IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ CRIMINAL APPEAL NO. 139 OF 2014 BETWEEN:
STATE OF KARNATAKA BY CHANDRALAYOUT POLICE ... APPELLANT (BY SMT. NAMITHA MAHESH.B.G., HCGP) AND:
1. K.REDDIAPPA REDDY @ K. REDDY SON OF KRISHNA REDDY AGED 37 YEARS 2. SMT. JAYAMMA WIFE OF K. REDDIAPPA REDDY AGED 35 YEARS BOTH ARE RESIDING AT NO.47 4TH MAIN ROAD, ADARSHANAGAR KALYAN NAGAR BENGALURU-560043 ... RESPONDENTS (BY SRI. JAGADEESHA.B.N, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C, PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 27.9.2013 PASSED BY THE XLV ADDL. CITY CIVIL AND SESSION JUDGE, BENGALURU IN S.C.NO.280/2009 - ACQUITTING THE RESPONDENT / ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 AND 114 OF IPC.
***** THIS CRIMINAL APPEAL COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR JUDGMENT ON 27.09.2019, THIS DAY, SURAJ GOVINDARAJ J., PRONOUNCED THE FOLLOWING:
JUDGMENT The present appeal by the State/prosecution arises out of the Judgment dated 27.09.2013 passed in S.C.No.280/2009 by the Court of the XLV Additional City Civil and Sessions Judge, Bangalore city (CCH-46) (for short the ‘trial Court’).
2. The case of the prosecution is that accused 1 and 2 are married to each other. Their children are studying in the Corporation High School, Bhairaveshwarnagar, in which CW1-prosecutrix was also studying in IX std. Accused No.2 and prosecutrix were not known to each other but accused No.2 befriended PW-
1 when accused No.2 came to the school for leaving her children. Accused No.2 knowing that PW-1 is an orphan and residing in the house of PW-4, induced her stating that she would provide her a job in a garment factory which will get her salary of Rs.10,000 to Rs.12,000/- and took PW-1 to her house on 18.09.2008 in the morning at 9 a.m. On the same night while the accused No.2 and PW-1 were sleeping after dinner in the house, at 11.00 p.m., accused No.1 caught hold of PW-1 and tried to commit rape on her. At that time, PW-1 raised a hue and cry, alerted accused No.2, who came and slept next to PW-1 for some time and later on went back to her place to sleep. At around 12 in the night, accused No.1 has once again come and has taken PW-1 from the hall to the bedroom and forcefully committed rape against her will. Though she made a hue and cry, nobody including accused No.2 came to her rescue. She thereafter informed accused No.2, who did not help her. Hence, on that night PW-1 left the house of the accused and slept in a shed nearby the house of the accused. Next day morning when she was going to commit suicide, at that time, her foster father, Yogesh [PW-2] came and rescued her. She narrated the entire incident to PW-2 and went with PW-2 to his house. Then she and PW-2 have gone near the house of accused person and PW-2 enquired with accused No.1. PW-2 and general public assaulted accused Nos.1 and 2 and took them to police station.
3. PW-1 lodged a complaint. FIR No.191/2008 was registered on 19.09.2008 for offences under Section 376 and 114 of IPC. After completion of investigation, a charge sheet was filed on 16.12.2008. Accused were arrested on 20.09.2008 and sent to judicial custody. Accused No.1 was charged under Section 376, and the accused No.2 was charged under Section 114 of IPC as an abettor. Accused No.2 was released on bail on 12.01.2009. The accused pleaded not guilty and claimed to be tried.
