Karnataka High Court
Chandrappa S/O Kadappa vs State By Davanagere Rural Police on 18 June, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MR.JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL NO.888 OF 2010
BETWEEN:
CHANDRAPPA
S/O KADAPPA
AGED ABOUT 27 YEARS
TRACTOR DRIVER,
R/O JAMMAPURA VILLAGE
DAVANAGERE TALUK
... APPELLANT
(BY SRI. JAYAPRAKASH K.N, ADVOCATE)
AND:
STATE BY DAVANAGERE RURAL POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE.
... RESPONDENT
(BY SRI. NASRULLA KHAN, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 09.08.2010 PASSED BY THE PRL.DISTRICT
AND SESSIONS JUDGE, DAVANAGERE IN S.C.NO.46/2009
- CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 451, 376 AND
506 (II) OF IPC AND THE APPELLANT/ACCUSED IS
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SENTENCED TO UNDERGO S.I. FOR SEVEN YEARS AND
PAY A FINE OF RS.2,500/- IN DEFAULT OF PAYMENT OF
FINE HE SHALL UNDERGO S.I. FOR THREE MONTHS FOR
THE OFFENCE P/U/S 376 OF IPC; THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I.
FOR ONE YEAR AND PAY A FINE OF RS.500/- IN DEFAULT
OF PAYMENT OF FINE HE SHALL UNDERGO
IMPRISONMENT FOR ONE MONTH FOR THE OFFENCE
P/U/S 451 OF IPC AND THE APPELLANT/ACCUSED IS
FURTHER SENTENCED TO UNDERGO S.I. FOR ONE YEAR
FOR THE OFFENCE P/U/S 506(II) OF IPC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and order dated 9.8.2010 passed by the Principal District and Sessions Judge, Davanagere, in S.C.No.46/2009 convicting the appellant/accused for the offences punishable under Sections 451, 376 and 506 (ii) of IPC.
2. The complaint was registered in Crime No. 15/2009 for the offence punishable under Sections 448, 376 and 506 IPC against the accused. The final report was filed for the said offence. The victim is a girl aged 3 15 years d/o Anjinappa of Jammapura Village, Davanagere.
3. It is stated in the complaint that the complainant/victim was residing with her parents at Jammapura Village, Davanagere, and was studying in 9th standard. On the date of incident on 10.01.2009, victim's parents had gone to see her sister to C.G. Hospital, Davanagere Taluk. Another sister had gone to neighbour's house to watch TV. As it was a Saturday, the victim had returned from the morning school and was engaged in domestic work. Ensuring that no other person was there at home, the accused gained entry into her house and asked the victim to sign on a blank paper. When she refused for that, he tied her mouth with kerchief and hands backwards, committed rape on her and threatened her that she would not be left alive, if she informed to her parents or others. It was 4 3-00 p.m, when the accused went out by closing the door.
4. On the same day her parents came around at 9.30 p.m., asked her why she was alone and keeping quite and also asked about her health, she did not respond. Having seen her depressed face, they started pressuring the complainant as to what happened to her, then she told about the incident and thereafter they decided to lodge a complaint on 13.01.2009.
5. The charge sheet was filed in S.C.No.46/2009. The Principal District and Sessions Judge, Davanagere District, framed the charge for the offence punishable under Sections 451, 376 and 506 (ii) of IPC on the accused. The accused not pleaded guilty, and claimed to be tried.
6. The prosecution in support of the case examined the evidence of PWs-1 to 14 and got marked 5 Exs P-1 to P-12, Exs D1 to D3 and Material Objects 1 to
5.
7. The complainant/victim in her oral evidence as PW1 on 12.01.2010 tells about her stay in the house at 3-00 p.m., on 10.01.2009 alone and gaining of entry into house by the accused who wanted the complainant to sign some blank paper and on refusal by the later he committed rape on her. She was a school going student at the time of incident and in her evidence she has stated that herself and her sister were present at the time of incident. Further, stated that herself and her sister Asha had gone to the house of their uncle and at 3-00 p.m. there was power disconnection and she came back, but her sister stayed at their uncle's house. The complainant was arranging clothes, she could not concentrate because of the sound caused by opening of doors by the accused, who entered and shut her mouth with a kerchief and also tied her hands backward and asked her to sign on a blank paper. Despite her 6 resistance and refusal, he forcibly raped her. The complainant/victim has stated that the act committed by the accused is that of the act of husband and wife. By that time the victim's sister entered inside and accused pulled the victim to the kitchen untied her hands and mouth and also took out kerchief and had sealed her mouth, threatened her if she informs the matter to anybody, he is not going to spare her parents. Her cousin sister Latha who entered the room saw the accused and the complainant and went out. The sister of the complainant has seen the accused, the complainant was afraid of in a brightened state. Hence, she could not tell the matter to others even to her parents.
