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2016 DIGILAW 99 (KAR)

State of Karnataka v. Murali Krishnan

2016-01-28

K.N.PHANEENDRA, MOHAN M.SHANTANAGOUDAR

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JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of acquittal, dated 17.2.2011 passed by the XXXII Additional City Civil and Sessions Judge, Bengaluru, in S.C. No. 633/2008 is called in question in this appeal, by the State. By the impugned judgment, the Trial Court acquitted the accused of the offences punishable under Sections 363, 366A, 342, 506 and 376 of IPC. 2. Case of the prosecution in brief is that Kum. Sukanya Josphin, aged about 15 years 8 months was living with her grandfather (PW.3 - Selvaraj); when she was aged about just three months, she had lost her mother; she was studying in X standard; at about 12.00 noon on 15.10.2007, PW.1 - Rajeshwari came to the house of the victim-prosecutrix (PW.2) and took her out from the house; PWs.1 and 2 were friends; however, PW.2 did not return to the house, inasmuch as she was kidnapped by the accused on the motor cycle; PW.3 being the grandfather of the prosecutrix, received a phone call to his mobile phone to the effect that PW.2 has eloped with the accused - Murali Krishna; thereafter, he lodged a missing complaint; it is alleged that the accused took PW.2 - prosecutrix on motor cycle to various places including the house of Latha Ramaswamy situated at Parappana Agrahara and thereafter, took her to Krishnagiri and also to the house of Padmavathi Mahalingam at Chennai; after about 3 1/2 months, Police searched the accused and PW.2 and brought them back to Bangalore. The Police after completing the investigation laid the charge sheet against the accused for the offences punishable under Sections 363, 366A, 342, 506 and376 of IPC. 3. In order to prove its case, the prosecution in all has examined 11 witnesses and got marked 26 exhibits. On behalf of the defence, two exhibits were got marked. 4. The Trial Court on evaluation of material on record, acquitted the accused by concluding that it is a case wherein, the victim - PW.2 has consented to go along with the accused and had willingly sexual intercourse with him. The Trial Court has opined that both the accused and the victim might be living under one roof and they were in love with each other. 5. Heard Sri Nawaz, learned Special Public Prosecutor and Sri Dheemanth, learned Amicus Curiae. Perused the records. The Trial Court has opined that both the accused and the victim might be living under one roof and they were in love with each other. 5. Heard Sri Nawaz, learned Special Public Prosecutor and Sri Dheemanth, learned Amicus Curiae. Perused the records. Both the learned Special Public Prosecutor and the learned Amicus Curiae argued in support of their respective cases. 6. Before proceeding further, it would be beneficial to note in brief about the depositions of each of the witnesses. 7. PW.1 is the friend of the victim - PW.2. She has deposed that PW.2 and the accused were in love with each other; the victim - PW.2 told PW.1 that she would accompany the accused voluntarily; neither the accused threatened PW.2 nor he had a knife with him; accused and PW.2 went together happily; PW.2 was in love with the accused. PW.2 is the prosecutrix/victim. She has deposed that she was forcibly kidnapped by the accused. However, the accused by threatening the victim with dire consequences, forcibly took her in a motor cycle and thereafter, in a Maruthi van to various places; since the victim was under the threat of the accused, she did not venture to come out of the clutches of the accused. According to her, she was spoiled by forcible sexual intercourse by the accused. PW.3 is the grandfather of the prosecutrix. He has lodged a complaint as per Ex.P1 and thereafter, another complaint as per Ex.P3. Through him, the copy of the Date of Birth Certificate is marked at Ex.P4. He has deposed that, on 26.1.2008 he had been to Chennai in search of PW.2 and while he was standing in front of Koyamadu bus stand at Chennai, he saw the accused and PW.2 proceeding in a Hero Honda splendor motor cycle and at that time, PW.2 was a pillion rider. He stopped the motor cycle and he informed the incident to the Police at Chennai. PW.4, PW.7 and PW.9 are the Head Constables. They have participated during the course of investigation. PW.5 is the Doctor, who examined the accused as well as the victim-PW2. He has issued Ex.P5 - Medical Certificate of the victim and Ex.P6 - Medical Certificate of the accused. He has deposed that there are no marks of violence and there are no signs of recent sexual intercourse. They have participated during the course of investigation. PW.5 is the Doctor, who examined the accused as well as the victim-PW2. He has issued Ex.P5 - Medical Certificate of the victim and Ex.P6 - Medical Certificate of the accused. He has deposed that there are no marks of violence and there are no signs of recent sexual intercourse. However, he has further deposed that the victim was used to an act of sexual intercourse and she was aged about 15 to 16 years. In respect of the accused, the said Doctor has clarified that he was capable of performing sexual intercourse. PW.6 is the witness for scene of offence mahazars at Exs.P14, 15, 16, wherein the accused committed sexual intercourse. PW.8 was working as a Sub Inspector of Police in Banasavadi Police Station during the relevant point of time. He registered a complaint lodged by PW.3 as per Ex.P1. He also registered a subsequent complaint lodged by PW.3 as per Ex.P3. He has deposed about the photograph of the victim - Ex.P2 and copy of the Date of Birth Certificate - Ex.P4. He conducted major part of the investigation and handed over the investigation to PW.11. PW.10 is another witness for the spot mahazar from where the victim was kidnapped. PW.11 is the Police Inspector of Banasavadi Police Station. He completed the investigation and laid the charge sheet. From the above, it is clear that the entire case of the prosecution mainly depends upon the evidence of PWs.1, 2, 3 and 5 and Ex.P4 - copy of the Date of Birth Certificate. 