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2004 DIGILAW 312 (KAR)

LAKSHMANA NAIK v. STATE OF KARNATAKA

2004-05-28

N.S.VEERABHADRAIAH

body2004
N. S. VEERABHADRAIAH, J. ( 1 ) THE appellant assailing the Judgment of conviction for the offence under Section 376,1. P. C. passed in S. C. No. 144/94 by the I Additional Sessions Judge, mangalore, O. K. sentencing him to undergo r. I. for a period of five years and to pay a fine of Rs. 15. 000/-, in default, to under simple Imprisonment for a period of six months, has come up with this appeal. ( 2 ) THE brief facts are as follows: the accused-Lakshman Naik and the prosecutrix PW 11 Lakshmi, the daughter of PW 9-Venkatappa Naik are the residents of Manchi Village and are relatives. PW 11 lakshmi as well as PW 7 Smt. Rajivl are the anganwadi Workers. They were entrusted with the work of collection of funds for purchase of vessels and other utensils for the use of Anganwadi Center. On 17-3-1992, pw 11 and PW 7 collected contribution from the residents of the village till about 1. 00 or 1. 30 a. m. , and thereafter, PW 7 left to her house, whereas, PW 11 alone went to the house of the accused situated in the locality known as "kanchila Mane" for collection of contribution. The accused who was alone in the house, welcomed her to him house and while she was sitting inside the house, the accused induced her to have sex with him and also told her even if he use force, no body is there to question. Saying so, the accused closed the door and had sex with her in spite of her protest, by tightly holding her hands and closing her mouth. When the accused left her, she came out of the house shouting that she will inform the anganwadi people and also to her parents. The accused requested her not to inform about the incident and promised her to marry. As the accused made promise, she did not tell the incident of sexual intercourse to any body, muchless to her parents. Thereafter, both of them used to have frequent sex and have also visited Mangalore and virajpat to see moves and were freely moving as husband and wife. By that time, she was pregnant of six months. When the accused refused to marry, she informed her parents about their affair and that a panchayat was convened on 12-9-1992. Thereafter, both of them used to have frequent sex and have also visited Mangalore and virajpat to see moves and were freely moving as husband and wife. By that time, she was pregnant of six months. When the accused refused to marry, she informed her parents about their affair and that a panchayat was convened on 12-9-1992. In the panchayat, the accused promised to marry her, later he refused. The Prosecutrix pw 11 filed a complaint with Bantwal police on 26-11-1992 as per Ex. 'p7. The A. S. I. PW 6 K. S. Sattar Shah, registered a case in crime No. 280/92 for the offence under section 376, I. P. C. against the accused and issued the F. I. R. as per Ex. P8 to the Court through PW 5 Ramakrishna. PW 13 H. S. Shetty, took over further investigation, recorded the further statement of PW 11 prosecutrix and other witnesses, visited the place of incident and prepared the spot mahazar Ex. P6. The Prosecutrix PW 11 was referred to Bantwal Hospital and was admitted on 7-12-1992 and she delivered a female batty on 29-12-1992. The Doctor PW 2 examined the blood group of the accused, pw 11 and the child, and submitted the reports as per Exs. P2, and P3. The Circle Inspector of Policejpw 3 took over further investigation and after completion of the investigation filed charge sheet for the offence under Section 376, LP. C. ( 3 ) THE learned Additional Sessions Judge secured the presence of the accused, framed charges for the offence under Section 376, i. P. C. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined PW 1 to 13 and marked Exs. PI to P9. The statement of the accused was recorded under Section 313, Cr. P. C. The defence is one of total denial. The learned sessions Judge for the reasons set out in his judgment, found the accused guilty of the offence under Section 376, I. P. C. and convicted by sentencing him to undergo Rigorous imprisonment for a period of five years and to pay a fine of Rs. 15. 000/- in default to pay fine,'to undergo simple imprisonment for a period of six months. It is this judgment of conviction and sentence passed, which is questioned by the accused in this appeal. ( 4 ) LEARNED counsel Sri. 15. 000/- in default to pay fine,'to undergo simple imprisonment for a period of six months. It is this judgment of conviction and sentence passed, which is questioned by the accused in this appeal. ( 4 ) LEARNED counsel Sri. D. K. Ponnappa, appearing for the accused submitted that the evidence of the prosecutrix PW 11 shows that it is she who went to the house of the accused on her own, though she has stated that the accused by force and threat had sexual intercourse with her. The further evidence of the prosecutrix shows that both developed intimacy and were moving as husband and wife, and also both used to indulge in frequent sex. When the evidence of the prosecutrix shows that she has developed intimacy, the reasoning of the learned Sessions Judge that by putting her under threat or by making the false promises, the accused used to have sex with pw 11, cannot be believed and the evidence on record does not attract the ingredients of Section 376, I. P. C. Secondly submitted thai there was no reason for PW 11 in not disclosing the alleged incident of rape even to. her parents for over a period of six months, in spite of the fact