Karnataka High Court
Devappa S/O Yegappa Kayipalle vs The State Through Yadgir (R) Ps,Yadgir on 26 February, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 26TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.3715 OF 2010
BETWEEN:
Devappa S/o Yegappa Kayipalle,
Age: 20 Years, Occ: Coolie,
R/o: Yergol,
Taluk and District Yadgir. ... APPELLANT.
(By Shri Mahantesh.H.Desai, Advocate )
AND:
The State through
Yadgir (R) Police Station,
District Yadgir. ... RESPONDENT
( By Shri Sanjay.A.Patil, Additional State Public Prosecutor)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C by the Advocate for the appellant/accused No.1 praying
that this Court may be pleased to, set aside the Judgment of
conviction and order of sentence passed by the District and
Sessions Judge at Yadgir in Sessions Case No.56/2011 dated
16.9.2010, wherein convicting the appellant/accused for the
offence punishable under Sections 366 and 376 of Indian Penal
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Code and the appellant/accused is sentenced to undergo rigorous
imprisonment for five years and to pay fine of Rs.25,000/- ID.
He shall further undergo rigorous for one more year for the
offence punishable under Section 366 of Indian Penal Code.
Further the appellant/accused No.1 is sentenced to undergo
rigorous imprisonment for a period of ten years and to pay a fine
of Rs.50,000/- ID. He shall further undergo rigorous
imprisonment for two more years for the offence punishable
under Section 376 of Indian Penal Code.
This appeal coming on for hearing, this day, the Court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.
2. The appeal is by the accused being found guilty of offences punishable under Sections 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC' for brevity), and whereby has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.25,000/- for an offence punishable under Section 366 and to undergo rigorous imprisonment for a period of 10 years and to pay a fine 3 of Rs.50,000/- for the offence punishable under Section 376 IPC. The background leading up to this appeal is as follows:
The complainant was one Siddamma, W/o. Basavaraj Yabaganavar. She is a resident of Yaragol and is running a wayside hotel in the village. She has five daughters and two sons. It is her contention that there was an open space in front of her hotel where one Hanamant, S/o. Kashmallappa wanted to set up a business. She had opposed it and for this reason, there was an altercation between her and Hanamant. He however opened a vegetable shop in front of the hotel in an open space belonging to a third party. It is her allegation that on 21.12.2008, she went to her agricultural land to attend to certain work, leaving behind her daughter Nagaveni who was aged around 15, at home. When she came back home, she could not find her daughter at home and started searching for her. One Basappa S/o. Bhimanna Karakalli of the same village, on enquiry informed her that he had seen her daughter being led by one Devappa, S/o. Yogappa Kayipalle. It was her belief that it was at the 4 instigation of the said Hanamant that this Devappa had apparently abducted Nagaveni when she had come out of the house to ease herself at about 4.30 p.m. It was her further allegation that with an intention to marry Nagaveni, he had abducted her at the instigation of Hanamant. It was her further allegation that Nagaveni was wearing a gold necklace weighing about 2 tolas and a locket weighing about 1 tola at the time of her abduction and despite search in all the known places, the complainant could not trace her and therefore, she had lodged a complaint about six days subsequent to the disappearance of Nagaveni.
On the strength of the complaint, the Yadgir Rural Police Station, registered a case for offences punishable under Sections 114, 366-A read with Section 34 IPC and took up investigation. In the course of investigation, the accused - appellant herein was apprehended on 6.2.2009 at Yaragol along with the victim and both Nagaveni and the accused were produced before the court of the Additional JMFC, Yadgir. The accused was remanded to 5 judicial custody and Nagaveni was sent to a remand home at Gulbarga, since she refused to go along with her parents. Later, she however agreed to go with her mother and stayed with her. In the meanwhile, Hanamant who was arrayed as Accused No.2 had obtained bail. So also the present appellant. It is later after investigation, that a charge-sheet was filed and the case was committed to the Court of Sessions Judge, Gulbarga and made over to the Fast Track Court, Yadgir. The charges were framed against the accused for offences punishable under Section 366 and 144 read with Section 34 IPC. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.', for brevity) and since he pleaded not guilty and claimed to be tried, the prosecution examined 19 witnesses apart from marking Exhibits P1 to P14. On hearing the arguments of the parties, the court below had framed the following points for consideration:
"1. Whether the prosecution proves that, on 21-12-2008 at about 4-30 pm., at Yaragol village 6 when the daughter of the complainant by name Nagaveni was proceeding to answer nature call the accused No.1 kidnapped her with an intention to marry or to seduce her to illicit intercourse against her will and thereby committed the offence punishable under Section 366 of the Indian Penal Code?
