IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr.JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.37 OF 2013 C/W CRIMINAL APPEAL No.317 OF 2013 In Crl.A.No.37 of 2013 BETWEEN:
R.Siddesh S/o. Ramanna, Aged about 42 years, Bhovi by Caste Sooth Sayer, Mastamma Jyothishyalaya, Near Thippeswamy Mutt, Turuvannur Road, Chitradurga. …Appellant (By Smt. K.Roopa - Amicus Curiae ) AND:
State of Karnataka By Town Police, Chitradurga, Represented by State Public Prosecutor, Office of Advocate General, High Court Building, Bangalore. …Respondent (By Sri.I.S. Pramod Chandra, SPP-II for State;
Smt. Sadhana Abraham, Advocate for the victim-girl) **** This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated:17.12.2012 passed by the Prl. District and Sessions Judge, Chitradurga in S.C.No.76/2010 – convicting the appellant/accused for the offence punishable under Section 366 and 376 of IPC; and the appellant/accused is sentenced to undergo R.I. for a period of three years and shall also pay fine of Rs.5,000/- in respect of the offence punishable under Section 366 IPC, in default to pay the fine amount, he shall undergo S.I. for a further period of six months; and the appellant/accused is sentenced to undergo R.I. for a period of ten years and shall also pay fine of Rs.25,000/- in respect of the offence under Section 376 IPC, in default to pay the fine amount, he shall undergo S.I. for a further period of one year; Both the substantial sentences shall run concurrently.
In Crl.A.No. 317 of 2013 BETWEEN:
Akshatha D/o. Mahaswamy, Aged: 17 years, Represented by her Father Mahaswamy, Aged about 44 years, C/o. Pastor Timothy John, “Mysore Hope Centre” Grace School Campus, Mahadeshwara Extn., Kumbar Koppal, Mysore-570 016. …Appellant (By Smt. Sadhana Abraham, Advocate) AND:
1. K.T.Rudramuni S/o. Thippeswamy, Aged about 45 years, Lingayath by Caste, Agriculturist, R/o. V.P.Extension, I Cross, Chitradurga.
2. State by Town Police Chitradurga. …Respondents (By Sri. R.B.Deshpande, Advocate for R-1; Sri. I.S.Pramod Chandra, SPP-II for R-2) *** This Criminal Appeal is filed under Section 372 of Cr.P.C praying to set aside the order dated:17.12.2012/24.12.2012 passed by the Prl. District and Sessions Judge, Chitradurga in S.C.No.76/2010 – acquitting the respondent/accused for the offence punishable under Section 366 and 376 of IPC.
These Criminal Appeals coming on for Hearing this day, Dr.H.B. PRABHAKARA SASTRY, J., delivered the following:
J U D G M E N T Both these appeals have arisen out of a judgment of conviction dated 17.12.2012 and order on sentence dated 24.12.2012, passed by the learned Prl.District & Sessions Judge, Chitradurga (hereinafter for brevity referred to as `trial Court’), in S.C.No.76/2010, who by his impugned judgment, convicted accused No.1, who is the appellant in Criminal Appeal No.37/2013, for the offences punishable under Sections 366, 376 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’) and sentenced him to undergo rigorous imprisonment for a period of three years and to pay fine of `5,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months for the offence punishable under Section 366 of IPC and to undergo rigorous imprisonment for a period of ten years and to pay fine of `25,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one year for the offence punishable under Section 376 of IPC.
The convicted accused No.1 has preferred the said appeal i.e., Criminal Appeal No.37/2013, challenging his conviction, whereas, the alleged victim in the case has challenged the very same impugned judgment which has acquitted accused No.2 for the offences punishable under Section 109 read with Sections 366, 376 of IPC in Criminal Appeal No.317/2013.
2. The case of the prosecution begins with complainant – PW-10 Sri S.Mahaswamy lodging a complaint with the respondent-police on 24.3.2010. The summary of the complaint is that on 22.3.2010, the complainant had left his two children, victim girl and her younger brother M.S.Ajjaiah, to their school which was St.Joseph’s Convent at Chitradurga, in the morning. On the very same day, in the afternoon, his son M.S.Ajjaiaj through the Watchman of the said school contacted the complainant over the phone and informed about victim girl not being found in the school premises. Immediately, the complainant and his wife rushed to the school and they also could not notice their daughter. Their son- Ajjaiah also told them that the accused No.1-Siddesh and accused No.2- K.T.Rudramuni were found moving near the school in a suspicious manner in that morning. Suspecting those two accused as having taken his daughter, the complainant requested to take action against them. The said complaint was registered in the respondent-police station Crime No.116/2010 against both the accused for the offences punishable under Sections 366A, 114 read with Section 34 of IPC.
3. After conducting investigation, the respondent- police filed the charge sheet against both the accused for the offences punishable under Sections 366A, 114, 376 read with Section 34 of IPC.
4. Charges were framed against accused No.1 for the offences punishable under Sections 366 and 376 of IPC and against accused No.2 for the offences punishable under Section 109 read with Sections 366 and 376 of IPC. Since the accused pleaded not guilty, trial was held, wherein the prosecution got examined twentyfour witnesses as PW-1 to PW-24 and got marked documents from Exs.P-1 to P-23 and material objects from MO-1 to MO-14. On behalf of the accused, no witnesses were examined, however, the documents from Exs.D-1 to D-16 were got marked. After hearing both side, the trial Court by its impugned judgment of conviction dated 17.12.2012 and order on sentence dated 24.12.2012, convicted accused No.1 for the offences punishable under Sections 366 and 376 of IPC and sentenced him accordingly and accused No.2 was acquitted of the alleged offences. It is against the said judgment of conviction and order on sentence, the appellant/accused No.1 has preferred Criminal Appeal No.37/2013 and against acquittal of accused No.2, the victim girl has preferred Criminal Appeal No.317/2013.
5. The lower Court records were called for and the same are placed before this Court.
6. Heard the arguments from both side and perused the materials placed before this Court, including the impugned judgment and lower Court records.
7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
8. Learned counsel for the appellant in Criminal Appeal No.317/2013 vehemently submitted that all the material witnesses, including the victim girl, have in unequivocal terms stated about the entire incident and more particularly, about the role and involvement of accused No.2 also, which the trial Court has failed to notice. As such, the impugned judgment to the extent of acquitting accused No.2 from the alleged offences was an erroneous judgment which deserves to be reversed.
