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2009 DIGILAW 258 (KAR)

Jayarama & Mamma v. State of Karnataka

2009-04-01

ARALI NAGARAJ

body2009
JUDGMENT :- (This Criminal Appeal filed U/S.374(2) Cr.P.C. against the Judgment dtd. 27.02.2007 passed by the P.O. FTC. Ramanagaram, Bangalore Rural Dist. Bangalore in S.C.No.138/03-convicting the Appellant/Accused for the offences P/U/SS448 & 376 of IPC and sentencing him to undergo R. 1 for a period of 10 years and to pay a fine of Rs.50,000/- & I.D. he shall undergo further R.1 for a period of one year for the offence P/U/S 376 of IPC and further sentencing him to undergo imprisonment for a period of 6 months and to pay a fine of Rs.1000/- and I.D. He shall undergo further imprisonment for a period of 3 months for the offence p/u/s 448 of IPC. All the sentences of imprisonment shall run concurrently.) The accused in SC No.138/2003 on the file of the Fast Tract Court, Ramanagaram (hereinafter referred to as the ‘Trial Court’ for short) has challenged the legality nd the correctness of the judgment and order of conviction dated 27.2.2007 passed in the said case convicting the respondent accused for the offences under Section 376 and 448 of IPC and sentencing him to undergo RI for a period of 10 years and also to pay fine of Rs.50,000/- for the offence under Section 376 IPC and to undergo SI for a period of six months and to pay fine of Rs.1,000/- for the offence under Section 448 IPC with default sentences of RI for one year and SI for three months respectively for the said offences. 2. Stated in brief the case of the prosecution, as alleged in Ex.P1 complaint dated 4.1.2003 filed by the victim girl Chikkathayamma, before the PSI of Ramanagaram Town Police Station, Ramanagaram is as under: (a) On the morning of 2.11.2002, complainant’s mother had gone to attend her agricultural coolie work and her father had gone to Vinayak nagar in connection with his job. Therefore, the complainant was alone in her house. (b) At about 4.30 PM on that day, while the complainant was alone in her house, the accused Jayaram @ Mamma, the son of her maternal uncle Shivanna who was residing in the house opposite to that of the complainant, suddenly came into the complainant’s house. When she asked him why he came into the house, he said that he simply came there. When she asked him why he came into the house, he said that he simply came there. When the complainant proceeded towards the kitchen, the accused, who was sitting in the house, closed the main door of the house and latched it from inside. On seeing the same, the complainant became frightened and questioned him why he did so. Then he suddenly caught hold of her and put some cloth into her mouth and dragged her into the room and then committed forcible sexual intercourse on her holding her firmly despite her resistance. (c) In the mean time, the complainant’s father who had gone on his work, came and knocked the door. The complainant’s junior uncle, Junior maternal aunt were also with her father at that time. They asked her to open the door. On hearing their voice, the accused left the complainant, opened the door and ran away. (d) On being enquired by her father as to what had happened and why the accused had come into the house, the complainant narrated before him the entire incident. Then the complainant’s father informed the parents of the accused and other elders in the village about the incident. They all told him that they would convene a panchayath in the village on the next day. They also asked the complainant’s father not to file complaint before police in respect of the said incident till a decision was to be taken in the panchayath. Therefore, the complainant’s father did not lodge any complaint before police on that day. (e) On 3.11.2002 at about 8.00 pm, a panchayath was convened with the elders of the village namely R. Ramaiah (CW9), C. Nanjappa (CW6), Nanjegowda (PW6), and Ramaiah (CW4) the accused, his parents, the complainant and her father, all participated in the said panchayath. (f) In the said panchayath, the accused and his parents agreed that the accused would marry the complainant and the parents of the complainant consented to the same and the panchayathdars also decided the same. On 4.11.2002, the accused left the village and absconded from the said date. When this was brought to the notice of the elders in the village they said that they should wait till the return of the accused. (g) On the evening of 3.1.2003, the accused returned to the village. On 4.11.2002, the accused left the village and absconded from the said date. When this was brought to the notice of the elders in the village they said that they should wait till the return of the accused. (g) On the evening of 3.1.2003, the accused returned to the village. On that day the said panchayathdars asked him to marry the complainant but the accused and his parents did not agree to the same. Therefore, on 4.1.2003, the complainant lodged her said complaint. 