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2018 DIGILAW 706 (KAR)

Dadapeer v. State of Karnataka

2018-06-15

K.SOMASHEKAR

body2018
JUDGMENT : K. Somashekar, J. This appeal is directed against the judgment of conviction and order of sentence dated 08.12.2010 passed by the Presiding Officer, Fast Track (Sessions)-Court XVII, Bangalore in S.C.No.658/2008 convicting the appellant-accused herein for the offence punishable under Sections 365 and 376 of IPC. Under the said judgment the accused was sentenced to undergo SI for a period of three years and to pay fine of Rs.2,000/- and in default of payment of fine he shall undergo SI for three months for the offence punishable under Section 365 of IPC. Further the accused was sentenced to undergo SI for a period of seven years and to pay fine of Rs.5,000/- in default, to undergo SI for five months for the offence punishable under Section 376(1) of IPC. The said judgment has been challenged in this appeal urging various grounds. 2. The factual matrix of the appeal are as under:- On 01.01.2008 at about 8.30 AM when the victim girl Ramya, daughter of complainant Venkatesh was waiting for the bus at Hegganahalli bus stop, the accused kidnapped her forcibly, with an intention to compel her to marry him against her will and to have forcible intercourse with her and further wrongfully confined her in the house belonging to Smt. Pyarejan, Kalleshwara Badavane at Hosadurga town from 01.01.2008 to 19.02.2008 and committed rape on her and thereby committed the above said offences. 3. On filing of the complaint by the complainant crime came to be registered and thereafter the IO has taken up the case for investigation and investigated the case and laid the charge sheet against the accused for the aforesaid offences. The Trial Court framed the charges against the accused for the offences punishable under Sections 366(A) and 376 of IPC and the same was read over and explained to accused. The accused did not plead guilty and claimed to be tried. 4. Thereafter, the prosecution in order to prove its case, examined PW-1 to PW-17 and got marked Exhibits P-1 to P-15. On the part of the defence one witness was examined as D.W.1 and five documents were marked as per Ex.D1 to D5 and material objects were marked as MO.1 to 13. 5. On appreciation of entire evidence on record, the court below convicted the accused for the offences punishable under Section 365 and Section 376 of IPC. On the part of the defence one witness was examined as D.W.1 and five documents were marked as per Ex.D1 to D5 and material objects were marked as MO.1 to 13. 5. On appreciation of entire evidence on record, the court below convicted the accused for the offences punishable under Section 365 and Section 376 of IPC. It is this judgment which is under challenge in this appeal. 6. Heard, learned counsel for the appellant and the learned HCGP for the State and perused the entire records. 7. Learned counsel for the appellant, during the course of his arguments has taken me through the evidence of PW-1 said to be the complainant and father of the victim girl. He contends that the Trial Court has committed error in convicting the appellant relying on the prosecution evidence which is highly interested, contradictory, unreliable and artificial. He further contends that the prosecution has not come forward with true version of the incident as it is guilty of suppression of material evidence. The Trial Court has erred in holding that the prosecution has proved the case beyond reasonable doubt that appellant-accused is guilty of the offences alleged against him. He further contends that the court below failed to notice that there was long and unexplained delay in filing the complaint. It is his further contention that the court below would not have convicted the appellant on the ground that the witnesses relied on by the prosecution that is PW.1 to PW.3 were the interested witnesses and their evidence being full of material contradictions and omissions. The evidence adduced by PW.2, victim girl runs contrary to the medical evidence given by the Doctor. The court below ought to have acquitted the appellant on the ground that PW.4 and PW.8 being the circumstantial witnesses were interested persons and PW.5 and PW.6 being the independent witnesses have not supported the case of the prosecution. It is further contended that the court below has given a goby to the evidence of defence witness that is DW.1 without appreciating his evidence and also the exhibits marked on behalf of defence side are also not considered. Further, it is contended that the SSLC marks card as per Ex.P13 relied on by the Trial Court for determining the age of the victim is not proved in accordance with law. Further, it is contended that the SSLC marks card as