4. Prosecution, in all, has got examined 14 witnesses as PW-1 to PW-14 and got marked documents P1 to P12 and material objects MO1 to MO9 and closed their side. After the closure of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C., and they denied the incriminating circumstances against them in the prosecution evidence. They have chosen not to lead any evidence in their defence. The trial Court conducted the trial and formulated the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 18.09.2008 at night while the accused persons and PW-1 were sleeping after dinner in the house, at 11.00 P.M. the accused No.1 caught hold PW-1 and tried to commit rape on her. At that time PW-1 alarmed accused No.2 and she did not provide proper security to her. Thereafter, at 12.00 in the midnight, the accused NO.1 forcible took PW-1 from the hall to the bedroom and committed rape on her, and thereby the accused NO.1 has committed an offence punishable under Section 376 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.2 even after informing by PW-1 about the illegal act of accused NO.1 has not provided proper security to PW-1 and has assisted and allowed the accused No.1 to commit rape on PW-1 and thereby the accused No.2 has committed an offence punishable under Section 114 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that on 18.09.2008 at night while the accused persons and PW-1 were sleeping after dinner in the house, at 11.00 P.M. the accused caught hold PW-1 and tried the commit rape on her. At that time PW-1 alarmed accused No.2 and she did not provide proper security to her. Thereafter, at 12.00 in the midnight, the accused NO.1 forcibly took PW-1from the hall to the bedroom and outraged the modesty of the prosecutrix and thereby the accused No.1 has committed an offence punishable under Section 354 of IPC?
5. The trial Court held that accused No.1 had not committed the offence punishable under Section 376 of IPC and further held that accused No.2 had not committed any offence punishable under Section 114 of IPC, but, however, held that accused No.1 had outraged the modesty of PW-1 and therefore, was guilty of an offence under Section 354 of IPC. As regards sentencing, the trial court observing that accused No.1 was in judicial custody for more than five years, as also various other circumstances, convicted accused No.1 for an offence punishable under Section 354 of IPC and sentenced him to undergo simple imprisonment for two years and pay a fine of Rs.3,000/-. The amount of Rs.3,000/- was directed to be deposited by the accused, which in turn was to be paid to PW-1 after the appeal period is over. The trial Court set off the period already spent by accused No.1 in judicial custody and observing that accused No.1 had already served the sentence imposed, directed his release as per law. It is against this Judgment and order, the prosecution is on appeal before this Court.
6. The prosecution while seeking leave to file the present appeal to challenge the Judgment and order dated 27.09.2013 passed by the trial Court, also seeks for conviction and sentencing of the accused for the offences which they were charged with in accordance with law.
7. PW-1 is the prosecutrix, who has filed the complaint. She states that she does not have parents, she is an orphan who is fostered by PW-2 and his wife in their house. PW-1 used to attend School, Accused No.2 also came to the same school for leaving her children and had over a period of time befriended PW-1. On 18.09.2008 when she had gone to school, accused no. 2 assured PW-1 that she would provide her work in a garment factory and hence, took PW-1 to her house. On that night, after they had dinner, PW-1 slept in the house of the accused. The children of the accused were also sleeping in the room. At about 11 p.m. accused No.1 came near PW-1/Prosecutrix and tried to commit rape. At that time, PW-1 raised a hue and cry, alerted accused No.2, who came and slept next to PW-1 for some time and later on went back to her place to sleep. At around 12 in the night, accused No.1 has once again come and has taken PW-1 from the hall to the bedroom and forcefully committed rape against her will. Though she made a hue and cry, nobody including accused No.2 came to her rescue. She thereafter informed accused No.2, who did not help her. Accused did not permit PW- 1 to go outside the house. Later when the accused were sleeping PW-1 left the house of the accused and slept in a shed nearby the house of the accused. In the early morning when she had gone to commit suicide near Mudalapalya, Yogesh [PW-2] came on the way, she narrated entire incident before him. Then she and PW-2 went to the house of the accused and PW-2 enquired with accused No.1. PW-2 and neighbouring persons assaulted accused Nos.1 and 2. Thereafter PW-1 lodged a complaint before the police as per Exhibit-P1. She has stated that her date of birth is 19.08.1992. PW-1 was cross- examined. She has stated that she was residing in the house of PW-2. She was studying in IX standard. The school is at a distance of 1 k.m. from her house. She has withstood the cross-examination. She has denied certain of the suggestions made as regards she having suffered harassment in the house of PW-2 and further that the complaint was given by PW-2 and she only signed it.