3. On the basis of the said complaint, a case in Crime No.1/2003 of Ramanagaram Police Station came to be registered against the accused for the offences punishable under Section 448 and 376 IPC and FIR came to be issued accordingly. The accused was tried by the Trial Court for the said offences and the Trial Court, on appreciation of the oral evidence of PWs.1 to 12, DWs.1 to 3, and the documents at Exs.P1 to P11 and D1 to D5, passed the impugned judgment and order of conviction and sentence the correctness of which is challenged in this appeal. 4. I have heard the arguments of Sri M.Shashidhara, the learned counsel for the appellant – accused and Sri Raja Subramanya Bhat, the learned HCGP for the respondent – State and perused the impugned judgment and order of conviction and sentence and also the entire material found in the original records obtained from the Trial Court. 5. Having heard the arguments of the learned counsel for the appellant – accused and the learned High Court Government Pleader, the points that arise for my consideration are as under: (1) Whether the Trial Court was justified in passing the impugned judgment and order of conviction, convicting the appellant – accused for the offences punishable under Sections 376 and 448 IPC? (2) Whether the Trial Court was further justified in imposing sentence of RI for 10 years and also fine of Rs.50,000/- with a default sentence of RI for one year for the offence punishable under Section 376 IPC; and SI for a period of six months with fine of Rs.1,000/- with a default sentence of three months’ SI for the offence under Section 448 IPC?. 6. 6. Sri Shashidhara, the learned counsel for the accused [the parties are referred to as per their rank before the Trial Court] strongly contented as under: (1) That the Trial Court committed error in recording its findings that the prosecution proved beyond reasonable doubt the alleged incident of forcible sexual intercourse by the accused on PW1 Chikka thayamma on the said date, time and place as alleged in the complaint Ex.P1, despite there being so many discrepancies in the evidence of PW1 Chikkatayamma, the complainant – victim girl and that of her father PW5 Kenchappa. (ii) The learned Trial Court was not justified in recording its finding that the victim girl was aged less than 16 years as on the date of the alleged incident despite there being discrepancies as to her date of birth as found in Ex.P8 birth certificate issued by PW4 V.K.Krishna, the Head Master of Ramanagaram High School and Ex.D3(a), the relevant entry in the Birth Register Ex.D2 and therefore, the conviction of the appellant accused based on this finding cannot be sustained. (iii) The Trial Court has ignored the evidence of DW2 Rudranarasimhajah, the Health Inspector City Municipality, Ramanagaram and DW3 Mahadevaiah, the Head Master of Primary School in Government Lower Primary School as to the date of birth of the victim girl and therefore, the finding recorded by the Trial Court that the girl was aged less than 16 years as on the date of the incident cannot be sustained. (iv) The Trial Court also committed error in disbelieving the evidence of DW1 Bommegowda, examined on behalf of the accused to establish that the accused, though participated in the panchayath held on dated 3.11.2002 at the instance of the complainant girl and her parents, did not agree to marry her confessing before the members of the panchayath that he committed sexual intercourse on her as alleged by her and therefore, the conviction of the accused for the said offences cannot be sustained. (v) The Trial Court, ignored the inordinate delay on the part of the complainant and her parents in lodging the complaint against the accused as to the alleged incident. (vi) Further, the Trial Court has failed to notice that there was no medical evidence to show that the victim girl was subjected to forcible sexual intercourse on 2.11.2002 as alleged in the complaint Ex.P1. 7. (vi) Further, the Trial Court has failed to notice that there was no medical evidence to show that the victim girl was subjected to forcible sexual intercourse on 2.11.2002 as alleged in the complaint Ex.P1. 7. Per contra, the learned HCGP strongly contended that – (a) the evidence of PW1, the victim girl and also PW5, the father of the girl as to the accused committing forcible sexual intercourse on PW1 is quite consistent and, the convening of the panchayath on the very next day of the incident has been admitted by the accused in clear terms by getting DW1 Bommegowda, one of the panchayathdars in the said panchayath, examined for him, the delay caused in filing the complaint in respect of the said incident has been properly explained by the prosecution and as such, the contention of the learned counsel for the accused on these facts cannot be accepted. (b) The evidence of PW1 victim girl and also that of her father PW5 Kenchappa is quite consistent and the minor discrepancies in their evidence do not go to the root of the prosecution case and therefore, the Trial Court was quite justified in accepting their evidence and convicting the accused for the said offences. (c) Since the incident occurred on 2.11.2002 there could be no medical evidence against the accused to show that the girl was subjected to forcible sexual intercourse by the