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Karnataka High Court · body

2018 DIGILAW 597 (KAR)

Munna v. State

2018-05-22

B.V.NAGARATHNA, BUDIHAL R.B.

body2018
JUDGMENT : BUDIHAL R.B., J. 1. This is an appeal preferred by the appellant-accused being aggrieved by the Judgment and Order of Conviction and Sentence dated 03.08.2013 passed by the Principal Sessions and Special Judge at Chikmagalur in Special Case (IPC & PCSO) No. 5/2013, wherein the appellant-accused has been convicted for the offence punishable under Section 6 of the Protection of Children From Sexual Offences Act, 2012 and under Section 376(2) Of IPC. 2. Brief facts of the prosecution case as per the complaint averments are: The father of the victim girl lodged a complaint as per Ex. P1, wherein it is stated that he is residing along with his wife-Gunavathi, his 5 1/2 years daughter Kum. Jyothi and another daughter Kum. Deepa, 4 months old and one Subhash S/o. Shankar, aged about 7 years, in the address as mentioned in the complaint. On 21.01.2013, when they are all sleeping in the shed one unknown person came to the said place and he lifted Kum. Jyothi, their daughter. Took her behind the Mudigere Government School and committed rape on her. After that he has given some eatables into her hands and he went away by leaving the victim girl at the said shed. Hearing the weeping and crying of the said Kum. Jyothi they woke up and they saw one person, who was entering Hoysala Play Ground. When immediately they enquired Kum. Jyothi. She told before the Complainant and other family members that the said person after closing her mouth took her and he made her to lay on the ground, then he slept on her and committed rape on her. They saw that there is bleeding from her private part. Immediately, they took Kum. Jyothi to Government Hospital, Mudigere in an auto-rickshaw and admitted her. As per the advice of the Doctor at Government Hospital, Mudigere, they shifted her to M.G. Hospital, Chikmagalur for further treatment. Hence, the Complainant requested to take proper action against the said unknown person, who committed rape on his daughter. 3. On the basis of the said complaint a case came to be registered in Cr. No. 10/2013 for the offence punishable under Section 376 of IPC read with Sec. 4 of the Protection of Children from Sexual Offence Act, 2012. Hence, the Complainant requested to take proper action against the said unknown person, who committed rape on his daughter. 3. On the basis of the said complaint a case came to be registered in Cr. No. 10/2013 for the offence punishable under Section 376 of IPC read with Sec. 4 of the Protection of Children from Sexual Offence Act, 2012. But the FIR came to be registered at the first instance against the unknown person and during the course of investigation appellant has been apprehended and made as accused person in the said case. 4. After investigation, Investigating Officer filed charge sheet against the accused for the offence punishable under Section 376 of IPC read with Sec. 5(m) and Sec. 6 of the Protection of Children from Sexual Offence Act, 2012 5. Then the learned Sessions Judge after hearing both side framed charge against the accused person for the offences punishable under Sec. 5(m) of the Protection of Children from Sexual Offence Act, 2012 punishable under Section 6 of the said Act and under Section 376(2)(f) of IPC. When the charge was read over and explained to the accused, the accused pleaded not guilty and claims to be tried. Accordingly, the charge was framed and his plea was recorded and then the matter was set for trial. 6. The prosecution in support of its case examined in all 9 witnesses and got marked documents at Ex. P1 to 18 and also got marked material objects at MO1 to 6. Then accused has been examined under Section 313 of Cr.P.C. and his statement came to be recorded. 7. On the side of the accused no witness was examined nor any documents produced. 8. After hearing the arguments of both sides, the learned Sessions Judge ultimately held that prosecution proved its case beyond all reasonable doubt that the accused person has committed the said offence. Accordingly, convicted him. 9. Being aggrieved by the judgment and Order of Conviction and Sentence and also challenging the legality and correctness of the said Order of Conviction on the grounds as mentioned at Ground No. 1 to 17 in the appeal memo, the accused is before this Court. 10. We have heard the arguments of the learned counsel for appellant-accused and also the arguments of the learned High Court Government Pleader for respondent-State. 11. 10. We have heard the arguments of the learned counsel for appellant-accused and also the arguments of the learned High Court Government Pleader for respondent-State. 