be doubted by the Court necessarily on the basis of assumption and surmises. 1 2022 (2) SCC 74 36 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 Testimony of the victim is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of the victim of sexual assault alone, to convict the accused where her testimony inspires confidence and is found to be reliable. Further, seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to the injury."
50. The law laid down in the above said case is applicable to facts of the present case. In the present case, though there is a sole witness of victim PW-1, in the detailed cross-examination, nothing is brought out to disbelieve or discard evidence of PW-1 and her evidence is trustworthy. Therefore, her evidence is sufficient to prove guilt of accused.
51. The learned advocate for respondent/accused has relied on a judgment in the case of Naim Ahamed Vs. 37 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 State (NCT of Delhi)2. In the said case also, accused promised to marry the victim lady who was already married and accused enticed the said lady and made separate house in different area and continued to have illicit relationship with said lady. He assured to marry her, however, he did not marry her. She lived with him for some years and had illicit relationship with accused. Thereafter, when he refused to marry her and she came to know that accused was already married person having children, she lodged the complaint alleging that he had committed rape against her. The Hon'ble Supreme Court considering the facts and circumstances of that case held that it does not amount to rape, but at the most, it may amount offence Punishable under section 417 of IPC.
In this case, facts are totally different. The accused was distant relative of PW-2. He was frequently visiting house of PWs-1 and 2. When PW-1 was alone at the house, he persuaded her to marry him. Thereafter, against her wish, he raped her on three to four occasion and he also 2 2023 SCC online SC 89 38 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 assured to marry her. When she conceived , he refused to marry her. Materials on record clearly indicates that there was no consensual sex in the present case. It is more or less with the forceful and deceitful. Therefore, the principle of law laid down in the above said judgment is not applicable to the facts of the present case.
52. The Trial Court convicted the accused for the offence punishable under Section 417 of IPC. The evidence of PW-1 proves that he had committed the said offence. He induced and persuaded the innocent girl though he was aged about 54 years that he would marry her and thereafter, inspite of her refusal, forcefully had sex with her three to four times. He committed the said acts under the false promise of marriage and threatened her that she should not inform said facts to anybody. Due to the threat, PW-1 did not inform these facts even to her mother. Accused is married person having children and out of them, he arranged marriage of his daughter, few years prior to the incident. PW-1 has stated that accused promised her that he would marry her and had sex with her against her 39 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 wish. Accused knew that he is married and he cannot marry again during life time of his wife. Knowing fully well he promised and made PW-1 to believe that he would marry her and had sex with her with force. The conduct of accused clearly shows that by forcefully and deceitfully he had sex with victim with false promise of marrying the victim. Considering these facts, the learned Sessions Judge rightly convicted the accused of the offence punishable under Section 417 of IPC.
53 . The learned Sessions Judge sentenced the accused to undergo simple imprisonment for a period of two months for the offence punishable under Section 417 of IPC and directed to pay compensation of `20,000/- to the child of PW-1/victim, within two months, in default of payment of compensation, he shall undergo simple imprisonment for a period of two months. The sentence imposed by the trial Court is inadequate.
54. The learned Sessions Judge in the impugned judgment has stated that accused had promised PW-1 that 40 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 he would marry her and had sexual intercourse on her. Therefore, her evidence proves that the accused had committed an offence punishable under Section 417 of IPC and not under Section 376 of the IPC. The learned Sessions Judge held that it was a consensual sex. Said finding is erroneous. The evidence of PW-1 is discussed in detail in the above paragraphs. She has repeatedly stated that accused had sex with her three to four times against her wish and consent. She has resisted the said act of the accused. However, the accused forcefully had sex with her and thereafter, promised her that he would marry her. The learned Sessions Judge without considering the evidence of PW-1 properly, held that it was consensual sex on the deceitful promise of accused that he would marry her. Therefore, the findings of the learned Sessions Judge is perverse and interference by this Court is required.
55. The Appellate Court should be slow while reversing a judgment of acquittal. However, after reassessment of the evidence, if it is found that the findings of the Trial Court is perverse, arbitrary and illegal 41 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 and against the settled principles of law, then only the Appellate Court has to reverse the said judgment. In the present case, Trial Court did not appreciate the evidence of PW-1 properly. Therefore, the said finding is perverse. The learned Sessions Judge has not considered Section 90 of Indian Penal Code and Section 114-A of the Indian Evidence Act. PW-1 either in the examination-in-chief or in the cross-examination has stated that she had consented for sexual intercourse with the accused. When that evidence is not available on record, the findings of the learned Sessions Judge that it was a consensual sex is not acceptable.