accused without her consent. (d) Ex.D2, the Register of Births and Deaths maintained by DW2, the Health Inspector of Ramanagaram Municipality, is got produced by the accused himself and therefore, he cannot deny the correctness of the contents of the relevant entry at Ex.D3(a) on the relevant page at Ex.D3 in the said register (Ex.D2). Whichever date of birth is accepted, the one mentioned in Ex.P8, certificate issued by PW4 Head Mistress, or the one, entered in Ex.D2 Birth and Death Register, the fact remained that the girl was less than 16 years of age as on the date of the incident. Hence, the conviction of the accused is quite justified. Whichever date of birth is accepted, the one mentioned in Ex.P8, certificate issued by PW4 Head Mistress, or the one, entered in Ex.D2 Birth and Death Register, the fact remained that the girl was less than 16 years of age as on the date of the incident. Hence, the conviction of the accused is quite justified. (e) Even if it is assumed that the girl was above 16 years of age as on the date of the incident, absolutely no material is brought on record by the accused to show that she was consenting party to the sexual intercourse which was committed by the accused on her on the said date and time and therefore, the judgment and order of conviction and sentence does not call for interference in this appeal. 8. PW1, the victim girl Chikkathayamma has stated in her evidence that on the date of the incident at about 4.00 PM while she was alone in her residence, as her parents had gone out on account of their work, the front door of the house was kept open and then the accused came inside the house, when she asked him as to why he came there, he told her that he had no reason for coming there and, when she was about to go towards the kitchen, the accused closed the front door, bolted it from inside. She has further deposed that when she again asked him why he was doing so, he suddenly closed her mouth with his left palm, dragged her into the room, made her to lie on the floor, removed her clothes and put some piece of petticoat into her mouth and then committed forcible rape on her by inserting his private part into her private part. She has further deposed that in the mean time, her father knocked the door from outside and called her, then the accused got up, opened the door and ran away; then she narrated to her father the incident of rape committed on her by the accused and her father consoled her saying that if complaint is lodged before the police, it would affect his reputation in the society and therefore, at about 4.45 pm he (her father) went to the parents of the accused and informed them about the said act of the accused. 9. 9. As to the said incident, PW5 Kenchaiah, the father of the girl has stated in his evidence that on that day of the incident, he had gone out of his house to attend his work and by about 5.00 pm when he returned to his house, he saw that the main door was locked from inside and therefore, he knocked the door calling her daughter Chikkathayamma and asked her to open the door but the accused opened the door and immediately ran away. He has further deposed that then he entered the house and found that his daughter was weeping; when he questioned her, she told him that the accused raped her forcibly. He has further deposed that immediately after coming to know of the same, he went to the parents of the accused and informed them about the said act of the accused and then they told him that the accused was not in the house and therefore, they would enquire with him after his return. 10. On careful reading of the averments in the complaint Ex.P1, and also the above evidence of PWs.1 & 5 respectively, the victim girl and her father, it could be seen that their evidence is quite consistent with the averments in the complaint Ex.P1. Since the incident occurred on 2.11.2002 and the victim girl was subjected to medical examination on 5.1.2003 at 11.30 am, it is quite natural that as on the date of her examination, no injuries whatsoever could possibly be found on the person of the victim which could have been sustained by her as a result of forcible sexual intercourse on her. However, the evidence of PW7 Dr. Umashankar who examined the victim girl establishes that the history given by the girl was that she was raped on 2.11.2002 at 4.30 pm and the Medical Officer has further deposed in his evidence that the girl might have been subjected to sexual intercourse. 11. It is the case of the prosecution that the victim girl was less than 16 years of age as on the date of the said incident. The prosecution has placed reliance on the oral evidence of PW4 Head Mistress of Ramdurga High School who issued Ex.P8, the date of Birth Certificate. 