2. Whether the prosecution further proves that on the above said date, time and place the accused No.2 abetted accused No.1 to kidnap Nagaveni, the daughter of the complainant and due to said abetment accused No.1 kidnapped the said Nagaveni and thereby accused No.2 committed an offence punishable under Section 114 of the Indian Penal Code?
3. Whether the prosecution further proves that the accused No.1 after kidnapping the daughter of the complainant kept her in a house at Bangalore and more than 1 ½ months when they were at Bangalore he was having forcible sexual intercourse with her against her will and thereby 7 committed an offence punishable under Section 376 of Indian Penal Code?
4. What sentence or order?"
The trial Court answered point Nos.1 and 3 in the affirmative and Point No.2 in the negative and convicted the appellant as aforesaid. It is that which is under challenge in the present appeal.
3. The learned counsel for the appellant contends that the prosecution has mainly relied upon the evidence of PWs 10, 11 and 13, to prove the alleged incident. The evidence of these witnesses is inconsistent. The tenor of the evidence is totally improbable. Further, that PW-10 is the complainant and the mother of the victim. PW-13 is the alleged victim. PW-11 is the maternal uncle of the victim. PW-10 and 11 were not in a position to provide any evidence as regards the alleged rape said to have been committed on the alleged victim. PW-13 herself has not stated about the act of rape committed on her. She had 8 also not made any such statements before her mother and sisters and other close relatives. It is only after a lapse of 15 months that for the first time, she had claimed that there was forced sex on her by the appellant. This therefore would clearly demonstrate the falsity of the allegation of rape against the appellant. Further, the age of the alleged victim has been exaggerated to be a minor and aged less than 16 years. In this regard, the age certificate of the victim Exhibit P-14 indicates the date of birth of the victim as 1.6.1993. The same cannot be relied upon as admittedly, the parents of the victim were illiterate and the date of birth provided to the school authorities is a rough estimate and hence, the same being relied upon to firmly establish the age of the victim would be prejudicial to the defence of the accused. Even the finding of the court was to the effect that at the time of the alleged incident, the victim was aged about 15 years 6 months and 20 days, which would be a further circumstance to hold that she was aged more than 16 at the time of the incident and the same was a strong possibility. 9 The court below has placed reliance on the evidence of PW-13 alone to arrive at a finding that there was rape committed on the victim continuously for over a month. But however, from a reading of the oral testimony of the witnesses, it is her statement that the present appellant took her away from her village by promising to marry her and that he took her to Bangalore and he had kept her in a house which he would always lock up before leaving and ensure that she could not call for help at all, as he would always close the windows and on returning back home, he would gag her and then commit rape on her. The said statement is not in relation to a day or two, but in respect of a period of over 45 days. This is highly impossible in a city such as Bangalore, and the victim having been kept in confinement when it is admitted that she had been left alone by the accused and that he was not standing guard over her preventing her from shouting or calling for help, is highly improbable. This the Court has accepted without any reservation, though the fact that she claimed the appellant was also closing the window, would 10 not have prevented her from opening the same after he had left to call out for help. Therefore, the entire case of the prosecution is based on the testimony of PW-13 insofar as the allegation of rape is concerned. It is further pointed out that there is no medical report furnished as regards the victim to indicate that she had been sexually violated, in that, she was subjected to sexual intercourse over a period of time. In the absence of any such medical evidence, to proceed merely on the basis of oral testimony without any supporting material and the manner in which she had alleged the commission of rape by the appellant, could not have been accepted by the court below, in the absence of corroborative evidence or medical evidence of the victim claiming the commission of rape 15 months after she first had the opportunity of making such an allegation ought not to have been accepted by the court in mulcting the appellant with severe punishment, even without the same being established. The Medical Practitioner who had been examined as PW-8 has also stated in her evidence that there was no evidence of recent 11 sexual intercourse. Hence, neither was there any indication of the victim having been ravished by the appellant or that she was used to sexual intercourse. Therefore, there was no basis for the court below to have proceeded to hold that there was commission of rape by the accused. When the credibility of the testimony of