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2012 DIGILAW 803 (KAR)

O. v. Mamachan VS State of Karnataka

2012-09-22

K.N.KESHAVANARAYANA

body2012
JUDGMENT : K.N. Keshavanarayana, J. 1. This appeal by the convicted accused is directed against the judgment of conviction and order of sentence dated 02.07.2005 passed by the II Additional Sessions Judge, D.K. Mangalore, in S.C. No. 43/2004 convicting him for the offences punishable under Sections376 and 506 of I.P.C. and sentencing him to undergo Simple Imprisonment for ten years and to pay fine of Rs. 10,000/- for the offence punishable under Section. 376 of I.P.C. and Simple Imprisonment for three years for offence punishable under Section 506 of I.P.C. The Case of the prosecution is as under: PW. 8 is the victim. PW. 8-Kum. Jeesha, aged about 171/2 years is the daughter of PW. 9-Smt. Tresiyamma and PW 12-G. Thomas and all of them were residing in one of the coolie houses in Rubber Plantation situated in Totothadi village of Belthangadi Taluk. The accused was residing in the same rubber plantation alone as his wife was staying in a foreign country while his two children were staying in his brother's house at a different place. PW. 8 had discontinued the studies after studying upto 7th standard. Whenever, PWs. 9 & 12 were going out for work, PW. 8 used to stay alone in the house. On 29.10.2003 at about 11.00 am, PW. 8 went near the well situated behind the house of the accused to draw water for drinking purpose. At that time, the accused who was in the house, came there, dragged her into the kitchen of his house, fell her on the ground and when she tried to raise alarm, he threatened her with injury to her life and also to the lives of her parents by throwing them into the well, if she raises alarm and informs any one. Therefore, under fear PW. 8 kept quiet and thereafter, the accused committed forcible sexual intercourse on her. Thereafter, she returned to the house and slept. In the evening, when her mother who came back home from work questioned her as to why she is sleeping. However, on account of threatening given by the accused, she did not disclose about the incident fearing danger to the lives of herself and also of her parents. After about 21/2 months, PW. 8 developed some pain in her private part and she disclosed the same to her mother. Thereafter, on 13.01.2004 PW. However, on account of threatening given by the accused, she did not disclose about the incident fearing danger to the lives of herself and also of her parents. After about 21/2 months, PW. 8 developed some pain in her private part and she disclosed the same to her mother. Thereafter, on 13.01.2004 PW. 8 was taken to Community Health Centre, Beithangadi, wherein, PW. 3-Dr. Radhika, on examination of PW. 8 found her suffering from urinary track infection. At that time, PW. 8 disclosed the history of rape to PW. 3. Immediately, PW. 3 sent intimation to the jurisdictional police. On receipt of such intimation, PW. 13-Antony: ASI came to the hospital and recorded the statement of PW. 8 as per Ex. P6 about the incident and on the basis of the said recorded statement, registered the case in Crime No. 11/2004 against the accused for the offences punishable under Sections 376 and 506 of I.P.C. and submitted FIR to the jurisdictional Magistrate, and handed-over the investigation to PW 16-Balachandra, PSI, who during investigation, recorded the statements of the parents of PW. 8, visited the scene of occurrence, drew-up spot mahazar, apprehended the accused, subjected him to medical examination and after collecting necessary documents and other evidences, laid the charge sheet. 2. On committal of the case to the Court of Sessions, the appellant/accused pleaded not guilty for the charges levelled against him and claimed to be tried. In order to bring home the guilt of the accused for the charges levelled, the prosecution examined PWs. 1 to 16 and relied upon documentary evidence-Exs. P.1 to P.26. Apart from denying all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, by way of defence the accused examined DWs. 1 & 2 and relied on documentary evidence marked as Ex. D1. The defence of the accused was one of total denial and that of false implication. It was his further defence that he was residing in one of the line houses along with his mother and two children and he has not committed any acts of rape on PW. 8 as alleged. 3. D1. The defence of the accused was one of total denial and that of false implication. It was his further defence that he was residing in one of the line houses along with his mother and two children and he has not committed any acts of rape on PW. 8 as alleged. 