per Ex.P13 relied on by the Trial Court for determining the age of the victim is not proved in accordance with law. He further contends that the Trial Court has misdirected and misread the entire evidence of PW-1 to PW-3 and has erroneously come to the conclusion that the prosecution has proved the guilt of the accused by placing cogent, consistent and acceptable evidence in respect of the case put forth by the prosecution. The sentence imposed on the appellant is too severe, harsh and despite lack of essential ingredients to constitute the above offences, the court below had come to the conclusion that the prosecution had succeeded in establishing the guilt of the accused and thereby convicted the accused for the above mentioned offences. 8. Further, it is submitted that the victim girl has got married on 07.12.2008. As according to the evidence of PW.2, victim girl and also evidence of PW.1 and PW.3, being the father and mother of the victim girl, their evidence does not specifically support the case of the prosecution that PW.2, victim girl was induced and forced to accompany the accused on 1.1.2008 at Hegganahalli Bus stop and thereby accused kidnapped and wrongfully and secretly confined her in a house at Hosadurga and then committed rape on her against her will and consent. The essential ingredients of the offences punishable under Sections 365 and 376 of IPC has not been established by the prosecution by placing cogent, corroborative and acceptable evidence to probabalise that the accused had forcibly committed sexual intercourse with PW.2, the victim girl. 9. He further submits that even otherwise, the sentence imposed upon the accused is certainly disproportionate to the nature of offence said to have been committed, since the prosecution has not proved the guilt of the accused beyond all reasonable doubt. On all these grounds urged, the learned Counsel for the appellant prays for re-visiting the impugned judgment of conviction and sentence by re-appreciating the entire evidence in a proper perspective, since the Trial Judge has committed an error in arriving at the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Hence, he prays that the impugned judgment of conviction and sentence held by the Trial Court in S.C.No.658/2008 be set aside by allowing this appeal. 10. Hence, he prays that the impugned judgment of conviction and sentence held by the Trial Court in S.C.No.658/2008 be set aside by allowing this appeal. 10. On controvert to the arguments advanced by the learned counsel for the appellant, the learned HCGP Shri K. Nageshwarappa for the State has taken me through the impugned judgment of conviction and sentence held by the Trial Court, particularly to the evidence of PW-1 to PW-3. He submits that based on the evidence of PW.1 being the father of the victim girl coupled with the complaint at Ex.P1 and Ex.P2 the court below rightly held that the victim girl was forcibly taken by the accused on 1.1.2008 from Hegganahalli bus stop and thereafter she was confined in a house at Hosadurga till 19.02.2008. He further submits that having regard to the facts and circumstances of the case, the court below was right in holding that the material placed on record by prosecution is sufficient to believe that the accused forcibly took PW.2 under inducement to Hosadurga town and wrongfully and secretly confined her and then committed rape on her against her will and consent. The evidence given by the PW.4 and PW.8 who are independent witnesses supports the case of the prosecution. He submits that the accused has committed heinous offence of rape on a young girl. Hence, seeks for dismissal of the appeal preferred by the appellant/accused as being devoid of merits and the judgment of the Trial Court needs no interference. 11. Having regard to these strenuous contentions taken by the learned counsel for the appellant, it is relevant to take note of the evidence of PW.1, being the father of the victim girl who had set the law into motion by filing complaint as per Ex.P1 which was a missing complaint. He has deposed in his evidence that in the year 2007, his daughter PW.2 was studying 2nd PUC at SJR College, Bangalore and on 22.12.2007 his daughter had left the house at about 8 a.m. to go to the college and as she did not return home in the evening, filed a missing complaint before the police as per Ex.P1. He was unable to trace out his daughter even after enquiring with his relatives regarding her whereabouts. He was unable to trace out his daughter even after enquiring with his relatives regarding her whereabouts. On 25.12.2007, PW.2 herself returned home and on enquiry she started weeping and informed that she had been to Davangere as she had scored less marks in the examination. Hence, he did not insist her more to explain