8. Thereafter on persistent enquiry by her parents after observing the changes in her behavioral pattern, she told about the incident and it was then all of them decided to lodge a police report and filed a 7 complaint on 13.01.2009 as per Ex.P1 and her signature is at Ex.P1(a).
9. Further, the complainant/victim has stated in her complaint that she was referred for medical examination. The victim has been cross-examined by the learned counsel for the accused, wherein she had denied the suggestions made against her version made in the chief-examination. She has stated in her chief- examination that she does not know why the accused asked her to sign in a blank paper. It is elicited from her that her brother is working in CRPF at Haryana.
10. PW-2 - Latha, in her deposition has stated that she is the cousin sister of the complainant/victim. She has deposed about the incident happening on 10.01.2009 in the house of her uncle. Her version in substance is that, on the date of the incident, the parents of victim had gone to Davanagere and hence 8 victim had come to PW-2's house and were watching TV and when she got up to wash the clothes, victim also told she would also accompany her for washing the clothes. While they were going near lake, meanwhile, victim told that she would also get clothes from her house, but she did not return. After waiting for the victim for sometime, when she did not return, PW-2 went to the house of the victim, she saw that the door was bolted from outside. She opened the door and saw victim was sitting and her mouth was closed with a kerchief and accused was sitting in bathroom. Immediately, on seeing PW-2, the accused forcibly gone out of the bathroom and ran away. This was cited by her aunt Smt.Kanthamma, Smt.Rekha and Smt.Nagamma and when all these persons enquired with the victim, she told that the accused had committed rape on her.
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11. PW-2 also deposed about the arrival of the parents of the victim in the evening and thereafter the victim took PW-2 for lodging police report. She was cross-examined by the learned counsel for the accused through which no serious contradictions are seen.
12. Sri.G.N.Mallesh is examined as PW-3. He witness for Ex.P3, MO-1 & 2 the kerchief and cloth which were lying on the tree was recovered under mahazar on 15.01.2009.
13. Sri.Anjinappa, father of victim is examined as PW-4. Sri.Thippeswamy, Secretary of Gram Panchayath, Gudhal is examined as PW-5 for having issued the document relating to the property of PW-4.
14. Sri.Thimmappa, Head Master of Kandanakovi Government High School, where the victim was studying is examined as PW-6.
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15. The father of victim Sri.Anjinappa was examined as PW-4, wherein he has deposed that on the date of incident, he had gone to Davanagere along with his wife and on return, they found that their daughter/victim was keeping quiet without talking to anybody. When they asked about her health, she told the reason of head-ache and later on forcing her why she was in a depressed face, the victim disclosed about the incident that happened on her. Thereafter, PW-4 took her to lodge a complaint.
16. Chandramma, mother of victim is examined as PW 7. Nagamma, aunty of the victim is examined as PW8.
17. Asha, younger sister of the victim was examined as PW-9. She has deposed about the incident dated 10.01.2009 that took place in the absence of the parents of the victim. She has deposed that on the date 11 of incident she was with her sister, both of them went to her uncle's house for watching TV. Meanwhile, the victim told PW-9 that she was about to go with her cousin sister - Latha (PW-2) to the lake for washing the clothes, but PW-2 did not returned. According to this witness on the date of incident, it was stated that PW-9 and the victim came to home at 12.30 p.m., parents had gone to Davanagere, only these sisters were at home and they went to watch TV, victim came back home for washing clothes and when she took time to take clothes towards lake, cousin sister Latha (PW-2) went to see why the victim had not returned and when she went inside, she saw the accused was sitting in the bathroom, thereafter she called PW-9 and asked her to go and enquiry the victim. Accordingly, she went inside and asked the victim, she narrated the incident and offence of rape being committed on her. 12
18. In so far as evidence of PW-10 Nagamma is concerned, she is a circumstantial witness, who turned hostile.
19. H.R Honnappa, PSI Vinobhanagar PS and G.A Jagadeesh, Circle Inspector, Rural were examined as PW-11 and PW-12.
20. Dr.Vishwanath H.D - PW-13 deposed for having medically examined the accused on 15.01.2009. In his evidence, the doctor has deposed that during the relevant period he was working in Davanagere C.G. Hospital. He speaks about the medical examination of the victim and submitted the report, which contained - 'on the left side of the chest there was abrasion' and there was no symptom of recent intercourse, and issued his report as per Ex- P12.
