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Karnataka High Court · body

2013 DIGILAW 949 (KAR)

RAVI v. STATE OF KARNATAKA

2013-08-20

B.V.PINTO

body2013
JUDGMENT B.V. PINTO, J.-This appeal is filed challenging the judgment of conviction and order of sentence dated 4.2.2006 passed in SC No. 8/2003 by the Addl. District and Sessions Judge, FTC-IV, Bangalore Rural District, Bangalore, convicting the accused for the offence punishable under Section 376 IPC and sentencing him to undergo RI for a period of seven years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to undergo SI for a further period of six months. 2. It is the case of the prosecution that on 10.8.2002 at about 8.30 p.m. at Byadarahalli village, when the victim went to the back yard of the house to attend nature's call, the accused caught hold of her and took her forcibly to a Eucalyptus grove, thereby he has committed an offence punishable under Section 341 of IPC. It is the further case of the prosecution that on the same day, time and place, the accused committed rape on the victim, thereby he has committed an offence punishable under Section 376 of IPC. It is also the further case of the prosecution that on the aforesaid day, time and place, the accused after commission of the offence of rape, threatened the victim that if she were to inform anybody, she would be killed, thereby he has committed an offence punishable under Section 506 IPC. The prosecution in order to prove the case against the appellant, has examined in all 13 witnesses and got marked Exhibits P-1 to P-12 and marked MOs. 1 to 3. The defence of the accused was one of total denial. He has examined his father as DW1. The learned Sessions Judge after hearing the prosecution and the defence held that the prosecution has proved the case against the appellant beyond all reasonable doubt and convicted and sentenced him as aforesaid. It is this judgment of conviction and sentence, which is challenged in this case. 3. The proceedings in this case commenced with the lodging of complaint by the mother of the victim Smt. Rathnamma on 11.8.2002 before the Anekal Police Station, Bangalore Rural District. In her complaint, she has stated that she is living in Anekal Town along with her husband. On 10.8.2002, at about 8.30 p.m. when herself and her husband and one Rajappa and the victim were cleaning the Bengal gram seeds in the house, her daughter Kum. In her complaint, she has stated that she is living in Anekal Town along with her husband. On 10.8.2002, at about 8.30 p.m. when herself and her husband and one Rajappa and the victim were cleaning the Bengal gram seeds in the house, her daughter Kum. Ambika, the victim went outside the house to attend her nature's call, which place is behind the house. She did not come back even after 9.30 p.m. and when she went to the backyard, she noticed that the accused by name Ravi was holding her daughter and thereafter, on seeing her, he ran away. She questioned the victim as to where she has gone and the victim informed her that she went to answer the nature's call and at that time, the accused came near her, closed her mouth and dragged her to the nearby eucalyptus grove and committed forcible sexual intercourse and thereafter, brought her back and left her near the place from where she was taken. She saw the accused who was going away after leaving her daughter. It is also stated by the victim to her mother that the accused had threatened her that if she were to inform the fact to anybody, he would kill her. It is also stated in the complaint that when she examined her daughter, her daughter was bleeding from her private part and that the chudidar pijama worn by her daughter was blood stained. It is also stated in the complaint that the accused had committed forcible sexual intercourse on her daughter and thereafter, he has threatened her and hence, suitable action is prayed for. The Anekal Town Police on receipt of the complaint at about 8.45 a.m. on 11.8.2002 registered a case in Crime No. 159/2002 for the offences punishable under Sections 341, 376 and 506 of IPC and commenced investigation. The victim was thereafter sent to medical examination by the Investigating Officer and the clothes worn by her were sent for examination by the FSL. The accused was arrested and subjected for medical examination and after completion of the investigation, charge sheet came to be filed. 4. During the trial, the complainant is examined as PW-1. She has deposed to the facts as stated in the complaint while deposing before the Court. She has also stated that she saw the accused while running away from the scene of occurrence. 