and enquire about the matter. He has further deposed that on 1.1.2008, PW.2 Ramya left the house in the morning to go to college but she did not return in the evening. Thereafter, on 19.02.2008 she returned to the house at 7 p.m. and informed that while she was standing at Hegganahalli Bus Stop to go to college on 01.01.2008 the accused came and held her hands and took her towards Kempegowda Bus Stand by force and from there took her to Harihara in KSRTC bus and thereafter she was kept in house at Hosadurga belonging to one Smt. Pyarejan and she was asked by the accused to marry him and she was subjected to forcible intercourse by the accused. She refused to marry him and however escaped from the hands of accused. Since he was not well on that day he approached the police on the next day i.e., on 20.02.2008 and filed complaint as per Ex.P.2. 12. Further in the cross examination he has deposed that on 01.01.2008 he had informed the police orally about missing of his daughter and on 19.02.2008 his daughter herself returned to his house. The marriage of his daughter was performed on 07.12.2008 with the son of the brother of his wife. He has deposed that he had no grudge against the accused and there was no occasion for him to file false complaint against accused. Accused was known to the family members of the victim girl. 13. Pw-2, Ramya is said to be the victim girl. She has deposed in her evidence that on 1.1.2008 at about 7.30 AM while she was standing at Hegganahalli bus stop to go to college, the accused came to the bus stop and expressed his willingness to marry her, for which she refused. 13. Pw-2, Ramya is said to be the victim girl. She has deposed in her evidence that on 1.1.2008 at about 7.30 AM while she was standing at Hegganahalli bus stop to go to college, the accused came to the bus stop and expressed his willingness to marry her, for which she refused. Then accused by showing a knife asked her to accompany him in the bus and took her to Kempegowda Bus Stand and then to KSRTC bus stand from where they went to Hosadurga and she was made to stay in a house by accused till 19.02.2008 for a period of 50 days. The accused used to rape her during the said period. Thereafter, she expressed before the accused that she would obtain consent from her parents for marriage and under the guise of obtaining consent she returned to her house. Accused threatened her with dire consequences if she would inform anybody regarding the confinement. She had deposed that she was studying in II PUC at SJR College and she was born on 20.07.1991 and she had completed the age of 16 years at that time. After return to Bangalore, police had taken her to K.C. General Hospital for medical examination. Further she had deposed that since she was unable to bear the mental torture and pressure extended by the accused, she had once left the house on 22.12.2007 and went towards Dharmastala and returned to the house on 25.12.2007. Since she was under mental pressure of the accused, she had stated before her parents that she had been to Davanagere. But in her cross examination she states that accused did not show her a knife but used to tell her that he would kill with knife if she disclosed before anybody about his desire to marry her. She further deposed that on that day several passengers were present at the Hegganahalli bus stop as well as KSRTC bus stop but she did not try to inform others or escape from the hands of accused in the bus stop and even she did not enquire as to the ownership of the house where she was confined at Hosadurga. She has deposed that she used to resist the acts of accused in having forcible intercourse with her. 14. P.W.3 is the mother of victim girl and she has spoken the facts similar to that of facts stated by P.W.1. She has deposed that she used to resist the acts of accused in having forcible intercourse with her. 14. P.W.3 is the mother of victim girl and she has spoken the facts similar to that of facts stated by P.W.1. She has deposed in her evidence that her daughter who left the house on 01.01.2008 in morning to go to the college did not return in the evening and they tried to trace out their daughter by contacting the relatives and friends and thereafter their daughter returned on 19.02.2008. On enquiry her daughter informed that she was forcibly taken away by the accused and was confined in a house and committed rape on her against her will and she was not allowed to go out of the house where she was confined by the accused. 