Karnataka High Court
Vimal vs The State Of Karnataka on 28 March, 2014
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.1238/2011
BETWEEN:
VIMAL
S/O LATE RAJA, 20 YEARS
R/AT NO.5, I CROSS, I STAGE
PILLANNA GARDEN, BANGALORE. ... APPELLANT
(BY SRI HARISH A CHARVAKA, ADV.)
AND:
THE STATE OF KARNATAKA
BY FRAZER TOWN POLICE, REP.
THROUGH STATE PUBLIC PROSECUTOR
BANGALORE. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
26.04.2008, PASSED BY THE PRESIDING OFFICER, FAST
TRACK COURT-III, MAYO HALL UNIT, BANGALORE IN
S.C.NO.356/2006 - CONVICTING THE APPELLANT/
ACCUSED FOR AN OFFENCE PUNISHABLE UNDER
SECTION 366(A) AND 376(2)(f) IPC & ETC
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The accused was tried and convicted for offences punishable under Sections 366-A and 376 IPC. Therefore, he is before this court.
2. I have heard Sri.Harish A.Charvaka, learned counsel for accused and learned Government Advocate for the State.
3. The accused was tried for the aforestated offences on the allegations that on 12.01.2006 at about 5.30 p.m., when the victim (a girl aged about 6 ½ years) was playing in front of her house in 9th Cross, near Alphans School, Pillanna Garden, Bangalore, the accused took her by inducing her to give biscuits to a open place by the side of Holy Cross Christian Hostel, Davis Road, Frazer Town, Bangalore and committed rape on her.
4. The victim was examined as PW.2. The trial court after ascertaining that victim is capable to give rational answers however, she has not understood implications of 3 giving evidence on oath has dispensed with administration of oath to victim. The victim has narrated her relationship with some of the prosecution witnesses.
PW.2 (victim) has deposed that at the relevant time, she was studying in Mary Nikethan School; on the date of incident, she returned home at 5.00 p.m; after returning home, she was playing near her house; she knew the accused; accused took the victim to a open place near Alphonsa school by inducing that he would get her biscuits; the accused bet on her mouth and assaulted her with a stone; accused took her to a nearby bush; her skirt had stained with blood; the blood had come out from her private part; the accused assaulted her with a stone and caused bleeding injuries; the accused was wearing trouser and undergarment; the mother of victim seeing the victim in a pitiable condition took her to a Doctor; one person had seen the accused assaulting the victim; the victim was examined by the doctor; she did not go to school for 100 days after the date of incident.
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During cross-examination, she has reiterated the version of the incident. She has denied the suggestion that victim inflicted injuries on her private part with a stick.
5. The victim was aged about 6 ½ years. She knew the accused. She had not developed baser qualities like anger, hatred, ill-will and enmity. She did not have grudge or grievance against the accused. Her evidence is natural. The victim was not aware as to what was done by accused to her. Considering the age of victim, we cannot expect her to give the details of incident and narrate the ingredients of an offence punishable under Section 376 IPC.
The victim has deposed; that accused had taken her to an isolated place and caused injuries to her private part; there was bleeding from the private part of victim; her skirt was stained with blood. The suggestion put to victim that she had inflicted injuries on her vagina by a stick is not only ridiculous but inhuman.
6. PW.1-Prameela is the mother of victim. PW.1 has deposed; that on the date of incident, victim was playing in 5 front of her house; at 4.30 p.m., her son Prabhu informed her that accused took the victim by stating that he would get biscuits to her; then, they started searching for the victim; at 5.45 p.m., they were able to trace the victim; her face was swollen and she was weeping; her skirt was stained with blood; she also found bleeding from the private part of victim; they searched for accused near the place of incident; he was not there; they found a trouser, undergarment and a pair of footwear near the place of incident; they brought the clothes and a pair of footwear; the victim was taken to police station; the first information was lodged by PW.1; the police seized the incriminating articles; the victim was sent for medical examination to Bowring Hospital; the victim had become panic; she was exhausted and she was weeping; the accused was shown to the victim and her mother after he was arrested.
During cross-examination, PW.1 has deposed that she was working as maid servant for two hours in the morning and two hours in the evening. PW.1 has deposed that she had learnt the incident from her daughter. She has denied 6 the suggestion that victim had inflicted injuries on her private part with a stick. As already stated, this suggestion is not only ridiculous but inhuman. At this stage, it is relevant to notice that there was not even a suggestion to PW.1 that there was grudge or grievance to falsely implicate the accused.
7. PW.8-Prabhu is the elder brother of the victim. PW.8 has deposed; on the date of incident at about 4.00 p.m., the victim and her brothers were playing in front of their house; the accused came there and took the victim by inducing her to give biscuits; PW.8 informed the matter to her mother who was white-washing her house; the mother of victim (PW.1) went in search of the victim; the victim was brought back to the house; there were injuries on her cheek; there was bleeding from her vagina; PW.1 took the victim to police station.
During cross-examination, PW.8 has reiterated the version given in examination-in-chief. He has denied the suggestion that he had not seen the accused. He has denied 7 the suggestion that accused had not taken the victim. He has denied the suggestion that victim had caused injuries on her vagina by inserting a stick.
