Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 345 (KAR)

Suresh v. State of Karnataka

2023-03-01

MOHAMMAD NAWAZ

body2023
JUDGMENT/ORDER 1. This appeal is preferred by the accused against his conviction and sentence passed by the Presiding Officer, Fast Track Court - III, (sessions), Bengaluru for the offence punishable under Sec. 376 of IPC. 2. Heard the learned counsel for the appellant and learned High Court Government pleader for the State and perused the material on record. 3. The charges were framed against the appellant/accused for the offence punishable under Ss. 376, 417, 420 of IPC. The trial Court found the accused not guilty for the offence punishable under Ss. 417 and 420 of IPC. However, found him guilty for the offence punishable under Sec. 376 of IPC and sentenced him to undergo imprisonment for a period of 7 years and to pay fine of Rs.35, 000.00 and in default, to undergo simple imprisonment for a period of one year. 4. In so far as acquittal of the accused for the offence punishable under Sec. 417 and 420 of IPC, the same has become final, as the State has not preferred any appeal. 5. The case of the prosecution is that the victim girl is a minor aged below 16 years as on the date of commission of the offence. While she was going to school in D.B. Jodahalli, the accused used to follow her and tell her that he will marry her. Thereafter, both of them fell in love with each other. The accused with a promise of marriage committed forcible sexual intercourse with her, on account of which she became pregnant. On 26/12/2009 at about 6.20 p.m., the victim gave birth to a female child. Thereafter, when the victim requested the accused to marry her, he refused to marry and told her that he is not responsible for her pregnancy. 6. In order to establish the guilt of the accused, the prosecution got examined 10 witnesses and got marked 9 documents. The defense got examined 3 witnesses. 7. The victim girl is examined as PW1. She has reiterated the averments made in the complaint. She has stated that the accused has committed sexual intercourse on her and promised her that he will marry her. Therefore, she did not inform the incident to her father. Thereafter, she became pregnant and when she informed the accused about her pregnancy, he told her to abort her pregnancy. Later, she informed the incident to her father. Then a Panchayat was convened. Therefore, she did not inform the incident to her father. Thereafter, she became pregnant and when she informed the accused about her pregnancy, he told her to abort her pregnancy. Later, she informed the incident to her father. Then a Panchayat was convened. In the Panchayat, the accused told that he will give a sum of Rs.30, 000.00 for terminating the pregnancy and that he will marry her. Thereafter, when she gave birth to the child, the accused refused to marry her and told her that he is not the father of the child. The complaint lodged by PW1 is marked as Ex.P1. 8. PW-2 is the panch witness to the spot mahazar. Exs.P2 and P3 are the spot mahazars, where the accused is alleged to have committed rape on the minor girl. He has also stated that in the Panchayat, the accused told that he would pay a sum of Rs.30, 000.00, which was not agreed. He has stated that victim delivered a baby in the year 2009 and thereafter accused refused to marry her stating that there is no relationship between himself and the child. 9. PW-3 is the Medical Officer, who has stated that on 26/12/2009 the victim got admitted to the hospital and delivered a female child. He has issued a certificate as per Ex.P4. 10. PW.4 - Medical Officer, has examined the accused and issued Ex.P5 stating that he is capable of performing sexual intercourse. 11. PW-5 is a teacher of the Government Pre-University College. Ex.P6 is the certificate, wherein the date of birth of the victim is mentioned as 7/2/1995. Further, Ex.P9 is the copy of the relevant page of the Admission Register showing the entry with regard to the admission of the victim in the school. 12. PW-6 is the uncle of the victim and PWs-7 and 8 are the parents of the victim. They have stated that accused is responsible for the victim to become pregnant and have deposed about the Panchayat held. They have stated that the victim gave birth to a female child and later the accused refused to marry the victim. 13. PW-9 is a police constable, who has received the written complaint from the victim and registered the case and issued the FIR to the jurisdictional police. 14. PW-10 is the Investigating Officer who completed the investigation and filed charge sheet. 15. 13. PW-9 is a police constable, who has received the written complaint from the victim and registered the case and issued the FIR to the jurisdictional police. 14. PW-10 is the Investigating Officer who completed the investigation and filed charge sheet. 15. The accused took a defense that he has not committed any offence and he is not responsible for the victim to become pregnant and he is not the father of the child born to the victim. In the cross-examination, he made a suggestion to PW1 as well as PW's 6 to 9 that the victim was acquainted with several persons and therefore, she might have become pregnant from some other person. However, the same has been denied categorically by the witnesses. It is also suggested that the victim demanded Rs.3, 00, 000.00 from the accused for not to lodge any complaint. Though it was suggested that the victim was accustomed to sexual act and even on earlier occasion she was conceived and got the pregnancy aborted, the same has remained as a suggestion. The defense got examined three witnesses as DWs.1 to 3. They have stated that the victim became pregnant on account of her acquaintance with some other person and the victim was forcing the accused to marry her and in the Panchayat, there was a demand made by victim's uncle to pay a sum of Rs.3, 00, 000.00 etc., However, in the crossexamination, they have stated that they did not have any personal knowledge about the victim becoming pregnant through other persons. 16. Appreciation of the evidence of prosecution witnesses, in particular the evidence of PW-1 - victim and PW-3 - The Medical Officer, would establish that the victim was subjected to sexual intercourse by the accused, consequent to which she became pregnant and gave birth to a female child on 26/12/2009. 