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Karnataka High Court · body

2009 DIGILAW 628 (KAR)

N. Vijaya @ Ameen v. State of Karnataka

2009-08-12

ARALI NAGARAJ

body2009
Judgment :- The accused in Sessions Case No.10/2005 on the file of Fast Track Court, Chamarajanagar (hereinafter referred to as 'Trial Court' for short) has challenged in this appeal correctness of the judgment and order of conviction and sentence dated 31.8.2006 passed in the said case convicting him for the offences under Sections 366/34, 323/34, 376/34 and 506 Part II/34 of I.P.C. and Section 5 of Immoral Traffic (Prevention) Act 1956 and sentencing him to undergo rigourous imprisonment for various periods and also to pay fine of various amounts as stated in the impugned order of sentence. 2. Heard the arguments of Sri A.N. Radhakrishna, the learned counsel for the appellant-accused and also Sri A.V. Ramakrishna, the learned High Court Government Pleader. 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. 3. On appreciation of oral evidence of PW1 to PW12, the documents at Exhibits P1 to P17 and MOs.1 to 3 produced by the prosecution and exhibits D1 to D10, relevant portions in the statements of prosecution witnesses got marked for the accused, the Trial Court, by its impugned judgment and order of conviction, convicted the appellant-accused for the said offences. Though the charge was framed against the appellant-accused for the said offences for which he has been convicted and also for the offences under Section 3, 4 and 6 of Immoral Traffic (Prevention) Act, 1956, the Trial Court acquitted the accused of the offences under Sections 3, 4 and 6 of the said Act. 4. The learned High Court Government Pleader submitted that the complainant-State has not filed any appeal against the judgment and order of acquittal of the accused of the said offences. 5. Stated in brief, the case of the prosecution, as alleged in the complaint Ex.P1 dated 16.8.2004 filed by PW1 Kumari Raziya Sultana, d/o PW4 Smt. Shahin Taj is as under: .(a) The complainant is aged about 20 years. She has been residing at Haradanahalli Village of Kollegal Taluk, Chamarajanagar Dist. along with her parents. She has been rolling beedi in the house only. Her father has been dealing in plastic goods. Her maternal aunt namely Smt. Mubeena Taj (CW2) has been residing at Udayagiri in Mysore city. She has been residing at Haradanahalli Village of Kollegal Taluk, Chamarajanagar Dist. along with her parents. She has been rolling beedi in the house only. Her father has been dealing in plastic goods. Her maternal aunt namely Smt. Mubeena Taj (CW2) has been residing at Udayagiri in Mysore city. .(b) Whenever the complainant used to go to Mysore to see her said maternal aunt, she used to see one Vijay @ Ameen (A1 herein) as he was a neighbour of her said maternal aunt. The said Vijay used to visit Haradanahalli Village along with the complainant's maternal aunt. As such, accused No.1 was known to all the members of the complainant's family. .(c) On 27.6.2004 at about 11.00 a.m. while the complainant was alone in her house at Haradanahalli Village, A1 Vihay came to her house and informed her that her maternal aunt was admitted in a hospital at Mysore and therefore he had come there to take her to Mysore. Then the complainant told him that her mother had gone to Chamarajanagar and therefore she could not accompany him to Mysore, but this A1 Vijay told her that he had met her mother at Chamarajanagar and she (complainant) could also meet her mother at Chamarajanagar. .(d) Believing his said words of the accused, the complainant accompanied him. He took her to some distance from her house where one white ambassador car was parked. Showing the car, he told the complainant that he had brought the car from Mysore to take her with him. She noticed that two other male persons were in the said car. When she boarded the said Car, A1 Vijay and another boy sat on her either side and she was made to sit in between them. .(e) After the said car came near Chamarajanagar, A1 Vijay and the said other boys pressed her mouth forcibly and A1 Vijay threatened her showing knife and saying that if she were to raise cry, he would kill her and throw her dead body into the water at some place. Therefore, the complainant kept quiet. Then A1 and the said boys forcibly administered her four tablets. When she refused to swallow the said tablets, A1 and both the said persons slapped her and thrusted the tablets to her mouth and put water. Having left with no alternative, she swallowed the said tablets. Thereafter, she went into sleep. Therefore, the complainant kept quiet. Then A1 and the said boys forcibly administered her four tablets. When she refused to swallow the said tablets, A1 and both the said persons slapped her and thrusted the tablets to her mouth and put water. Having left with no alternative, she swallowed the said tablets. Thereafter, she went into sleep. .