Learned counsel for the appellant in Criminal Appeal No.37/2013, who is appointed as an Amicus Curiae, in her arguments vehemently submitted that prima facie the prosecution has failed to prove that the alleged victim girl was minor in her age. The prosecution has failed to produce the Birth Certificate, but, has only relied upon the School Certificate, as such, holding the age of the victim girl as 16 years was without any basis. She further submitted that the alleged incident has not been proved by the prosecution beyond reasonable doubt. The evidence of material witnesses, including the victim girl, is with lot of contradictions and omissions. The entire evidence of the victim girl is full of improvements made by her for the first time in the witness box. The trial Court without noticing the same, has solely relied upon the evidence of the victim girl, which led to holding accused No.1 as guilty of the alleged offences.
Learned counsel also submitted that when the evidence of the prosecution witnesses is said to have come in uniformity against both the accused, then there is no basis for convicting accused No.1, when, in fact, accused No.2 has been acquitted. Learned counsel also stated that the investigation is full of defects, as such, under a defective investigation, the conviction of accused No.1 was unwarranted.
9. Learned State Public Prosecutor-II in his arguments submitted that the incident of kidnapping has been proved beyond reasonable doubt not only during the evidence of the victim girl, but, also during the evidence of PW-3 and PW-4 who have in unequivocal terms stated that accused No.1 had taken the victim girl to their house, where the girl changed her dress before accused No.1 took her to a different place. Learned State Public Prosecutor also submitted that the victim girl has given a detailed account of how she was sexually assaulted by the accused on every night of her alleged confinement in the house at Dastapur village in Gulbarga District. That being the case, the mere alleged non-presence of seminal stains in the articles said to have been subjected to examination by the Forensic Science Laboratory cannot be the sole ground for the doctor to opine in the negative about the sexual assault upon the victim. Learned State Public Prosecutor did not forget to include that in a case of sexual assault, the evidence of the victim girl cannot be underestimated.
10. Among the twentyfour witnesses examined by the prosecution, PW-1 Siste Arul Lilly, is the Head Mistress of St.Joseph’s Convent at Chitradurga, who has stated that victim girl was studying in their school and at the request of the police, she has issued Date of Birth Certificate and admission extract pertaining to the victim girl, which the witness has identified at Exs.P-1 and P-2 respectively. The witness has also stated that as per the school records, the date of birth of victim girl is 24.6.1995.
11. PW-2–Nalini, who was projected by the prosecution as the friend and senior classmate of victim girl who is said to have accompanied the victim girl at the time of alleged incident, has not supported the case of the prosecution. She has pleaded her total ignorance about the alleged incident. Even after treating her as hostile, the prosecution could not get any support from her.
12. PW-3 – Deepa, has stated that she knows the accused, as well the victim girl. On the date of the incident, which was in the month of March 2010, accused No.1 had brought the victim girl to her house in the morning at about 10.30, requesting to accommodate the girl to change her dress. Accordingly, the girl changed her school uniform dress to chudidar dress, thereafter, the accused No.1 took her with him. The witness has also stated, by that time the girl changed her dress, her sister-in-law (PW-4 – Geeta) also came to the house and she objected for her (PW-3) permitting someone to change their dress in their house. PW-3 has also identified the said school uniform, which included a blue colour skirt and white colour blouse as MO-1 and MO-2 as the dress worn by the victim girl when she was brought to her house on that day.
13. PW-4 Geeta, who is the sister-in-law of PW-3 has also given her evidence on the line as what PW-3 has stated. PW-4 also has stated that on the date of incident, accused No.1 had brought a girl to their house stating that the said girl was daughter of his elder brother (niece) and that she want to change her dress. The witness has stated that she was not at home and by the time she reached home, the girl has already changed her dress from uniform to chudidar and accused No.1 took that girl with him immediately.
Both these witnesses have maintained their version even in their detailed cross-examination from the accused side.
14. PW-5 – Rajashekar, though was projected as a witness for the scene of offence panchanama of that place at Dastapur village in Gulbarga District where the alleged incident had taken place, had not supported the case of the prosecution. Even after showing him the panchanama which was marked as Ex.P-4, the witness stated that the said panchanama was not drawn in his presence.
15. PW-6 – Dr.Nagaveni, the Medical Officer in District Government Hospital, Chitradurga, has stated that she has examined the victim girl in this case who was brought to her by a Woman Police Constable with the history of kidnap and alleged rape. She also collected the history from the mouth of the victim girl herself, who stated before her that the accused kidnapped her about eight days back i.e., on 22.3.2010 from her school and she was taken to Honnanayakanahally, where she was subjected to sexual assault. The victim girl also told to her that she was even taken to Gulbarga and after keeping her in a house till 29.3.2010, she was subjected to sexual intercourse for about six to seven times.
16. PW-6 has further stated that, on examination of the victim girl, she noticed that the girl was a little bit disturbed and was complaining pain on her abdomen. Her secondary sexual characters were well developed On local examination, she noticed that hymen was ruptured. She collected the samples of vaginal swab, pubic hairs and sent the same for Forensic Science Laboratory report. She also collected the dress material worn by the girl. After seeing the record brought by her, the witness further stated that since she did not notice the presence of seminal stains on the articles subjected to FSL report, she came to an opinion that there was no evidence of recent intercourse. Accordingly she had issued her final opinion as per Ex.P-5. The witness has also marked the FSL report at Ex.P-6 and a Xerox copy of Rape Register said to have been maintained in her hospital at Ex.P-7. The witness also identified the articles MO-3 and MO-4 as the one which she had collected at the time of examination of the victim girl and sent it for its examination by the Forensic Science Laboratory. In her cross-examination, she has stated that rupture of hymen she noticed was old by two or three months.
17. PW-7- Hussain, who was projected by the prosecution showing that he being a person known to the family of the victim girl and also about the victim girl said to have taken to the house of Krishnamurthy by the accused, has in his examination-in-chief, pleaded his total ignorance about the alleged incident. Even after treating him hostile, the prosecution could not get any support in his cross-examination.
18. PW-8 – Ravish was another witness, who according to the prosecution, had accommodated accused No.1 and the victim girl for a night in his room. However, the said witness did not support the case of the prosecution and pleaded his total ignorance. Even after treating him hostile, the prosecution could not able to get any support in his cross-examination.
19. PW-9 – Geetha, wife of Ravish, is another witness whom the prosecution projected as the lady who has accommodated for the stay of accused No.1 and the victim girl in their house at a village called Kupooru. However, like her husband, who is PW-8, even this witness also pleaded her total ignorance about the alleged incident. The prosecution even after cross- examining her, could not get any support from her.