11. It is the case of the prosecution that the victim girl was less than 16 years of age as on the date of the said incident. The prosecution has placed reliance on the oral evidence of PW4 Head Mistress of Ramdurga High School who issued Ex.P8, the date of Birth Certificate. This witness has deposed in her evidence that as per the entries made in the admission register, the date of birth of the girl was 2.2.1987 and he has issued Ex.P3 certificate to the same effect. As to the evidentiary value of this document, Sri Shashidhar, learned counsel for the appellant – accused placing strong reliance on the decisions reported in – (i) AIR 1970 PUNJAB AND HARYANA 450 (Raunki Saroop, Vs. State) and (ii) 2004 CRL.L.J. 2359 (Jeev Rakhan, Vs. State of M.P.) and (iii) 2005 SCC (Cri)25 3 (D) – (Dilip Singh Vs. State of Bihar) Contended that the date of birth certificate issued by the HM of the school based on the entries made in the admission register, cannot be taken as the conclusive proof of date of birth of the person in whose respect it is issued (i.e. the victim girl) and therefore, the Trial Court committed serious error in recording its finding based on the said oral evidence of PW4 and document Ex.P8 that the date of birth of the girl was 2.2.1987. In first of the above said decisions, i.e., AIR 1970 PUNJAB & HARYANA 450, it is observed at para No.15 as under: “15. The only question, which remains to be considered is whether the date of birth of the girl as given in the school certificate, Exhibit P.B. should be treated as precise and correct or the age of the girl as given by Dr. Shanti Sachdeva and Dr. K.C. Marwaha Radiologist should be taken to be the age of the girl. It is a matter of common knowledge that the ages given at the time of admission of girls and boys in schools are far from being precise. More often than not, attempt is made by the parents and guardians of their wards, who get admission in the schools, to understate their ages and to give a later date of birth than the real one. More often than not, attempt is made by the parents and guardians of their wards, who get admission in the schools, to understate their ages and to give a later date of birth than the real one. Thus, the ages given in the school certificates are not dependable for determination of the precise date of birth of a student, to whom the entry as to the date of birth in the school records pertains.” Further, in second of the said decisions i.e., in 2004 CRL.L.J 2359, it is observed at para No.12 by High Court of Madhya Pradesh as under: “12, Dalbir Prasad (PW-5) who is the Head Master of the School and who had issued certificate Ex.P/3, has categorically stated that on the basis of the school record, he has given the certificate. Thus, one can safely say that Ex.P/3 is not a primary evidence because, it has been prepared on the basis of some other document. It has been admitted by this witness that admission form of the prosecutrix was submitted in the school which bears the date of birth of the prosecutrix. According to me the admission form on the basis of which certificate Ex.P/3 is prepared is primary evidence which has not been produced in the Court. As the primary evidence has not been produced in the Court, Ex.P/3 which is a certificate and is prepare don the basis of some other document, has no evidentiary value in the eye of law and thus, the prosecution cannot take any advantage of this document which according to me is inadmissible in evidence. As the primary evidence has not been produced in the Court, Ex.P/3 which is a certificate and is prepare don the basis of some other document, has no evidentiary value in the eye of law and thus, the prosecution cannot take any advantage of this document which according to me is inadmissible in evidence. There is nothing on record so as to indicate that the primary evidence was lost and if that be the position, secondary evidence is not permissible.” In the third of the said decisions i.e., 2005 scc (Cri.) 253, Head Note (D) it is observed as under: “D. Penal Code, 1860 – S.375 sixthly – Rape – Whether prosecutrix was under 16 years of age at the time of the incident – Proof of age of prosecutrix – School transfer certificate issued by Headmaster of the primary/secondary school produced in support after commencement of trial – Date of birth mentioned therein was as declared by prosecutrix’s father in his evidence not stating anything about the age – No explanation forthcoming why investigating officer did not obtain the certificate in the course of investigation any why certificate was not produced by her father – Certificate was produced by a clerk in court (mujeeb) but he could not explain who applied for it and how he came in possession of it – An advocate’s clerk also examined to prove the certificate but he too had no knowledge about its issuance nor had he seen it earlier and he had met the Headmaster about 10 or 15 years back – Thus evidence of these two witnesses did not throw any light on the authenticity and genuineness of the certificate – Original birth register was not before the court and the certificate had not come from proper custody – Held, the certificate must be excluded from consideration – On the other hand, assessment of medical officer being that age of the girl was 16-17 years, defence was entitled to rely on higher side of the age and as such the girl would be more than 16 years when the alleged offence had taken place.” 