8. PW2-Yogesh has stated that the mother of PW-1 was working in their house and she had died by pouring kerosene and therefore, he has fostered the victim-PW1 and was taking care of her. He has reiterated what has been stated by PW-1. Though his evidence on the incident is on the basis of what PW-1 had told him, his evidence corroborates the evidence of PW-1, he has stated that he had gone in search of her, found her, brought her home and after hearing about the incident, he had gone to the house of the accused to make enquiries. The public gathered and assaulted the accused and thereafter the accused were taken to the police station. He has stated that PW-1 was sent to Victoria hospital for examination and brought to his house. He was present when the police conducted mahazar along with panch witnesses. In his cross-examination, he has stated that PW-1 did not return home on 19.08.2008. Even though they searched for PW- 1, they have not filed any missing complaint before the police and the other suggestions made are denied by him.
9. PW-3, Basavaraju was working under Yogesh. He had stated that PW-1 was fostered by Yogesh. PW-1 was attending to school and when she did not return home, he and Yogesh went in search of PW-1 and found her near Mudalapalya. PW-1 was not ready to come to the house of Yogesh, however, they brought PW-1 to the house of Yogesh. PW-1 stated the entire incident before him and Yogesh. He has reiterated the evidence of PW-1. He has also stated that he, Yogesh and PW-1 have gone near the house of the accused to make enquires, the public had gathered and assaulted both the accused and they were taken to the police station. He has denied the suggestion that Yogesh and his wife were taking household work from PW-1 and that they were not giving food to PW-1.
10. PW-4, Udayakumar, who is one of the brothers of Yogesh, has stated that he knows PW-1. He reiterated the statements made by PW-1 and Yogesh. He has denied the suggestion that Yogesh had quarrelled with PW-1 and had driven out PW-1 from the house.
11. PW-5, Govindaiah is one of the neighbours of the accused, who has stated that he does not know PW-1 or Yogesh. He has stated that police have not enquired from him. The prosecution has treated him as hostile, and he was examined. He, however, denied his entire statement.
12. PW-6, Prakash Gedi, a police constable who was on duty in the police station, as per the directions of his higher officer, has stated that he has taken the sealed requisition and gone to the Forensic Science Laboratory.
13. PW-7, Lakshmamma has stated that she knows accused but does not know PW-1 and that she does not know about the incident also. She further stated that she has not given any statement before the police. She was treated hostile.
14. PW-8, Dr.K.V.Sathish, received the requisition from the police Inspector, Chandra layout police station on 20.09.2008. They have produced accused No.1, who was examined by him. He states that accused No.1 does not suffer from any defect so as to affect his sexual activity when examined there was a teeth bite mark on his left ear. He has also stated that he has examined the accused and issued a certificate as per Exhibit-P4. He has also examined the victim-CW1 and sent her to x-ray department. This witness also stood the test of cross- examination.
15. PW-9, Nanjundaiah is said to be having a zinc shed house which he gave on lease to the accused for Rs.40,000/-, who was residing there for the last eight months. The brother-in-law of accused No.1 came to him and stated that they are vacating the house. PW-9 returned the lease amount of Rs.40,000/- to the brother- in-law of the accused, and they vacated.
16. PW-10, S.Malini is the Head Mistress of Corporation Girls High School, who has issued the birth certificate of PW-1 stating that she was born on 19.08.1992 (Ex.P6].
17. PW-11, Hanumanthappa M.Shirihalli, Police Sub- inspector has stated that he was instructed by the Inspector to take the accused for medical test. He had taken the accused to Victoria hospital. Accused were examined by the Medical Officer and he returned back to the police station along with accused.
18. PW-12, H.R.Reddy is a Police Inspector of Chandra layout police station. He has recorded the statement in the house where the accused were living. A women police constable Ammajamma has produced requisition before him collected from the Medical Officer, which, he has in turn forwarded to the Forensic Science Laboratory for examination. He has verified all the records and filed charge sheet against the accused.