20. PW-10 – S.Mahaswamy, is the father of the victim girl in the incident. The witness in his evidence has stated that victim girl and a boy by name Ajjaiah are his two children. Both were studying at St.Joseph’s Convent at Chitradurga at the relevant point of time. At that time, his daughter was aged about 14 to 15 years. In March 2010, in the morning at about 9.45 a.m., he gave a drop to both his children to the school on his motorcycle. In the afternoon, at about 12.30 p.m., his son Ajjaiah contacted him over phone and informed that his sister i.e., the victim girl, was found missing from the premises of the school. Immediately, he joined by his wife, rushed to the school and searched for their missing daughter, but, they could not trace. At that time, their son-Ajjaiah told them about both the accused found moving in the vicinity of the school in a suspicious manner. Both the accused were known to him. In the process of they searching for their missing daughter, they came to know that both the accused had kidnapped their daughter. Accordingly, he lodged the complaint with the police as per Ex.P-11. The witness has also stated that when he went to the police station to lodge the complaint, accused No.2 was accompanying him. Accused No.2 also told him that accused No.1 – Siddesh had taken the girl towards Gulbarga and that he would go to Gulbarga and ascertain the position.
PW-10 further stated that it is said accused No.2 who prevented him from lodging the police complaint immediately by assuring him that accused No.1 would bring back the girl at the earliest. As such waiting for two days for the return of his daughter, since she was not brought back, he lodged a police complaint. The witness has also stated in his complaint that after he lodging the complaint with the police, for about five to six days, he did not receive any information. Thereafter, the police called him to their station, where he found his daughter. He noticed that his daughter had gone weak and found unstable in her physic. Through her revelation, he came to know that both the accused after taking her to a village in Gulbarga District, had subjected her to repetitive sexual assault. The witness also did not forget to say that accused No.2 is his cousin elder brother. It is through him, accused No.1 was acquainted to him.
He was subjected to a detailed cross-examination from the accused side, wherein an attempt was made to show that with respect to financial relationship, the accused and the complainant were not in cordial terms.
21. PW-11 – Basavaraj Hoogar, a resident of Dastapur village at Gulbarga, was projected by the prosecution as the one who had given shelter to the accused and the victim girl when the accused are said to have taken the victim girl to his house and allowed them to stay in his house for about five nights. The witness not only stated that he does not know anything about the incident, but, also pleaded his ignorance about the identity of accused No.1. In clear terms, he stated that he does not know accused No.1 and no incident of he permitting the accused No.1 and the victim girl to stay in his house for few nights is an unknown incident to him which has never happened.
Even after treating him hostile, the prosecution could not get any support from him.
22. PW-12 is the victim girl and also the daughter of PW-10. She in her examination-in-chief, apart from stating that PW-10 is her father, CW-3–Ajjaiah is her younger brother and CW-5 – S.M.Vanajakshi is her mother and CW-4 Nalini is her senior classmate, has also stated that, in the relevant year, which was March 2010, she was studying in 9th standard at St.Joseph’s High School, Chitradurga. In the very same school, her younger brother-Ajjaiah was studying in 7th standard. On 22nd March 2010, which was on Monday, his father had dropped her and her younger brother-Ajjaiah to the school. In order to purchase a pencil, she joined by her senior classmate Nalini of the same school came out of the school and went near Basaveshwara Circle. While returning, both the accused who were sitting in an autorickshaw near Basaveshwara Circle, dragged her inside the autorickshaw. It was at 10.20 in the morning. They administered her a tablet to swallow and took her to the house of one Smt.Geeta in an area called Kelagote at Chitradurga. There, they got her uniform dress changed with another dress brought by accused No.1 and from there, took her in a KSRTC bus to a village called Dastapur in Gulbarga District. In the said house, they introduced her to the people there as the niece of accused No.1. The witness has stated that behaviour of accused No.1 in the said house was shocking to her and also she developed fear. He was cutting his arm with a blade and smearing the blood on her forehead. On the first day of her stay there, she was allowed to sleep in a room. However, from the next day onwards, on the pretext that she would be scared to be alone, accused also started sleeping in the same room where she was and started misbehaving with her. The witness has stated during the remaining five nights in the said house, both the accused used to undress in the night and subject her to rape. She has also stated that before going to sleep, she was being administered with few tablets by them which used to put her under a trance and unable to resist the acts of the accused. She also stated that her dress used to be collected in the next day morning by a lady who was in that house and she used to wash her clothes and also that lady was bathing her. It was only on 29th day of that month, on getting the information that her parents were in her search, the accused brought her up to Hiriyur and got her boarded to a bus to Chitradurga.
The witness has further stated that on April 3rd of the same year, she was brought to the Court where she gave her statement before the Judge. She also stated that even on earlier occasion also, both the accused had taken her to a village called Vandanayakanahalli (Honnanayakanahlli). Since accused No.2 being her senior uncle, she believed his words that his father has asked her to be brought to the said place, had accompanied him. After taking her to the said place, both the accused had misbehaved with her and also committed sexual assault on her. In that regard, her father had not lodged any complaint against them and he was satisfied since she was returned to her parents.
The witness has also stated that the police had gone near her school where she was kidnapped by the accused and police had drawn a scene of offence panchanama as per Ex.P-13 in that place. She was not taken to Dastapur village. After identifying the dress material at MO-1 and MO-2, the witness has stated that the same was the dress which she was wearing as a school uniform when accused kidnapped her on the date of the incident. She has also identified both the accused in the Court.
The witness was subjected to a detailed and searching cross-examination from the accused side.
23. PW-13 – Ajjaiah, the son of the complainant and younger brother of the victim girl, in his evidence has stated that on 22.3.2010, after their father dropped him and his sister i.e., the victim girl in the school, he noticed that his sister was not found in the school premises in the afternoon. He brought the same to the notice of the father through Watchman of the school, who made a telephone call to his father. The witness also stated that on the day when his sister was found missing from the school, both the accused were found moving in the vicinity of the school in a suspicious manner. He has identified both the accused in the Court and also stated that accused No.2 – Rudramuni is his senior uncle. The witness has also identified MO-1 and MO-2 as the dress material worn by his sister at the time of she found missing from the school premises.
He was also subjected to a detailed cross- examination from the accused side.