(f) When the complainant returned to her senses, she noticed that she was lying in a room with no piece of cloth on her body and the three boys including the A1-Vijay were also in the said room and they were all naked. On seeing them all, she cried saying "Ayyo". Then A1-Vijay slapped and threatened her. She further noticed that she was raped by all the said three persons while she was unconscious. Then all the said three persons again committed forcible sexual intercourse on her despite her resistance and her request not to do so. (g) The complainant came to know from the talks among the said three persons that she was in a room of Ranganatha Palace Lodging situate at Nanjangud Road, Chamarajanagar. Thereafter, they vacated the said room, took her to another lodge. In the latter lodge, they forced her to have forcible sexual intercourse with other boys also. When she refused to oblige them, they bet and threatened her showing the knife. Therefore she slept with them. A1 Vijay was taking money, Rs.1,000/-to Rs.1,500/- from them. Likewise, A1-Vijay made her to submit her person to strangers by taking her to different lodgings. During that period, she was not given timely food. They used to earn money by making her to submit her person to various persons. .(h) On one day, thereafter, A1 Vijay took her to the house of her maternal aunt Smt. Mubeena Taj (CW2). At that time, Mohammad Ilyas @ Muajhid (PW5) was present there and A1 Vijay informed her aunt that he found her (complainant) at Mandya and therefore he brought her there. After leaving her there, he went away. Thereafter, she narrated before her maternal aunt and the said Ilyas, all the incidents. On the next day, PW5 Ilyas took her to one Riyaz Khan (CW8) residing at Lashkar Mohalla. The said Riyaz Khan searched for the said Vijay, but he could not find him. After leaving her there, he went away. Thereafter, she narrated before her maternal aunt and the said Ilyas, all the incidents. On the next day, PW5 Ilyas took her to one Riyaz Khan (CW8) residing at Lashkar Mohalla. The said Riyaz Khan searched for the said Vijay, but he could not find him. .(i) On the afternoon of 16.8.2004, the said Mohammed Ilyas (PW5) informed the complainant that A1 Vijay was arrested and he was at Woman Police Station and therefore the complainant should bring her mother. Therefore, the complainant went to the said Police Station with her mother at Chamarajanagar and lodged her complaint against A1 Vijay and two other persons. 6. On the basis of the said complaint, the Police of Chamarajanagar Police Station registered crime against A1 Vijay and two other persons and issued F.I.R. accordingly. During investigation, the Police could not trace the said two other accused. Therefore, charge sheet came to be filed against A1 Vijay and two other persons respectively as A1 to A3 showing therein A2 and A3 as absconding. Therefore, the case against A2 and A3 came to be split up and it proceeded against A1 only. 7. Sri A.N. Radhakrishna, the learned Counsel for the appellant-accused vehemently contended that though it is the case of the prosecution that A1, along with A2 and A3, took the victim girl namely PW1 Kumari Raziya Sultana from Ranganatha Palace Lodging at Chamarajanagar to various other lodgings and there, he subjected her to forcible sexual intercourse by many other persons and thereby earned money and thereafter he took her to the house of one Rajamma situate at 7th Cross, Udayagiri, Kyathamaranahalli in Mysore City and further subjected her to forcible intercourse by many persons over a period of more than one month, the prosecution has not been able to prove the same, inasmuch, it has not chosen to examine as prosecution witnesses, the said Smt. Rajamma (CW10) and any of the Mangers or Proprietors of the other lodgings and therefore the conviction of the accused for the offence under Section 5 of Immoral Traffic (Prevention) Act, 1956 cannot be sustained. 8. 8. Per-contra, the learned High Court Government Pleader strongly contended that though the Managers or the Proprietors of various other lodgings, where the prosecutrix (PW1) was subjected to forcible sexual intercourse by several persons, are not examined as prosecution witnesses, the Trial Court was justified in convicting the accused for the said offences relying on the oral evidence of PW1 victim girl which is convincing and acceptable. 