19. PW-13, Dr.Mahesh Kumar has stated that PW-1 was produced at 1.30 p.m, on 20.09.2008 for examination. He has examined her, found a lacerated wound on the left shoulder. There is no injury on her private parts. One finger was easily passing in the private part of PW-1. He has collected the vaginal swab, vaginal smear, cervical swab, nail clippings and clothes of PW-1 and sent to the police for FSL report. He has verified the FSL report. There was no sperm detected in the FSL report. As per his opinion, previously PW-1 was involved in sexual activity. He has identified the certificate issued by him and marked as Exhibit-P9. FSL report is marked as Exhibit-P10. He has identified the clothes marked as MO-1 to MO-9.
20. PW-14, M.C.Dasharatha Murthy was a Police Inspector at Chandra layout police station on 19.09.2008. On that day at 8 p.m., PW-1, Bhagyamma and others have come to the police station and lodged a complaint which was received by him and a case was registered. He sent the FIR to the court and higher officers. He sent accused No.1 and PW-1 to Victoria hospital for medical test and that he has conducted further investigation. He has also stated that PW-1 had shown him the place of incident wherein he has conducted mahazar before panchas. He states that he has recorded the statements of Govindaiah, Laxmamma, Basavaraju, Yogesh, Udayakumar, Venkatesh and Varalakshmi. He has stated that he was transferred on 27.09.2008 to Davanagere when he handed over investigation to Inspector-H.R.Reddy. He has received a complaint from PW-1. He has not recorded any statement of PW-1.
21. The prosecution case is based on the statement of PW-1. The prosecution has stated that PW-1 was 16 years of age and she being the victim, her evidence is believable and hence, sought for punishment against the accused. The trial Court on the basis of the above evidence held that the important material document Mahazar is not signed by PW-1 and concludes that since there is no injury on the private parts of PW-1, there cannot be an offence of rape said to have occurred. If the same really had happened, she would not have slept in the house of accused during night time. She left only after the accused were sleeping and slept in a shed nearby.
22. On the basis of the above, the trial court held that the offence of rape is not established, but that accused No.1 has tried to outrage the modesty of PW-1, which is punishable under Section 354 of IPC. As regards the age of the victim PW-1, the trial Court observes that there is no specific document furnished by the prosecution in this regard and hence, the trial court acquitted the accused of offences under Section 376 and 114 of IPC and punished accused No.1 for a much lesser crime under Section 354 of IPC as regards outraging the modesty of PW-1.
23. After hearing the counsel for sentencing, the trial court sentenced him to undergo simple imprisonment for a period of two years and since the accused had already spent five years in custody, the trial Court directed accused No.1 to be released. The judgment of the trial Court does not speak of or examine the role of Accused No.2 in the incident. The trial Court accepts the statement of PW-1 that accused No.2 had taken PW-1 to their house assuring her of providing a job in a garment factory. The trial Court also accepts that on that night accused No.1 had tried to outrage the modesty of PW-1, when PW-1 shouted and accused No.2 had come and slept next to her. After having accepted this, the trial Court has stated that the second act when accused No.1 came at 12 in the night and took PW-1 to a room and raped her is not proved by the prosecution merely on the ground that there was no injury on the private part of PW-1. It is on this basis, that the State has filed the present appeal seeking for conviction of the accused under Section 376 and 114 of IPC.
24. Heard Smt.Namitha Mahesh, learned High Court Government Pleader for appellant and Sri.Jagadish.B.M., learned counsel for respondents.
25. Smt.Namitha Mahesh has contended that the trial Court has erred in acquitting the accused for offences under Section 376 insofar as accused No.1 is concerned and Section 114 of IPC insofar accused No.2 is concerned. She further contends that the facts and evidence on record establishes that those offences have been committed which the trial Court has overlooked. She contends that the trial Court has not considered the material evidence on record and by not doing so, the same has resulted in miscarriage of justice by letting go of the accused.
Accused No.1 ought to have been convicted for offences under Section 375 in terms of Section 376 of IPC and accused No.2 having abetted the offence, ought to have been convicted under Section 114 of IPC. Instead of doing so, the trial Court has convicted accused No.1 under Section 354 of IPC for a lesser offence of outraging the modesty of a woman and accused NO.2 has been acquitted of the offence.