11. The learned counsel for appellant-accused made submission that the first and foremost thing in this case is that the FIR came to be registered against an unknown person. This goes to show that the identity of the accused person is not at all established by the prosecution that it is he who lifted Kum. Jyothi from the said place, took her behind Government School and committed rape on her. The learned counsel submitted that when the identity itself is not established then the question of convicting the appellant-accused does not arise at all. In this connection, the learned counsel drawn our attention to the contents of the FIR, Complainant and also evidence of P.W.3-the victim girl. It is his submission that even earlier to the incident, if she was known the appellant-accused very well and after the incident also, she has told that, it is the appellant-accused who committed rape, then in FIR the name of the appellant-accused should have been mentioned at the first instance itself. Hence, it is his contention that in the complaint itself it is mentioned that one person who is having hefty body was going from the place of incident. He submitted that this much of evidence is not sufficient to come to the conclusion that the said offence has been committed by the appellant-accused. Hence, the learned counsel submits that there is wrong reading of the evidence by the learned Sessions Judge and he come to a wrong conclusion in holding that this appellant-accused has committed the alleged offence. 12. The learned counsel also drawn our attention to the order regarding punishment portion and made the submission that the punishment is under both Acts, i.e., Protection of Children from Sexual Offences Act, 2012 and IPC. Hence, he submitted that even if it is held by this Court that the appellant-accused has committed the offence and going to confirm the judgment of the trial Court, then in that case also, the punishment is to be modified. 13. Hence, he submitted that even if it is held by this Court that the appellant-accused has committed the offence and going to confirm the judgment of the trial Court, then in that case also, the punishment is to be modified. 13. Per contra, the learned High Court Government Pleader made his submission that in so far as the incident that there was a rape committed on the victim girl-P.W.3 is concerned, it is supported by the sufficient worth believable material to show that there is bleeding from the private part of the victim girl. This version was also supported by the evidence of the Doctor. The Doctor in his chief examination spoke that when he examined the victim girl there was bleeding from her private part and there was injury to her private part and he sutured about 3 cms. of injury and referred the victim girl for better treatment. 14. Regarding identification of the appellant-accused is concerned, the learned HCGP submitted that P.W.3-the victim girl, on oath before the Court deposed about the identity of the appellant-accused, who is the person before Court, that it is he who committed rape on her. Therefore, he submits that when the victim girl has identified the appellant-accused, as the person who committed rape, it cannot be said that identity is not established by the prosecution. He also made submission that when the learned Sessions Judge considered the evidence of the victim girl, it is well corroborated by the evidence of the doctor and also the medical records, has rightly come to the conclusion that the rape committed on P.W.3-Kum. Jyothi is by the appellant-accused himself and has rightly comes to the conclusion in holding that the appellant-accused is guilty of the said offence. The learned HCGP further submit that there is no illegality committed by the learned Sessions Judge, there is no merit in the appeal and the same is to be dismissed. 15. We have perused the grounds in the appeal memo, judgment and Order of Conviction passed by the learned Sessions Judge, oral evidence of the prosecution witness at P.W.1 to 9 and the documentary evidence produced on the side of the prosecution. We have also considered the oral submission made by both the learned counsel at the Bar. 16. 