From the evidence of PW.8, we do not find any reasons to discredit his evidence.
8. PW.7-Akban Hussain was running a shop near the house of victim. PW.7 has deposed; that on the date of incident at about 4.30 p.m., or 5.00 p.m., one person came to him and told him that he had gone to answer nature call near open field next to Holy Goals Hostel and he heard the cry of a girl; PW.7 and others rushed to the open ground next to Holy Goals Hostel and found the girl was crying; they asked the girl as to what happened to her; the victim told that her uncle's friend called her to give biscuits, he took her to the ground and that person removed her underwear and fell the victim and inserted his penis and she was getting pain on her private part; there was bleeding from her private part; they searched for that person and they could not find that person; when PW.7 enquired the victim, she told that 8 her house is at Pillanna Garden; they took the victim to her house; the police came and took the victim for medical examination; they noticed a pair of trouser, undergarment and footwear in the police station; these articles were found near the place of incident when they were searching for the accused.
During cross-examination, he has stated that the girl (victim) informed him of the incident in Tamil language. The victim informed PW.7 that her uncle's friend took her saying that he would give biscuits to her. He has denied the suggestion that he had not seen the victim near the place of incident.
PW.7 is an independent witness. He was an immediate post-occurrence witness. He had seen the victim near the place of incident. He had seen the injuries found on the victim. The victim had narrated to him that she was subjected to rape by one of the friends of her uncle (accused). There are no reasons to suspect the evidence of PW.7.
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9. PW.3-David had taken the photographs of the place of incident.
10. PW.4-Alben Fransis Lewis had attested the mahazar prepared at the time of spot inspection by the investigation officer.
11. At the relevant time, PW.5-Nanjundappa was working as the Assistant Director of Forensic Science Laboratory. He had examined the incriminating articles. As per the report submitted by him, there was presence of seminal stains on the trouser of accused which was seized from the place of incident. The blood stains were found on the clothes of victim.
12. The medical evidence relating to examination of victim is given by PW.10-Dr.Vijayalakshmi Nayak who had examined the victim in Bowring Hospital at Bangalore.
PW.10 has deposed; that on 12.01.2006 at about 9.30 p.m., she had examined the victim in Bowring Hospital; the victim (PW.2) was aged about 6 ½ years; she gave the 10 history that one Vimala had committed rape on her. On examination of victim, she found the following:
1) Secondary sexual character is not developed
2) Hymen was torn
3) There was lacerated injury measuring ½ cms with bleeding injury on Labia Major and Labia Manora
4) There was clot along with blood stains.
She had collected the vaginal swabs and clothes of victim including undergarment and she had sent the same to Forensic Science Laboratory. PW.10 has opined that victim was subjected to rape and she had given certificate as per Ex.P12.
During cross-examination, she has denied the suggestion that she had given her opinion based on the history furnished by the police. She has denied the suggestion that she had not examined the victim.
13. PW.10 was working as a Lady Medical Officer in Bowring Hospital. She did not know the accused. She had 11 no reasons to give false certificate or false evidence that victim was subjected to rape.
From the direct evidence of victim, mother and immediate post-occurrence witnesses, it is proved that accused had committed rape on the victim. The accused had induced the victim and taken her from the play ground to commit rape.
14. The learned counsel for accused has contended that an offence under Section 366-A is attracted only when the minor girl is kidnapped for subjecting her to rape by a person other than the accused. Even if an offence under Section 366-A IPC is not attracted, an offence under Section 363 IPC is squarely attracted. The accused had kidnapped the victim when she was playing near her house.
15. An offence under Section 363 IPC is also punishable with imprisonment which may extend to 7 years with fine. In the circumstances, even if the offence is altered, the sentence imposed on the accused cannot be altered.
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16. The learned counsel for accused pleads for reduction of sentence.
17. The learned trial judge has sentenced the accused to undergo rigorous imprisonment for a period of 10 years for an offence punishable under Section 376 IPC, which in my considered opinion is justified. The accused had damaged the soul and body of victim aged about 6 ½ years. The victim will have to suffer this mental trauma during the rest of her life. The mother of victim was working as maid servant. There was none to guard the victim. The accused taking advantage of poverty and helplessness of victim had lured the victim by offering biscuits and took her to the place of incident and committed rape on her. The medical evidence indicates that victim had suffered bleeding injuries on her private part which was due to tear of hymen at the age of 6 ½ years and laceration in Labia Majora and Labia Manora. The accused had found the victim as safe target to satisfy his lust in inhuman and barbaric manner. The incident of rape may haunt the victim throughout her life. There are no reasons to reduce the sentence.
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18. In the result, I pass the following:
ORDER The appeal is dismissed however, by altering the offence punishable under Section 366-A IPC to one under Section 363 IPC. The sentence imposed for an offence punishable under Section 376 IPC is confirmed. The accused is sentenced to undergo imprisonment for a period of 7 years for an offence punishable under Section 363 IPC.
The sentence of imprisonment imposed for offences punishable under Sections 376 and 363 IPC shall run concurrently. The fine and default sentence imposed by the trial court is confirmed. The period of detention undergone by the accused is given set off under Section 428 Cr.P.C.
Sd/-
JUDGE Np/-