12. Following the principles laid down in the decisions referred to supra, Ex.P8, the School Certificate could not be relied upon for ascertaining the age of the girl. However, Ex.D2 is the birth Register maintained by DW2 Health Inspector of Ramanagaram Municipality. Following the principles laid down in the decisions referred to supra, Ex.P8, the School Certificate could not be relied upon for ascertaining the age of the girl. However, Ex.D2 is the birth Register maintained by DW2 Health Inspector of Ramanagaram Municipality. This register is produced, at the instance of the accused, by DW2 who was its legal custodian. Therefore, genuineness of this register cannot be questioned. Further, Ex.D3 is the relevant page in Ex.D2 register and Ex.D3(a) is the relevant entry on page Ex.D3. On careful reading of the contents of Ex.D3(a) entry, it could be seen that the date of birth of the girl is mentioned as 14.2.1987. It is not in dispute that this entry pertains to PW1 victim girl the daughter of PW5 Kenchappa and his wife Smt, Vijayamma. Since, this document is produced by DW2 as per the directions of the Trial Court at the instance of the accused himself, the correctness of the date of birth entered in this Register cannot be disputed by the accused. If the date of birth is taken as 14.2.1987, it is clear that the victim girl was aged about 15 years and nine months i.e.less than 16 years as on the date of the incident. Besides this, PW1 has stated in her evidence that she was aged 15 years and 9 months as on the date of the incident and PW5, the father of PW1 has also stated in his evidence that she was aged less than 16 years as on the said date. 13. It is the settled principle that the entry made in the register of births maintained by the concerned official in the Municipality shall be taken as the positive proof of the date of birth of the child in respect of whose birth, the said date was entered. In the instant case, Ex.D2 register had been maintained by DW2 Health Inspector in his official capacity in the office of the Municipality of Ramanagaram Town and it came to be produced from his custody and therefore, the correctness of the date of birth as entered in the said register at Ex.P3 cannot be doubted at all. In the instant case, Ex.D2 register had been maintained by DW2 Health Inspector in his official capacity in the office of the Municipality of Ramanagaram Town and it came to be produced from his custody and therefore, the correctness of the date of birth as entered in the said register at Ex.P3 cannot be doubted at all. Therefore, the contention of the learned counsel for the appellant – accused that the findings of the Trial Court that as on the date of the incident, the victim girl was less than 16 years of age is erroneous, cannot be accepted. 14. It is the case of the prosecution that immediately on coming to know of the incident through victim girl, her father, namely PW5 Kenchappa went to the parents’ house of the accused and informed them about the said incident and then convened a panchayath of elderly persons in the village and the accused admitted before the panchayathdars in the said panchayath, that he committed sexual intercourse on the girl, and therefore, the panchayathdars decided that the accused should marry the girl and accordingly, he agreed to do so. On the other hand, the case of the accused is that though a panchayath was convened on 3.11.2002, the same was not convened in respect of the alleged incident of rape but it was in respect of the presence of the accused in the house of the complainant on the said date and time and as to the proposal of the parents of the complainant that she should be given in marriage to the accused. 15. PWs.1 and 5 respectively the complainant girl and her father have consistently stated in their evidence that a panchayath of elderly persons in the village was convened on the very next day of the incident and, in the said panchayath, the accused admitted that he committed sexual intercourse on PW1 and therefore, the panchayathdars took a decision that he should marry her and he agreed to the same but he left the village on the next day itself and remained absent and therefore, they waited for his return to the village and, after he refused to marry her, the complainant filed the said complaint before the police in respect of the said incident. They have further deposed that PWs.6., 8 and DW1 respectively Nanjegowda, Thimmaiah and Bommaiah are the persons who participated in the said panchayath as panchayathdars. 16. The fact that, a panchayath of elderly persons of the village was convened at the instance of the parents of the victim girl on the very next day of the incident ie., on 03.11.2002 and P.Ws.6, 3 and D.W.1, respectively, Nanjegowda, Thimmaiah and Bommegowda participated in the said panchayath as elderly persons and that the parents of the victim girl and also the parents of the accused all participated in the said panchayath is not in dispute. 