Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 1429 (KAR)

Shyam v. State of Karnataka

2013-12-20

N.ANANDA

body2013
Judgment : 1. The appellant (accused) was tried and convicted for offences punishable under Sections 376 and 506 (ii) IPC. The appellant has been sentenced to undergo imprisonment for a period of eight years and pay fine of Rs.50,000/- with default sentence to undergo imprisonment for a period of four months for an offence under Section 376 IPC. The appellant has been sentenced to undergo imprisonment for a period of one year for an offence under Section 506(ii) IPC. The learned Sessions Judge has ordered that substantive sentence of imprisonment shall run concurrently. Accused No.2 was a juvenile as on the date of offence and therefore, he was sent to juvenile justice court. 2. I have heard Smt. Budrunnisa, learned counsel for the accused and learned SPP for the State. 3. In view of the conviction of accused No.1 for the aforesaid offences, the following point would arise for determination: "Whether the prosecution has proved that accused No.1, on 7.9.2007 at about 11.30 p.m. took the victim on his motorcycle on Barandur-Biliki bypass road, near eucalyptus grove situated by the side of NH- 206 within the jurisdiction of Paper Town Police Station, Bhadravathi, posed threat to her life and committed rape on victim. Thereby committed offences under Sections 376 and 506 (ii) IPC" 4. The prosecution has produced the school admission certificate (Ex.P18) of the victim wherein, the date of birth of victim is shown as 11.6.1993. Thus, as on the date of incident, the victim was less than 16 years of age. In the circumstances, the contention of the accused that victim was a consenting party cannot be accepted. 5. The victim (PW-1) has given consistent version that accused posing threat to her life committed rape on her. During cross-examination she has reiterated the version given in examination-in-chief. From the tenor of examination we find that accused has made unsuccessful attempt to prove that victim was a consenting party. Accused has made an unsuccessful attempt to demonstrate that victim had left her house on her volition. In the discussion made supra, I have held that victim was less than aged 16 years on the date of incident, therefore, her consent will not come to the rescue of accused. 6. The medical evidence relating to examination of victim is given by PW-10 Dr.Bhargavi. PW.10 on examination of victim had noticed following injuries: 1. In the discussion made supra, I have held that victim was less than aged 16 years on the date of incident, therefore, her consent will not come to the rescue of accused. 6. The medical evidence relating to examination of victim is given by PW-10 Dr.Bhargavi. PW.10 on examination of victim had noticed following injuries: 1. Multiple linear abrasions present over (torn) the back measuring 1 inch to 5 inch in length (torn) left scapular region about 15 in number; 2. linear abrasions over left arm 2 to 4 inches in (torn) about 4 in number. 3. bruising present over labia majora more on right side than left side. 4. bleeding present at vaginal introitus (partly stained with blood) 5. c/o pain at introitus while examination 6. fresh blood seen from the edges of hymen 7. vagina admits little finger and tenerness present. 8. vagina contains blood. 7. PW-10 on examination of the victim and on consideration of Forensic Science Laboratory report, has opined that the victim had undergone recent sexual intercourse and she was not used to act of intercourse earlier. Thus evidence of victim finds substantial corroboration from medical evidence. The first information given by victim was recorded at 12.15 a.m., during intervening night of 7/8.9.2007. The contents of first information would lend corroboration to evidence of victim. There are no reasons to suspect the evidence of victim. 8. PW No.3 is a neighbour of the victim. PW-3 has deposed that on the date of incident at about 9 p.m. accused had come near the house of victim. PW-3 has deposed that on the same day about 11 p.m., victim was coming towards her house. The victim was brought by one Nagaraja. The victim had narrated the entire incident of rape. During cross examination PW.3 has denied that he had enmity with accused. PW-3 is an independent witness. There are no reasons to suspect the evidence of PW-3. 9. PW-6 Ravikumar is also a resident of the same locality. PW.6 has deposed that at about 9.30 p.m., accused No.1 had come near the house of victim. He was talking with victim. At about 11 p.m., victim came from the side of Chowedshwari temple. She was weeping. The victim narrated the incident. During cross-examination PW.6 has denied the suggestion that he had enmity with accused and he has given false evidence under threat by police. 10. He was talking with victim. At about 11 p.m., victim came from the side of Chowedshwari temple. She was weeping. The victim narrated the incident. During cross-examination PW.6 has denied the suggestion that he had enmity with accused and he has given false evidence under threat by police. 10. On careful consideration of evidence of PW-6, I do not find that he had any reason to be scared of police. The evidence of PW-7 relates to spot inspection. The evidence of PW-11 relates to investigation of the accused. The accused during examination under Section 313 Cr.P.C., has sated that he was a social worker; he was questioning highhanded acts committed by the police; therefore, the police have falsely implicated him. At this juncture, it is relevant to notice that accused has not stated that victim had grudge against him. The defence of accused that investigation officer had made use of victim to falsely implicate the accused is untenable. Thus, on re-appreciation of evidence, I find evidence of victim that accused No.1 committed rape on her at about 10 p.m. in an eucalyptus grove near bypass road of NH-206 is credible and consistent. The evidence of PW.10-Dr.Bhargavi lends substantial corroboration to evidence of victim. The victim had no motives to falsely implicate the accused. The School certificate (Ex.P18) shows that victim was less than aged 16 years, on the date of incident. The theory put-forth by accused No.1 that he was falsely implicated due to political rivalry does not stand to reason. The evidence of PW.2-Dr.Hanumanthappa that accused was capable of committing sexual intercourse has not been controverted by the defence. In the circumstances, the learned Sessions Judge was justified in convicting accused No.1. 11. The learned counsel for accused submits that accused is poor and has been in judicial custody from the date of offence. He has no financial capacity to pay fine imposed by the learned Sessions Judge. The offence was committed on 7.9.2007. The accused has been in judicial custody from date of offence. Having regard to the facts and circumstances of the case, I deem it proper to reduce the fine imposed by the trial court from Rs.50,000/- to Rs.25,000/-. 12. In the result, I pass the following: ORDER The impugned Judgment of conviction of accused for offences punishable under Sections 376 and 506 Part-II IPC is confirmed. Having regard to the facts and circumstances of the case, I deem it proper to reduce the fine imposed by the trial court from Rs.50,000/- to Rs.25,000/-. 12. In the result, I pass the following: ORDER The impugned Judgment of conviction of accused for offences punishable under Sections 376 and 506 Part-II IPC is confirmed. The sentence of imprisonment imposed by the Sessions court for offences punishable under Sections 376 and 506 Part-II IPC is confirmed. The order of the learned Sessions judge that substantial sentences shall run concurrently is confirmed. The fine imposed by the learned Sessions Judge is reduced from Rs.50,000/- to Rs.25,000/-. Out of fine amount, a sum of Rs.20,000/- shall be paid as compensation to the victim. The rest of the impugned Judgment is confirmed.