24. PW-14 – Smt.Vanajakshi, the mother of the victim girl and wife of PW-10, as to the occurrence of the incident, she followed in her evidence what her husband has stated. She has also stated that on 22.3.2010, due to the examination of her children, her husband had dropped both her children to their school i.e., St.Joseph’s Convent, where they were studying. Her daughter i.e., the victim girl was studying at 9th standard and was aged 15 years. In the afternoon, they received a telephone call of the watchman of the said school and informed that their daughter was found missing from school premises. Immediately, herself joined by her husband, rushed to the school and searched for their daughter, but, they did not notice her.
The witness further stated that while they were in the process of searching for their daughter, accused No.2 – Rudramuni went there and when enquired, he did not give any clear answer, but, guessed that accused No.1 Siddesh might have taken the girl with him. Developing suspicion against both of them, a complaint was lodged against both the accused. Even PW-14 also stated that when they went to the police station to lodge a police complaint, accused No.2 had also accompanied them.
The witness has further stated that after hearing from her husband over the phone that their daughter was traced, she returned to Chitradurga and saw that her daughter was admitted to the hospital. Her daughter was physically gone weak. She heard from her daughter that the accused No.1 Siddesh while taking her in an autorickshaw, had made her to swallow a tablet, due to which, she was under a trance. Thereafter, she was taken to somebody’s house, where her dress was changed. From there, she was taken to a village called Dastapur in Gulbarga District. In the said village, both the accused subjected her to torture and assaulted her and also administered her some tablets which used to seduce her and tranquilising her. The witness has stated that her daughter told her that both the accused has committed rape on her. Even PW-14 also identified MO-1 and MO-2 as the uniform dress worn by her daughter when she was kidnapped from the school premises.
This witness was subjected to a detailed cross- examination from the accused side wherein she attempted to adhere to her original version.
25. PW-15 – Smt.Mahananda, is the wife of PW-11.
Following the evidence of her husband i.e., PW-11, she also pleaded about her total ignorance about the alleged incident and more particularly, she denied that accused No.1 had brought the victim girl to their house and that they had given shelter to them to stay in their house for about five days. Even after treating her hostile, the prosecution could not get any support from her.
26. PW-16 – Ravi G.R. has stated that the scene of offence panchanama on the spot of the alleged place of kidnap was drawn in his presence by the police. The witness has identified the said panchanama at Ex.P-13.
27. PW-17 – Chandramouli, though was projected as a panch witness for the alleged scene of offence panchanama said to have been drawn in the house of PW-11 at Dastapur village in Gulbarga District, the witness has not supported the case of the prosecution by stating that he was not a panch witness to the said panahcnama at Ex.P-4.
28. PW-18 – Anilkumar, a Police Constable has stated about he carrying the request from his police station to the Court vide Ex.P-16 requesting the Court for incorporation of Section 376 of IPC in the first information report.
29. PW-19 – Basavaraj Hiremath, a Secretary of Grama Panchayath of Kanadal village, has stated about he issuing a katha extract of the house of PW-11 which is situated at Dastapur village in Gulbarga District.
30. PW-20 – Mallikarjun, was shown as a witness for two panchanamas i.e., at Ex.P-13, which is a scene of offence panchanama of the alleged place of kidnapping and Ex.P-18, which is said to be a panchanama for recovery of the articles at MO-1 and MO-2 at the instance of accused No.1. Further the witness did not support the case of the prosecution and pleaded his ignorance about drawing of those two panchanamas in his presence.
31. PW-21 - Dr.Sali Manjappa, a Senior Specialist at District Hospital, Chitradurga, has stated about he examining accused No.1 Siddesh on 31.3.2010 at the request of the respondent-police. The witness stated that by his medical examination of the said accused, he noticed that the accused was competent to have sexual intercourse. In that regard, he has issued a report as per Ex.P-19. He has also identified accused No.1 in the Court.
32. PW-22 – Chandrappa, then Circle Police Inspector of Chitradurga, has stated that he took up further investigation in this case on 31.3.2010. After he taking over the investigation, he requested the jurisdictional Judicial Magistrate to record the statement of the victim girl under Section 164 of Code of Criminal Procedure, 1973, (hereinafter for brevity referred to as `Cr.P.C.’), and also collected the Birth Certificate and Admission Extract as per Ex.P-1 and P-2 from PW-1. Accused No.1 was produced before him on 31.3.2010 in the evening. He arrested the said accused, recorded his voluntary statement, wherein, according to this witness, accused No.1 revealed that if he is taken to the place, which is a hotel, he would produce the school uniform of the victim girl which is said to have concealed in the said hotel. The said portion of the statement is marked as Ex.P-20.
The witness has also stated that he sent the accused under police escort to the District Hospital and got him medically examined, towards which, he received a medical report as per Ex.P-19. He handed over further investigation to the Police Inspector of the respondent- police station.
The denial suggestions made to him in his cross- examination were not admitted as true by him.
33. PW-23 – T.Subhash Chandra, then Police Sub- Inspector of the respondent-police station, has stated that on 24.3.2010, PW-10 – the complainant, appeared before him and lodged a complaint as per Ex.P-11 alleging that at the instance of accused No.2 – Rudramuni, accused No.1 Siddesh had kidnapped his daughter. After registering the crime, he submitted first information report to the Court as per Ex.P-1. On the next day, he recorded the statement of mother of the victim girl and son of the complainant.
The witness has also stated that on 29.3.2010, the alleged kidnapped girl voluntarily appeared before him in the police station. When he enquired her, he came to know that accused No.1 Siddesh had taken her to a village called Dastapur near Gulbarga on 22.3.2010 and in the said place, keeping her in a house of one Basavaraj from 24.3.2010 till 28.3.2010, on every night, the accused No.1 was subjecting her to rape. After hearing her statement, he requested the Court to incorporate Section 376 IPC also in the first information report. Since the matter was containing a heinous offence to be investigated into, he handed over further investigation to his Circle Police Inspector (PW-20).
The witness has further stated that the said Circle Police Inspector entrusted him the task of apprehending the accused. Accordingly, after getting the information from an informer, he apprehended accused No.1 at Kupooru village and produced him before his superior. On 3.4.2010, at the memo given to him by his Circle Police Inspector, joined by his staff, he took accused No.1 to the Dastapur village in Gulbarga District, where he drew a scene of offence panchanama as per Ex.P-4 with respect to the place where the victim girl was said to have kept in the house of one Sri Basavaraj Hoogar. He also produced a rough sketch as per Ex.P-22.