15. We have perused the grounds in the appeal memo, judgment and Order of Conviction passed by the learned Sessions Judge, oral evidence of the prosecution witness at P.W.1 to 9 and the documentary evidence produced on the side of the prosecution. We have also considered the oral submission made by both the learned counsel at the Bar. 16. The father of the victim girl P.W.1 is the Complainant in this case and in the complaint he narrated whatever told by his daughter when she was questioned, same is mentioned in the complaint and the victim girl clearly stated that it is the accused person who took her to the said place and there he committed sexual intercourse on her. 17. In this case, looking to the deposition of P.W.3-the Victim Girl, before recording her evidence the learned Sessions Judge testified her about the knowledge of the victim girl by putting four questions and she answered four questions rightly, then her evidence was recorded. In her evidence, in examination in chief, the victim girl, deposed that on one day during night after having dinner, herself, her father-P.W.1 were slept in the shed. At that time, the appellant-accused-Munna came inside the shed, he closed her mouth and took her outside the shed and then to nearby school. She further deposed that the accused made her to lay on the ground, he removed her skirt and her nicker and then he slept on her. He put his private part into her private part and there was bleeding. She started to weep. At that time, the appellant-accused gave some eatables to her and then she came to her parents. Even at that time also she was weeping. Then her parents gave her water and they asked what has happened. She explained her parents what accused done to her. Then the parents have seen and verified her private part and she has also showed to her parents that accused going towards field in the light she has seen the accused. Thereafter, her parents took her to Mudigere Government Hospital and from there she was shifted to Government Hospital at Chikmagalur for better treatment. Then the parents have seen and verified her private part and she has also showed to her parents that accused going towards field in the light she has seen the accused. Thereafter, her parents took her to Mudigere Government Hospital and from there she was shifted to Government Hospital at Chikmagalur for better treatment. Doctor examined her, thereafter she was taken to Mudigere Court and before the Magistrate Court she has given her statement under Section 164 of Cr.P.C. The accused, who is present before Court, is the person who closed her mouth, took her and removed her skirt and nicker and slept on her. She identified her nicker as MO1. 18. Looking to the cross examination of this witness, she has stated that even earlier police have shown accused person to her. She admitted the suggestion as true that her mother-CW2 has told her that she has to give evidence in that way. Therefore, it is also the contention of the learned counsel for the appellant-accused that she is a tutored witness. 19. But, while appreciating the evidence and as per Section 3 of the Indian Evidence Act, Court has to consider the entire material and then has to see what is cumulative effect therein and not to pick up stray instances here and there. We have perused the other portion of the cross examination and when it was again suggested to this witness that as her mother told her that she has to give evidence in that way she is giving the evidence, but the said suggestion is denied by her. Therefore, only on the basis of the suggestion made to this witness, she cannot be told that she is a tutored witness. In her further examination, she has denied the suggestion that she is giving false evidence. 20. Apart from that we have also perused the evidence of the Doctor-P.W.4. P.W.4-Dr. Vidyavathi, has been examined by the prosecution, wherein she has stated that on 22.01.2013 at about 12.30 am when she was on duty P.W.3-Kum. Jyothi was brought by P.W.1 and CW2 with history of sexual assault at Junior College, near Water Tank by unknown person. When she examined the victim girl, she found injury to external genitalia and bleeding was present from the vagina. When she examined P.W.3 she is having pain over her genitalia. Jyothi was brought by P.W.1 and CW2 with history of sexual assault at Junior College, near Water Tank by unknown person. When she examined the victim girl, she found injury to external genitalia and bleeding was present from the vagina. When she examined P.W.3 she is having pain over her genitalia. She has not noticed any other injuries on other parts of the body. Victim was conscious and was shivering. She has seen MLC register extract, which is marked as Ex. P3. She also sent intimation to the police about the said injury. The said intimation is marked as Ex. P4. Then she referred the victim girl to the higher hospital for further treatment. 21. Even in the cross examination P.W.4 deposed that when she examined the genitalia of P.W.3 that it was bleeding but she did not examined in detail to know whether any internal injuries have been caused. Witness volunteered and deposed that since the victim was aged about 5 1/2 years, examining her sedatives may require. As such she has not examined the victim girl in detail. 