4. During the trial, the complainant is examined as PW-1. She has deposed to the facts as stated in the complaint while deposing before the Court. She has also stated that she saw the accused while running away from the scene of occurrence. Her daughter was lying on the ground at that place. PW-1 has also stated in the evidence that accused was visible to her in the street light and that the pijama of the chudidar worn by her daughter was stained with blood. She also stated that when enquired, her daughter informed that when she went to nature's call to the backyard of the house, the accused Ravi came from behind, caught hold of her and closed her mouth and carried her to eucalyptus grove which is situated nearby and after removing her pajama, he fell on her and had intercourse with her. It is also stated that since there was no bus facility in the night to go to Anekal from their village, she went to the Police Station on the next day morning along with her daughter and her husband. She has identified the complaint as per Ex.P-1. In the cross examination, she has admitted that there are other houses around their house and that Anekal Town is situated at a distance of 11/2 kms from her village. It is also elicited in the cross examination that PW-1 observed carrying Ambika on his shoulder at a distance of 20-25 feet. The accused was bringing Ambika on his shoulder towards their house from the Nilgiri grove side. It is suggested to PW-1 that there was ill will between the accused and the complainant and that there was a proposal of giving her in marriage to the accused and that since the said proposal was not accepted by the accused, a false case is filed by PW-1. However, the said suggestion has been denied by PW-1. 5. PW-2 Kum. Ambika is the victim. However, the said suggestion has been denied by PW-1. 5. PW-2 Kum. Ambika is the victim. She has stated before the Court that on 10.8.2002 at about 8.30 p.m. when herself and her parents and one Rajappa were cleaning the Bengal gram grains, she had gone to answer the nature's call behind their house and at that time, the accused came from behind and tied a cloth around her mouth and carried her on his shoulder to a eucalyptus grove which is situated at a distance of 200 to 300 feet away from that place and committed forcible sexual intercourse on her by removing her clothes and by removing his clothes. When she tried to avoid the accused, he forcibly held her by his hands. She has also stated that thereafter, she was brought to her house by the accused and left near the place from where she was taken. At that time, her mother came to the said place and on seeing her mother, accused pushed her and ran away from that place. When the accused pushed her, she fell on the ground, thereafter, her mother took her to the house. The victim has further stated in her evidence, that when accused committed rape, there was bleeding from her private part and her pijama was stained with blood. She has stated that immediately after going to the house she has narrated the incident to her mother and on the next day of the incident, she along with her parents went to the Anekal Police Station to lodge complaint. She has also stated that thereafter she was sent to the hospital by the Police and then the Police came to the scene of occurrence. The dress pijama and chudidar worn by her was handed over to the police and marked as MOs. 1 and 2. PW-1 has also stated that while committing forcible sexual intercourse, the thread of the pijama was torn and had fallen at the scene of offence. Police had seized the said thread which is produced and marked as MO-3. PW-2 has been thoroughly cross examined by the accused and it is suggested that no such incident had happened. It is suggested that due to the rejection of the proposal of giving victim to the accused in marriage, a false case has been filed against the accused. However, the said suggestion has been denied by PW-2. PW-2 has been thoroughly cross examined by the accused and it is suggested that no such incident had happened. It is suggested that due to the rejection of the proposal of giving victim to the accused in marriage, a false case has been filed against the accused. However, the said suggestion has been denied by PW-2. It is also suggested that enmity was developed between their families on account of refusal of the accused to marry the victim. However, the said suggestion has been denied by PW-2. 6. PW-3 Y. Gopal, is a witness to the spot mahazar. He has identified MOs. 1 to 3 as the same articles which were seized by the Police as per Ex.P-2. However, PW-3 is not a relative of PWs.1 & 2. PW-4 M. Nagesh is the constable who had apprehended the accused and produced him before the Investigation Officer. PW-5 Jayaram is the Investigating Officer who has conducted the investigation in this case, prepared the mahazar Ex.P-2 at the spot, sent the victim for medical examination, arrested the accused and sent him for medical examination and subsequently, he was produced before the Court. It is stated by PW-5 that during the time when accused was taken to Victoria Hospital, the accused escaped from the custody. Hence, another case in Crime No. 25/2002 was registered against the accused and subsequently accused was apprehended by the Police. After receipt of medical records and FSL records, he has filed the charge sheet. It is suggested to PW-5 that a false case has been registered and that no proper investigation has been conducted by him. PW-6 M. Rajalakshmi is the woman constable who accompanied the victim to the hospital. PW-7-Shantharaju was the Village Accountant who has given the document Ex.P-7 being the RTC extract of the house where the incident has occurred. PW-8 