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2013 DIGILAW 123 (KAR)

RAVI v. STATE OF KARNATAKA

2013-02-01

H.S.KEMPANNA, K.L.MANJUNATH

body2013
JUDGMENT K.L. MANJUNATH, J.-The appellant/accused has preferred this appeal challenging the legality and correctness of the judgment and order dated 6.10.2008 passed in S.C. No. 16/2008 by the Sessions Judge and Presiding Officer, FTC - II, Chikmagalur, convicting him for the offences under Sections 376 and 506 - II of IPC and sentencing him to undergo imprisonment for life till his death and to pay fine of Rs. 3,000/- , in default to undergo S.I. for two years for the offence punishable under Section 376 of IPC and to undergo R.I. for five years and to pay fine of Rs. 1,000/-, in default to undergo S.I. for one year for the offence punishable under Section 506 - II of IPC. 2. The brief facts of the case are:- The accused has been tried on the charges for the offences punishable under Sections 376 and 506 - II of IPC. It is alleged that on 22.10.2007 at about 10.30 a.m. and at 12 noon near Henchalige at Gurjar Estate coming within the jurisdiction of Gonibidu police station, the accused committed rape on his minor daughter Ambika, aged about 13 years, and after committing rape, he also threatened her with dire consequence not to reveal the same to anybody and there by has committed the aforementioned offences. 2.1. It is the case of the prosecution, PW. 1 -Ambika is the daughter of the accused and PW.8 -Honnamma. As on the date of the occurrence, she was aged 13 years and was prosecuting her studies in 7th standard at Higher Primary School, Halekere village. The accused and PW.8 apart from PW. 1 had one more daughter by name Renuka, who is elder sister of PW. 1 and a son by name Somesh, who is younger to PW. 1. 2.2 It is the case of the prosecution, the accused and his wife - PW.8 were coolies by occupation and were working under PW.9 - Laxmamma in her coffee garden. 2.3 It is further the case of the prosecution, on 22.10.2007, PW.8- mother of the victim went to her work alongwith her another daughter Renuka to the coffee estate of PW.9 in the morning at about 8.00 a.m. and her son went out for playing. At that time, victim PW. 1 was alone in the house. At the time PW.8 left the house, she directed her daughter PW.1 to clean the cattle shed. Accordingly, PW. At that time, victim PW. 1 was alone in the house. At the time PW.8 left the house, she directed her daughter PW.1 to clean the cattle shed. Accordingly, PW. 1 after cleaning cattle shed was in the house. But about 9.00 a.m. the accused -her father came to the house fully drunk. Thereafter, he called his daughter PW.1 to catch crab near Gurjar estate. She refused to go alongwith him. Despite the same, he compelled her to go with him to catch crab as he has promised to give crabs to some person. Thereafter, the accused took her forcibly alongwith him towards Gurjar estate via the house of the employer of her parents, i.e., PW.9. When they were passing near the house of PW.9, on seeing the accused and PW.1, she enquired as to why he is taking PW.1 by dragging her, in response to which, the accused replied saying that he is taking to catch crab. Thereafter, the accused took PW.1 to a distance of about 1 to 11/2 km., and there he started pressing the chest of PW.1. At the said place, he fell her down, removed her clothes and had forcible sexual intercourse with her. After completing the act, he took her to catch crabs. At that time, he threatened her with dire consequences saying not to reveal his acts to anyone. Thereafter, while coming back to the house, again he committed rape on her at a place called Ellakkebadde. Thereafter, he brought her to the house. 2.4 It is the case of the prosecution, this act of the accused, inasmuch as he committing rape on PW. 1 was also witnessed by PW. 7 - Poornima, who is a close friend of PW.1. After returning to the house by about 4 p.m., PW.8 - mother and her another daughter Renuka returned to the house. Seeing PW.1 in a grief stricken mood, PW.8 enquired with her, in response to which, PW. 1 narrated the occurrence to her mother. In the meantime, PW. 7 - Poornima also come to the house and divulged that she had seen the occurrence and she also joined in reporting the occurrence to PW.8. Thereafter, PW.8 went and informed the same to PW.10 - Poornesh Gowda and later she called up her brother Ramesh on phone. As he was not available, she informed the same to his