15. P.W.4 is a circumstantial witness. This witness deposed that on 01.01.2008 when he was waiting at the bus stop at about 9.00 a.m. he saw the accused boarding the bus by holding the hands of P.W.2, the victim girl. Thereafter police secured his presence and drew spot mahazar. In the cross examination he states that he is a mason by profession and He had worked in the house of P.W.2 as a laborer. On 01.01.2008 several persons were present in the bus stop and he did not object the acts of the accused in taking P.W.2 by force in the bus and he did not inform the said facts to the parents of P.W.2. 16. P.W.5 and 6 are the circumstantial witnesses and they have not supported the case of the prosecution and they have turned hostile to the case of prosecution as they denied to have given statements before the police as per Ex.P.2 and 5 respectively. 17. P.W.7 is the ASI of Rajagopalanagar Police Station. He has deposed that on 05.01.2008 P.W.1 being the father of the victim girl filed a missing complaint as per Ex.P.1 stating that his daughter did not return from college and she is missing from 01.01.2008. Accordingly he submitted FIR as per Ex.P.6. 18. P.W.8 is another circumstantial witness who has deposed that on 01.01.2008 while he was standing at Hegganahalli bus stop, he saw the victim girl standing by the side of accused and the accused holding the hand of P.W.2 boarded the bus at 8.30 a.m. which was proceeding towards majestic. Accordingly he submitted FIR as per Ex.P.6. 18. P.W.8 is another circumstantial witness who has deposed that on 01.01.2008 while he was standing at Hegganahalli bus stop, he saw the victim girl standing by the side of accused and the accused holding the hand of P.W.2 boarded the bus at 8.30 a.m. which was proceeding towards majestic. In the cross examination he deposes that he knew P.W. 1 and 2 since 10 years as he was resident of that area and he did not enquire the accused as to why he was holding the hands of P.W.2. 19. P.W.11 the Senior Medical Officer of K.C. General Hospital, Bengaluru, states that on 20.02.2008 the victim girl i.e., P.W.2 was brought before him for medical examination and after conducting the medical examination he opined that the age of the girl was between 16-20 years and issued a medical certificate as per Ex.P.8. 20. P.W.12 is a lady medical officer. On 20.02.2008 she examined P.W.2 Ramya and issued certificate as per Ex.P.9 stating that on genital examination no injuries were seen externally and hymen was absent and vagina easily admitted two fingers and she collected 09 specimens for chemical analysis and further opined that P.W.2 has undergone frequent sexual intercourse and there is no evidence of recent sexual intercourse. 21. P.W.15 is the medical officer of the forensic medicine states that on 20.02.2008 examined the accused and issued potency certificate as per Ex.P.7 stating that there is nothing to suggest that accused is incapable of performing sexual intercourse. 22. P.W. 16 and 17 are the investigating officers. P.W.17 took up further investigation of this case. On 20.02.2008 he received complaint as per Ex.P.2 and registered the case. He referred the victim girl to K.C. General hospital for medical examination. After apprehending the accused, the accused was sent to medical examination at Victoria Hospital. He recorded statement of P.W.2, victim girl and took accused for police custody for further investigation. He conducted spot mahazar in the presence of panch witnesses by visiting house at Hosadurga and recorded statements of witnesses and handed over further investigation to P.W.16. 23. After apprehending the accused, the accused was sent to medical examination at Victoria Hospital. He recorded statement of P.W.2, victim girl and took accused for police custody for further investigation. He conducted spot mahazar in the presence of panch witnesses by visiting house at Hosadurga and recorded statements of witnesses and handed over further investigation to P.W.16. 23. It is relevant to note the observation made by the court below that though it is alleged by the prosecution that victim girl was below 16 years of age at the time of incident and as the alleged incident had occurred on 01.01.2008, the victim girl was born on 20.04.1991 as per the SSLC certificate Ex.P.13, it shows that as on the date of offence, the victim girl had completed the age of 16 years. Hence, it was rightly held by the court below that ingredients of offence punishable under Section 365 of IPC was attracted instead of Section 366(A) of IPC as the accused after kidnapping PW.2, wrongfully and secretly confined her in the house of Smt. Pyarejan at Hosadurga. The court below relied only on the evidence of PW.2 Ramya, stating that she was resisting the acts of accused in sexual act with him and even she was not allowed to cry and inform others by accused, as such she had not consented for sexual act with the accused. Accordingly, the court below concluded that as the facts would clearly reveal that the victim girl was not a consenting party to the sexual intercourse with the accused, the essential ingredients of offences alleged against accused i.e., 365 and 376 of IPC are very much attracted. The prosecution has established its case against the accused beyond all reasonable doubts for the offences punishable under Sections 365 and 376 of IPC and the accused was liable to be held guilty. 