56. It is settled law that while reversing acquittal judgment, the Appellate Court should think twice and be cautious. The Appellate Court must keep in mind that there is double presumption in favour of accused. One is general principle that accused shall be presumed to be innocent ill guilt is proved. And second presumption is that the Trial Court after appreciating evidence, decided that guilt is not proved and his innocence is approved by the Court. But 42 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 that does not mean that the Appellate Court has no jurisdiction or authority to reverse the judgment of acquittal passed by the Trial Court.
57. In the following cases, the Hon'ble Apex Court held that the Appellate Court has jurisdiction to interfere in the findings of the Trial Court if the said findings are arbitrary, perverse and illegal.
57A. In the recent judgments; in the case of Siju Kurian Vs. State of Karnataka3, the Hon'ble Apex Court relying on the previous judgments and also relying on the land-mark judgment of the Privy Council in the case of Sheo Swarup Vs. King Emperor4, held as under:
"19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal".3
2023 SCC OnLine SC 429 4 AIR 1934 PC 227 43 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 The Hon'ble Apex Court quoted the principle of law laid down in the matter of Chandrappa Vs. State of Karnataka5, where it is held as under:
"42. ... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
5 (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , 44 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.'
58. In this case also, after re-appreciating the evidence, this Court is of firm opinion that the accused has committed an offence punishable under Section 376 of IPC. The Trial Court has not properly appreciated the evidence and it erred in disbelieving the evidence of PW-1 on flimsy reasons. There are no two views possible in this case. Only one view is available that the accused has committed rape on PW-1. That was not considered by the Trial Court. 45 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 Therefore, to that extent, the findings of the Trial Court needs to be interfered.
59. The learned Sessions Judge mainly relied on the absence of word 'rape' in Ex.P1 to hold that it was the consensual sex. The learned Sessions Judge totally ignored oral evidence given by her before the Court on oath. Even under Ex.P3, she had stated before the learned JMFC that accused had sex with her, with a false promise of marriage, against her wish. Therefore, the said finding of the learned Sessions Judge is perverse. The learned Sessions Judge, on the basis of conduct of PW-1, held that she had consented for sexual intercourse, due to false promise of marrying her said finding is contrary to evidence of PW-1.
60. The learned Sessions Judge disbelieved the evidence of PW-1 regarding the fact of rape, on the ground that she knew that the accused was married and having children. Infact, PW-1 unequivocally, in her evidence, has stated that she never met the wife and children of the accused and his wife and children never attended family function of PW-1. There were no reasons to disbelieve her 46 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 evidence. As already stated, there was communication gap between PWs-1 and 2. Merely, PW-2 knew about invitation of marriage of daughter of accused cannot be a ground to hold that PW-1 had also knowledge of marriage of daughter of accused. There is no such presumption under law. Therefore, discarding of evidence of PW-1 on this ground, by the Sessions Court, is erroneous.
61. In view of the said law laid down in the above said judgment, it is proper and fit case to interfere in the findings of the learned Trial Judge.
62. The learned Sessions Judge BY appreciating the evidence, held that accused by giving a false promise had sexual intercourse with PW-1 and on the basis of materials available on record, convicted the accused for the offence punishable under Section 417 of IPC. That is not challenged by accused. Even on re-appreciation of evidence of PW-1 as discussed in the above paras, we also find that there are sufficient evidence to accept the case of 47 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 the prosecution that accused has committed offence under Section 417 of IPC.
63. Therefore, the learned Trial Judge rightly convicted the accused for the offence punishable under Section 417 of IPC and there is no need to interfere in the said findings.
64. The contention of the learned additional state public prosecutor that sentence imposed against the accused for the offence punishable under Section 417 of IPC is very disproportionate and inadequate. The said offence is punishable with imprisonment which may extend to one year or with fine or with both. In this case, the learned Sessions Judge imposed the sentence of imprisonment for a period of two months. However, no fine was imposed. Therefore, the punishment imposed against the accused is highly disproportionate and inadequate.
The said submission is acceptable. The learned Sessions Judge has not assigned reasons regarding punishment imposed against the accused. Victim is aged 48 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 20 years at the time of incident. Her future life has been spoiled by accused who is aged about 54 years. She gave birth to a child, it also has to suffer by social stigma. Considering all these facts, the punishment imposed by the learned trial Judge needs enhancement. Therefore, there is need to interfere in the findings of the Trial Court regarding the imposition of the sentence against accused for the offence punishable under Section 417 of IPC.
65. For above said discussions, we answer points No.1 to 4 in the affirmative.
66. For the above said reasons, we pass the following:
ORDER
i) Appeal in 1064 of 2017 and 1066 of 2017 are allowed.
ii) Impugned judgment passed in Sessions Case No.50/2016 dated 28.09.2016 by the learned VI Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, acquitting accused of the offence punishable under Section 376 and 506 of IPC is set aside. And convicting the accused of 49 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 the offence punishable under Section 417 of IPC is confirmed.
iii) Accused, namely, Thaniyappa Purusha, Son of late Annappa Purusha, Aged about 53 years, Coolie by work, Residing at Thirthara Kadu Site Mane, Mudipu, Kairangala Village and Post, Bantwal Taluk - 574 211, is found guilty for the offences punishable under section 376 and Section 506 of the IPC.
iv) The sentence imposed against accused for the offence punishable under Section 417 of IPC shall be modified.