The denial suggestions made to him in his cross- examination were not admitted as true by him.
34. PW-24 – K.Omkarnaik, then Police Inspector of the respondent-police station has stated that after he took up investigation in this case, he got accused No.1 medically examined by the doctor. With the permission of the doctor, he took the victim girl to the place where she was said to have been kidnapped by the accused. He drew a scene of offence panchanama in the presence of panchas as per Ex.P-13. He also drew a rough sketch of scene of offence panchanama as per Ex.P-23. He recorded re-statement of the victim girl and statements of many witnesses. Thereafter, based on the voluntary statement given by accused No.1, he took accused No.1 to Sira Town in Tumkur District. The accused No.1 took them to a hotel in front of the Inspection Bunglow at Sira, from which hotel, from beneath of a Godrej Almirah, the accused took out a plastic cover and produced the school uniform of the victim girl. He (this witness) seized the said dress material by drawing a panchanama as per Ex.P-18. The witness has identified the articles at MO-1 and MO-2.
The witness has further stated that taking the prior permission of the doctor on 3.4.2010, he produced the victim girl before the learned Magistrate with a request to record her statement under Section 164 of Cr.P.C. and also sent his staff, including PW-23, to Dastapur village in Gulbarga District, to draw the scene of offence panchanama in the place where the victim girl was said to have been subjected to rape and also do necessary investigations in that place. The witness has identified the said panchanama at Ex.P-4.
The witness has also stated that during the course of the investigation, he sent the articles collected in the matter for their chemical examination of the Forensic Science Laboratory. He also collected the tax extract of the house at Dastapur village where the offence of rape was said to have been happened. He also stated that since the investigation was completed, reserving the receipt of Forensic Science Laboratory report, he filed the charge sheet against the accused. Subsequent to the filing of the charge sheet, he also received the Forensic Science Laboratory report as per Ex.P-6 and collected the doctor’s final opinion as per Ex.P-5 and submitted them to the Court.
The denial suggestions made to him in his cross- examination were not admitted as true by him.
35. From the evidence of the prosecution witnesses, the relationship between the victim girl, PW- 10, PW-13 and PW-14 is not in dispute. It is also not in dispute that PW-10 and PW-14 are the parents of the victim girl and PW-13 is the younger brother of the victim girl. It is also not in dispute that as on the date of the alleged incident of kidnap which was on 22-03-2010, the victim girl was studying in IX Standard at St. Joseph’s Convent at Chitradurga.
36. The first point which the appellant in Criminal Appeal No.37/2013 seriously disputes is about the age of the alleged victim girl. According to the learned counsel for the appellant, the prosecution has utterly failed to establish that the victim girl was aged 16 years as on the date of the alleged incident.
37. The main contention of the learned counsel for the appellant is that in the absence of production of the Birth Certificate issued by the competent authority, the age shown in the School records and the Certificate issued by the School cannot be relied upon.
In her support, the learned counsel for the appellant relied upon the judgment of the Hon’ble Apex Court in the case of State of Madhya Pradesh Vs. Anoop Singh reported in [2015] 7 Supreme Court Cases 773 and submitted that in the said judgment, the School Certificate regarding date of birth of the accused was not accepted.
38. The learned SPP-II in his arguments vehemently submitted that it is not mandatory in law that in order to show the age of a person, the Birth Certificate issued by the Register of Births and Deaths is necessarily required to be produced. He submitted that when the admission details recorded in the School are based on such Birth Certificate, a School Certificate or an Admission extract of a School also can be accepted. He further submitted that the evidence of PW-1 who is a public servant about the date of birth of a victim girl as recorded in the School records cannot be suspected.
39. In the instant case, the main documents upon which the prosecution has relied upon to show the date of birth of the victim girl as 24-06-1995 are, a Certificate from the School where the girl was said to be studying at the relevant point of time, marked at Ex.P1 and an admission extract issued by the School itself at Ex.P2. Both these documents are produced by none else than the Head Mistress of the School. In her cross- examination, the contents of Exs.P1 and P2 have not been seriously disputed except eliciting from the witness that the entries made in Exs.P1 and P2 are based upon the Transfer Certificate issued by the previous School.
The witness has voluntarily stated in her evidence that, at the time of admission of a student to I Standard, they would secure the document which is the Birth Certificate. Thus the evidence of PW-1 clearly goes to show that the School record depicts the date of birth which should have been confirmed with the relevant birth record at the time of the first admission of the student to the School.
40. In Anoop Singh’s case (supra), the Hon’ble Apex Court was dealing with acceptance of a School Certificate as the genuine date of birth of the victim girl who was claiming herself to be a minor below the age of 16 years. In that regard, after referring to Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the Court observed as to which are the documents that can be relied upon to assess the age of a juvenile under the said Rules and held that the ossification test was not sole criterion for determination of date of birth, when birth certificate and Middle School Certificate were available. Difference of two days in date of birth mentioned in both certificates, was a minor discrepancy and immaterial and the reliance upon ossification test by High Court, because of such difference, for presuming that prosecutrix was more than 18 years of age at the time of incident and was consenting party, and thus no offence against accused was proved, was erroneous. Thus it considered even a Middle School Certificate and birth certificate also as a valid document for the proof of age.
41. In the light of the above, the contention of the learned Amicus Curiae for the appellant that, a School record or an Admission extract as proof of date of birth cannot be considered, is not acceptable. The said judgment would permit the Court to consider the admission register extract and date of Birth Certificate issued by a School under the circumstances of the case.
42. In the instant case, as already observed above, the evidence of PW-1 - the Head Mistress of the School would clearly go to show that the admission of the student to the School would be made based on the Birth Certificate given by the parents. In such an event, when the very same entry with respect to the date of birth of the student is carried over in her subsequent School also, we do not find any reason for suspecting Exs.P1 and P2.
Added to the above, it also can be noticed that, the Trial Court while recording the evidence of the victim girl has put a Court question to the victim girl asking about her date of birth, to which she has clearly stated that her date of birth is 24-06-1995. Thus, the evidence of PW-1 and the victim girl coupled with the documents at Exs.P1 and P2 clearly go to show that the date of birth of the victim girl was 24-06-1995. In that background, the decision of the age of the victim girl by the Doctor who examined her who has stated that, due to the development of secondary sexual characters, the age of the girl could be assessed at 15 to 16 years also can be interpreted accordingly. In such an event, it clearly goes to show that as on the date of the alleged incident which was on 22-03-2010, the age of the victim girl was fourteen years, nine months. Therefore, in the light of the cogent evidence regarding the age of the victim girl that she was aged fourteen years, nine months as on the date of the incident, we do not accept the argument of the learned counsel for the appellant that there is ambiguity with respect to the age of the victim girl.