24. The court below relying upon several citations placed by the prosecution held that ratio decidendi observed in the rulings is aptly applicable to the case on hand. PW.2 was induced and forced to accompany the accused on 1.1.2008 at Hegganahalli Bus stop and thereby the accused kidnapped and wrongfully confined her in the house of Smt. Pyarejan at Hosadurga and then committed rape on her against her will and consent for a period of 50 days. PW.2 was induced and forced to accompany the accused on 1.1.2008 at Hegganahalli Bus stop and thereby the accused kidnapped and wrongfully confined her in the house of Smt. Pyarejan at Hosadurga and then committed rape on her against her will and consent for a period of 50 days. Hence, the court below held that the testimony of PW.1 coupled with medical evidence is reliable and supports the case of the prosecution. The version of PW.2 that she was kidnapped and forced to accompany accused to Hosadurga and made to stay in the house of Smt. Pyarejan and was not allowed to go out of the house is supported by the evidence of PW.4 and PW.8 being the independent witnesses. The Trial Court was right in coming to the conclusion that offence under Section 365 of IPC was proved against the accused and the prosecution relying on the evidence of PW.1 to 4, 7 to 17 has proved its case against accused beyond all reasonable doubts. 25. In so far as the offence punishable under Section 376 of IPC held against the accused for having committed forcible sexual intercourse with PW.2, the prosecution has not produced cogent, corroborative and acceptable evidence. It is relevant to note the evidence of ASI of Rajagopalanagara Police station as D.W.1 who worked during the period commencing from 2002 to 2008. It is his evidence that on 22.12.2007, one Venkatesh i.e. PW.1 had filed a missing complaint as per Ex.D1 stating that his daughter Ramya was found missing and as such, he registered a case in Cr.No.463/2007 and FIR as per Ex.D2. He further states that on 25.12.2007, PW.1, Venkatesh and his daughter appeared in police station. Since PW.2 had obtained less number of marks in her 2nd PUC exams, she got depressed and had gone out of the house and accordingly, she gave statement to that effect as per Ex.D3 and the statement of her father i.e., PW.1 as per Ex.D4 and closed the missing complaint by putting an endorsement as per Ex.D5. The Trial court committed an error in holding that this evidence of DW.1 does not come to the aid of defence in any way to disprove the case of prosecution. The Trial court committed an error in holding that this evidence of DW.1 does not come to the aid of defence in any way to disprove the case of prosecution. The court below failed to appreciate that PW.2 was in the habit of leaving the house without informing her parents and even in the month of January 2008 she left the house and returned to the house on her own after 50 days. The Trial Court below erred in holding that non-resistance by PW.2 because of fear, cannot be held as not un-natural and even if, PW.2 was major and attained the age of 16 years, consent of PW.2 for sexual act with accused was not established. Further the Trial Court committed an error in holding that the statement of prosecutrix is worthy of credence and reliable and accordingly convicted the accused for the offence punishable under Section 376 of IPC. 26. Pw.12, lady medical officer who has issued a certificate as per Ex.P9, in her evidence has deposed that on genital examination, no injuries were seen externally and hymen was absent and vagina easily admitted two fingers. She opined that PW.2, victim girl has undergone frequent sexual intercourse and there is no evidence of recent sexual intercourse. She was unable to state the exact date on which the victim girl has had last sexual intercourse. The Trial Court having observed that there is no evidence of recent sexual intercourse as deposed by PW.12 Doctor, would not have held that PW.2 was subjected to forcible intercourse with accused during her stay with him in house of Pyarejan at Hosadurga. 