17. The learned counsel for appellant has contended that no DNA examination has been conducted to prove that the accused is the biological father of the child born to the victim. It is true that the prosecution has not conducted DNA examination. PW-10 - Investigating Officer has admitted that he has not made any attempt to conduct DNA examination. However, the evidence of the victim in a case of this nature cannot be disbelieved to hold that she was not subjected to sexual intercourse by the accused. 18. It is true that the prosecution has not conducted DNA examination. PW-10 - Investigating Officer has admitted that he has not made any attempt to conduct DNA examination. However, the evidence of the victim in a case of this nature cannot be disbelieved to hold that she was not subjected to sexual intercourse by the accused. 18. The next question to be decided is as to whether the victim was a minor as on the date of commission of the offence and whether there was any consent on her part and whether the consent given by the victim is a consent in the eye of law. 19. It is the specific case of the prosecution that the date of the birth of the victim is 7/2/1995. Therefore, as on the date of commission of the offence she was aged below 16 years. 20. The offence is alleged to have been committed prior to 3/2/2013. The punishment prescribed for the offence under Sec. 376 then was, not less than 7 years but which may be for life or for a term which may be extended to 10 years and shall liable for fine with a proviso that for adequate and special reasons, the Court may impose a sentence of imprisonment for a term of less than 07 years. Further, under Sec. 375, the age prescribed for giving the consent was 16 years. 21. If the date of birth of the victim is taken into consideration, which is 7/2/1995, then as on the date of commission of the offence, the victim was aged about 14 years and therefore, even if there was any consent on her part, it was not a consent in the eye of law. 22. The prosecution has got marked Ex.P6 i.e., letter issued by Head master of the School mentioning the date of birth of the victim. The Head Master, who issued the said certificate has not been examined. PW5 is a teacher of the School. Ex-P9 is the copy of the relevant page of Admission Register of the School. In the said Admission Register, the date of birth of the victim is mentioned as 7/2/1995. As per Ex.P6, the victim joined the said school for 9th Standard in the year 2009-2010. It is not forthcoming as to on what basis the date of birth was mentioned in the Admission Register as 7/2/1995. In the said Admission Register, the date of birth of the victim is mentioned as 7/2/1995. As per Ex.P6, the victim joined the said school for 9th Standard in the year 2009-2010. It is not forthcoming as to on what basis the date of birth was mentioned in the Admission Register as 7/2/1995. The records of the school, where the victim studied in the first instance has not been produced and marked by the prosecution. PW-5 has admitted in the cross-examination that at the time of admission of the victim no documents regarding her date of birth was furnished. The prosecution has also not made any attempt to conduct medical examination of the victim with regard to her age. What is relevant to be seen is that at the time of registration of FIR, the age of the victim is mentioned as 18 years. In the cross-examination of PW-3, which is conducted on 15/2/2011 it is stated that as on 2004- 2005, she was studying in 9th standard. She has admitted in the cross-examination that she is aged about 19 years. It is contended by the learned counsel for the appellant that if the victim was studying in 9th standard in the year 2004-2005, she was aged about 14 years during the said period. Therefore, she was aged more than 16 years in the year 2009. 23. Though, the age of the victim is mentioned as 18 years at the time of registration of FIR, PW-9 - Head constable, who registered the case has stated that the age of the victim is not mentioned as 18 years in FIR. However, PW-10 - Investigating Officer has stated that the age of the victim is mentioned as 18 years at the time of registration of FIR. Hence, a reasonable doubt arise in the mind of the Court as to the correct age of the victim. The documents at Exs.P6 and P9, wherein the date of birth of the victim is mentioned as 7/2/1995 does not inspire the confidence of the court to come to a definite conclusion that the victim was aged below 16 years as on the date of commission of the offence by the accused. 24. The documents at Exs.P6 and P9, wherein the date of birth of the victim is mentioned as 7/2/1995 does not inspire the confidence of the court to come to a definite conclusion that the victim was aged below 16 years as on the date of commission of the offence by the accused. 24. On a careful perusal of the evidence of PW1 - victim and the complaint it can be seen that on several occasions she got indulged in the act, but she did not inform the matter to her parents. It is clearly stated that since four years she was acquainted with the accused. Later both of them fell in love with each other. It is alleged that with a promise of marriage, the accused committed sexual intercourse on the victim. The trial Court has found the accused not guilty of the offence punishable under Sec. 417 and 420 of IPC, which has become final. 25. Perusal of the evidence of PW1, it clearly gives an indication that there was consent on the part of the victim. Having come to the conclusion that prosecution has not established beyond reasonable doubt that the victim was aged below 16 years as on the date of commission of offence, the conviction of the accused for the offence punishable under Sec. 376 of IPC cannot be sustained. The reasons assigned by the court below for convicting the accused are not in accordance with law. The appeal therefore, succeeds. 26. Hence, the following: ORDER i. The appeal is allowed. ii. The judgment and order dtd. 7/5/2011 passed by the Presiding Officer, Fast Track CourtIII, (Sessions), Bengaluru Rural District, Bengaluru, in S.C.No.173/2010 convicting the accused for the offence punishable under Sec. 376 of IPC., is hereby set aside. iii. The bail bonds are cancelled.