IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11TH DAY OF AUGUST 2009 BEFORE '% THE HONBLE MR. JUSTICE ARAL1 _ CRIMINAL APPEAL 1§Jp.50 1 /20.57., E BETWEEN « E H ' Sheikunhi s / 0 . Hasanabba, '~.._ Aged about 22 Years, R/o.Pade Mane. Pudubettu Village, . Belthangady Taluk. - P1112574» 216. Appellant (By Sri Sharatfighariidra Bi;a:,':2§dv.§s_.TTti' The state by PS1"; " 'W Be1thangady'P01ice.V ' 'V Station, Beithahgady. Karir1a--d~ ', =Represente._d by State VI?_ub1:ie,_pVPrdsec}1tor. Respondent L s:a.;r&§§,*T:Ramakrishna, HCGP] " This Criminal Appeai is filed U/S 374(2) of " 'C.1_'.P.C., praying to set aside the judgment dated 'v:3_1:;1.2007 and order dated 1.2.2007 in Special Case No.2/2006 passed by the learned 11 Additional Special Judge, D K, Mangaiore. c9wS"""""'-"\.4 2 This Criminal Appeal coming on for further submission and for dictating judgment this day, the court made the following: JUDGMENT
The accused in Special Case No.2/2006 file
of the learned 11 Additional Special
Mangalore [hereinafter referred””‘to. gasp Colurt’ for ‘;
short) has challenged in
judgment and order of conviction an’d.._s”entenc’e” dated
3 1.1.2007 passed in the said ‘cased”e.onvicting”him for the
offences under 376 IPC and
sentencingfihgirniifigo for a period of six months
for forrnerg R1 for a period of seven years
and to pay fine ofRs..25,000/– with default sentence of
.. A i”rr1pri.s<on:"nent formfurther period of six months for the
the arguments of Sri Sharat Chandra Bijai,
A the "learned counsel for the appellant — accused and Sri
Ramakrishna, the learned High Court Government
Pleader for the respondent –~ State. Perused the entire
M
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materials in the original records obtained from the Trial
Court.
3. Though the accused was chargesheeted.-for the
offences under Sections 448, 376, 506 read Section
3(1](XIl] of sc and ST [PA] Act, 1989, the
appreciation of oral evidencielddllofe
“to the 7
documents at Exs.P1 to P16 and ix/Itj)s.lj.»’,t:_oA
by the prosecution and als’o:after HEVx.Dl, a
portion of the stateinent :.miar.l:ed forthe accused,
found the accused under Sections
448:’a1’1d i3»’AV/’V’Vt’5″‘<)'i'="tf:p(:7land-~convicted him accordingly.
4. _ Oflkthev….’–nir1eVA”‘:witnesses examined for the
‘plroseoition, PW’l'”VKum.Girija is the prosecutrix, PW2
is her uncle and PW6 Smt.Bethru is her
niothver. 4 and 8 are Medical Officers, who
to exazniiied the prosecutrix. PWs.5 and 9 are the police
A’ ‘~-V_V’wi-tnesses and PW.7 is the panch to EXP2 scene of
ii offence.
.,..c*’~”
5. In order to prove the incident of forcible sexual
intercourse alleged to have been committed the
accused on PWI Kum.Girija, the prosecution..h_as_’_
reliance on the oral evidence of PWs.
is the complaint of PW1 comp}lainl_a4n’t.
recorded by PW5 PS1 on 2’1.,__12.Ll’O.(v)l5 at
she was under treatment Hospital at
Mangalore. Her al1egeld’~–i_n..,Atl1,e said complaint is
as under: _ ‘
eibtiut 10.00 am. the
and other members of the
Ujire and as such she was
ivngthelhouse and at that time, While she was
it c1eanin’g..lth_e&Aifloor, the accused entered into the
under the guise of taking a cassette and
V”.t~,s.eeing nobody was in the house, he
vcothiriitted forcible sexual intercourse by dragging
and lying her on the floor by force. When she
raised cry, he threatened her saying that if she
were to cry, he would kill her. Despite her
resistance, he continued his act of forcible sexual
intercourse on her for about half an hour and
‘,___;””‘”N-……,«-=-
6.
thereafter he went away from her house by
threatening her that if she were to disclose before
any one, he would kill her.