9. It is pertinent to note that, though it is alleged in the complaint Ex.P1 that after she was subjected to forcible sexual intercourse at Ranganatha, Palace Lodging situate at Nanjangud Road, Chamarajanagar, she was taken by the accused to other lodgings and there she was further subjected to sexual assault by various other persons, she has not stated in her evidence the names of any of the said other lodgings. Further, though it is the case of the prosecution that the victim girl was made to stay in the house of CW10 Rajamma situate at Udayagiri, Kyatamaranahalli in Mysore City, the prosecution has not got the said Rajamma examined, nor, has it got examined any other witness who could have spoken that her residential house was being used by the said Rajamma as a place for prostitution and this girl was made to stay there for any period. This being so, as rightly submitted by Sri A.N. Radhakrishna, the learned Counsel for the appellant-accused, the Trial Court was not justified in convicting the accused for the offence under Section 5 of the Immoral Traffic (Prevention) Act, 1956. As such, the impugned judgment and order of conviction and sentence insofar as it relates to conviction of the appellant-accused for the said offence and sentencing him to undergo rigorous imprisonment for a period of 14 years and also to pay fine of Rs.2,000/-deserves to be set-aside and the appellant-accused deserves to be acquitted of the said offence. 10. As such, the impugned judgment and order of conviction and sentence insofar as it relates to conviction of the appellant-accused for the said offence and sentencing him to undergo rigorous imprisonment for a period of 14 years and also to pay fine of Rs.2,000/-deserves to be set-aside and the appellant-accused deserves to be acquitted of the said offence. 10. As to the conviction of the accused for other offences under Sections 366, 323, 506 and 376 I.P.C., all r/w. Section 34 I.P.C., the learned Counsel for the appellant-accused strongly contended that PW1 Nandish, the Manager of Ranganatha Palace Lodge to which A1 is said to have taken the girl, PW3 Prakash, the room boy in the said lodge, have turned hostile and therefore the prosecution has not been able to prove the fact that the girl was taken to the said lodging, made her to stay in a room therein during the night of 27.6.2004 during which night the victim girl was said to have been subjected to forcible sexual intercourse by A1 and the said other two accused one after another. He further submitted that except the say of PW1 victim girl Raziya Sultana, there is no other evidence placed on record by the prosecution to show that the said girl was taken by the accused from her residence at Haradanahalli Village and thereafter she was subjected to repeated sexual intercourse as alleged by her in her complaint Ex.P1 and also as deposed by her. Therefore, the conviction of the accused for all the said offences cannot be sustained. 11. Therefore, the conviction of the accused for all the said offences cannot be sustained. 11. Per-contra, the learned High Court Government Pleader vehemently contended that though PW2, the Manger of Ranganatha Palace Lodge has turned hostile, he has stated in his examination-in-Chief that A1 had come to the said lodging along with the victim girl on the afternoon of 27.6.2004 and he (PW2) gave him (A1) room No.60 in the said lodge, they stayed together in the said room and vacated it by the evening of the same day and this much evidence of PW2 has remained totally unchallenged in the cross-examination by accused and therefore, the fact that the victim girl was taken by A1 to the said lodge on the said date and time and, he stayed with her in Room No.60 on that evening has been fully established by the prosecution, but, A1 has no explanation as to wherefrom he brought the victim girl to the said lodge on the said date and time and where he left her after he took her from the said lodge and hence the Trial Court was fully justified in believing the evidence of PW1 victim girl as to the occurrence of the incidents of forcible sexual intercourse on her on that day in the said lodging. 