PW-13 is in grave doubt insofar as the allegations of rape are concerned, the further version of the victim that the appellant had enticed her to accompany him on the promise of marriage and that she was continuously raped against her will and hence, there was abduction, is also not capable of being accepted. Even according to the victim, she was taken in a vehicle colloquially called as 'Tom Tom', from her village to Wadi and they had boarded a train to reach Bangalore. When the allegation is that she was abducted against her will, the fact that she has followed the appellant without any demur or protest when she had every opportunity to seek the help of the general public throughout the course of journey, is left unexplained. However, the appellant having been charged with commission of 12 an offence punishable under Section 366 IPC, is in the face of such a conduct on the part of the alleged victim. Therefore, when the age of the victim is doubtful, even if the entire case of the prosecution is to be accepted, the only conclusion that can be drawn is that she had willfully accompanied the appellant to Bangalore and had stayed with him in a place at Bangalore and had indulged in consensual sex. The allegation that the appellant had abducted her and committed rape therefore, cannot be established on the basis of material evidence on record, and would submit that the findings of the court below are unacceptable having regard to the tenor of the evidence and the want of evidence to support the case of the prosecution to establish the commission of the said offence, beyond all reasonable doubt. Hence, the learned counsel for the appellant seeks that the appeal be allowed and the appellant acquitted, while setting aside the judgment of the court below. 13
4. The learned Additional State Public Prosecutor on the other hand, would submit that the finding of the court as to the age of the victim is that she was less than 16 years old. Therefore, she was under the custody of her natural guardian, her parents and even if she had willfully accompanied the appellant, it would amount to abduction, as he has taken the victim from the custody of the parents and by virtue of the fact that she was a minor, it would amount to abduction. Further, the victim being of a tender age in the relative sense of a woman, she was susceptible to being terrorized and the appellant having induced to accompany him to Bangalore on the pretext of marriage or a good time and having forced her to have sex with him, had instilled fear and kept her completely under his influence during the entire period and since there was no intention to marry her in the first place, the so-called consent would be of a misconception of fact and would not amount to consent. This is the settled legal position as clarified by the Apex Court in the case of Deelip Singh @ Dilip Kumar vs. State 14 of Bihar (2005 (1) SCC 88. While clarifying the law laid down in the case of Uday vs. State of Karnataka ((2003) 4 SCC 46)) that, if consent was obtained on the pretext of marriage, with the promisor never intending to marry and if such consent was given, it would not amount to a valid consent and would be construed as one on a misconception of fact and therefore, the complainant's testimony to the effect that she was kept under confinement with threat to her life and limb if she raised an alarm and tried to seek help, she was a helpless girl of 15 in a strange city and was hardly capable of seeking anybody's help, especially since the appellant had completely brought her under his influence and had abused her throughout the period that she was under his custody. Therefore, the contention that she had willfully accompanied him to Bangalore and that she had a consensual relationship with him and that the allegations of rape and abduction have come late in the day, are attributable to the tender age of the woman and the influence that would come to bear of her in responding or reacting to a situation in a particular 15 manner. The claim that she has not raised a protest at any point of time and had meekly surrendered to the appellant, by itself, is not indicative of a willful participation in the adventure, as claimed by the appellant.
The learned Additional State Public Prosecutor would further submit that a mixture of curiosity and thrill also accompanied by fear having initially prompted her to go along with the accused without demur and to tolerate the ordeal of his exploitation over a period of time, cannot be characterized as unusual or a willful participation in the victim having engaged in sex. Therefore, on a plain interpretation of the law if the age of the victim is taken as less than 16, and if she is therefore a minor, she could not have been taken from the custody of her parents and even if she had meekly followed the appellant at his bidding, the same would fall under the definition of abduction and consent obtained from her was not a valid consent in negating any consensual sex, the same would amount to rape as 16 well. Therefore, the court having returned a finding for offences punishable under Sections 366 and 376 IPC against the appellant, cannot be followed and seeks that the appeal be dismissed.