3. After hearing the learned Counsel appearing on both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal held that the evidence on record has established beyond reasonable doubt that the accused committed acts of rape on PW. 8 after dragging her from near the well to the kitchen inside his house and by threatening her and putting her under fear of death of herself and her parents, committed acts of rape on her. In this view of the matter, the learned Sessions Judge convicted the appellant/accused for the aforesaid offences. Aggrieved by the said judgment of conviction and order of sentence, the accused is in appeal before this Court. 4. I have heard Sri. S. Vishwajith Shetty, learned Counsel appearing for the appellant and Sri. K. Rajesh Rai, learned HCGP appearing for the Respondent-State and the records secured from the trial Court. 5. Learned Counsel for the appellant vehemently contended that judgment under appeal suffers from perversity and illegality inasmuch as the learned Sessions Judge has failed to notice that the evidence of PW. 8 does not inspire confidence of the Court as it is highly inconsistent and discrepant. He further contended that the long delay in lodging report about the incident not having been explained, has rendered the case of the prosecution highly suspicious and this aspect of the matter has not been properly considered by the Court below. He further contended that the long silence on the part of PW. 8 in not disclosing the alleged incident to any one has created great amount of doubt about her evidence, as such, the testimony of PW. 8 could not be the sole basis to record conviction since it does not inspire confidence of the Court. He alternatively contended that even if there was an act of sexual intercourse as alleged, the circumstances brought-out in the cross-examination of PW. 8 could not be the sole basis to record conviction since it does not inspire confidence of the Court. He alternatively contended that even if there was an act of sexual intercourse as alleged, the circumstances brought-out in the cross-examination of PW. 8 would suggest consent on the part of PW 8 and therefore, it does not amount to rape within the meaning of Section 375 punishable under Section 376of I.P.C. In That view of the matter, he sought for allowing the appeal and acquittal of the accused. 6. On the other hand, learned Government Pleader sought to justify the judgment under appeal and contended that the judgment does not suffer from any perversity or illegality since the learned Sessions Judge on proper appreciation of oral and documentary evidence has recorded findings, which are sound and reasonable regard being had to the evidence on record, therefore, it does not call for interference by this Court. He further contended that the little delay in lodging report about the incident has been explained by PW. 8 and her evidence beyond reasonable doubt established that at the time of forcible sexual act, the accused threatened. PW. 8 and put her under fear of death of herself and her parents and because of the same, the victim fearing danger to her life and also to the lives of her parents, did not disclose' the incident to any one till she was examined by PW. 3-Dr. K. Radhika, when she developed urinary track infection. Therefore, the delay in lodging report has not in any way created any dent in the case of the prosecution. He further contended that in sexual offence cases, the delay in lodging report cannot be viewed seriously having regard to the nature of the offence, which involves the dignity, honour and reputation of the victim girl. He further contended that the evidence of PW. 8 with regard to the incident of forcible sexual intercourse gains corroboration from the evidence of PW. 1, who in his evidence has categorically stated that he saw the accused lying down on PW. 8 inside the kitchen and thus, he was an eye-witness to the incident, as such, the trial Court has not committed any error in placing reliance on the testimony of PW. 8. 1, who in his evidence has categorically stated that he saw the accused lying down on PW. 8 inside the kitchen and thus, he was an eye-witness to the incident, as such, the trial Court has not committed any error in placing reliance on the testimony of PW. 8. He contended that in sexual offence cases, the testimony of the victim could be the basis for recording conviction and since the evidence of PW. 8 inspires the confidence of the Court, the trial Court is justified in convicting the appellant. Therefore, he sought for dismissal of the appeal. 7. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for my consideration are, i) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? ii) Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offences punishable under Sections 376and 506 of IPC? 8. I have bestowed my anxious considerations to the submissions made by the learned Counsel appearing on both sides and carefully perused the records secured from the trial Court and also the reasonings adopted by the learned Sessions Judge. Having heard the learned Counsel on both sides and having perused the records, I am of the considered opinion that the judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court. 