Dr. Manjunath is the Medical Officer at the Victoria Hospital who has examined the accused on 12.8.2002 and found that there is nothing to suggest on the person of the accused that he is incapable of performing sexual act. However, he has stated that there were no signs of recent sexual intercourse on the person of the accused when he was examined by PW-8. PW-9-M. Munireddy is the Vice Principal of the Jr. College, Anekal who has produced Ex.P5, a letter indicating the date of birth of the victim as 15.5.1989. However, he has stated that there were no signs of recent sexual intercourse on the person of the accused when he was examined by PW-8. PW-9-M. Munireddy is the Vice Principal of the Jr. College, Anekal who has produced Ex.P5, a letter indicating the date of birth of the victim as 15.5.1989. The said letter was issued on the basis of the entry in the school record. PW-10 Ravi Kumar is the Engineer who has prepared the sketch of scene of occurrence as per Ex.P-6. PW-11-Mohan Kumar Rao is the constable who has carried the articles to the FSL Bangalore in the above case. PW-12-C.H. Jayanna is the Police Inspector who has registered the case on the basis of the complaint given by PW-1 Rathnamma on 11.8.2002 at about 8.45 p.m. in Crime No. 159/2002. Thereafter, he has transmitted the FIR to the Court. PW-13-K.V. Malini, is the Medical Officer of the Bangalore Medical College under which Vanivilas hospital is functioning. She has stated that on 12.8.2002 at about 2.30 pm, she has examined the victim aged about 14 years who was brought to the hospital with the history of rape by Ravi on 10.8.2002 at 8.30 p.m. She has stated that the girl has attained puberty about 6 months earlier to that date, and her last menstural period was 30.7.2002. On examination, she has noticed that the girl was aged about 14 years and she was conscious and alert. There was no external injury on the body of the girl. On further examination of the hymen, she has noticed that there was old tear of hymen. However, there was no injury or blood stains in and around the genital organs. There was also no tear of cervix or vagina. PW-13 has collected the vaginal swab, vaginal smear, cervical smear, pubic hair from the girl and sent the same to FSL. She has further stated that the girl was subjected to Forensic Department for determination of her age. She has given her opinion that there was no evidence of recent sexual intercourse on the victim girl but she was used to the act like that of sexual intercourse. She has issued certificate in this regard as per Ex.P8. She has further stated that the girl was subjected to Forensic Department for determination of her age. She has given her opinion that there was no evidence of recent sexual intercourse on the victim girl but she was used to the act like that of sexual intercourse. She has issued certificate in this regard as per Ex.P8. In the cross examination, it is elicited that in the case of forcible sexual intercourse, there may be redness, there may be tear in the vagina and the edges may be red and inflamed and also there may be blood stains. 7. On conclusion of the evidence of the prosecution witnesses, the trial Court has examined the accused under Section 313 Cr.P.C. The accused has denied the incriminating circumstances appearing in the statement recorded by him and has stated that since he was requested to marry the victim and that since he had refused such a request, a false case has been foisted. The accused thereafter has examined one Reddiyappa as DW-1. In his evidence before the Court, he has stated that about 4 years prior to giving evidence, the husband of PW-1 has requested him to marry his daughter with the accused who is his son, they did not agree for the alliance and due to the said ill-will, complaint has been filed. It is suggested by the Public Prosecutor that he has deposed falsely in order to help his son. In the cross examination, it is further admitted by DW-1 that even before police register this case, marriage of the accused was already over. It is from the above evidence, the learned Sessions Judge has convicted the accused and sentenced him. 8. Heard Sri Rajesh Rai, learned counsel for the appellant and Sri Satish R. Girji, learned High Court Government Pleader for the State. 9. Learned counsel for the appellant submits that there is an inordinate delay in lodging the complaint of nearly 12 hours though the Police Station is situated only about 11/2 kms away from the scene of occurrence. He further submits that due to enmity of denying the marriage of the accused with the victim, a false case has been filed against the appellant. He further submits that due to enmity of denying the marriage of the accused with the victim, a false case has been filed against the appellant. Further, he submits that FSL report is not corroborating the version of PW-2 the victim and therefore, the offence of rape has not been proved beyond all reasonable doubt and hence, he submits that the accused may be acquitted. 