17. DW 1 Bommegowda has stated in his evidence that, on 03.11.2002, there was a panchayath at Chamandipura Village beween 7.30 and 8.00 pm and apart from him, Ankappa, Ramaiah, Nanjappa and others; the accused and his fataher; PW 1 victim girl and her father, all attended the said panchayath. He has further deposed that when they all asked the accused as to whether he committed any sexual assault on PW1 Chikkathayamma, he told them that he did not commit any sexual assault on her. He has further deposed that he asked the accused as to whether he was in the house of PW 5 Kenchiah along with PW 1 Chikkathayamma, the accused admitted the same and PW 1 also admitted that she was with the accused inside her house on that evening. He has further deposed that since it was admitted by accused and also by the victim girl that both of them were together in the house of the victim girl on the evening of that day, he requested the accused to marry the girl, but the accused sought for 15 days time to think over the matter. 18. This DW1 has admitted in the cross-examination that CW 4 Ramaiah and PW6 Nanjegowda also attended the said panchayath. 18. This DW1 has admitted in the cross-examination that CW 4 Ramaiah and PW6 Nanjegowda also attended the said panchayath. However, he has denied the suggestion put to him by the learned Public Prosecutor that when the panchyatdars enquired with the victim girl, she informed them that on the previous day at about 4.30 pm., the accused entered into her house, closed the front door and then committed sexual assault on her and that when her father PW 5 Kenchaiah came and knocked the door, accused opened the door and ran away and then the girl narrated to her father the entire incident of sexual assault committed by the accused on her. 19. PW6 Nanjegowda, who was admittedly one of the panchayatdars in the panchayath, has stated in his evidence that on the evening of the incident PW5 Kenchappa came to him and informed about the said incident and then he told PW 5 that he should inform the same to the panchayatdars and therefore, on the next day evening, the said panchayat was held between 7.30 and 8.00 pm. He has further deposed that when the panchayatdars enquired with the victim girl, she narrated the incident saying that, at about 4.30 pm on the previous day, while she was inside the house, the accused came there, lached the front door from inside and when she asked the accused as to why he came there, he dragged her into the room and committed rape on her forcibly. 20. This PW6 Nanjegowda has further deposed that when the panchayatdars enquired in the panchayat with the parents of the accused about the future of the victim girl, they agreed that they would take PW 1 Chikkathayamma in marriage with the accused and therefore, panchayatdars gave a decision that the accused should marry the victim girl. He has further deposed that the accused was found missing from the village from the next day of the said panchayat and he returned to the village after about 2 months thereafter, and then PW 5 Kenchappa came to him and informed that when he (PW 5) asked the accused to marry PW1 Chikkatayamma, he flatly refused to marry her and therefore, a complaint was lodged before the Police in respect of the said incident. 21. 21. PW 8 – Thimmaiah, who is admittedly another panchayatdar in the said panchayat, has also stated in his evidence that when the panchayatdars questioned PW1 Chikkathayamma as to what had happened, she narrated in detail before the panchayatdars the entire incident that had occurred in her house on the previous evening, saying that the accused forcibly committed sexual intercourse on her. He has further deposed that the accused told the panchayatdars that he was going to marry PW 1 and the parents of PW 1 and also the parents of the accused all agreed to the said marriage. He has further deposed that on the next morning, PW 5 Kenchappa came to him and informed that the accused was missing from the village. He has also deposed that the accused returned to the village 2 months thereafter and then, since the accused refused to marry the victim girl despite the request made by PW 5 Kenchappa, a complaint came to be filed before the police in respect of the said incident. 22. On careful reading of the above evidence of PW 6, 8 and DW 1, it is clear that though DW 1, who came to be examined on behalf of the accused, has denied that the accused admitted in the said panchayat that he committed sexual intercourse on the victim girl, the evidence of PWs.6 and 8 as to that fact is quite consistent and falls in line with the evidence of PW 5, the father of PW1 victim girl. Therefore, I do not find any reason to interfere with the findings recorded by the trial Court that the prosecution has proved beyond reasonable doubt the occurrence of the incident of the sexual intercourse by the accused on the victim girl on the said date, time and place and also holding of the panchayat on the next day evening, in which, accused admitted the committing of sexual intercourse by him on PW 1 and, while admitting so, he agreed to marry her. 23. 