21. Learned counsel for the appellant would submit that the dispute is between the families of the 13 accused and the complainant/victim. In the evidence of the victim, she states that when the accused gained entry into the house of the victim, he asked her to sign on a blank paper and upon refusal by the later, he forcibly raped her.
22. He would further submit that the narration as made by the complainant is laced with exaggerations. Further, he states that at the end of the day, the complainant had made out the case that, PW-1 - victim, her cousin sister Latha - PW-2 and sister Asha - PW-9 reveal that no offence was committed by the accused and even the medical report is not supporting the case of the prosecution.
23. Learned High Court Government Pleader would submit that the complaint is by the very victim, who is aged 15 years and there was no conscience nor any reason for the accused to go to the house of the complainant. Further the proven circumstances speak 14 law about the triable probability of the prosecution version, like sighting of the accused in the bathroom of the house of the complainant/victim by her cousin sister Latha - PW-2 that the accused ran out of the house of the victim and that was also sighted by Nagamma which confirms the presence of the accused.
24. The incident is said to have happened on 10.01.2009 in the house of the victim at Jammapura Village, Davanagere. According to the victim, the accused approached the victim and asked her to sign on a blank paper. She was a student of 9th standard at that time. Insofar as asking the complainant for signing blank papers, details are not forthcoming. Regard being had to the fact that she was said to be a minor, as on that date. Neither prosecution nor accused explained about reasons and context of asking her signature on a blank paper that too, understandably, exclusively by her parents. However, in the complaint she is stated to 15 be 15 years as on that date and as per evidence of the Doctor -PW-14 it is 15 years and as per Dental doctor it is 15 years 6 months and according to Radiologist 18 to 20 years. The contents of Exhibit P-11 which states the details of medical examination and also covering opinion of radiologist, "Dr.Bharath Raj B.S., CMO. C.G.Hospital, Davangere, is as under as on 13.01.2009
- a girl aged about 15 years -moderately built and nourished, conscious, oriented, co-operative.
According to Dr.Sapna - on the clinical and radiological findings, the female patient's age could be 15.2 years plus or minus 6 months. According to Radiologists opinion -
Age of the patient radio logically corresponds to 18- 20 years.
25. It is necessary to mention that the date of incident was 10.01.2009 and complaint was lodged on 16 13.01.2009. Thus examination of the victim was made nearly after 72 hours. Victim was examined by Dr.Sapna. Exhibit P-11 is the letter addressed by Dr.Bharath, CMO, C G Hospital to Investigating officer. The nomenclature of the offence committed on her is stated as "Maanabhanga" by victim in her complaint- Exhibit P-1. In the oral evidence of PW-1, she states that accused barring entering into the house and shut her mouth by inserting a kerchief and tied her hands and asked her to sign on a blank paper and on her refusal he committed "Balathkara". In the context and circumstances, I find the age of the complainant apart from 15 to 18 years, plus or minus is not of that significance. Insofar as evidence of complainant is concerned, no bias is attributed to her or vengeance against the accused to take her to the level of making false allegations of rape. Insofar as mahazars are concerned, they are regarding seizure of kerchief and rope said to have used for commission of offence. At 17 this stage it is necessary to mention that the garments, clothes including inner wear worn by the victim are not produced and are not subjected to chemical examination. Exhibit P-11 which is a letter addressed by the Doctor to the Investigating Officer stating about the details of chemical examination and the opinion regarding the overtact and the age does not specifically state about the offence punishable under Section 376 IPC. The commission of offence punishable under Section 376 need not be concluded exclusively on the basis of penetration. Even in the absence of penetration aggravated sex may also constitute the offence. On given set of circumstances it is on a different footing.
Section 375 IPC is as under:
"375. Rape - A man is said to commit "rape" if he -
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or 18
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.19
Fourthly - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under eighteen years of age.
Seventhly - When she is unable to communicate consent."