43. PW-13 - Ajjaiah though had been to the same School to which the victim girl had also gone on the date of the incident stated that his sister was found missing from the School, but he has not stated that she was kidnapped or taken away by anyone. However, he claims to have seen the suspicious movements of the accused near the School. It is based on his information, the complainant who is the father of PW-13 - Ajjaiah as well as the victim girl lodged a complaint with the Police. Even the complaint is based on suspicion that both the accused must have kidnapped his daughter i.e., the victim girl. As such the evidence of PW-13 - Ajjaiah would only start the ball moving by stating that the victim girl was missing.
The actual missing of the victim girl from the School has come in the evidence of her parents i.e. PW-10 and PW-14. As observed above, they have stated that after hearing the news from the telephone call made to them by the School watchman, they rushed to the scene and noticed that their daughter, i.e. the victim girl was not found in the School or nearby vicinity. They searched for their daughter and waited for two days for her return, since according to them, accused No.2 who was with them during the said period told them that accused No.1 must have taken her. However the said alleged information by accused No.2 would be a proof against accused No.1. But the evidence of PW-3 and PW-
4 is of greater relevance and importance in this aspect.
As observed above, both these witnesses have uniformly stated that the victim girl was brought to their house on the alleged date by accused No.1 who requested them to allow the victim girl to change her dress in their house. Since accused No.1 was known to PW-3, she permitted the girl to change her dress. According to PW-3 and PW- 4, immediately after changing her dress within few minutes, accused No.1 took the girl with him and left the place. Both PW-3 and PW-4 were subjected to a detailed cross-examination, wherein they adhered to their original version. In their cross-examination, some more details about the incident have been revealed by them which shows that not only accused No.1 was known to PW-3 since prior to the incident but also PW-4 was unhappy with PW-3 for allowing accused No.1 to bring the girl to their house and about PW-3 permitting the girl to change her dress in their house.
44. What is to be noticed in the evidence of PW-3 and PW-4 is that neither of them have anywhere whispered about the presence of accused No.2 at that time. All that they have stated is only about accused No.1 as the person who had brought the victim girl. But there is no whisper about the role of accused No.2 in the said process. Therefore, even though the victim girl as PW-12 in her evidence has stated that she was forcibly put into an autorickshaw by both accused persons and was taken from there to the house of PW-3, in the absence of any mentioning about accused No.2 by either PW-3 or PW-4, the sole evidence of PW-12 that even the accused No.2 was also involved in taking her from School premises from the area near the School to the house of PW-3 raises a doubt to believe the same. It is also for the reason that, had really accused No.2 accompanied accused No.1 when the victim girl was taken to the house of PW-3 and PW-4 and thereafter to Gulbarga in a KSRTC bus, then PW-3 and PW-4 should have necessarily made some reference about the presence of accused No.2 when the girl was brought to their house, which they have not referred to.
45. Secondly, even the victim girl also in her Examination-in-chief itself has stated that, after she changing her uniform dress in the house of PW-3 when she was said to have been put in an autorickshaw to go to KSRTC Bus Stand, it was accused No.1 who took her to Dastapur village in Gulbarga District. Therefore, at the very first instance of taking the victim girl from near the School premises to the house of PW-3, there is no material to believe that there was any role or involvement of accused No.2.
46. With respect to the victim girl being taken to Dastapur village from Chitradurga, the only evidence that is available on record is that of PW-12 - the victim girl herself. The said witness throughout in her evidence has mainly stated that it was accused No.1 – Siddesh who took her to the house of PW-3 in a KSRTC Bus to Dastapur village at Gulbarga District stating that she was his niece and wanted to stay there. The allegation as against accused No.2 has been made by the victim girl in her evidence only at a later stage, that too, when she is said to have been subjected to sexual assault in the said house from the night of 24-03-2010 till 27-03-2010. The said evidence of PW-12 with respect to the alleged act of sexual assault upon her and more particularly the involvement of accused No2 in the said act has to be scrutinized carefully.
47. According to victim girl, on every night before she used to go to sleep, accused used to administer tablets which used to seduce her and to some extent tranquilize her. She could not even resist to they committing sexual assault upon her. She has stated that on all those nights when she was lodged in the said house of PW-3, the accused used to sexually assault her. What the witness has not stated in her Examination-in-chief were all got elicited from her in a detailed manner in her cross-examination from the accused’ side. It was elicited from the witness as to why she did not resist the alleged act of sexual assault upon her in the said village at Dastapur. The witness has stated at more than one place that in the said house, there was an aunt and also an old lady and she asked them to help her and to rescue her but they did not react. The witness also stated that she was confined to a room in the said house and they have put her in a room and had closed the door and it was only at the time of giving her lunch or dinner they used to offer food to the room where she was put in and used to close the door and go outside. The witness has also stated that even at the time of the alleged sexual assault upon her, due to physical weakness and more particularly since she was administered tablet by them, she could not resist, as such, she neither could able to bite or scratch or resist the act of sexual assault upon her.
In the very same cross-examination, some more details were elicited from the victim girl about the dresses which she is said to have worn at the time of the incident.
The witness has stated that when she was put in the house of PW-3 at Dastapur village in Gulbarga District, she was not allowed to take bath on her own. The aunt who was in the said house herself used to bathe her and also collect her dress and wash it every day. As such, the witness has shown that she could neither able to resist the alleged sexual assault upon her nor her dress materials were in her custody so that she could able to keep them intact.
48. In the cross-examination of PW-12 - the victim girl, a suggestion was made to the witness suggesting that while she was taken from Chitradurga she had no other cloths except what she was wearing, the witness has admitted the said suggestion as ‘true’. From the said suggestion it can be inferred that, the taking away of the girl from Chitradurga to other place has not been contested by the accused rather they themselves have suggested the same to the witness-victim girl.
49. PW-12 - the victim girl has also stated that after her return, she was not only subjected to a medical examination but she has also given a statement before the Magistrate. Her medical examination, as observed above, has further been confirmed by PW-6 - Doctor who has issued her report as per Ex.P5. No doubt the said Doctor in her report at Ex.P5 based on Forensic Science Laboratory report at Ex.P6 has opined that there was no recent evidence of sexual intercourse.
