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2019 DIGILAW 1725 (KAR)

State By Mundgod Police Station v. Ningappa

2019-07-17

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. The State has preferred these appeals against the judgment dated 18.08.2010 passed by the learned District and Sessions Judge, Uttara Kannada, Karwar, in Special Case No.4/2009. Criminal Appeal No.2735/2011 has been filed challenging the acquittal of respondent/accused under the provisions of Scheduled Cast and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act', for short) and Criminal Appeal No.2736/2011 has been filed seeking modification of the sentence for the offence punishable under Section 376 of IPC. 2. I have heard the learned HCGP for the State and the learned Amicus Curie appearing for the respondent-accused. 3. The case of the prosecution in brief is that, CW1 sister of victim, filed the complaint alleging that she is residing with her husband and children and her victim sister is residing by the side of her house along with her father and her children. The victim's husband left her and his whereabouts were not known since last eight years. The victim is a deaf and dumb lady. She understands her language of sign. She belongs to Scheduled Caste and Scheduled Tribe. Accused was known to the complainant and their family members. He belongs to Lingayat community. On 12.02.2009, the victim had gone to Mundgod along with her father to get the ration card in her name and also in her father's name. At about 5.30 pm, when the victim was returning to house, the accused by telling the father of the victim that he will drop her to house, took her on the motorcycle and on the way he committed forcible sexual intercourse with her. She came weeping. Her hair was disorderly and her bangles had been broken. On enquiry, she revealed the said fact and after return of the father, the said information was told to him and thereafter complaint was registered. On the basis of the complaint a case is registered and after investigation charge sheet has been filed. 4. Thereafter the presence of the accused was secured and after hearing the accused and the learned Public Prosecutor, the charge was framed. In order prove the case of the prosecution, the prosecution got examined in all 17 witnesses and got marked Exs.P1 to P21 and M.Os. 1 to 11. During the course of cross-examination, Exs.D1 to D43 were also got marked. In order prove the case of the prosecution, the prosecution got examined in all 17 witnesses and got marked Exs.P1 to P21 and M.Os. 1 to 11. During the course of cross-examination, Exs.D1 to D43 were also got marked. Thereafter the statement of the accused was recorded under Section 313 Cr.P.C. He denied the allegations. After hearing the learned Public Prosecutor and the learned counsel for the accused, the Court below came to the conclusion that, there is no material insofar as Section 3(1)(xi) and 3(2)(v) of the SC/ST Act and the accused was acquitted for the said offence and as there was evidence on record, the accused was convicted for the offence under Section 376 of the IPC and was sentenced to undergo Rigorous Imprisonment for four years and to pay a fine of Rs.5,000/-, in default to undergo RI for six months. Being aggrieved by the order of acquittal for the offence punishable under Section 3(1)(xi) and 3(2)(v) SC/ST Act and also imposition of lesser sentence for the offence under Section 376 of IPC, the State is before this Court. 5. It is the submission of the learned HCGP that, though there is sufficient material to connect the accused to the alleged crime, that the accused sexually assaulted the victim knowingly full well that she belongs to the scheduled caste, though the prosecution has established the said fact and there is evidence of PWs.5, 4 and 8, and the Caste Certificate has also been produced at Ex.P7, the Court below has come to a wrong conclusion and has acquitted the accused for the alleged offence. It is his further contention that the learned Sessions Judge has not properly appreciated the evidence on record. It is further contended that, as the Court below has come to the conclusion that the accused has committed rape on the victim, he ought to have been punished with maximum punishment under Section 376 of the IPC. The accused is liable to be punished for imprisonment for life or for a term which may extend to 10 years and was also be liable to fine and the minimum sentence of seven years ought to have been imposed. But the Court below ignoring the said fact has imposed the sentence of four years and fine. There is grave illegality in passing the said sentence. But the Court below ignoring the said fact has imposed the sentence of four years and fine. There is grave illegality in passing the said sentence. On these grounds, he prayed to allow the appeals and set aside the impugned judgment of acquittal and to modify the order of sentence by imposing proper sentence. 