26. Smt. Namitha Mahesh further contended that in terms of the evidence which has been led viz., that of PW-1, who is the prosecutrix it has been established that the offence has been committed by accused No.1 and accused No.2 is not a mute witness, but she has abetted the said offence. In that it is accused No.2 who had prevailed upon PW-1 and convinced her to come to the house of accused Nos.1 and 2 by promising PW-1 a job in a garment factory which would fetch a minimum salary of Rs.10,000 to Rs.12,000/-. Thus being induced by the said promise made by accused No.2, PW-1 went to the house of the accused with a fond hope of bettering her life, more so when she was an orphan. If accused No.2 had not represented as such, it is unlikely that PW-1 would have gone to the house of the accused, therefore, the incident would not have even occurred. Smt.Namitha further contends that when at 11 p.m, accused No.1 tried to commit the act of rape of PW-1, accused No.2 intervened, by then she was aware of the intention of accused No.1. Accused No.2 represented to PW-1 that she would sleep next to her and indeed for a short time she slept next to her and thereafter went to the place where she was sleeping earlier. Once PW-1 was asleep, accused No.1 again came and slept next to her and forcibly took her into a room and PW-1 has stated that though she screamed, however, no one including accused No.2 came to her rescue, thus the Accused no.2 who had come to her rescue earlier, ignored her cries for help the second time and allowed the offence to occur. Accused NO.1 squeezed her neck, removed her clothing and committed the act of rape. This aspect has not been controverted in the cross- examination. Except for suggesting that her statement is false and that she went to accused house of her own free will and asking her about the geography of the place, distance and location, no material question has been put across.
27. Further suggestion is made that PW-1 has been set up by Yogesh [PW-2], who has enmity with accused No.2 and hence, a police complaint has been filed, it is also suggested that Yogesh and his wife were mistreating PW-1, were not giving her food, were harassing her mentally and physically and were making her to do household work and hence PW-1 wanted to leave the house of Yogesh. The defence which has been set up is highly incongruous and does not in any manner help the accused. On one hand, it is suggested that there is a rift between PW-1 and Yogesh [PW-2] and that PW-1 was mistreated by Yogesh and on the other hand, it is stated that it is Yogesh who had set up PW-1 to file a police complaint against the accused. Both the above circumstances cannot exist together. There is, in fact, no defence which has been set up apart from the above. Hence, the story of the defence cannot be accepted.
28. In cases of rape, the offence is not committed in an open place. Hence more often than not, there are no eyewitnesses to the offence. It is for this reason, in our country, the version or statement of the victim is presumed to be honest and true, and due weightage is given to her statement. The offence of rape is one of the most heinous of all crimes and arises out of the base animal instinct of the accused. Such offences cannot be condoned. Both the offender, as also any one abetting such an offence would have to be punished strictly.
29. In the present case, the circumstances which existed have to be taken into consideration and thus, it is circumstantial evidence which needs to be examined by taking into account the totality of all circumstances. The Hon’ble Supreme Court in the case of STATE OF U.P –VS- KRISHNA GOPAL & ANOTHER reported in AIR 1988 SC 2154 at para 13 has explained the concept of proof beyond a reasonable doubt. The said paragraph is reproduced herein for immediate reference:
“l3. There might also be some justification for the grievance of the appellant that the High Court had preferred some observations in the medical-evidence- which Sri Prithviraj characterised as merely conjectural answers-to the other categoric answer by the very medical-witnesses themselves. So Prithviraj also submitted that it would be erroneous to accord undue primacy to the hypothetical answers of medical- witnesses to exclude the eye-witnesses' account which had to be rested independently and not treated as the "variable" keeping the medical-evidence as the "constant".
It is trite that where the eye-witnesses' account is found credible and trustworthy, medical-opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial-process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical-evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amount to `proof' is an exercise particular to each case. Referring to of probability amounts to ‘proof’ is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See: "The Mathematics of Proof- II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342).
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited art with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to inter guilt from the fact that the dependant fled from justice. But since it is generally guilty rather than innocent people who run away, the two doubt are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts would be reasonable if they are free from a seat for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it is must be free from an over emotional response. Doubts may be actual and substantial doubts as to the guilt of the accused-person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective-element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common-sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused-persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.”