26. Insofar as version of the victim regarding allegation of attack on her by the accused is concerned, I do not find exaggerated or punishing attitude against the accused and the evidence of Latha, cousin sister of 20 victim and Asha sister of the victim, evidence of parents fortify the attending circumstances of attack by the accused. Accused was also seen coming out of the house by Nagamma -PW-8 and her version is also fortified by evidence of Latha -PW-2. Parents evidence corroborates direct version of the complainant insofar as delay in lodging of the report is concerned a cursory glance of the following is necessary:
27. Date of offence is said to be at 3 P.M. on 10.01.2009 in the house of the complainant -victim at Jammapura. No action by the complainant on the same day in the form of informing her parents and lodging the complaint. Evidence of the complainant is due to apprehension, frightened state she was unable to express about the incident. However on persistent questioning she informed the same on 13.01.2009 to her mother and without wasting further time complaint is lodged. The sequence of events when arranged 21 chronologically insofar as commission of offence is concerned, it is the case of the prosecution that the accused has committed rape, the definition of which is stated above. The girl is said to be aged 15 years further claiming it to be at 16 or 18 years. However sexual intercourse or other effects or impact is neither alleged in the complaint nor stated in the evidence either by complainant or Latha or by Asha.
28. In this connection I have referred Commentary on Indian Penal Code by Ratanlal Dhirajlal (32nd Edition). Page Nos.2124-2125 reads as under: "56. Proof of sexual intercourse - It is in the domain of a medical expert to report if in fact there was coitus or not. For, this purpose the genital organ of the victim needs thorough examination.
During the examination the following points may be noted:
1. In grown-up females, if the pubic hairs are found matted due to the presence of semen, they should be cut off with a pair of scissors 22 and examined for the presence of human spermatozoa, if possible, or they should be preserved to be forwarded to the Chemical Examiner for the same purpose.
2. Recently effused or dried blood may be found upon the genital organs or in the neighbourhood, and in recent case there may be bleeding from the vagina, which is usually very slight. It should not be forgotten that the bleeding may be due to menstruation, which is possible to be induced by sexual intercourse.
3. Bruising and laceration of the external genitals may be present with redness, tender swelling and inflammation.
4. In nubile virgins the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or 23 six days, and after eight to ten days become shrunken and look like small tags of tissue.
Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of issue, which are called carunculae hymenealis or myrtiformes.
In cases where the hymen is intact and not lacerated or torn, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred, if the vaginal orifice is capacious enough to admit easily the passage of two fingers. The circumference of the hymen can also be measured by a measuring cone. 9 to 10 cms. Circumference of hymen is considered the least necessary for coitus. In girls under fourteen years of age the vaginal orifice is usually so small that it will hardly allow the passage of the little finger through the hymen. It is often difficult to distinguish between an indentation in a fimbriated hymen and a tear, unless the hymen is 24 stretched by a finger tip, glass rod or Brittan's hymenscope which also give excellent transillumination of hymen, when a tear is found to extend upto the vaginal wall." [Med. Science Law, Aug. 1963, 118-120]
29. Learned counsel for the appellant relying on the decision in the case of Sakshi Vs. Union of India and others with Smt. Sudesh Jakhu Vs. Narender Verma and others reported in AIR 2004 SUPREME COURT 3566 would submit that the facts and the evidence of the case when perused along with the materials available clearly indicate the proof themselves that the act alleged against the accused does not tantamount to rape. In this connection, the presence of the accused in the house of the complainant as on the date of incident is established through unbiased non prejudicial evidence of PW1 victim and PW2- Latha cousin sister of the victim and PW9-Asha, younger sister of the victim and the evidence of PW7- Chandramma.
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30. Apart from his presence, the overtact alleged against him is of serious in nature. He gained entry and forced the victim to sign on a blank paper and when she refused, he raped her. Nodoubt, the blank paper and the signature do not have serious significance. But his approaching the complainant/victim and holding her, she protesting and then he spoiled her and threatening her that in case she disclose the matter to any person she would be done to death. Thereafter, Latha, her cousin sister sighting the accused in the bathroom keeping mouth shut. Thus, the presence of the accused and his misbehavior is clearly on record.