8. As mentioned supra, the evidence of PW.1 (friend of the prosecutrix) clearly reveals that the accused and the victim are in love with each other and they have voluntarily gone together to various places; They lived together happily for about 3 1/2 months under the same roof at different places. However, PW.2, the prosecutrix has deposed that she was forcibly kidnapped by the accused and that the accused subjected her to forcible sexual intercourse. Though in the examination she has deposed so, looking to the version of PW.2 in her cross-examination, we find that she was a consenting party to the act of the accused. 9. However, PW.2, the prosecutrix has deposed that she was forcibly kidnapped by the accused and that the accused subjected her to forcible sexual intercourse. Though in the examination she has deposed so, looking to the version of PW.2 in her cross-examination, we find that she was a consenting party to the act of the accused. 9. It is not in dispute that the mother tongue of the accused as well as the prosecutrix is Tamil and both of them lived in Tamilnadu State for about 3 1/2 months. Since the accused and the prosecutrix was well-conversant in Tamil language, there was no hindrance for her to complain before the third person including police, if she was forcibly kidnapped or if she had been subjected to forcible sexual intercourse. Though she has deposed that the accused used to torture her, she has not complained about the same to anybody. The photograph-Ex.D1, which was not disputed by the prosecution, clearly reveals that the victim herself was riding the motor cycle. The said fact discloses that the victim was bold enough to face the problems. The evidence of PW.2 further reveals that the accused took her to the house of Latha Rangaswamy situated at Parappana Agrahara, Bengaluru and that the house of Latha Ranganath was very small having two compartments. In the said house, five persons were living, out of them, three were major and two were minor; The accused represented in the house of Latha Ranganatha that both the accused as well as the prosecutrix have married and for that, no protest whatsoever was made by the victim. Thereafter, the accused took the victim in Maruthi Van to Krishnagiri and both of them stayed there in single room. If really the victim was subjected to torture or if she was illegally and forcibly kidnapped by the accused, she would not have left without protesting. Even when she lived at Krishnagiri, she did not venture to disclose about the alleged illegal kidnapping, before anybody. Subsequently, they moved to Chennai from Krishnagiri on a Motor Cycle. She has admitted that the journey from Krishnagiri to Chennai was about 3 to 4 hours. By the time they reached Chennai, they had already spent 9 days either at Bengaluru or at Krishnagiri. Subsequently, they moved to Chennai from Krishnagiri on a Motor Cycle. She has admitted that the journey from Krishnagiri to Chennai was about 3 to 4 hours. By the time they reached Chennai, they had already spent 9 days either at Bengaluru or at Krishnagiri. Even when she was proceeding to Chennai along with the accused on the motor cycle as a pillion rider, she did not raise hue and cry. Thereafter they were residing in Red Hills at Chennai, which is a residential area. They stayed in the said area for about three months and during the said period, one Smt. Padmavathi was providing the materials to both of them including the clothes to the victim. All these facts would clearly reveal that the victim might have agreed to go with the accused and live with him. In that context, the trial Court is justified in concluding that the victim was a consenting party to the act of the accused. PW.2-victim has admitted that Ex.D1 is her photograph and the said photograph discloses that she was riding the motor cycle. She has also admitted that when the accused tied Mangalasutra to the neck of the victim, nobody was present. 10. We reiterate that, on meticulous perusal and consideration of the materials on record, it becomes evident that the victim was happy with the accused and that she willingly co-habited with him. The evidence of PW.3 (Grand father of the victim) discloses that, when he went to Chennai in search of the victim, he could able to see the accused on the motor cycle on 26.01.2008 and at that point of time, PW.2 was a pillion rider. The incident has taken place on 15.10.2007. Thus, it is clear that from 15.10.2007 till 26.01.2008, the accused and the deceased were living together and even when their motor cycle was intercepted by PW.3, PW.2 was a pillion rider on the motor cycle driven by accused. It is not the evidence of PW.3 that the prosecutrix complained before him about the attitude of the accused, immediately on the apprehension of the accused. 11. Having regard to the aforementioned material, we do not find any reason to disagree with the conclusion reached by the trial Court that the victim had readily consented to go along with the accused to various places and she lived with him freely and voluntarily. 12. 11. Having regard to the aforementioned material, we do not find any reason to disagree with the conclusion reached by the trial Court that the victim had readily consented to go along with the accused to various places and she lived with him freely and voluntarily. 