9. It is fairly well-settled that in sexual offence cases, delay in lodging the report cannot be viewed seriously regard being had to the great reluctance on the part of the victim and her parents in immediately reporting such matters to the police as it involves honour, dignity and reputation of the victim. In the case on hand, no doubt there is some delay in lodging the report, as, according to the prosecution, the incident occurred on 29.10.2003, while the report was filed on 13.01.2004. PW. 8-victim has come-out with an explanation as to why she did not disclose this incident to any one. In the case on hand, no doubt there is some delay in lodging the report, as, according to the prosecution, the incident occurred on 29.10.2003, while the report was filed on 13.01.2004. PW. 8-victim has come-out with an explanation as to why she did not disclose this incident to any one. It is her specific say that the accused after dragging her from near the well to kitchen inside in his house, and when felled her on the ground, she tried to raise alarm and at that time, he threatened her with injury to her life and to the lives of her parents and told her that if she raised alarm and informs any one, he would kill them by throwing into the well. PW. 8 is a rustic villager, though having studied upto 7th standard, she was residing in a rubber plantation with her parents. She had discontinued her studies about four years prior to the date of incident. Therefore, possibility of she reeling under fear on account of threatening given by the accused and also danger to the lives of her parents cannot be ruled-out. It is only when she developed urinary track infection and was taken to the hospital, it appears on being questioned by the Doctor, she disclosed the incident and it was at that stage, an intimation was sent to the police and the police recorded her statement as per Ex. P.6. Though PW. 8 has been cross-examined at length, there was nothing to discredit her testimony and she has withstood the test of cross-examination in this regard. The victim and her parents belonged to the workers' class in a rubber plantation, therefore, on account of fear of death, it is reasonable to infer that she was not dare enough to disclose the incident either to her parents or to anybody else. Since it also involves her dignity, honour and reputation she might have thought it not fit to divulge the same to any one. In this view of the matter, the delay in lodging the report has been explained satisfactorily and therefore, there are no grounds to doubt the case of the prosecution. As per the evidence placed by the prosecution, PW. 8 was aged about 17 years 5 months as on the date of the incident. In this view of the matter, the delay in lodging the report has been explained satisfactorily and therefore, there are no grounds to doubt the case of the prosecution. As per the evidence placed by the prosecution, PW. 8 was aged about 17 years 5 months as on the date of the incident. Therefore, she was a girl aged more than 16 years and she had attained the age of giving consent. 10. It is fairly well-settled by catena of decisions that in sexual offence cases, it is not proper for the Court to proceed with the initial presumption of consent on the part of the victim. There is no reason to infer that the sexual act was with the consent of the victim. When the victim of sexual offence comes before the Court and states on oath that she has been raped and the accused did commit forcible sexual intercourse, unless the accused brings-out any circumstances to discredit her testimony, it cannot be held that the act was with her consent, Of course, the accused is not required to prove his defence plea beyond reasonable doubt and to probabilise his defence theory, it is open to the accused to bring-out such circumstances in the evidence of the prosecution witnesses itself which may suggest or probabilise the defence theory. It is also fairly well-settled that in sexual offence cases, the evidence of the victim could be the sole basis for recording conviction. The test would be as to whether the testimony of the victim inspires the confidence of the Court. In the case on hand, perusal of the evidence of PW. 8 indicates that she is a truthful witness and there are no reasons to discard her testimony. Pointing-out certain answers elicited in the cross-examination of PW 8, the learned Counsel contended that those circumstances suggest consent. However, I find no substance in the said contention. It is elicited from PW. 8 that after felling her on the ground, the accused removed her top and also midi and for removing the top she was required to raise her both arms and she put on