12. PW1 victim girl has alleged in her complaint and has also deposed in her evidence that on the morning of 27.6.2004, while she was alone in her house, A1 Vijay took her in an ambassador car from Haradanahalli Village to Chamarajanagar, by making her to believe that her maternal aunt Smt. Mubeena Taj was seriously ill and she was admitted in the hospital and also that her mother was at Chamarajanagar and she had also asked him to get her (complainant) to Chamarajanagar. She has further stated in her complaint and also in her evidence that when she came near the ambassador car which was parked on the main road at Haradanahalli village, she saw that two other persons were in the said car and she was made to sit in the car in between A1 and one of the said other two persons, and that on the way to Chamarajanagar, she was forced to swallow tablets, when she refused to do so, she was slapped and also threatened by A1 and the said other persons that she would be killed and therefore she took the tablets and consequently went asleep and when she returned to senses, she noticed that she was lying undressed and A1 and also the said two persons were also in the room in naked condition. She has further stated that she then noticed that she was raped by A1 Vijay and the said persons and thereafter also they committed forcible sexual intercourse on her. 13. On careful reading of evidence of PW1 Nandish, the Manager of the Ranganatha Palace Lodging, it could be seen that he has stated in clear terms in his examination-in-chief that on the afternoon of 27.6.2004 while he was on duty in the said lodging, A1 Vijay came there along with PW1 Kumari Raziya Sultana (whom he identified in the Court while giving his evidence) and the accused wrote his name in the register as 'Ravi' and then he (PW2) gave him room No.60 by receiving from him room advance of Rs.400/-and then they both went into the said room. He has further deposed in his examination-in-chief that the accused vacated the said room at about 6.30 p.m. and then he (PW2) returned to the accused a sum of Rs.100/-after deducting from the advance amount, room rent of Rs.300/-. He has further deposed that about two or three months thereafter, the Police Inspector came to the said lodge and took from him xerox copy of the extracts in the register and the same is at exhibit P3 and the relevant entry therein is at exhibit P3(a). 14. On careful reading of the cross-examination of this witness (PW2) made on behalf of the accused by his learned Counsel, it could be seen that his above evidence in his examination-in-chief has remained totally unchallenged. 14. On careful reading of the cross-examination of this witness (PW2) made on behalf of the accused by his learned Counsel, it could be seen that his above evidence in his examination-in-chief has remained totally unchallenged. Therefore it is clear that the prosecution has proved beyond reasonable doubt that A1 Vijay took the victim girl to the said lodging on the afternoon of 27.6.2004, on the morning of which day, he is said to have taken her from her residence at Haradanahalli Village and brought her to Chamarajanagar in an ambassador car along with two other accused. When this fact is established by the prosecution, then, it is for the accused to explain as to from which place he brought the victim girl to the said lodging on the said date and time and what he did with her while staying in the said lodging and thereafter. 15. Though this PW2 has turned hostile as to the further case of the prosecution that A1, along with two other accused stayed in the said lodging during that night, during which night he and the other accused committed forcible sexual intercourse on the victim girl one after another, the evidence of this witness in examination-in-chief clearly establishes the fact that A1 came to the said lodging, he took the said room and stayed with the victim girl on that day. No circumstance is brought on record on behalf of the accused in the cross-examination of either PW2 or PW3 the room boy or in the cross examination of any of the prosecution witnesses which amounts to a possible explanation as to why he brought the victim girl to the said lodging on the said date and time and why he stayed with her in the said room. 16. Section 106 of the Evidence Act provides that, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Further in the case of Sucha Singh Vs. State of Punjab reported in ( AIR 2001 SC 1436 ), which was a case of abduction. Hon'ble Supreme Court has observed as under: "Evidence Act, Section 106-Penal Code-364-Presumption under – Abduction – Victim murdered later on-Court, depending on factual situation, can draw presumption that all abductors are responsible for murder – Unless abductors explain otherwise to Court as to what else they did with victim. Hon'ble Supreme Court has observed as under: "Evidence Act, Section 106-Penal Code-364-Presumption under – Abduction – Victim murdered later on-Court, depending on factual