Her mother, elder sister and bIf§3tl1!31V’~–._i’:f1V~:-lfiwl,
who had gone to Ujire, returned
a.m. and she informed theniall incident 01′
and thereafter they all toolé:l:°ii’er
hospital at Belthangady, where she:
aid and then she vvlas’l’taken~..toi*VLady Goshen
hospital for f1j’1’t_I_1errtreatnlentpas advised by the
doctor at Belthangady.
While slf1’eV_was~’takifigV the hospital at
Mangialoigs, police :..reco1″ded her complaint
statenient as per
the’ ofilififelthangady PS has stated in his
evidence thatsoln 20.12.2005, he received information
,0 ;’fron1.,:the«,:Government hospital, Belthangady that one
if * brought to the said hospital and she
was referred to Lady Goshen hospital at Mangalore as
it ~ she had excessive bleeding and therefore, after receiving
lffrom the Medical Officer of Government Hospital,
Belthangady Ex.P6 intimation to that effect, he went to
______;–..-..—-.___..
6
Lady Goshen hospital, Mangalore and recorded the
complainants statement of the prosecutrix as per
Ex.P1.
‘7. PW.3 Dr.Ramesh, the Medical of
Community Health Centre of Beithangadyiliaselstated$_”in’»
his evidence that on 20.12.2005.at._5.;oo7;)_.fn;–7<pWi F
Kum.Girija aged about 20_years'wiasi.broughtto
hospital by PW2 Kariya with'Vforcible
intercourse on her [accused herein)
on the morning of her residential
house. –_ He Vhas:furthie'r–..deposed that since the patient
was a girhhe to Dr.Swarna Latha, the other
the said hospital and the said
' ;Dr,Swari1a""Latha gave her first aid treatment and
" .referred.V–'toVher to Lady Goshen hospital at Mangalore for
further treatment. He has further deposed that on
x_f23.,12.2005 at 9.45 am the accused was brought to him
by pc No.1929 of Belthangady ps and he examined the
accused as to his competency to commit sexual
-P”””””-‘x…’
7
intercourse and issued EX.s.P3 and P4» certificates. He
has further deposed that when he examined the victim
Kum.Girija, he noticed some abrasions on right and left
side of her chest and also below the collar boneV,V”.._’._
8. PW4 Dr.Swarna Latha, the Lady Medical.’ at
Community Health Centre, Belthangady,’:has:.b_5’tated’
her evidence that on 20.12.2[o05[t’at;t
PWI Kurn.Giri_§a aged abo-ut__20
said hospital by her uncle ‘K.a;iya.’E{1irrnar VVEPWZ) with
a history of sexual on; one Sheikunhi
[accu_serj’ morning of that day. She has
further”d_ep0_sed_ tha’t.sl_;1e noticed one laceration and also
p.rofnse b1e’e’di.ng___pj.n her Vagina and therefore, after
‘ ;Vgivi11.g’heré”fir_st aid treatment, she advised that she be
” taken Goshen Hospital at Mangaiore.
9} i. “p_,w_8 Dralacintha D’Souza, the Lady Medical
A yC5f£_icer at Lady Goshen Hospital at Mangalore, has
deposed in her evidence that she examined the victim
..-.–.5″v”‘\r-«.–s.–a«…»r–s
8
Kurn.Girija at 7.50 pm. on 20.12.2005, who was
referred to the said hospital by the Medical Officer of
Belthangadi Hospital, the said girl gave history before
her that in the morning of that day, she was Vsubjected
to forcible sexual intercourse by one Sheikufrihi
herein] and that after the said >incident;”sh:e,
to the Government Hospital at Beltha1’rgadil§”Wi1:ere”*Ishe .
was given first aid treatniierit: This llladyili/ledical Officer’
has further deposed in helrfe_Vid_ence “that clinical
examination of the vlic=timtg_irl.,’ j.sheil,i:otic_ed the following:
iiii ail”_loi}*evr the body of the girl; no
found either on her breasts
or-pm of the body; there was vaginal
_ .. p1eedi’n.glH’a’s alresult of laceration measuring about
i.j’3~~4′ ..crns.:llone more injury was found at posterior
the Vagina measuring about 2 cms.;
‘vhf-riaerilllwas ruptured; uterus was of normal size;
painful; blood stains were found on legs
a “and thighs and there was still bleeding from her
vagina.