6. Per contra, learned Amicus Curie vehemently argued and submitted that the Court below after considering the fact and the family background of the respondent-accused has rightly come to the conclusion that the accused is not entitled to be sentenced for seven years and the accused is sentenced to undergo R.I. for four years. It is her further contention that, the proviso to Section 376 of IPC clearly goes to show that, if any adequate reasons have been stated by the accused, by recording the same, the Court can impose lesser punishment than the minimum prescribed. It is her further contention that, already the respondent-accused has served the sentence and he has already been released after serving of the sentence. If the accused is again ordered to continue the sentence, more prejudice is going to be caused to him. It is her further contention that the Court below after considering the evidence and material placed on record has rightly come to the conclusion that there is no evidence to come to the conclusion that there is an offence under the SC/ST Act. On these grounds she prayed to dismiss the appeals. 7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 8. In order to prove the case of the prosecution, the prosecution got examined 17 witnesses. PW1 is the Headmaster of Deaf and Dump School at Sirsi. She assisted in recording 161 statement of PW8. CW1 is another witness from the same school and helped the Court while recording the statement of PW8. 9. Pw2 is panch witness to spot mahazer Ex.P1 and seizure mahazer Ex.P3. PW3 is panch witness to the seizure mahazer of the motorcycle on which accused took the victim as per Exs.P4 and P5. PW4 is the complainant, who is none other than the sister of the victim. PW5 is the father of the victim lady. 9. Pw2 is panch witness to spot mahazer Ex.P1 and seizure mahazer Ex.P3. PW3 is panch witness to the seizure mahazer of the motorcycle on which accused took the victim as per Exs.P4 and P5. PW4 is the complainant, who is none other than the sister of the victim. PW5 is the father of the victim lady. He speaks about he going to Mundgod village for the purpose of ration card along with the victim and on the way he met the accused and accused promised that he will drop the victim to her house and he sent her on the motorbike of the accused. PW6 is the Assistant Engineer, who prepared the sketch as per Ex.P8 of the scene of offence. PW7 is the village accountant. He has produced the record of rights of the land where the accused has committed rape. PW8 is the victim, who is deaf and dumb and she has disclosed about the alleged incident committed by the accused. PW9 is a circumstantial witness, who saw the accused taking the victim on his motorcycle before the alleged incident. PW10 is the doctor who examined the victim and issued Ex.P10. PW11 is the Police Inspector, who registered the case on the basis of the complaint Ex.P6 and issued FIR. PW12 is the doctor who examined the accused and issued the certificate as per Ex.P13. PWs.13, 14, 15 and 16 are the police constables who have taken victim lady and the accused to the doctor and also taken articles to FSL Mangalore and FIR to the Court. PW17 is the Investigating Officer, who investigated the case and filed the charge sheet as against the accused. 10. I have carefully and cautiously gone through the evidence of the prosecution and the other material which has been made available during the course of arguments. 11. As could be seen from the records, insofar as accused taking the victim lady, who is aged about 40 years and who is deaf and dumb, she was known to the accused and he is the owner of adjoining land. The accused offered to drop the victim to her house, took her on the motorcycle and took her near the field and taking advantage of her deafness and dumbness, he sexually assaulted her. Even in the evidence of PW8, she has clearly stated about the sexual assault. The accused offered to drop the victim to her house, took her on the motorcycle and took her near the field and taking advantage of her deafness and dumbness, he sexually assaulted her. Even in the evidence of PW8, she has clearly stated about the sexual assault. The said evidence is also corroborated with the medical evidence. Though it is contended that the said lady has not suffered with any external injuries, but the fact remains that the accused sexually assaulted her. On the basis of the evidence, the trial Court convicted the accused under Section 376 of the IPC. Admittedly, the accused has not preferred any appeal against the said order and he has already undergone conviction. Under the said facts and circumstances, the only point which remains for consideration of this Court is whether the sentence imposed by the Court below is adequate or the sentence has to be enhanced. 