situation, can draw presumption that all abductors are responsible for murder – Unless abductors explain otherwise to Court as to what else they did with victim. S.106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accuse by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. When more persons than one have abducted the victim, who was later murdered it is within the legal province of the Court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. S.34 of the IPC could be invoked for the aid to that end, unless any particular abductor satisfies the Court with his explanation as to what else he did with the victim subsequently i.e, whether he left his associates enroute or whether he dissuaded others from doing the extreme act etc.etc. The abductors alone could tell the Court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the Court there is every justification for drawing the inference, in the light of all preceding and succeeding circumstances that the abductors are murders of the deceased. (Paras 19, 20, 15) If a legal principle to be laid down is that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances in the case it would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulation the marauders of their activities of killing kidnapped innocents outside the ken of others. India cannot now afford to lay down any such legal principle insulation the marauders of their activities of killing kidnapped innocents outside the ken of others. (Para 21) Fact that note contained the scribbling purported to have been authored by a group styled as Babbar Bhalsa owing the two murders of the deceased was recovered by the police from the scene of murder, the said note would not help the appellant accused unless he shows that he has nothing to do with that self styled Babbar Khalsa, even assuming that the note was left by the murderers without any intention to mislead the investigation". (Para 22) (Emphasis supplied) 17. Applying the provisions of Section 106 Evidence Act to the facts of this case and following the above observations of Hon'ble Supreme Court, it could be seen that the case of the prosecution is that A1, along with two other accused, brought the victim girl from her residence at Haradanahalli Village to Chamarajanagar in a car and then she was made to stay along with them in room No.60 of Ranganatha Palace Lodging at Chamarajanagar. When the prosecution has established the fact that A1 brought the victim girl to the said lodging and stayed with her in the said lodging, then the burden came to be shifted on the accused, of explaining as to what happened thereafter in the said room or, of showing that nothing happened as deposed by PW1 prosecutrix. By remaining silent, this A1 has not discharged this burden. 18. The facts constituting forcible sexual intercourse on the victim girl said to have been committed by the accused in the said lodging were within the special knowledge of A1 and the victim girl. The victim girl has stated on oath that after she was brought there, A1 and also other two persons committed forcible sexual intercourse on her one after another against her will and despite her request that they should not do so. This accused, though has denied the entire evidence of PW1 victim girl, has not brought anything in her cross examination-in-chief to disbelieve her evidence in examination-in-chief as to he committing forcible sexual intercourse on her while she was made to stay in the said lodging. 19. As to the appreciation of the evidence of prosecutrix in such a case, the Hon'ble Supreme Court has observed in the case of State of Punjab Vs. 19. As to the appreciation of the evidence of prosecutrix in such a case, the Hon'ble Supreme Court has observed in the case of State of Punjab Vs. Gurmit Singh reported in ( AIR 1996 SC 1393 ) as under: "A girl in a tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracised by the society or being looked down by the society." "The Court must while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In the case involving sexual molestation upposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal in nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. (Para 7) The evidence of a victim of sexual assault stands almost on par with the evidence on an injured witness and to an extent even more reliable. If the evidence of prosecutrix inspires confidence, it must be relied without seeking corroboration of her statement in material particulars. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with the cases involving sexual molestations. 