10
the victim sustained the said injuries in her vagina as a
result of thrusting of some wooden stick for aborting as
she was pregnant. But P.W.8 has denie:df_l’~~this
suggestion and absolutely no material is
record on behalf of the accused»ito__shot\XrV”that; ‘ .
girl was pregnant at any timeto
the incident. Therefore, ll the.__conside;red”oiainion V
that through the evidence -..”g_of”‘-thesell’three Medical
Officers and the by them, the
prosecution, esitahjtishedAlbeyond’ reasonable doubt
that the it » fiamely”, V V P.W. 1 Kurn. Girija, was
subjected to intercourse on the morning
of 20. 12.l2oo’5, ..
‘l V. A :,P,W…1 victiiiillgirl, has stated in her evidence that
” a.In. on that day, While she was cleaning
the floor. her house, the accused came into her house,
, held “her firmly, laid her on the floor and then
‘committed sexual intercourse on her by removing her
“clothes and also his clothes, despite her resistance and
£,….«$-‘-?”p~”‘”K¢r
11
without her Consent. She has further deposed that
when she tried to cry, the accused threatened her that if
she were to cry, he would kill her. She has’u’»:.it1rrther
deposed that at the time of the incident, aloiare
in the house as her parents had
at about 11.00 a.m., her unc1e=_i3.W.r2 S
her parents returned home from ‘Ujiree.”an:d:4_Vthe’ndishes.
narrated the incident to and the.re’afteV15’, she was
taken to GovernmerrtflPlospittjalatfielthangadi and from
there to LadytGoshe1*1″Hospital__at’Manga1ore for further
treatment»,.: A admitted as inpatient. She
has further on the next day morning, the
Police of””B_e’lthanlg’adi: Police Station came there and
‘S S. A rVlee:or¥:ied’l’her cornlplvaint statement as per Ex.Pl and her
taken on it and it is at Ex.Pl{a).
l1″3. above evidence of P.W.1 prosecutrix falls in
.. line. with her allegations in the complaint Ex.P1. The
S “‘._VVsu’g:gestion put to her on behalf of the accused that she
was pregnant as she had illicit intimacy with C.W.7
,-..f”V’*-“”1….«—-»-.
Somanatha, who happened to be her brother«~in~1aw,
and that when she attempted to get aborted by resorting
to the rude method of thrusting a wooden stic};Vi1uto._her
private parts, she sustained the said inju_ries,i
by her in specific terms. The accnsedhas:i’iot'”broVught’ ‘ \’
any material on record, through the ‘ cross’4e:};a:mi;i1ation
of any of the prosecutionyvitnesses, to that his
said defence is probable. no dtcircuihstance is
brought on record show that the
victim was, ayptoonsenting par°t_y_ toithe act of sexual
interetourse}V7cVorn3i’riitted’by hirnvion her. He has also not
brought 1’ece”1jfd_it’an:y»»«circumstance to show that the
co1js1p1ainantV~Victirn’-fiied her complaint against him and
..agains’tWAhim falsely at the cost of her
1 =. 3 r_eput.a’ti.on . V V
observed by Hor1’ble Supreme Court in the
by ” case of STATE OF PUNJAB Vs. GURMIT SINGH AND OTHERS
tdfeported in AIR 1996 so 1393 that Cl girl, in a tradition
H bound non-permissive society in India, would be
__
13
extremely reluctant even to admit that any incident which
is likely to reflect upon her chastity had occurred, being
conscious of the danger of being ostracized by the society
or being looked down by the society. It iscfurther
observed by the Supreme Court at the
of its judgment that the Courts
evidence, remain alive to the fact that in..a~..ca,seV§:f rape.