50. It is based upon the said Doctor’s report, the learned counsel for accused No.1 in her arguments vehemently submitted that when medically there is no evidence of recent sexual intercourse, the contention of the prosecution that the victim girl was sexually assaulted and was subjected to rape by accused No.1 becomes unfounded one.
51. No doubt, the medical evidence of Doctor, i.e.
PW-6 says that the Doctor is of the opinion that there was no evidence of recent sexual intercourse, however, when we read the evidence of the said Doctor - PW-6 in its entirety, it clearly goes to show that the Doctor rather than arriving at a conclusion apart from Forensic Science Laboratory report, even upon clinical and physical examination of the victim girl made by her has solely based her opinion on the Forensic Science Laboratory report at Ex.P6. Since the said Forensic Science Laboratory report revealed the absence of seminal stains in the articles examined by it, she has opined that there was no evidence of recent sexual intercourse.
52. The very same Doctor i.e. PW-6 has noticed the rupture of hymen. No doubt according to her, the said rupture was not a recent one but it was two to three months’ old rupture. The articles which were sent and examined by Forensic Science Laboratory though included the dress materials shown to have been worn by the victim girl but, it cannot be lost sight of the fact that even according to the victim girl, the dress she was wearing on the date of her medical examination by the Doctor at Chitradurga were not the same which she was wearing while she was subjected to rape in the village at Dastapur in Gulbarga District. As observed above, the very victim girl herself has stated that while she was retained in the house of PW-3 at Dastapur village, the cloths worn by her were used to be collected by the aunt of the house every day and she used to wash it. After washing those cloths, she used to give them back to the victim girl. That being the case when the alleged rape is said to have taken place between the dates of 24-03-2010 and 28-03-2010 and the cloths worn by the victim girl were said to have been washed by the aunt in the house at Dastapur village every day, it can be inferred that it is not possible for noticing the traces of seminal stains in the articles that were sent to the Forensic Science Laboratory examination for its chemical analysis. Therefore, the only evidence to be looked into for the alleged act of rape upon the victim girl is of PW-12 - the victim girl herself.
53. As observed above, though PW-12 - victim girl was subject to a detailed cross-examination on different dates of hearing, still, she has uniformly maintained her stand that she was subjected to rape in the place at Dastapur village in Gulbarga District.
54. The Hon’ble Apex Court in the case of State of Punjab Vs. Gurmit Singh and others reported in 1996 Crl. Law Journal, 1728 has observed that when the evidence of the victim girl in an offence punishable under Section 376 of IPC is found to be trust-worthy, there would be no reason for seeking any corroboration for the evidence of the victim girl. In such a situation, expecting corroboration for the evidence of the victim girl would result in adding insult to injury. The relevant portion of para-7 of the said judgment reads as below:-
“The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over- looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
In the instant case, since we have noticed that the evidence of PW-12 – victim girl is cogent and consistent to the extent that, she was taken to Dastapur village at Gulbarga District by accused No.1 and that she was subjected to rape by accused No.1 in the said place, we do not find any reason to disbelieve the said version of PW-12 - the victim girl. As such, the argument of the learned counsel for the accused No.1 that in the absence of specific finding by the Doctor who examined the girl about the recent sexual intercourse, the alleged commission of rape upon the girl cannot be believed, is not acceptable.
55. From the above analysis, it is established that the victim girl was subjected to rape while she was confined in the house at Dastapur village in Gulbarga District. Though there are clear and direct evidence with respect to accused No.1 - Siddesh committing the alleged act against the victim girl, it has to be seen whether the evidence of PW-12 - victim girl and other materials placed before this Court would also satisfy to hold that accused No.2 also was involved in the said act of kidnapping the girl from her School to Dastapur village and committing rape on her.
56. On this point, when we once again analyse the evidence of the younger brother of the victim girl, the parents of the victim girl and the evidence of none else than the victim girl, as observed above, it can be seen that there is no whisper of accused No.2 accompanying accused No.1 while kidnapping the girl from the School premises to the house of PW-3 and PW-4 and from there to Gulbarga. It is only PW-12 - the victim girl who has given some reference about accused No.2 and stated that it was accused No.1 who along with accused No.2 also subjected her to sexual assault during her confinement at Dastapur village in Gulbarga District.
57. As already observed above, neither PW-3 nor PW -4 have whispered anything in their evidence about the presence of accused No.2 when victim girl was said to have been brought to their house by accused No.1. Had really accused No.2 - Rudramuni participated in the alleged commission of kidnap of the victim girl and accompanied accused No.1 in taking the girl upto Gulbarga, then, PW-3 and PW-4 should have in their evidence whispered about the presence of accused No.2 also. However, there is no whisper in their evidence about accused No.2.
58. Secondly, even though PW-12 - the victim girl has stated that accused took her to Gulbarga and it was both the accused persons who subjected her to sexual assault, but the very same witness in her very cross- examination dated 23-08-2011 has stated that when she was taken away from the house of Deepa (PW-3) at Chitradurga, accused No.2 - Rudramuni who is her senior uncle did not join them. The witness has stated that the said Rudramuni – accused No.2 asked accused No.1 to take her from the said place. The said evidence of none else than the victim girl at that stage goes to show that when the accused No.1 proceeded to take the victim girl to Dastapur village at Gulbarga District, accused No.2 did not accompany them. No doubt the very same victim girl in her further evidence rebutted stating that even accused No.2 also subjected her to rape in the house at Dastapur village but, in order to believe the said statement that accused No.2 also subjected her to sexual assault it was very much necessary on the part of the prosecution to elicit from the witness as to when accused No.2 came to Dastapur village. As observed above, it is because even according to the victim girl, accused No.2 asked accused No.1 to take her from Chitradurga but she did not state that accused No.2 later joined them at any place and on any date. Therefore, an important link to complete the chain of the alleged involvement of the accused No.2 in the incident of rape upon the victim girl is lacking.
59. Lastly, according to PW-10 and PW-14, who are the parents of the victim girl, when they went to the Police Station to lodge the complaint, accused No.2 was present with them. He had accompanied them to the Police Station. Not only he was accompanying, but he was also telling them that accused No.1 would bring the girl back.