22. There is evidence of one more doctor, P.W.5-Dr. Lalitha, wherein she has deposed in her evidence and in cross examination that on 22.01.2013 at about 2.00 pm CMO sent P.W.3 to her for medical check-up with the history of sexual assault. Along with P.W.3, P.W.1 and CW2 were also present. At the time of examination of P.W.3, she was crying and she was conscious. On examination of P.W.3 there were no external injuries on other parts of the body except the private part. When she examined the genitalua of P.W.3 there she noticed fresh minimal bleeding. There were also blood stains in between the thighs. After cleaning the genitalia she noticed that there was a tare injury over the posterior aspect of the genitalia. As further examination was required under anesthesia, she administered the anesthesia to the victim girl and examined her. She found tare in the posterior vagina. During treatment she sutured the tare portion of the posterior vagina. She produced the patient case sheet pertaining to P.W.3 at Ex. P5. 23. Witness-P.W.5 further deposed that on 22.01.2013 the Investigating Officer has sent the questionnaire as per Ex. P6. To the said questionnaire, she has given answer as per Ex. P7. She found tare in the posterior vagina. During treatment she sutured the tare portion of the posterior vagina. She produced the patient case sheet pertaining to P.W.3 at Ex. P5. 23. Witness-P.W.5 further deposed that on 22.01.2013 the Investigating Officer has sent the questionnaire as per Ex. P6. To the said questionnaire, she has given answer as per Ex. P7. On the same day the Investigating Officer also gave a request asking her whether the statement of P.W.3 can be recorded and whether she is capable of giving the statement. She told that P.W.3 is capable of giving statement and she is mentally fit. Thereafter, in her presence Investigating Officer recorded the statement of P.W.3 as per Ex. P8. When she examined P.W.3 she collected swab from vagina, blood around public and thighs and yellow colour dress. She addressed a letter to RFSL, Mangalore. She sent materials collected in a sealed cover to the Investigating Officer. After receipt of the report of the RFSL, she has given her opinion stating that P.W.3 has been sexually assaulted. She has sent her opinion as per Ex. P9. 24. In the cross examination P.W.5 deposed that when she examined P.W.3 she was unable to answer to her questions. When CW2 told about the history at that time she has told that the sexual assault by an unknown person. Except injury on the private part not other external injuries were found on P.W.3. She denied the suggestion that Investigating Officer has not asked her about the condition of P.W.3 and he has not recorded her statement in her presence as per Ex. P8. She also denied the suggestion that she has not collected any specimen as per MO2 and 3 and sent them in a sealed cover. Since there was a fresh bleeding she is of the opinion that the sexual assault might have taken place on P.W.3 within 1 or 1 1/2 hours prior to her examination. 25. The Investigating Officer has been examined in this case as P.W.7, who has deposed in detail about the investigation that was conducted in this case. 26. We have also perused the documentary evidence on the side of the prosecution. The FSL report is marked as per Ex. P16. Totally ten articles were sent including pant and shirt of the appellant-accused herein, which were marked as Ex. P8(a) and (b) in Ex. P16. 26. We have also perused the documentary evidence on the side of the prosecution. The FSL report is marked as per Ex. P16. Totally ten articles were sent including pant and shirt of the appellant-accused herein, which were marked as Ex. P8(a) and (b) in Ex. P16. Looking to the information, it is mentioned, the articles at item No. 2, 4, 5-a and 5-b and 8-a and 8-b were stained with blood. At Sl. No. 2 in the said FSL report it is mentioned about the presence of seminal stains detected in article No. 8-a, i.e., pant of the appellant-accused. It is further stated in the said report the blood stained exhibits vide serial Nos. 11 to 17 were subjected to serological analysis and the specimen cuttings were completely utilized for serology work. Serology report is marked as Ex. P18, wherein it is stated 'origin of the stains-Items 2, 3, 4, 5-a, 5-b, 8-a and 8-b are stained with human blood'. The blood group of the stains, it is mentioned that 'the blood group of the stains in items 2, 3, 4, 5-a, 5-b, 8-a and 8-b could not be determined because the results of the tests were inconclusive'. It is further mentioned that 'the blood group of the seminal stains in item 8-a could not be determined because the results of the tests were inconclusive'. 