12. The question still remains to be considered is, as to whether the victim was aged about 16 years or not? The birth date as per Ex.P4 relied upon by the prosecution (production of which is not disputed by the defence counsel), clarifies that the victim's date of birth was 08.02.1992, which means she was aged 15 years 8 months as on the date of the incident. The production of Photostat copy of the date of birth certificate - Ex.P4 issued by the Municipal Authorities, was not objected by the defence before the trial court. The trial court has relied upon the said document. There is absolutely no cross-examination on behalf of the accused for doubting the date of birth of the victim. The Doctor, who conducted ossification test, has concluded that the victim is aged about 15 to 16 years. Be that as it may. Having regard to the exact date of birth found in the Date of Birth Certificate issued by the Municipal Authorities, we are of the clear opinion that the victim was below 16 years of age as on the date of the incident. Though the trial Court has concluded that the victim was below 16 years of age, it has wrongly proceeded to acquit the accused mainly observing that the victim was a consenting party to the incident. 13. Since the victim was below 16 years of age, she could not give consent for the offence committed by the accused relating to sexual abuse. Therefore, in view of the above, we are of the opinion that the accused is liable to be convicted for the offence punishable under Section 376 of IPC inasmuch as he has committed rape of a girl who was below the age of 16 years. Section 375 of IPC states, as it stood prior to 03.02.2013 i.e., prior to the amendment of Cr.P.C., that if a person had sexual intercourse with a girl of below 16 years of age, with or without her consent, is liable to be convicted for the offence of rape. Section 375 of IPC states, as it stood prior to 03.02.2013 i.e., prior to the amendment of Cr.P.C., that if a person had sexual intercourse with a girl of below 16 years of age, with or without her consent, is liable to be convicted for the offence of rape. Since the accused had sexual intercourse with PW.2, who was below 16 years of age, it can be said that the accused has committed the offence of rape and therefore, he is liable to be punished. 14. Since the offence had taken place on 15.10.2007 i.e., prior to the amendment of the provisions of Section 375 and 376 of IPC, the old law as it existed prior to 03.02.2013, would apply to the facts of this case. In the normal course, the accused should have been sentenced to undergo minimum sentence of seven years of imprisonment, since he had committed rape on a girl who had not attained age of 16 years. However, the proviso to Section-376 Part-I of IPC, as it then existed, states that the court may for adequate and special reasons to be mentioned in the judgment, can impose sentence of imprisonment for a period of lesser than seven years. 15. In the matter on hand, the accused has already undergone imprisonment for more than three years while he was facing trial before the trial court. Even now he is in judicial custody after 18.01.2016. We find that the prosecutrix (PW.2) has willingly left her grandfather's house to be with the accused. However, she is found to be not more than 16 years of age. As mentioned supra, we find that the prosecutrix was a willing party to the act of sexual intercourse and she had willingly left her grandfather's house to be with the accused. The accused has to be convicted for the offence of rape since during the relevant point of time, the victim was 15 years and 8 months old i.e., four months lesser than 16 years, which is prescribed under law. The victim as well as the accused were young during the relevant point of time. While imposing sentence in such type of cases of love affair, lenient view may be taken inasmuch as it would rather meet the interest of justice, particularly when the accused has committed offence under youthful exuberance, may have a sense of self-restraint in future. 16. The victim as well as the accused were young during the relevant point of time. While imposing sentence in such type of cases of love affair, lenient view may be taken inasmuch as it would rather meet the interest of justice, particularly when the accused has committed offence under youthful exuberance, may have a sense of self-restraint in future. 16. Since we find that the prosecutrix has voluntarily roamed and travelled with the accused to various places including Tamilnadu State and as the accused has already undergone more than 3 years of imprisonment, in our considered opinion, interest of justice would be met if the accused is sentenced to undergo imprisonment for the period, which is already undergone by him. As mentioned supra, for more than three years he was behind the bars. Again, he was taken to custody by the orders of this court on 18.01.2016 and he continued to be in judicial custody till this date. However, apart from imposing sentence of imprisonment for the period of which the accused has already undergone, he should also be imposed the sentence of fine. Accordingly, the following order is passed:- ORDER The judgment and order of acquittal dated 17.02.2011 passed by the XXXII Additional City Civil and Sessions Judge, Bengaluru, in S.C. No. 633/2008 hereby stands set aside. The accused is imposed with sentence of imprisonment for the period, which is already undergone by him. He is also imposed with sentence of fine of Rs. 50,000/-. In case of default in payment of fine by the accused, he shall undergo further imprisonment for six months. In case, if the fine amount is deposited by the accused, the entire amount of Rs. 50,000/- shall be released in favour of the prosecutrix (PW.2)-Kum. Sukanya Josphin, as compensation under Section 357of Cr.P.C. The honorarium of the Amicus Curiae is fixed at Rs. 10,000/- to be paid by Registry.