To hear on Sentence.
Sd/-
JUDGE Sd/-
JUDGE DH 50 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 Dr.HBPSJ & UMBAJ: Crl.A.No.1064/2017 a/w 22.02.2024 Crl.A.No.1066/2017 Hearing on Sentence Heard the learned Additional State Public Prosecutor for the Appellant/State and the learned advocate for respondent/accused on sentence.
2. The learned advocate for accused submits that accused is aged about 60 years having wife and children. They are depending upon earnings of the accused. He has social and family responsibilities. If he is punished with maximum imprisonment as provided under the law, then he and members of his family would be put to irreparable loss and hardship. Therefore, prayed to take lenient view while imposing the sentence.
3. The learned Additional State Public Prosecutor would submit that accused at the age of 55 years having wife and children has committed heinous crime of rape on innocent victim, who was resident of a village and spoiled her name, fame and career. Due to the 51 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 illegal act of the accused, she became pregnant and delivered a baby boy. Even the accused is not looking after the said baby. On the contrary, he denied entire allegations against him and he contends that he was not father of the said baby of the victim. Therefore, maximum permissible sentence shall be imposed against him.
4. Looking to the facts and circumstances, we are not inclined to extend benefit of Probation of Offenders Act to the accused.
5. The accused is found guilty of the offences punishable under Section 376, 506 and 417 of IPC. The accused has committed repeated sexual acts with victim girl three to four times on different dates.
6. There are no criminal antecedents against the accused. Admittedly, accused is married and having wife and children. He appears to be aged, around 60 years as per materials on record. Considering his social, educational and economical backwardness as well as his age and social responsibility, lenient view needs to be taken while 52 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 imposing the sentence. However, leniency does not mean of imposing inadequate or meagre sentence. It shall be proper justifiable and adequate to the offence committed by the accused. To strike the balance between them both, adequate and proportionate/sentence to be imposed.
7. Accordingly, we sentence the accused as under:
ORDER
i) The accused, namely, Thaniyappa Purusha, Son of late Annappa Purusha, Aged about 53 years, Coolie by work, Residing at Thirthara Kadu Site Mane, Mudipu, Kairangala Village and Post, Bantwal Taluk - 574 211, is sentenced to undergo rigorous imprisonment for a period of ten (10) years and shall pay fine of `50,000 (Rupees Fifty Thousand only), in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one (1) year, for the offence punishable under Section 376 of IPC.53 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017
ii) The accused is sentenced to undergo rigorous imprisonment for a period of one (1) year and shall pay fine of `5,000 (Rupees Five Thousand only), in default of payment of fine, he shall undergo imprisonment for a period of two (2) months for the offence punishable under Section 506 of the IPC.
iii) The accused is sentenced to undergo imprisonment for a period of six (6) months and shall pay fine of `5,000 (Rupees Five Thousand only), in default of payment of fine, he shall undergo imprisonment for a period of two (2) months for the offence punishable under Section 417 of IPC. Accordingly, the sentence passed by the Sessions Court under Section 417 of IPC stands modified.
iv) The substantive sentence of imprisonment shall run concurrently. v) Accused is entitled for set-off as provided under Section 428 of CR.P.C. 54 Crl.A.No.1064/2017 a/w Crl.A.No.1066/2017 vi) On deposit of the fine of `60,000 (Rupees
Sixty Thousand only) by the accused `50,000/- is ordered to be paid to the PW-1 victim lady as compensation under Section 357 of Cr.P.C.
vii) The Member Secretary, Legal Service Authority of the concerned District is directed to consider awarding the compensation to the victim under the Victim Compensation Scheme as provided under Section 357-A of Cr.P.C., and the Registry is directed to send copy of this judgment to District Legal Services Authority of the concerned District, for considering payment of compensation within period of three (3) months from the date of receipt of copy of this order.
viii) Since sentence imposed against accused under Section 417 of IPC is modified, the order of the Trial Court awarding compensation to the victim does not survive.
55 Crl.A.No.1064/2017 a/wCrl.A.No.1066/2017
ix) Accused shall surrender before the concerned Court within a period of forty five (45) days from the date of this order to undergo sentence.
x) The Registry is directed to send back Trial Court records along with a copy of this judgment.
xi) Free copy of the judgment shall be
furnished to the accused.
Sd/-
JUDGE
Sd/-
JUDGE
DH