10. Learned High Court Government Pleader on the other hand submits that the evidence of PW-8 Dr. K.H. Manjunath and PW-13 Dr. K.V. Malini clearly corroborates the version of PWs. 1 & 2 that PW-2 has been subjected to sexual intercourse. He has further submitted that the FSL report establishes that the chudidar top and chudidar Pijama have been stained with blood and therefore, the prosecution case that as a result of forcible assault on the victim, she had bleeding and there were stains of blood on the clothes worn by the victim such as MOs. 1 & 2 and therefore, he submits that the allegations made by the victim that she was sexually assaulted is further corroborated by the evidence of not only PW-13 but also by Ex.P-9 which is the FSL report. It is further submitted by the learned High Court Government Pleader that MO-3 is the Chudidar thread which was seized by the police in the presence of PW-3 Gopal. The said Chudidar thread had fallen on the ground where the incident had taken place and therefore, the case of the victim PW-2 is fully corroborated in so far as dragging of the victim to the eucalyptus grove and forcibly removing the clothes worn by the victim from her person. Therefore, he submits that in view of the above evidence on record, learned Sessions Judge has rightly convicted the accused and sentenced him accordingly. 11. The fact that the victim was aged about 14 years at the time of incident is not seriously challenged by the defence. The prosecution has examined PW-9 who is the Principal of the school where the victim was studying. 11. The fact that the victim was aged about 14 years at the time of incident is not seriously challenged by the defence. The prosecution has examined PW-9 who is the Principal of the school where the victim was studying. He has stated that he has issued a certificate as per Ex.P-5 indicating therein the date of birth of the victim is 15.5.1989 and as on the date of the incident, the victim was hardly about 13 years of age and hence it is established that the victim was a girl aged below 16 years as on the date of incident. 12. So far as the forcible sexual intercourse is concerned, the evidence of PWs. 1 & 2 is consistent and that the victim was forcibly raped by the accused on the date of the incident. The identity of the accused is not disputed in this case. Both the families i.e. victim and the accused were known to each other. PW-1 has further stated that when she went in search of her daughter, accused was bringing her daughter and as soon as he saw PW-1, he escaped from the scene of occurrence. This version of PW-1 was corroborated by the version of PW-2 victim herself. The fact that the thread of Chudidar worn by the victim was seized by the police from the scene of occurrence further corroborates that the incident has happened as stated by the victim. 13. The evidence of PW-13 Dr. K.V. Malini clearly indicates that when she examined the victim, she has noticed an old tear of hymen of the victim. However, she has stated that she could not find any injury or blood stains in and around the genital organs. It is further stated by PW-13 that on examination of the FSL report there was no seminal stains and no presence of spermatozoa in the items collected for test. Spermatozoa was also not detected. PW-13 has further stated that there is no evidence of recent sexual intercourse on the victim but she was used to the act like that of sexual intercourse. 14. In view of the above evidence of PW-13 and from the document Ex.P-8 FSL report, it is clear that no sexual act has been performed by the accused on the date of incident. 14. In view of the above evidence of PW-13 and from the document Ex.P-8 FSL report, it is clear that no sexual act has been performed by the accused on the date of incident. However, from the material evidence on record, it can be held that the accused had attempted to commit rape on the victim. 15. I have gone through the judgment of conviction passed by the learned Sessions Judge and the reasonings thereon. While the finding of the learned Sessions Judge that the incident as alleged by PW-2 has in fact happened cannot be found fault with, from the evidence of PW-13, it is clear that an offence of rape has not been established by the medical evidence but an offence of attempting to commit rape is established against the accused beyond all reasonable doubt. In that view of the matter, I pass the following order: (1) The Criminal Appeal is allowed in part. The judgment of conviction and order of sentence passed by the learned Sessions Judge in SC No. 8/2003 for the offence punishable under Section 376 of IPC is hereby set aside. (2) The accused is convicted for the offence punishable under Section 376 read with Section 511 of IPC and the sentence of seven years is reduced to sentence of 31/2 years for attempt to commit rape on victim while keeping the sentence of fine and default sentence in-tact. (3) The direction for payment of compensation of Rs. 8,000/- to the victim is also hereby confirmed. (4) The accused is on bail. He shall surrender himself before the Trial Court forthwith to serve the balance sentence imposed on him and as modified by this Court, failing which, the learned Sessions Judge is directed to secure the accused and remand him to custody. (5) The accused is entitled to the benefit of set off under Section 428 of IPC.