30. While relying upon the circumstantial evidence, we would need to examine whether those circumstances are contextually related to the offences committed and they establish that it is accused who has committed such offence. In the normal or common course of events of human conduct, it would have to be explained as to why accused No.2, who only knew PW-1 from the basis of general interaction on scattered occasions, invited PW-1 to her house and promised her to get a job. These circumstances establish that there is something beyond ordinary in such an invitation being extended by accused No.2 to PW-1. This conduct prior to the offence on the part of accused No.2 would establish the chain of events leading to the offence being committed. The subsequent conduct of accused No.2 is also important to note that on the first occasion she cajoled PW-1 and gave her false sense of security by coming and sleeping next to her. It appears that thereafter she went back to the place where she was sleeping in, thereby making it possible for accused No.1 to act and take PW-1 to another room in order to commit the offence. It is more shocking that accused No.2 did not respond to the screams of PW-1 and or prevent the act from happening. In view of this, the actions of accused No.2 are with the sole intention of abetting the offence by accused No.1.
31. Insofar as accused No.1 is concerned, the medical evidence establishes that the hymen was absent, admits index finger easily and presence of mild tenderness. There is no cross-examination by accused No.1 of PW-1, which would in any manner negate the allegations made by PW-1. The cross-examination of other witnesses are also on a similar footing from what has been extracted hereinabove.
32. Insofar as accused No.2 is concerned, she has abetted the offence committed by accused No.1. Hence, she is also liable for the punishment under section 356 of the IPC. Hence the finding of the trial court needs to be reversed as she is guilty of the offence and to be punishable under Section 114 of IPC for abetting an offence under Section 354 of IPC. For the purpose of sentencing we have taken into account the fact of her having children.
33. Admittedly, the victim PW-1 was studying in IX standard and generally speaking the age of a child studying in IX standard would be less than 16. Even if it were not to be so, admittedly, the victim was a school going child. The accused were very well aware of this fact and in fact, accused No.2 took PW-1 from the school to her house. The accused therefore, knew that they were indulging in committing or abetting the commission of offence of rape on a school going child which is even more heinous than an offence of rape. The trial Court has not considered various aspects and has given benefit of doubt to accused No.1 by holding that he is guilty of an offence under Section 354 and not under Section 376. Even if the offence made out is only for outraging the modesty of a woman under Section 354, in the facts and circumstances taking into consideration that accused No.1 has outraged the modesty of a school going child, the maximum permissible punishment ought to have been imposed on accused No.1. Hence, we pass the following:
ORDER i) The appeal is allowed.
ii) The judgment of the trial court convicting Accused No.1 is confirmed. The sentence is modified by increasing it to five years in respect of accused No.1 with a further imposition of fine of Rs.50,000/-. In default of payment of fine, accused No.1 shall undergo further imprisonment of two years.
iii) The judgment of the trial court insofar as accused No.2 is concerned is reversed. She is held guilty for offence under Section 114 of IPC and sentenced to undergo simple imprisonment for a period of two years and pay a fine of Rs.25,000/-. In default of payment of fine, accused No.2 shall undergo further imprisonment for one year. She shall be arrested forthwith.
iv) The period of custody spent by accused Nos.1 and 2 shall be given set off under Section 428 of Cr.P.C. Since accused No.1 has been released by holding that he had already served the period of sentence imposed by the trial Court, he shall be arrested forthwith.
v) The fine amount of Rs.50,000/- and Rs.25,000/- imposed on accused Nos.1 and 2, respectively, shall be paid to PW-1 immediately on receipt. The said fine shall be deposited by the accused before the trial Court within a period of eight weeks from today.
vi) State is also directed to consider grant of compensation to PW-1/victim in terms of The Karnataka Victim Compensation Scheme, 2011 and in terms of Section 357 of Cr.P.C., which shall be determined by the jurisdictional District Legal Services Authority and paid to PW-1 within a period of eight weeks from the date of receipt of a certified copy of this order.
Registry is directed to forward a copy of this order to the jurisdictional District Legal Services Authority, forthwith.
Sd/- Sd/-
JUDGE JUDGE ln/Prs*