27. While convicting the accused for the offence punishable under Section 376 of IPC, the court below committed an error in not noticing the evidence of PW.2 the victim girl, that she had once left the house on 22.12.2007 and went towards Dharmastala and returned to the house on 25.12.2007, since she was under mental pressure of the accused, she had stated before her parents that she had been to Davanagere. On 01.01.2008, when she was taken forcibly by the accused, several passengers were present at Hegganahalli bus stop as well as KSRTC bus stand and she traveled in two buses to reach Hosadurga and she did not try to inform others or escape from the hands of the accused in the bus stop. On 01.01.2008, when she was taken forcibly by the accused, several passengers were present at Hegganahalli bus stop as well as KSRTC bus stand and she traveled in two buses to reach Hosadurga and she did not try to inform others or escape from the hands of the accused in the bus stop. Even she did not enquire as to the ownership of the house where she was confined. Even Smt. Pyarejan, the owner of the house at Hosadurga where the victim was confined was also not examined. The Trial Court erred in convicting the accused for the offence punishable under Section 376 of IPC by placing reliance on the evidence of PW.2, the victim girl, which runs contrary to the evidence of other material witnesses. 28. In the cross-examination of PW.1, the father of the victim, he has deposed that on 19.02.2008 his daughter herself returned to the house. The marriage of his daughter was performed on 07.12.2008 with the son of the brother of his wife. This elementary factor has not been considered by placing cogent, consistent and corroborative evidence to probabalise that the accused has committed forcible sexual intercourse on PW.2 victim girl. The court below has failed to notice the material contradictions in the evidence of prosecution witnesses. 29. Learned counsel for the appellant submits that accused has undergone sentence for a period of seven months and ten days. On going through the entire evidence of the prosecution, I find that the Trial Court has misdirected and misread the entire evidence of PW-1 to PW-3 and has erroneously come to the conclusion that the prosecution has proved the guilt of the accused. In the absence of conclusive proof of the offences alleged against the accused, the Trial Court has erred in convicting the accused under Section 376 IPC and sentencing him to imprisonment for the alleged offence. Therefore, in view of several inconsistencies in the evidence and the guilt of the accused having not been proved by cogent and consistent evidence and also that the accused has served substantial sentence for a period of seven months and ten days, the appeal requires consideration and the order of the trial court has to be modified. 30. Accordingly, the judgment of the Trial Court in so far as it relates to convicting the accused for the offence punishable under Section 365 of IPC is hereby maintained. 30. Accordingly, the judgment of the Trial Court in so far as it relates to convicting the accused for the offence punishable under Section 365 of IPC is hereby maintained. In terms of the aforesaid reasons as the accused has undergone sentence for a period of 7 months 10 days during the course of trial it is suffice to say that he has served substantial period of sentence and the same would meet the ends of justice. 31. However, it requires intervention relating to the sentence held for the offence under Section 376 of IPC and the same requires modification. The Trial court held conviction for the offence punishable under Section 376 of IPC as wherein the victim was alleged to have committed sexual intercourse on her and she was confined for a period of 50 days in the house of Smt. Pyarejan in Hosadurga. On her own she had accompanied with the accused from Hegganahalli Bus Stop to Majestic and from there she accompanied him to Hosadurga wherein she had stayed with him for the aforesaid period. There is no medical evidence to prove that the accused is alleged to have committed sexual intercourse on the victim girl by placing cogent and acceptable evidence. The victim has got married on 07.12.2008. At a cursory glance of the entire evidence placed by the prosecution, it could be opined that the prosecution has not proved the offence punishable under Section 376 of IPC. Consequently, the accused is deserved for acquittal but the Trial Court has erroneously held conviction for the aforesaid offence against him. Therefore, in this appeal it is required to revisit the entire judgment and the appeal is required to be allowed in part. Accordingly, the appeal is allowed in part. The impugned judgment dated 08.12.2010 passed by the Presiding Officer, Fast Track Sessions Court XVII, Bangalore City in S.C.No.658/2008 is hereby modified. The judgment of conviction and order of sentence in so far as convicting the accused for the offence punishable under Section 376 IPC is intervened, as the accused is deserving for acquittal. Consequently, the accused is hereby acquitted for the above said offence. Bail bond shall stand cancelled.