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2007 DIGILAW 530 (KAR)

VISHWANATH v. STATE OF KARNATAKA

2007-08-21

A.C.KABIN

body2007
A. C. KABBIN, J. ( 1 ) CONVICTION of the appellant in judgment dated 21-7-2003 passed by the learned XII Additional City Civil and Session Judge, bangalore City, in S. C. No. 10/1999 for the offence punishable under Section 376 of the IPC and consequent sentence have been challenged by the accused in this appeal preferred under Section 374 of the Code of Criminal Procedure. ( 2 ) ON 13-12-1997 the victim aged about 11 years was found weeping by her brother Thejesh. Two days thereafter there was swelling on the private part of the victim, which was noticed by her mother. After verification they found that the accused had asked Thejesh on the evening of 13-12-1997 to go to bring biscuits and after sending him he tried to have sexual contact with the child (the victim ). Thereafter a complaint was lodged by the victim's mother against the accused in furtherance of which this case was registered for an offence punishable under Section 376 of the IPC. The accused was arrested on 2-4-1997 (soc 1998) and after completion of the investigation a charge sheet was placed against him. ( 3 ) THE accused pleaded not guilty and claimed to be tired. The prosecution examined in all 15 witnesses. P. W. 7 is the girl, with whom the accused attempted to have sexual intercourse and on the basis of the allegations made by her, it was deduced that the accused had committed rape on her. P. W. 8 is her mother. The doctors have been examined as p. Ws. 5, 13 and 15. P. Ws. 10, 11 and 14 are police officers. P. W. 15 is a scientific Officer working in Forensic Department, Bangalore. ( 4 ) AFTER the case of the prosecution was closed, the accused was examined under Section 313 of the Code of Criminal Procedure to explain the circumstances arising out of the evidence. While denying the allegations of the prosecution witnesses, it was contended by the accused that a false case had been instituted against him by the mother of the child, who had been arraigned as an accused for the murder of her own husband. No witness was examined on behalf of the accused. ( 5 ) AFTER hearing the learned Counsel for the accused and the learned public Prosecutor, the learned Trial Judge accepted the version of P. Ws. No witness was examined on behalf of the accused. ( 5 ) AFTER hearing the learned Counsel for the accused and the learned public Prosecutor, the learned Trial Judge accepted the version of P. Ws. 7 and 8 and on the basis of the circumstantial evidence supporting the allegations concluded that the offence of rape alleged against the accused had been proved. Therefore he convicted the accused and after hearing him and the prosecution, sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for 6 months. It is that judgment of conviction and sentence that has been challenged in the present appeal. ( 6 ) SRI. Rajesh Rai, learned Counsel for the appellant argues that the whole case is dependent on the version of P. W. 7 who was admittedly a tender aged girl at the time of the alleged incident. He submits that if ever such an incident as alleged by P. W. 7 had happened, there would have been a complaint immediately after the matter was learnt by the mother of the girl. He submits that taking into consideration the fact that the complaint was filed on 22-12-1997 more than 7 days after the alleged incident, the allegations are not believable. He submits that the medical evidence having indicated no act of any sexual intercourse, the allegation of rape is not believable. On these grounds, he submits that the accused may be acquitted of the offence for which he had been convicted. ( 7 ) REPLYING to this, Sri Makbul Ahamed, learned High Court government Pleader representing the State argues that the evidence of p. Ws. 7 and 8 is consistent which shows that on 13-12-1997 the accused had gone to the house of the victim, made her younger brother to leave the palce by paying Rs. 5/- to him and sending him to bring biscuits and thereafter he committed rape on the child. He points out to the evidence of p. Ws. 5, 12 and 15 which shows an injury measuring 1. 5 x 0. 5 c. m. on the left labia majora of the child which substantiated the allegations of the attempt on the part of the accused to have sexual intercourse with the child. He points out to the evidence of p. Ws. 5, 12 and 15 which shows an injury measuring 1. 5 x 0. 5 c. m. on the left labia majora of the child which substantiated the allegations of the attempt on the part of the accused to have sexual intercourse with the child. He submits that therefore the offence of rape had been proved in the present case and the conviction may be confirmed. ( 8 ) I have carefully gone through the evidence adduced by the prosecution. The evidence of P. Ws. 7 and 8 clearly shows that on 13-12-1997 at 1. 30 p. m. , the accused went to the house of the girl, gave Rs. 5/- to her younger brother Thejesh (P. W. 9), sent him from that place and thereafter he lied on the child. The evidence of P. W. 7 shows that the accused (appellant) made attempt to penetrate her, but was not successful. That is the reason why the injury found on the private part of the victim is noticed. The evidence of P. W. 9 though a child witness shows the intention of the accused in sending him away from the place, closing the door of the house. When P. W. 9 returned he found the door closed. He knocked on the door repeatedly and then it was opened. He saw the accused buttoning his pant. The witness stated that the victim was on the mat inside weeping. All these things clearly confirm the charge that the accused attempted to have a sexual intercourse with the child, but was not successful. ( 9 ) THE only point that is required to be considered is whether the version of the prosecution may be accepted in view of the inordinate delay in lodging the complaint. The incident happened on 13-12-1997. The complaint has been lodged on the night of 22-12-1997. The evidence of the victim's mother shows that the victim had suffered due to the act and she was suffering from fever. It is only after cajoling her that the complainant could learn about the incident. Therefore she disclosed it to her husband. Thereafter some time was taken in lodging the complaint. Therefore, I do not find in the present case that the delay in lodging the complaint is fatal. It is only after cajoling her that the complainant could learn about the incident. Therefore she disclosed it to her husband. Thereafter some time was taken in lodging the complaint. Therefore, I do not find in the present case that the delay in lodging the complaint is fatal. Therefore the evidence had clearly proved that the accused had sent the victim's brother on the pretext of getting biscuits and had manhandled the victim in her house. ( 10 ) THE next question is as to whether the facts proved amount to an offence punishable under Section 376 of the IPC. The medical evidence shows only manhandling of the victim and not the rape of the victim. The facts fall short of requirement of an offence of rape. In that view of the matter, I am of the opinion that the accused is liable to be convicted for the offence punishable under Section 354 of the IPC rather than the offence punishable under Section 376 of the IPC. ( 11 ) FOR the above said reasons, the appeal is allowed and setting aside the conviction of the appellant for the offence punishable under Section 376 of the IPC and consequent sentence, he is convicted for the offence punishable under Section 354 of the IPC. Taking into consideration the ghastly act resorted to by the appellant, I am of the opinion that he is liable to be punishable by the maximum punishment provided by law. Hence the accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine Rs. 5,000/- in default to undergo simple imprisonment for six months. The prison authority shall verify the period of imprisonment already undergone by the accused and if he has undergone the sentence of imprisonment and default sentence, he shall be released forthwith unless he is required in any other case.