her undergarments after the act. All these suggestions put to and answers elicited from PW. It is elicited from PW. 8 that after felling her on the ground, the accused removed her top and also midi and for removing the top she was required to raise her both arms and she put on her undergarments after the act. All these suggestions put to and answers elicited from PW. 8 will have to be viewed from her categorical statement that soon after felling her on the ground, the accused threatened her and put her under fear of death and danger to the lives of her parents. Therefore, under such fear of death if she has obeyed the commands of the accused, it can never be said that there was consent on the part of the victim. Therefore, those answers elicited in the cross-examination of PW. 8 are not of such a nature which suggests consent on the part of PW. 8-victim. Therefore, the evidence of PW. 8 clearly establishes that the accused committed forcible sexual intercourse on her. The evidence of PW. 1 would indicate that he was also a worker in the rubber plantation and on that day, he had some work in the hind portion of the house of the accused and when he came there to attend to his work, he heard some sounds and when he peeped through the window of the kitchen, he saw the accused lying on the victim and immediately, the accused getting-up, putting on his dress and going away from the place by abusing PW. 1. Thus, the evidence of PW. 1 corroborates the evidence of PW. 8 on material particulars as to the sexual act. No doubt, PW. 1 did not inform any one about the incident. After all PW. 1 is also a coolie worker while the accused was possessing about 80 rubber plants in that plantation and he was in a position to dominate on the workers. Therefore, the fact that PW. 1 did not disclose this incident to any one cannot be a ground to doubt his evidence: In this view of the matter, the evidence of PW. 1 has been rightly accepted by the trial Court as corroborative piece of evidence and it lends greater assurance to the evidence of PW. 8. In addition to this, the medical evidence indicates rupture of hymn. Of course, the rupture of hymn could occur for other reason also. 1 has been rightly accepted by the trial Court as corroborative piece of evidence and it lends greater assurance to the evidence of PW. 8. In addition to this, the medical evidence indicates rupture of hymn. Of course, the rupture of hymn could occur for other reason also. However, in the absence of any circumstance suggesting any other factor by which the rupture of hymn has occurred, there are no reasons to discard the evidence of PW. 8 that there was a forcible sexual act on her and that led to the rupture of hymn. In this view of the matter, the evidence on record, as rightly pointed out by the learned Sessions Judge, inspires the confidence of the Court and it has established beyond reasonable doubt the acts committed by the appellant/accused. Therefore, the learned Sessions Judge is justified in holding the appellant guilty of the offences punishable under Sections 376 and 506 of IPC. The findings recorded by the learned Sessions Judge are sound and reasonable regard being had to the evidence on record. I find no perversity or illegality in the judgment under appeal warranting interference by this Court. After finding the appellant guilty of the offences punishable under Sections 376 and 506 of IPC, the learned Sessions Judge has sentenced the appellant/accused to undergo simple imprisonment for a period of 10 years and also to pay fine of Rs. 10,000/- for the offence punishable under Section 376 of IPC, and to undergo imprisonment for three years for the offence punishable under Section 506 of IPC, but the same has been ordered to run concurrently. Having regard to the nature of the offences for which the appellant has been found guilty and the punishment prescribed for the same, the sentence of imprisonment ordered by the trial Court cannot be termed either as harsh or as excessive. In this view of the matter, I find no grounds to interfere with the judgment under appeal. Accordingly, the appeal is dismissed. The bail and surety bonds executed by the appellant/accused are ordered to be cancelled. The appellant/accused is directed to surrender himself before the trial Court forthwith and upon such surrender, he shall be committed to the prison to serve the sentence. Accordingly, the appeal is dismissed. The bail and surety bonds executed by the appellant/accused are ordered to be cancelled. The appellant/accused is directed to surrender himself before the trial Court forthwith and upon such surrender, he shall be committed to the prison to serve the sentence. In case of failure to surrender, the trial Court shall take necessary steps to secure the presence of the accused and to commit him to the prison for the purpose of serving sentence.