31. PW14-Dr. Bharathraj who has examined the victim states that the victim was sent by the police and also was informed by the police that it was a rape case. He deposed the same as PW14. He could have asked the victim regarding the incident. At the same time, he mentioned that, on the left side of chest there was 26 abrasion as reported by Gynecologist. It was also stated by Gynecologist that there was no abnormality in the private organs. The report issued by Dr.Sapna. Ex.P11 Medical Certificate, where she states that there was no evidence suggesting recent sexual act. Further, it is necessary to reiterate the date of incident as stated by the complainant was 10.1.2009, the complaint was lodged on 13.1.2009 as the complainant states that she was under apprehension of threatening given by the accused, hence, she did not state to her parents about the matter. On such information without patting eye lid complaint was lodged. In the circumstances, the medical examination was conducted on the victim on 15.1.2009 by PW14-Dr.Bharathraj that is unbecoming of quality investigation. Thus, the complaint was lodged after three days of the incident and medical examination was conducted after two days after lodging of the complaint. Here, the complainant states that she could not inform her parents about the incident as accused 27 has threatened her. In this connection, the factors that arose about that she could have told the same to her sister Asha or cousin sister Latha.
32. It is the evidence of her sister Asha PW-9 that the victim informed her that she was being spoiled by the accused, but asked Asha not to tell to anybody as the accused has threatened her and she has accepted. She also says her sister had seen the accused. In this connection, no one has decided or informed the elders which is highly questionable.
33. Insofar as medical examination is concerned, the matter of 5 days is not an ordinary factor. Meanwhile what is necessary is of nature calls all are to be considered in the back drop of medical examination, another unworthy lapse by the investigating officer.
34. Latha sighted the accused in the bathroom of the house of the victim and he was staying in the 28 bathroom shutting his mouth. Latha does not make any revelation to anybody, much less to her parents. Thus, from the consolidated reading of the materials available, versions of PW1-Pushpa, PW2-Latha, PW9-Asha, I do not find that the overtact of forcible sexual intercourse without the consent of the victim irrespective of her age has not occurred on the date of the incident. However, the cursory glance at the evidence of the victim and the reliable witnesses of PWs 2 and 9 sisters establish that the accused was very well present and has misbehaved and even tying the hands of the PW1 and inserting kerchief also not ruled out. Totally, this has been aggravated abuse and out raging the modesty of the victim. As already explained, the learned counsel Sri. K.N. Jayaprakash was given an opportunity to submit regarding punishment.
35. In this connection, Section 354 of Code of Criminal Procedure reads as under:
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"354 Whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both".
However, quantum of punishment came to be amended by Act 13/2013 to substitute the punishment which reads as under:
"354. Assault or criminal force to woman with intent to outrage her modesty.- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, (shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.)"
36. Similarly, Section 354 (a) (b) and (c) are all introduced and inserted by Act 13/2013 with effect from 3.02.2013. The date of incident in this case is 10.1.2009. Thus, the punishment point is not considered with retrospective effect as the punishment 30 came into existence in respect of the offence committed after amending the provisions.
37. Learned counsel Sri.Jayaprakash for appellant was given an opportunity to address in entirety considering the proviso Section 386 of the Code of Criminal Procedure. Insofar as other offences are concerned regarding trespassing by the accused into the house of complainant and threatening her are all stand proved in tandem and the same is reflected by both the oral and documentary evidence and the materials available on record.
38. Thus, having considered the materials available on record, I am of the sincere view that the learned trial Judge erred in convicting the accused for the offences punishable under Section 376 of IPC. The acts of the accused squarely fell in the definition of Section 354 instead of Sections 357 and 376 of IPC and thus the accused is liable to be convicted for the offence 31 that is lesser punishable under Section 354 of IPC as on the date of the offence i.e. 10.1.2009.
39. The contextual reading of the complaint, evidence of complainant and that of her mother, father, medical document, I am convinced that the offence committed by the accused falls in Section 354 and not Section 376 IPC.
40. Learned counsel for the appellant was given an opportunity of submitting even on the enhancement of quantum of fine considering the proviso 1 and 2 of Section 386 of Cr.P.C. After hearing in full and perusing the materials available on record, I find that Rs.1.00 lac has to be imposed as fine/compensation by exercising powers of sub Sections 3 of Section 357 of Cr.P.C, payable by the accused. The same is ordered to be paid to the complainant.
It is stated that accused has already served the sentence of 12 days short of 2 years.
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In the result, the appeal is hereby allowed in part.
Judgment and order dated 9.8.2010 passed by the Principal District and Sessions Judge, Davanagere, in S.C.No.46/2009 convicting and sentencing is hereby set aside.
The appellant is convicted for the offence punishable under Section 354 of IPC and sentenced him to under go imprisonment for 2 years.
By exercising powers under Section 357(3) of Cr.P.C. the appellant/ accused is hereby directed to pay compensation of Rs.1.00 lac to the victim/PW1.
Sd/-
JUDGE RR/SBN/tsn*