wife Padmakshi of the occurrence. Thereafter, PW.8 went and informed the same to PW.10 - Poornesh Gowda and later she called up her brother Ramesh on phone. As he was not available, she informed the same to his wife Padmakshi of the occurrence. She waited for the arrival of her brother Ramesh. As he did not respond, PW.8 on being told by PW. 10 proceeded to Gonibidu police station and filed her complaint as per Ex.P. 1 before PW. 11- ASI. 2.5 PW. 11 on receipt of Ex.P.1 registered a case in Crime No. 62/2007 for the offences punishable under Section 376, 506 - II of IPC against the accused and issued FIR as per Ex.P.16 to the Jurisdictional Magistrate. Thereafter, he handed over further investigation of the case to PW. 16 - CPI. 2.6 PW. 16 on taking over the investigation, first took steps to forward the victim girl for subjecting her to medical examination. In pursuance of the same, PW.4-Dr.Shivakumar examined the victim girl on 31.10.2007 and issued wound certificate in respect of her as per Ex.P.10. Thereafter, he also proceeded to the spot of occurrence and there he drew up scene of the offence panchanama as per Ex. P.7 in the presence of panchas PWs.2 and 5. Apart from the same, he also got the photographs at the spot of the occurrence taken by PW.2- photographer and the said photos are at Exs.P.2 to P.5. He also recorded the statements of PWs.7, 8, 9 and 10. PW16 continuing the investigation arrested the accused on the very day, i.e., on 31.10.2007 and got him subjected to medical examination, in pursuance of which, PW.3 examined him on the said date and issued wound certificate in respect of him as per Ex.P.9. Thereafter, PW. 16 also took steps to forward the seized articles in the case for subjecting them to chemical examination to FSL office. He also recorded the statements of the other witnesses cited in the charge sheet apart from the witnesses, who have been examined on behalf of the prosecution at the time of trial. Thereafter, he handed over further investigation of the case to PW.13, who in turn, on taking over the investigation secured the relevant documents in the case and on completion of the investigation, submitted final report against the accused before the Jurisdictional Magistrate. Thereafter, he handed over further investigation of the case to PW.13, who in turn, on taking over the investigation secured the relevant documents in the case and on completion of the investigation, submitted final report against the accused before the Jurisdictional Magistrate. Learned Jurisdictional Magistrate, thereafter, committed the case of the accused to the Court of Sessions, which in turn, on receipt of the records, secured the presence of the accused, framed the charges against him as aforesaid, to which, he pleaded not guilty, but claimed to be tried. 3. The prosecution in support of its case in all examined PWs. 1 to 16 and got marked Exs.P. 1 to P.20 and MOs. 1 to 12. The accused got marked Ex.D.1 during the course of examination of PW. 16. 4. The accused in his examination under Section 313 Cr.P.C. denied all the incriminating circumstances that were put to him found in the evidence of the prosecution witnesses. He also submitted that he has no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. 5. The learned trial Judge on considering the oral and documentary evidence placed on record came to the conclusion that the prosecution has established the charges levelled against the accused and accordingly, by the impugned judgment and order, convicted and sentenced the appellant/accused as aforesaid. 6. The appellant/accused being aggrieved by the said judgment and order of conviction and sentence is in appeal before this Court. 7. The learned counsel for the appellant assailing the impugned judgment and order contended that the testimony of PW. 1 does not inspire confidence in view of the delay in filing the complaint-Ex.P.1. According to him though the occurrence has taken place on 22.10.2007, the complaint came to be filed on 31.10.2007 and in between this period much water has flown under the bridge to falsely implicate the accused, as the complaint reveals the relationship between PW.8 -his wife and the children on the one hand and the accused on the other hand is not cordial with each other. He further contended that the evidence of PW.7 also cannot be believed as her statement has come to be recorded two days after the arrest of the accused and lodging of the complaint. Insofar