20. If the relevant allegations in the complaint Ex.P1 and also the evidence of PW1 prosecutrix are carefully scrutinized, it could be seen that her evidence falls in line with the allegations in the complaint. Incident of A1 and other two other accused taking the prosecutrix from her residence to the said lodging at Chamarajanagar and making her to stay with them in the said lodging is consistent with the allegations in the complaint. Incident of A1 and other two other accused taking the prosecutrix from her residence to the said lodging at Chamarajanagar and making her to stay with them in the said lodging is consistent with the allegations in the complaint. Further, as could be seen from the evidence of PW1, she has given all the minor details of the acts of forcible sexual intercourse committed on her by the accused while she was made to stay in the said lodging. Therefore, following the above observations of the Hon'ble Supreme Court in the decision referred to supra, I am of the considered opinion that in the absence of any explanation by the accused as to what happened between himself and PW1 after he took her into the room in the said lodging, the positive evidence of PW1 given on oath before the Court which is quite consistent with her allegations in her complaint Ex.P1 as to the factum of forcible sexual intercourse committed by him on her being trustworthy, deserves acceptance and the same has been rightly accepted and relied upon by the Trial Court. Besides this nothing is brought on record by the accused through the evidence of either PW1 or any other witness to show that the prosecutrix falsely implicated him at the cost of her reputation. Therefore, I do not find any reason to hold that the Trial Court is not justified in convicting the accused for the offences under Sections 366, 376 and 506 Part-II I.P.C. However, the Trial Court was not justified in convicting the appellant-accused for the offences under Section 323 I.P.C. and under Section 5 of the Immoral Traffic (Prevention) Act 1956. Therefore, the present appeal deserves to be allowed in part, insofar as the impugned judgment and order relates to conviction of appellant-accused for the offences under Section 323 I.P.C. and Section 5 of the Immoral Traffic (Prevention) Act, 1956, but the same deserves to be dismissed insofar as the impugned judgment and order relates to his conviction for the offences under Sections 366, 376 and 505 Part II I.P.C. 21. For the reasons aforesaid the present appeal is allowed in part. For the reasons aforesaid the present appeal is allowed in part. The impugned judgment and order of conviction and sentence dated 31.8.2006 passed in Sessions Case No.10/2005 by the Presiding Officer, Fast Track Court, Chamarajanagar insofar as it relates to conviction and sentencing of the appellant (A1) for the offences under Section 323 I.P.C. and under Section 5 of the Immoral Traffic (Prevention) Act, 1956 is hereby set-aside. He is acquitted of the said offences. However, the impugned judgment and order of conviction and sentence insofar as it relates to conviction of the appellant-accused (A1) for the offences under Sections 366, 376 and 506 Part II I.P.C. is hereby confirmed. 22. The submission of Sri A.N. Radhakrishna, the learned counsel appearing for the appellant as amicus curiae that the accused has already undergone imprisonment for a period of 5 years and therefore the said period of imprisonment be treated as the period of sentence and he may be set at liberty cannot be accepted since Section 376 of I.P.C. provides for imposition of minimum sentence of 7 years unless there are adequate and special reasons for imposing sentence of imprisonment for a term of less than 7 years. 23. On careful reading of the submissions made by the learned Counsel for the accused before the Trial Court on the question of sentence, it could be seen that no adequate and special reasons are shown to exist deserving the accused for a sentence of lesser term of imprisonment. However, having regard to the fact that the prosecution failed to establish its further case against the accused that he compelled the victim girl to subject her person to various strangers for monetary consideration, the sentence of R.I. for a period of 10 years imposed by the trial Court is hereby reduced to 7 years. 24. The impugned order of sentence insofar as it relates to imposition of sentences of various terms of imprisonment, fine and default sentences for the offences under Sections 366 and 506 Part II I.P.C. is left undisturbed. The legal fees of amicus curiae Sri A.N. Radhakrishna is fixed at Rs.5,000/-which shall be paid to him by the Government.