Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 399 (KAR)

Rama v. State of Karnataka

2015-04-08

A.S.PACHHAPURE

body2015
JUDGMENT : A.S. Pachhapure, J. 1. The appellants have challenged their conviction and sentence for the offence punishable under Section 376 r/w. 34 IPC on a trial held by the learned Sessions Judge, Chikkamagaluru. 2. The facts reveal that P.W. 11-victim is said to be less than 17 years of age and on 04.07.2012 she submitted a complaint to the Police alleging forcible sexual intercourse by accused 1 and 2 at the first instance and by the 3rd accused at the later occasion. After the incident, the menstrual cycle stopped and when she was taken to the hospital for check-up, she was said to be pregnant. In the circumstances, as revealed by her she disclosed the name of the appellants, who are the persons responsible for the pregnancy and therefore, the aforesaid complaint was filed. During the course of the investigation, the Investigating Officer got the victim examined by the doctor-P.W. 12. The report was secured. The witnesses were examined. The property extract was secured. The sketch of scene of occurrence was drawn. Her photograph was taken. The birth certificate of the victim was collected. The seized articles were sent to the opinion of the experts. After completion of the investigation, charge-sheet was laid against the accused for the offence punishable under Section 376 r/w. 34 IPC. During the trial, the victim deliver a child. DNA test of the child was done. The report-Ex. P28 was secured. The prosecution examined P.Ws. 1 to 14 and got marked the documents Exs. P1 to 31 and M.Os. 1 to 9. After recording the statement of the accused, no defence evidence was lead and the trial Court heard counsel for the parties and on appreciation of the material, convicted the appellants for the aforesaid charge and ordered them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000-00 each with default sentence. Aggrieved by the conviction and sentence, the present appeal is filed. 3. I have heard learned counsel for the appellants and learned High Court Government Pleader for the State. 4. The point that arises for my consideration is; "Whether the appellants have made out any grounds to interfere in their conviction and sentence for the offence punishable under Section 376 r/w. 34 IPC?" 5. 3. I have heard learned counsel for the appellants and learned High Court Government Pleader for the State. 4. The point that arises for my consideration is; "Whether the appellants have made out any grounds to interfere in their conviction and sentence for the offence punishable under Section 376 r/w. 34 IPC?" 5. Learned counsel for the appellant submits that there is no evidence for the charge under Section 376 r/w. 34 IPC and the conviction is improper and illegal. It is also his submission that there is long delay in lodging the complaint. The DNA test reveals that none of the appellants are the biological father of the child born during the pendency of the trial and therefore, he submits that the conviction cannot be sustained in law. On the other hand, learned High Court Government Pleader supports the Judgment and Order of the trial Court and submits that there is ample material to sustain the conviction and sentence. 6. Ex. P10 is the complaint that has been lodged by the victim-P.W. 11. As could be seen from the averments in the complaint, it is stated by her that she was dragged by appellants 1 and 2 to a garden land and the 1st accused committed forcible sexual assault and thereafter the 2nd accused committed the said act. She also states that a week earlier to the complaint, the 3rd accused committed forcible sexual assault and it was seen by P.W. 2-Manjula, her aunt. As could be seen from the allegations in the complaint, the facts relating to the act of forcible sexual assault are not stated. That apart, the victim is P.W. 11 in her evidence reveals the only statement that she was "sexually assaulted" by the accused. What is "sexual assault" has not been stated by the victim in her evidence. As could be seen from the allegations in the complaint, the facts relating to the act of forcible sexual assault are not stated. That apart, the victim is P.W. 11 in her evidence reveals the only statement that she was "sexually assaulted" by the accused. What is "sexual assault" has not been stated by the victim in her evidence. In fact, the words "sexual assault" are not defined anywhere in the Indian Penal Code, but they are referred to under the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as "the Act" for short] and Section 7 defines a "sexual assault" as under: "Sexual Assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault." So, looking to the aforesaid provision, the words "sexual assault" does not include an act of "rape". But, in the absence of an act of "rape", a conviction under IPC cannot be maintained. That apart, neither the victim-P.W. 11 nor eye-witness-P.W. 2 have stated the actual act of sexual assault said to have been committed by the appellants on the victim. Therefore, in the absence of any evidence, the conviction of the appellants for the aforesaid offence is improper and illegal. That apart, during the trial, the victim delivered a child and an application was filed for DNA test. Sample of the blood of the appellants and the child was taken for examination and Ex. P28 is the report submitted after the DNA test. The report discloses that none of the appellants are the biological father of the child. So, this is another strong circumstance, which has been placed on record by the prosecution to show that the appellants were not the persons, who had the sexual intercourse with the victim and some other person/s other than the appellants who is/are responsible for it. Thereby, a serious doubt arises with regard to the complicity of involvement of the appellants in the alleged offence. But, anyhow, as could be seen from the evidence of the victim-P.W. 11 and her sister P.W. 2, there is consistent version that the victim was unclothed, the appellants/accused were also removed their clothes and slept on her. Thereby, a serious doubt arises with regard to the complicity of involvement of the appellants in the alleged offence. But, anyhow, as could be seen from the evidence of the victim-P.W. 11 and her sister P.W. 2, there is consistent version that the victim was unclothed, the appellants/accused were also removed their clothes and slept on her. This conduct on the part of the appellants would be an act of outraging the modesty of a woman, which attracts Section 354 IPC. No medical evidence is essential to prove this act and the fact that the victim was a minor and has states about the sexual assault and her evidence is corroborated by the evidence of P.W. 2. In the aforesaid circumstances, I am of the opinion that this evidence placed on record is sufficient to convict the appellants for the charge under Section 354 IPC. 7. P.W. 1 is the attesting witness for the spot mahazar-Ex. P1. P.W. 3 has turned hostile to the prosecution. P.W. 4 is a hearsay witness. P.W. 5 is the Panchayat Development Officer, who produced the extract-Ex. P6. P.W. 6 is the junior engineer, who has done the sketch-Ex. P7. 8. P.W. 7 is the Head Mistress, who has produced the birth certificate-Ex. P8 and it reveals that the victim was born on 06.05.1996 and as on the date of the incident, she was less than 16 years of age. P.W. 8 is the father of the victim, also a hearsay witness. P.W. 9 is hostile to the prosecution case. P.W. 10 is the PSI., who registered the complaint-Ex. P11, whereas P.W. 12 is the doctor, who examined the victim and P.Ws. 13 and 14 are the Investigating Officers. So, looking to the material placed on record, I am of the opinion that the conviction of the appellants for the charge under Section 376 r/w. 34 IPC is to be set aside by holding them guilty for the offence under Section 354 IPC and a reasonable sentence has to be awarded for the said offence. Therefore, the appeal is allowed in part. The conviction of the appellants for the charge under Section 376 r/w. 34 IPC is set aside. They are acquitted of the said charge. Therefore, the appeal is allowed in part. The conviction of the appellants for the charge under Section 376 r/w. 34 IPC is set aside. They are acquitted of the said charge. The appellants are convicted for the offence punishable under Section 354 IPC and ordered to undergo rigorous imprisonment for two and half years and to pay a fine of Rs. 10,000.00 each, in default to undergo simple imprisonment for 3 [three] months. They are entitled to set off under Section 428 Cr.P.C. If they have completed the sentence, they shall be released from the judicial custody.