as PW.9 - Laxmamma is concerned, he contended that she has partly turned hostile to the prosecution. He further contended that the evidence of PW.7 also cannot be believed as her statement has come to be recorded two days after the arrest of the accused and lodging of the complaint. Insofar as PW.9 - Laxmamma is concerned, he contended that she has partly turned hostile to the prosecution. Her evidence does not reveal that the accused had committed forcible sexual intercourse on PW. 1. Therefore, her testimony is of no avail to the prosecution. Coming to the evidence of PW. 1, he contended that apart from the delay in filing the complaint, it cannot be believed because she has not come with the version immediately after the accused committing rape on her at the first instance. She has not even informed PW.9, who admittedly is the owner of coffee estate under whom her mother and father were working, while they were returning via her house. Therefore, he contends that the evidence of these witnesses taking from any angle does not inspire any confidence, despite the same, the trial Judge has committed an error in placing reliance on their testimony and holding that the prosecution has established the charges leveled against the accused, which cannot be sustained, hence it be set aside and the accused be acquitted of the charges leveled against him. 8. Countering the submissions made by the learned counsel for the appellant, Sri. Nawaz, learned Addl. S.P.P. supporting the impugned judgment and order contended that there are no reasons to discard the testimony of prosecutrix - PW.1. Mere delay in filing the complaint, is of no consequence as held by the Apex Court in rape cases. PW.8's evidence reveals that she was waiting for her brother to take decision as to what steps are to be taken, since the accused is none other than her husband. Apart from the same, he also contended that the evidence of PW.7 discloses that she has actually witnessed the occurrence, i.e., the accused committing rape on PW.1. Her testimony is not challenged in any manner in the cross-examination or it is diluted in the cross-examination. The testimony of PWs. 1 and 7 is consistent with regard to the rape committed by the accused. It is further fortified from the evidence of PW.4-Medical officer, who has examined the victim girl - PW.1 and issued wound certificate as per Ex. P. 10. The testimony of PWs. 1 and 7 is consistent with regard to the rape committed by the accused. It is further fortified from the evidence of PW.4-Medical officer, who has examined the victim girl - PW.1 and issued wound certificate as per Ex. P. 10. He also further submitted that other evidence on record fortifies the testimony of the victim and PW.7. Though PW.9 has partly turned hostile to the prosecution, it does not take away the prosecution case in view of the evidence of PWs. 1 and 7. Therefore, he contended that the trial Judge on appreciation of the evidence on record in its right perspective has come to the right conclusion in holding that the prosecution has established the charges leveled against the accused, which does not suffer from any infirmity, calling for interference in this appeal, accordingly, it be dismissed. 9. In the wake of the submissions made, the evidence and documents on record, the point that arises for our consideration is:- Whether the impugned judgment and order of conviction and sentence passed by the trial Judge calls for any interference? 10. The undisputed facts of the case are:- PW.1 being minor daughter of the accused and PW.8, the accused and PW.8 alongwith their children including PW.1 residing in a house in the coolie line provided to them by PW.9 - Laxmamma under whom they were working in her coffee estate. According to the prosecution, on 22.10.2007 in the morning at about 8.00 a.m. PW.8 left the house alongwith her elder daughter Renuka for their work. At that time PW. 1 and her son were in the house. PW.8 had directed her daughter PW.1 - victim to clean the cattle shed. Accordingly, PW.1 was cleaning the cattle shed on that day. At about 9.00 a.m. the accused came to the house called her to accompany him to catch crabs near Gurjar estate, to which she refused, but he compelled, forced and took her alongwith him to catch crabs near Gurjar estate. On the way, they were seen by PW.9, who enquired with the accused, who was forcibly dragging PW. 1, to which he said he is taking her to catch crabs. Thereafter, he took