that she became pregnant. The evidence of the prosecutrix that a panchayath was convened on 12-9-1992 and that the accused promised to marry her is false and concocted, and cannot be believed at all. In support of his contentions, the learned counsel relies upon a decision in the case of Uday v. State of karnataka reported 2003 AIR SCW 1035 : ( 2003 Cri LJ 1539): (2003 AIR Kant HCR 722} and also a decision in the case of State of Karnataka v. Anthonidas reported m ILR (2000) Kant 266, and submits that in any event the prosecutrix having frequent sex with the accused and she having become pregnant and gave birth. to a child, the question of misconception of promise of marriage does not arise. Therefore, prayed to allow the appeal by setting aside the judgment of conviction and sentence passed. ( 5 ) LEARNED HCGP, Sri. Rajendra Reddy, submitted that when the prosecutrix came for collection of fund to the house of the accused, he took advantage of the situation and committed rape against her "will and consent". Therefore, prayed to allow the appeal by setting aside the judgment of conviction and sentence passed. ( 5 ) LEARNED HCGP, Sri. Rajendra Reddy, submitted that when the prosecutrix came for collection of fund to the house of the accused, he took advantage of the situation and committed rape against her "will and consent". She came out of the accused's house by shouting and when she told him that she will disclose the incident to the anganwadi people and to her parents, the accused requested her not to disclose the incident to any body and made a promise to marry her. It is in that circumstances, she became pregnant. It is only when he refused to many, having resulted in her pregnancy, she disclosed the incident to her parents and a panchayath was convened on 12-9-1992. In the said panchayath, the accused having agreed to marry subsequently refused. It is on account of the said fact she lodged a complaint on 26-11-1992 and on the next day she was admitted to the hospital and later she gave birth to a female baby on 29-11-1992. Further submitted that there was delay in lodging the complaint. In that situation, the testimony of the prosecution witness cannot be discarded. Lastly, submitted that though if the Court comes to the conclusion that the ingredients for the offence under Section 376, I. P. C. are not made out. The accused is liable to be convicted for the offence under Section 417, I. P. C. as it attracts the ingredients of Section 415, i. P. C. and accordingly, prayed to dismiss the appeal. ( 6 ) IN the light of the submissions, the points for consideration that arise : (a) Whether the learned Sessions Judge is justified in convicting the accused for the offence under Section 376, I. P. C. , or the prosecution is proved the ingredients of Section 376, I. P. C. ? b) If not, what offence ? ( 7 ) IT is an undisputed fact that the accused Lakshman Naik and the prosecutrix pw 11 are the relatives and residents of manchi Village, whereas the house of the prosecutrix PW 11 is situated at "chowkada salu" and the house of the accused is situated at "kanchila Mane". b) If not, what offence ? ( 7 ) IT is an undisputed fact that the accused Lakshman Naik and the prosecutrix pw 11 are the relatives and residents of manchi Village, whereas the house of the prosecutrix PW 11 is situated at "chowkada salu" and the house of the accused is situated at "kanchila Mane". PW 9 Venkappa naika is the father of the prosecutrix PW 11 whereas PW 6 Krishna Naik is the brother in-law of the prosecutrix, i. e. , the sister of the prosecutrix namely, Girija, was married to the brother of PW 6 Krishna Naik and that the prosecutrix PW 11 as well as PWs 8 and 9 belongs to the same community. ( 8 ) IT is in the evidence of PW 11 that accused-Lakshman Naik is their relative from her mother side residing at a place called Mandegudi in Manchi Village. It is also in her evidence that she was working as an anganwadi Worker and the Committee had asked her and others to collect funds for purchase of utensils. On 7-3-1992 herself and PW 7 PW 7 Rajivi were collecting funds till about 12. 00 noon and that PW 7 Rajivi went home saying that she is not well, Then she alone proceeded to collect funds and at about 3. 00 p. m. , she came near the house of the accused Lakshman Naik for collection of fund and she noticed that the accused was alone in the house, as she happened to be a relative of the accused, the accused asked her to sit inside. She informed him that she has come for collection of funds. . It is in the evidence of the prosecutrix PW 11 that the accused by addressing her said that he wants to have her physical relationship and even if he use force, there is no one to ask. Then she re- plied that it is not proper, as it is the question of her life and status. In spite of it, the accused took her inside, closed the door closed her mouth with one hand and that though she resisted, the accused committed rape on her. When the accused loosened his grip, she came out and told him that she will inform the Anganwadi Committee people and also her parents, and that she started shouting, but no one has come there. When the accused loosened his grip, she came out and told him that she will inform the Anganwadi Committee people and also her parents, and that she started shouting, but no one has come there. It is in her evidence that the accused requested her not to inform the incident to anganwadi Committee people or to her parents and promised her to marry. It is also in her evidence that as the accused happened to be her relative she used to go frequently to his house and that the accused also used to go to her house, likewise both of them used to have sex and this physical contact, resulted in pregnancy. After three months of her pregnancy she requested him to marry, then he refused. It is after a lapse of six months she informed PW 8, her brotherin-law. She also states that a panchayath was convened and in that panchayath the accused agreed to marry her but, subsequently, refused. It is thereafter, she lodged a complaint with the Bantwal police on 26-11-1992. ( 9 ) THE evidence of PW 7 Rajivi shows that on 7-3-1992 herself and prosecutrix pw 11 went to collect funds. At about 1. 