12. Section 376 of the IPC reads as under: "376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,- (a) being a police officer commits rape- (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years." 13. Though the said offence is punishable for life or for a term which may extend to 10 years and was also be liable to fine, but the proviso to the said section gives some discretion to the Court and if adequate and special reasons are assigned in the judgment, it can impose the sentence of imprisonment which is less than seven years. That itself clearly goes to show that the court is having discretion to reduce the sentence. The only condition is that, some adequate reasons have to be assigned in this behalf. That itself clearly goes to show that the court is having discretion to reduce the sentence. The only condition is that, some adequate reasons have to be assigned in this behalf. As could be seen from the order of the sentence passed by the Court below, it is observed that the accused is 22 years old and he is having family, the accused and the victims are adjacent owners and they are closely acquainted and the victim is 41 years and she is also married and is having two sons. Taking into consideration the said family background and dependency, the sentence has been reduced from seven years to four years. After considering the above said facts, the Court below thought it fit to impose the sentence of four years and I am conscious of the fact that the sentence must be defeating to the crime and adequate. If lesser punishment is imposed without sufficient reasons, it has to be viewed very seriously and has to be dealt with in accordance with law. But already the accused has served the sentence from 18.08.2010 to 28.07.2012 and after giving set off this case he has been released on 28.07.2012. As could be seen from the Proviso to Section 376 (1) of IPC proviso, the discretion has been given to the Court to reduce the minimum sentence to meet the ends of justice. The only reason which has to be assigned in this regard is some adequate reasons have to be stated in this behalf. On going through the said facts and circumstances, the sentence imposed in respect of the alleged offence to the extent of four years appears to be just and proper. That too when the accused has already served the sentence for four years, I feel that the enhancing of sentence is not justifiable and as such the appeal preferred by the State for enhancement of the sentence is not acceptable. 14. Insofar as the offence under the SC/ST Act is concerned, the Court below considered the evidence of PW4, who is the complainant and PW5, the father of the complainant, who have stated that they belongs to the Scheduled Caste and Scheduled Tribes and the accused belongs to the Lingayat community. 14. Insofar as the offence under the SC/ST Act is concerned, the Court below considered the evidence of PW4, who is the complainant and PW5, the father of the complainant, who have stated that they belongs to the Scheduled Caste and Scheduled Tribes and the accused belongs to the Lingayat community. But there is no material to show that accused with the knowledge that she belongs to the Scheduled Caste and Scheduled Tribe has committed the offence over the victim. On that ground or in the absence of said material, the Court below has rightly come to the conclusion that no offence has been made out and has rightly come to the conclusion that the said provisions are not at all attracted and the accused deserves to be acquitted. I feel that there are no good grounds to come to the conclusion that the accused has committed alleged offence. 15. Be that as it may. Even if the accused is convicted for the alleged offence, the maximum punishment to be imposed is six months. Already accused has served the sentence for a period of four years and he has come out of the jail after serving the sentence. Under these circumstances, the accused is also entitled for serving the sentence concurrently. The sentence has to be served concurrently and not consecutively. Under the said circumstance also, I feel that no useful purpose is going to be served, if the appeal is allowed and accused is convicted for the said offence. It is the duty of the Court to do justice in the case and he should not be punished twice. If he is convicted for both the offences which took place under single transaction, in that light also it is not justifiable to consider the arguments of the learned HCGP. 16. Looking from any angle, both the appeals are devoid of any merits and the same are liable to be dismissed. Accordingly, the appeals are dismissed. The learned Amicus Curie's assistance is placed on record and Registry is directed to give an honorarium of Rs.5000/- in each case to the learned Amicus Curie.