her to Ellakkebadde after going a distance about 1 to 1 Vo, km. and there he committed rape on her. On the way, they were seen by PW.9, who enquired with the accused, who was forcibly dragging PW. 1, to which he said he is taking her to catch crabs. Thereafter, he took her to Ellakkebadde after going a distance about 1 to 1 Vo, km. and there he committed rape on her. After committing rape, he went to catch the crabs and at the said place he threatened her with dire consequence not to reveal his act to anybody. This act, according to the prosecution, was witnessed by PW.7 -Poornima by hiding behind the bush. After catching the crabs when he was retuning to home, on the way again he committed rape on her. This occurrence, as already pointed out, took place on 22.10.2007. After retuning to the house, according to PW.1, she alongwith PW.7 reported the same to PW.8 -her mother on her return from coolie work. Thereafter, PW.8 took steps to inform the same to PW. 10 -Poornesh Gowda, who in turn directed her to take steps after informing to her brother Ramesh. Accordingly, PW.8 called her brother on phone. As he was not available, she informed his wife Padmakshi. Thereafter, she waited for her brother. As he did not turn-up, she took steps to file complaint. Accordingly, PW.8 accompanied by PW. 1 proceeded to Gonibidu police station and there PW.1 filed her complaint as per Ex.P.1 before PW. 11 - ASI. PW. 1 in her evidence has testified to these facts regarding the acts of accused and in the cross examination of PW.1, nothing has been elicited to discard her testimony. Her evidence is further corroborated from the evidence of PW.7 - Poornima, who according to the prosecution, had witnessed the accused committing rape on PW.1. In the cross-examination of PW.7 also nothing has been elicited to discard her testimony. Their evidence is corroborated in all material particulars in respect of the act of rape committed by the accused on PW.1. 11. Though the learned counsel contended there is delay in filing complaint, it is settled position of law that any delay in lodging the complaint in a case of this nature, i.e., rape cases, it is of no consequence as held by the Apex Court in a catena of decisions. Therefore, we do not see any force in the said submission of the learned counsel for the appellant. Therefore, we do not see any force in the said submission of the learned counsel for the appellant. Apart from the same, the Medical evidence on record clearly goes to show that PW1 - minor girl has been subjected to rape. In this case, the accused is none other than the father of the minor victim girl, who has committed rape on her. No minor daughter would depose against her own father. Apart from the same, PW.8, who is the mother of the victim, has also testified to the fact of her daughter having been subjected to forcible sexual intercourse at the hands of her husband, which is further fortified from the evidence of PW.7 - Poornima, an eyewitness. The testimonies of these witnesses, in our view, are trustworthy and inspire confidence to place reliance on them. We do not find any material whatsoever to discard the testimony of these witnesses in any manner. Taking from any angle, since their testimony is consistent, cogent and corroborated from all angles including the medical evidence, we are of the view that the learned Trial Judge has committed no error in coming to the conclusion that the prosecution has established the charges leveled against the accused and the said finding being based on facts and the law laid down by this Court and the Apex Court, does not suffer from any infirmity calling for interference in this appeal. 12. However, we find the learned Trial Judge has passed an order of sentence on the appellant to undergo Imprisonment for life till his death. In the facts and the circumstances, we find it appropriate to modify that sentence to undergo Imprisonment for Life instead of Imprisonment till his death. With this modification of the sentence, we confirm the conviction recorded on the appellant and modify the sentence as follows:13. Accordingly, we proceed to pass the following: ORDER The appeal is dismissed confirming the order of conviction recorded by the Trial Court. However, in place of sentence of Imprisonment for Life till his death, it is modified and we direct the accused to undergo sentence of Imprisonment for Life. In respect of the sentence of payment of fine, it is left undisturbed.