30 p. m. , she came back to her house, whereas the prosecutrix PW 11 proceeded further for collection of the funds. She has also stated that apart from doing Anganwadi Work, she was also rolling beedies. It is in the evidence of PW 8 Krishna Naik, that PW 11 informed him as to the fact that the accused is responsible for her pregnancy. After coming to know the said fact, he enquired with the accused and asked him to marry PW 11, but the accused refused that he is not responsible. ( 10 ) PW 9 Venkappa Naika, the father of pw 11 says that her daughter is an anganwadi Worker and the accused is his relative. It is also come in his evidence that he took his daughter for medical examination and the Doctor informed him that she is pregnant. When enquired with his daughter, she told that it is the accused who is responsible for her pregnancy and informed about the incident that took place in the house of the accused when she had been to collect contribution. When enquired with his daughter, she told that it is the accused who is responsible for her pregnancy and informed about the incident that took place in the house of the accused when she had been to collect contribution. ( 11 ) THE only evidence available is of PW 7 rajivi, who speaks to the fact that the prosecutrix and herself were collecting funds for Anganwadi on 7-3-1992 and the evidence of PW 9 Venkappa Naika shows that the incident in question was informed to him by the prosecutrix PW 11 subsequently after a lapse of more than six months. PW 1 Dr. Nazarath Zabeen, a lady Medical Officer in her evidence has stated that she examined the prosecutrix PW. ll on 26-11-1992 and found that she was pregnant and that she gave birth to a female child on 29-11-1992. The evidence of PW 2 Dr. K. P. H. Rao, shows that the examined blood group of the accused as well as the prosecutrix and the child was found 'o' Positive, 'a' Positive and 'a' Positive. respectively, and accordingly he issued the rreport as per Ex. PS. ( 12 ) ON a careful scrutiny of the testimony of the prosecutrix PW. 11 , except the self interested testimony of PW 11 and of pw 7 Rajivi, therets nothing to show whether they were entrusted^by the responsible authorities to collect funds. It has clearly come in the evidence of the prosecutrix that she is a close relative of the accused and that the house of the accused is situated at a distance of half a kilometer from her house. Particularly, in the cases of rapes it is rather difficult to find corroboration from other evidences and it is the only evidence that is available is the testimony of prosecutrix pw. 11. It is time and again the Apex Court has held that if the evidence of the prosecutrix is credible, it can be acted upon. In the present case, the prosecutrix PW. 11 has voluntarily visited the house of the accused at about 3. 00 p. m. Normally, the persons will not go to the known persons for collection of funds or contribution. Nevertheless, the testimony of prosecutrix shows the accused closed the doors and said that even if he would have forcible sex, no one will come to her rescue. Saying so, he has , forcible intercourse with her. 00 p. m. Normally, the persons will not go to the known persons for collection of funds or contribution. Nevertheless, the testimony of prosecutrix shows the accused closed the doors and said that even if he would have forcible sex, no one will come to her rescue. Saying so, he has , forcible intercourse with her. After the incident in question, she came out and shouted and also told that she will inform the anganwadi People and also her parents. It is pertinent to note that when the accused promised her to marry, she kept quite. This went on for more than six to nine months. It is unfortunate and also not forthcoming as to what made the prosecutrix to keep mum without informing to her parents at least about the promise made by the accused to marry her even though she has conceived. According to the evidence of PWs 6 and 9 as well as PW 11 prosecutrix the panchayath was convened on 12-9-1992. To establish the said fact, none of the panchayath members were examined. It is stated in the complaint Ex. P7 that the accused and the prosecutrix were going together to various places like Mangalore and Virajpet to see movies. The testimony of the prosecutrix pw. 11 clearly reveals that she did not Inform about the sex assault on her by the accused to any body muchless to her parents about the alleged incident that took place on 7-3-1992 in the hous. e of the accused. Nextly, the incident was not disclosed for a very long time and the parents also did not question her though having seen her pregnancy. When it is clearly admitted by the prosecutrix PW. ll that she was frequently visiting the house of the accused where the accused also visiting the house of the prosecutrix and moving together which