60. According to the complainant (PW-10), he included accused No.2 also as one of the suspect in the complaint. The said evidence of PW-10 - the complainant- cum-father of the victim girl and an evidence to the same effect by PW-14 - the mother of the victim girl who also has stated that accused No.2 was with them when they lodged the complaint would clearly go to show that as on the date of the complaint which was on 24-03-2010, at which time the girl was at Dastapur village in Gulbarga District, the accused No.2 was in Chitradurga, that too within the eye sight of the parents of the victim girl and was with them even when they went to the Police Station. This makes the case of the prosecution more doubtful as against accused No.2 only about his involvement in the alleged commission of sexual assault upon the girl.
61. Therefore, even though the prosecution could able to show that the evidence of the victim girl about sexual assault upon her is believable, but the said believing of the evidence of PW-12 – victim girl would not be in its entirety as against both the accused, but it would be confined to the role of accused No.1 alone.
62. As observed above, to limit it and to confine it to accused No.1 only, there are cogent and material evidence from the beginning of the incident i.e. from the place of the alleged kidnap at Chitradurga and ultimate return of the girl back to the Police Station. At all these places, the presence and involvement of accused No.1 is cogently revealed by the prosecution witnesses, more particularly, by PW-3, PW-4 and PW-12, whereas as against accused No.2, there is no consistency in the evidence of the prosecution witnesses, rather there are de-link in the chain about the involvement of accused No.2 in the incident.
63. As such, the argument of the learned counsel for the appellant in Criminal Appeal No.317/2013 that there are cogent evidence to believe that accused No.2 also was involved in the commission of the crime and in instigating accused No.1 to commit the alleged offence, cannot be accepted. On the other hand, the argument of the learned counsel for the respondent No.1 in the same appeal that the finding of the Trial Court in exonerating accused No.2 from the alleged offences requires to be accepted. However, since the above analysis has clearly revealed that both the accused persons were independently charged of the alleged offences without the aid of Section 34 of the Indian Penal Code and the Trial Court has appreciated the evidence placed before it in its entirety, in the light of the alleged role of each of the accused before it, merely because accused No.2 is said to have been acquitted, it cannot be concluded that accused No.1 also deserves to be acquitted. It is also for the reason as observed above that, the prosecution has clearly established the involvement and role of accused No.1 and he committing the alleged offences beyond reasonable doubt.
64. However, in the absence of any similar cogent evidence as against accused No.2 about he instigating accused No.1 for the commission of the alleged offences and also about the alleged involvement of any of the alleged offences, it cannot be said that merely because accused No.2 is acquitted, simultaneously the accused No.1 also deserves to be acquitted. As such, the argument of the learned Amicus Curiae for accused No.1 on the point is not acceptable.
65. In the above analysis, it is clearly established that the evidence of prosecution witnesses have clearly shown that the victim girl who was minor as on the date of incident was taken away from the custody of her parents without their consent and she was taken to Dastapur village in Gulbarga District and subjected to rape by accused No.1.
66. The evidence of the victim girl is trust-worthy and reposes confidence in believing the same. As such, we have no hesitation to hold that the prosecution is able to prove beyond all reasonable doubts that accused No.1 has committed the offences punishable under Sections 366 and 376 of IPC.
67. However the prosecution could not able to prove that accused No.2 has committed the offence punishable under Section 109 read with Sections 366 and 376 of IPC.
68. The Trial Court after appreciating the evidence placed before it in its proper perspective has rightly pronounced the judgment in that regard in which we find no reason to interfere.
69. However, so far as the sentence part of the punishment awarded by the Trial Court when perused, we are of the view that considering the facts and circumstances of the case, the sentence of imprisonment for three years against accused No.1 for the offence punishable under Section 366 of IPC with fine of `5,000/- though is proportionate to the criminality of the guilt proved against the said accused, but sentencing the very same accused to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of `25,000/- in respect of the offence punishable under Section 376 of IPC is not proportionate to the criminality of the guilt proved in the facts and circumstances of the case. As such, the sentence part of the impugned judgment so far as Section 376 of IPC is concerned, requires a slight modification.
70. Considering the fact that accused No.1 was admittedly a known person to the family of the victim girl and also the fact that the mother of the victim girl has spoken about the accused No.1 earlier offering to stand as a surety to a loan transaction and thereafter withdrawing the same and also considering the fact that the victim girl as well as her father have in their evidence stated that on an earlier occasion also, the victim girl had accompanied accused No.1 to a different place away from the custody of her parents and no complaint in that regard was lodged by the parents of the girl, we are of the view that, Rigorous Imprisonment imposed for a period of ten years is a bit harsh in the circumstances of the case. As such, the same deserves modification through which we reduce the length of Rigorous Imprisonment from ten years to seven years.
71. However, at the same time, we increase the fine of `25,000/- imposed by the Trial Court to a sum of `1.00 lakh (Rupees One Lakh Only) retaining the default sentence of one year as it is.
72. Before parting we would like to place on record our appreciation about the assistance rendered by the learned Amicus Curiae in Criminal Appeal No.37/2013.
Accordingly, we proceed to pass the following order:-
O R D E R [i] Criminal Appeal No.317/2013 is dismissed as devoid of merit;
[ii] Criminal Appeal No.37/2013 is allowed in part;
[iii] The judgment of conviction dated 17-12-2012 and order on sentence dated 24-12-2012 passed by the Principal District and Sessions Judge, Chitradurga, in Sessions Case No.76/2010, for the offences punishable under Sections 366 and 376 of IPC, convicting the accused No.1 holding him guilty of the alleged offences though is confirmed, the sentence of Rigorous Imprisonment for a period of ten years and payment of fine of `25,000/- ordered for the offence punishable under Section 376 of IPC against accused No.1 is hereby modified and sentence of imprisonment is reduced from ten years to seven years, at the same time, modifying the fine amount from `25,000/- to `1.00 lakh (Rupees One Lakh Only) and the default sentence of one year remains unaltered.
Out of the total fine amount, if collected from accused No.1, a sum of `90,000/- (Rupees Ninety Thousand Only) shall be paid to the victim girl (PW-12) towards compensation and the remaining fine amount in deposit shall go to the share of the State.
[iv] The honorarium payable to the learned Amicus Curiae in Criminal Appeal No.37/2013 is recommended to be considered at not less than a sum of `10,000/-;
In view of disposal of the main appeals, all the pending I.As. do not survive for consideration and they stand disposed of.
Registry is directed to transmit a copy of this judgment along with Lower Court Records to the Trial Court without delay.
Registry to deliver a copy of this judgment, free of cost, to the accused No.1, immediately.
Sd/- JUDGE Sd/- JUDGE BK/BMV*