5. In the above facts and circumstances, the allegation that the appellant had enticed her to accompany him leaving her parents and to go to Bangalore on the promise of marriage, is an allegation without anything more, cannot be readily accepted. The conduct of the appellant of having accompanied him and having stayed with him at Bangalore over a long period of time, would indicate that even at that age and even if there was undue influence brought to bear on her by the appellant, she had occasion to ponder and to share her feelings at least with some person at Bangalore and she could not have been expected to remain a prisoner as is sought to be made out. The allegation that he was keeping her locked up in the house and that she was not even able to open the window, is a circumstance which cannot be accepted. The girl was old enough to raise an alarm, 17 at least after some days of her captivity to procure some assistance even from strangers. Hence, the continued relationship and her staying together with the appellant being construed as forcible confinement and rape, cannot be accepted in the absence of any positive evidence to corroborate the allegation. Insofar as the offence punishable under Section 366 IPC is concerned, the fact remains that the age was established as being less than 16, which made the victim a minor. If she had been taken without the consent of her parents from their custody and if she had accompanied the appellant at his bidding, whether on a promise of marriage or otherwise, it would certainly fall within the definition of abduction and therefore, the court having held that the offence punishable under Section 366 was proved on the girl having disappeared from the village on 21.12.2008, and having returned only on 6.2.2009, would indicate that she was taken away from the custody of her parents over time and her statement that she had accompanied the appellant would make the offence one punishable under Section 366. The fact 18 that they had lived together in a premise apparently taken on rent at Bangalore for over 45 days, cannot be construed as time spent without there being sex between them. The object of the adventure was certainly to have a good time and this may even be presumed as being by mutual consent though she was minor and her consent to sex has been held as not being valid consent, the fact whether there was deception on the part of the appellant in promising to marry her and therefore, the consent having been given, is not an issue that can be addressed, in the absence of corroborating evidence in this regard, except the mere claim of the victim and belatedly, as pointed out by the learned counsel for the appellant.
Therefore, the question of rape would not arise in the given circumstances. The fact remains that by virtue of this incident, the girl's reputation is practically destroyed given the morale of the present day Indian Society. Further, given the nature of the relationship of the appellant and the victim and the 19 manner in which the entire incident has taken place, the abduction if it was indeed so being sought to be punished with imprisonment of five years, is disproportionate in the opinion of this Court to the degree of force or compulsion that can be said to be present in the appellant's conduct or even the conduct of the victim. But however, the rigor of the section is not lost, as the incident would squarely make it an offence punishable under Section 366 IPC. The punishment of imprisonment would therefore have to be modified.
6. Given the above two circumstances namely, that the girl's reputation has been brought down on account of this incident and the appellant has been visited with punishment which is more rigorous than was warranted, it is necessary to modify the sentence that has been imposed on the appellant. Consequently, the appeal is allowed in part. The appellant is acquitted of the offence punishable under Section 376 IPC. The amount of fine paid if any for the said offence shall be adjusted 20 towards the fine that is sought to be enhanced in respect of the punishment for the offence punishable under Section 366 IPC. The appellant is convicted for the offence punishable under Section 366 IPC and to that extent, the judgment of the court below is affirmed. However, insofar as the quantum of punishment is concerned, the appellant shall suffer rigorous imprisonment for a period of two years and in all, shall pay a fine of Rs.1,00,000/- of which, the fine of Rs.25,000/- paid in respect of the offence punishable under Section 376 IPC shall be adjusted and the appellant shall be liable to pay an additional fine of Rs.25,000/-. In the event of default of payment of such fine, the appellant shall suffer further rigorous imprisonment of six months. Further, the additional fine paid shall be made over as compensation to the victim PW-13, in terms of Section 357 of the Cr.P.C. With the above modifications, the appeal is allowed in part.
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The period spent in judicial custody during the pendency of this appeal shall be set off against the punishment now imposed.
Sd/-
JUDGE KS