resulted in pregnancy, it is rather difficult to hold that the accused had committed the offence of rape on her, when she has permitted the accused to have sex and it has to be held that it is with her "consent and will". ( 13 ) THE Division Bench df this Court in the case of State of Karnataka v. Anthonidas reported in ILR (2000) Kant 266, has dealt with an identical situation, wherein the accused had promised to marry a girl and for that reason she had agreed to have sex with him, ultimately resulting in her pregnancy. On facts, it is held that it does not constitute an offence of rape. In the case of honayya v. State of Karnataka reported in ilr (2000) Kant 3336, the accused was convicted by the trial Court holding that the consent for sexual intercourse was due to misconception or misrepresentation as the accused had promised to marry. In respect of that case this Court was held that if a full grown girl consents to sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. ( 14 ) IN the case on hand it is only two days prior to the birth of the child the complaint came to be lodged on the allegation that the accused made false promise of marriage. Therefore, in my opinion, the act of the accused does not attract the ingredient of Section 375, I. P. C. ( 15 ) THE Apex Court in the case of Uday v. State of Karnataka reported in 2003 AIR scw 1035 : (2003 Cri LJ 1539 : 2003 AIR Kant HCR 722) has considered an identical situation while considering Section 375 of I. P. C. Applying the same principles of the facts of this case and also the evidence on record, the findings of the trial Court that the accused is liable for the offence as defined under Section 375, I. P. C. , is not sustainable. Even taking for granted, the accused has made a false promise to marry the prosecutrix PW. 11 and taken advantage of that situation. At the most it comes within the definition of Section 415, I. P. C. , which reads as under :"section 415 : Cheating. Even taking for granted, the accused has made a false promise to marry the prosecutrix PW. 11 and taken advantage of that situation. At the most it comes within the definition of Section 415, I. P. C. , which reads as under :"section 415 : Cheating. b) Intentionally induces the person so deceived to do or omit to do anything which he would not door omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to any person in body, mind reputation or property or wrongful gain to any person, is said to "chaat". In so far as this aspect is concerned, I am satisfied with the evidence of prosecutrix pw. 11 that she did not disclose the fact of the accused having sex with her by making a false promise of marriage and requested her not to disclose the incident in question to any body and thereafter when she became pregnant, he refused to marry her, would attract Section 415, I. P. C. ( 16 ) IN the case of Maranchandra Paul v. State of Tripura reported in 1997 Cri LJ 715, the High Court of Gauhati while distinguishing ingredients of Sections 376 and 415, i. P. C. , in a similar set of facts and circumstances, has held that the offence does fall for cheating punishable under Section 415, i. P. C. and the same does not come within the ingredients of Section 376, I. P. C. and was convicted for the offence of cheating by imposing a fine of Rs. 7. 000/- to be paid to the victim. ( 17 ) IN the present case also, the evidence of PW. 11 prosecutrix Is clear that she was induced to have sex with the accused on a word being given by him that he will marry her and such evidence of a woman of society given at the cost of her reputation cannot be disbelieved by the Court except that on extraordinary reasons. On such a promise the accused took advantage of the situation but not married. On such a promise the accused took advantage of the situation but not married. Therefore, it falls within the Ingredients of Section 415, I. P. C. ( 18 ) FOR the foregoing reasons the finding of the trial Court convicting the accused for the offence under Section 376, IPC is liable to be interfered with as the offence does fall under Section 417, IPC for which he Is liable to be convicted. ( 19 ) IN the result, the appeal is allowed in part. The conviction and sentence passed by the trial Court for the offence under Section 376, IPC is set aside and the accused stands acquitted for the said offence. The accused being found guilty for the offence under Section 415, IPC Is liable to be convicted under Section 417, IPC. Accordingly, the appellant-accused is convicted for the offence under Section 417, I. P. C. ( 20 ) THE learned H. C. G. P. prays to impose maximum sentence to the accused for the offence punishable under Section 417, i. P. C. ( 21 ) ON the contrary, the learned counsel for the appellant/accused submits that the accused is a poor labourer having no means. Therefore, he prays to take lenient view while imposing sentence. ( 22 ) CONSIDERING the facts and circumstances of the case and the status of the appellant/accused, the appellant/accused is convicted and sentenced to pay a fine of rs. 20,000/- within six weeks from the date of communication of the Judgment to trial court, in default of payment of fine amount, he shall undergo Rigorous Imprisonment for a period of three months. ( 23 ) ON deposit of the fine amount by the accused, the entire amount be paid to the prosecutrix PW. 11. The bail bond stands discharged. ( 24 ) THE trial Court shall take steps for recovery of the fine amount and to pay the same to the prosecutrix PW. 11. Order accordingly. --- *** --- .