23. As could be seen from the evidence of PWs.1, 5, 6, 8 and DW1,no circumstances are brought on record by the learned counsel for the accused before the trial Court in the evidence of any of the prosecution witnesses, so as to infer that PW1 victim girl could be a consenting party to the act of sexual intercourse committed on her by the appellant – accused. PW1 has clearly stated in her evidence that despite her resistance, the accused dragged her into the room and, after felling her on the floor, removed her clothes, and committed forcible rape on her by holding her shoulders firmly and by putting cloth (petticoat) into her mouth. The evidence of PW1 has been rightly accepted by the Trial Court and I do not find any valid reasons to take a view different from the one taken by the Trial Court. Thus, it is clear that in view of the fact that only about 3 months were left for the girl to complete 16 years of her age, even if it is assumed that she had attained the age of 16 years as on the date of incident, there is no circumstance brought on record by the appellant – accused so as to infer that she was a consenting party to the sexual intercourse committed on her by the accused. Therefore, I am of the considered opinion that no illegality or error in law is committed by the Trial Court in holding the accused guilty of the offences under Section 376 and 448 of IPC and in convicting him for the said offence. 24. Therefore, I am of the considered opinion that no illegality or error in law is committed by the Trial Court in holding the accused guilty of the offences under Section 376 and 448 of IPC and in convicting him for the said offence. 24. As to the quantum of sentence imposed on the appellant – accused for the said offences, his learned counsel Sri Shashidhar submits that the accused has been the only earning member in his family and as such, he has to support his aged parents and other members of his family; he has no criminal antecedents and the said act was the only culpable act committed by the accused in his life time and the victim girl was none other than the daughter of his maternal uncle and therefore, having regard to all thee facts, the sentence of RI for 10 years and also fine of Rs.50,000/- imposed on him for the offence under Section 376 IPC and also sentence of imprisonment for 6 months and fine of Rs.1,000/- for the offence under Section 448 of the IPC, deserve to be reduced. 25. In support of his above submissions on the quantum of sentence, Sri Shashidhar, the learned counsel for the appellant – accused has placed strong reliance on the decision of this Court in the case of State of Karnataka Vs Manuel, reported in ILR 2000 Short Note No.31. In the said case before the Division Bench of this Court, the accused was the only earning member of his family, was not a criminal or habitual offender and he was to support his family including a mentally handicapped grand father by doing coolie work. Therefore, in view of those facts, the trial Court had imposed sentence of rigorous imprisonment for 3 years and fine of Rs.5,000/- and the Bench declined to interfere with the said sentence in the appeal that was filed by the State seeking enhancement of the sentence. 26. In the present case also, it is not in dispute that the accused is the only earning member of the family and he has to support his aged parents and other members of the family. It is not the case of the prosecution that the appellant has any criminal antecedent or that he has been a criminal or habitual offender. In the present case also, it is not in dispute that the accused is the only earning member of the family and he has to support his aged parents and other members of the family. It is not the case of the prosecution that the appellant has any criminal antecedent or that he has been a criminal or habitual offender. Having regard to all the facts and circumstances of the case, I am of the opinion that the ends of justice would be met with if the sentence of rigorous imprisonment imposed on him by the trial Court for the offence under Section 376 of the IPC is reduced from 10 years to 4 years and fine is also reduced from Rs.50,000/- to Rs.15,000/- and the sentence of imprisonment and fine imposed on him for the offence under section 448 of the IPC, is left undisturbed. For the reasons aforesaid, the present appeal is allowed in part insofar as it relates to sentence of imprisonment and fine imposed on the appellant – accused for the offence under Section 376 of the IPC only. The judgment and order of conviction passed by the trial Court convicting the appellant – accused for the offences under Section 376 and 448 of the IPC is confirmed. Sentence of rigorous imprisonment is reduced from 10 years to 4 years and sentence of fine is reduced from Rs.50,000/- to Rs.15,000/- for the offence under Section 376 of IPC and default sentence for the offence under Section 376 IPC is also reduced from SI for six months to SI for two months only. However, the sentence of imprisonment and fine and also default sentence imposed on him for offence under Section 448 of IPC, is left undisturbed. Both the sentences of imprisonment shall run concurrently and the appellant – accused shall be entitled to set off in respect of the period of his detention during his trial and also after his conviction. If the said amount of fine is paid by the accused, the same shall be paid to the victim girl namely PW1 Kumari Chikkathayamma.