27. Looking to the report from the Laboratories, one thing is clear that pant and shirt of the appellant-accused, which was seized during the investigation, were also having blood stains and which is human blood. When that is so, it is for the appellant-accused to explain why there are said blood stains on his pant and shirt. 28. In this connection, we have to examine the statement of the accused recorded 313 Cr.P.C. While answering the question No. 44, under the caption 'Have you got anything more to say?', the appellant-accused answered that he has not committed any fault, even then police have apprehended him and implicated in the case. The next question No. 45, 'Have you any witnesses to examine on your behalf?', he answered 'no'. Regarding Ex. P16-FSL report, there is specific question under Question No. 41. While answering the said question the appellant-accused simply said it is false. With regard to serology report marked at Ex. P18 under question No. 43, for that also he simply stated it is false. Regarding Ex. P16-FSL report, there is specific question under Question No. 41. While answering the said question the appellant-accused simply said it is false. With regard to serology report marked at Ex. P18 under question No. 43, for that also he simply stated it is false. Therefore, when such opportunity was given to the appellant-accused while examining under Section 313 of Cr.P.C. regarding incriminating materials which clearly goes to show that there were seminal stains on his pant and blood stains on both his pant and shirt, he ought to have explained about these things, which he did not done. 29. We have also perused the document at Ex. P7, the answers given by the doctor to the questions and in the said document at Sl. No. 8, it is mentioned by the doctor that there was no monthly course to the victim girl. Therefore, it is also ruled out the doubt in the mind of the Court regarding bleeding from the private part of the victim girl. Ex. P7 is in response to the questions by the Investigating Officer under Ex. P6. Therefore, looking to these materials, it also supports the case that victim girl was subjected to sexual intercourse and regarding identification aspect is concerned referring to the evidence of the victim girl. We have also observed that victim girl has identified the accused in the Court Hall. Apart from that a suggestion is made to P.W.1-father of the victim girl that the accused person was picking and collecting scrap and he was giving the same to P.W.1 and by selling the same P.W.1 was collecting the commission and as he stopped to give the said scrap P.W.1 subsequently, because of that reason P.W.1 filed a false complaint against the appellant-accused. But looking to the suggestion made to the witness, we are unable to accept the defence of the accused that because of the said reason P.W.1 is filing such a false complaint as against the accused person. Therefore, the said contention and suggestion cannot be accepted. 30. The learned Sessions Judge has taken all these aspects into consideration in his judgment and he has rightly held that the prosecution has proved its case beyond all reasonable doubt that the accused person committed rape on the victim girl. Therefore, no illegality in the judgment and order of conviction passed by the Court below. 30. The learned Sessions Judge has taken all these aspects into consideration in his judgment and he has rightly held that the prosecution has proved its case beyond all reasonable doubt that the accused person committed rape on the victim girl. Therefore, no illegality in the judgment and order of conviction passed by the Court below. Hence, there are no reasons to interfere with the judgment and order of conviction. We hereby confirm the judgment and order of conviction passed by the Court below. 31. So far as sentence aspect is concerned, the learned Counsel appearing for the appellant-accused is justified in making submission that imposing punishment under both enactments, i.e., under Protection of Children From Sexual Offences Act, 2012 and IPC, is not correct and even imposing fine under both enactments is also not correct. Hence, submission made by the learned counsel for the appellant-accused, we are of the opinion that the sentence aspect needs modification. Accordingly, only to that extent we modify the judgment and order of conviction of the learned Sessions Judge regarding sentence and hereby order that the appellant-accused is sentenced to undergo rigorous imprisonment for life and he has to pay fine amount of Rs. 12,500/- and in default to pay fine the appellant-accused is to undergo simple imprisonment for a period of one year. 32. With the modification regarding sentence, the appeal preferred by the appellant-accused is hereby dismissed.