no self-respecting worrianrivauld conie_foriva.fid…inVVa Court
just to make a humiliatingstatement honour
such as is involved in-.of rape on her. It
is alsolllobstervetifyhither-é§i11 thbat” the testimony of victim in
casesaof sexudl’:_ijofj’e–.nces~*’ is vital and unless there are
compelling t_:Vre.$onsV'”:which necessitate looking for
. V. A corroboration of’ statement, the Courts should find no
on the testimony of a victim of sexual
as__sault .V.alone to convict and accused where her
t testimony inspires confidence and is found to be reliable.
‘1’fj.: Following the above observations of Horfble
“Supreme Court, I am of the considered opinion that the
…..s*—~”
Trial Court did not commit any error in accepting the
evidence of the prosecutrix insofar as it relates to the
occurrence of the incident of forcible sexual intercourse
on her by the accused without her consen_t”‘an.d_.
her resistance.
16. Further, the evidence of 0
maternal uncle and
prosecutrix, falls in line then ‘a\rern1ents in the
complaint EX.Pl aiidf th.e”~–oral’~ievidence of P.W.l
prosecutrix. The believed the
evidence- l’–th~egs’e twomyvitriesses namely. P.Ws.2 8: 6
insofar “it relateslto circumstances immediately after
occurrence’ of the incident of rape on the victim girl
.0 “by the accused and the girl narrating before
incident and also as to taking of the
to the hospitals for her treatment.
it ~ Sarat Chandra Bijai, the learned counsel for the
Vfaplpellantwaccused strongly contended that though the
incident took place at about 10.00 am. on 20.12.2005
(__§\,..,a
:5
as alleged in the complaint and also as deposed by
P.W. 1 prosecutrix, she was taken to hospital at
Belthangadi at about 5.00 p.m. and her complaint came
to be recorded on the next day at about 11.30 ‘and
the prosecution has not successfully
delay and therefore, the Trialmgp
disbelieved the evidence of :”san13-;e_*’it .
ought to have acquitted the accused
benefit of doubt.
18. Per contra, learned,.§’i’*l:’Iight~v:h_fijourt Government
Plea’der__contended.’ that after the parents of the
V1’CtilT1′ girllireturnegci»– they searched for a jeep and
“the gi’rl.._,iyas taken in the jeep to Belthangadi, as
t P.W.2, and thus, the prosecution has
delay caused in taking the girl to the
h4ospi’tal..’ He further contended that, as deposed by
it the P.S.l. of Belthangadi Police Station, soon
after he came to know of the admission of the victim girl
in Lady Goshen Hospital at Mangalore, he rushed to the
e–“\””L’//—-
16
said hospital at about 11.30 am. on the very next
morning of the admission of the prosecutrix in the said
hospital and recorded the statement of the girl as per
EX.P1 and thereafter, he immediately dispatc}:1ed._V’the
F.I.R. to the Court. ‘
19. As could be seen from the contents’,
“f
the residence of the prosecutriii was xat_;a._:’di_starieet”of hi’ it
about 25 kms. from _Be1thEanga_di =
Further, the Victim was profuse’b1″eedinHg” and as
such, she could dflken any public
conxfeyancepfwppqfhereforeg it was quite reasonable for
P.W.2 A other .– of the family of the
prciéseciitrixV’to._.Vspend few hours in getting the jeep for
t to the hospital at Belthangadi. Further,
it ‘-therev.’is”_’noA’p::.ahnorma1 delay in recording the compiaint
stateriierit of P.W.t prosecutrix. Besides this, no
it cireurnstance is brought on record by the accused to
Vgshow that the said complaint was falsely created by the
prosecutrix against him with a definite motive.
,».._.(“””~
Therefore, the submission of the learned counsei___for the
appellant-accused that there was abnor1na1j”def}ay.,’4 in
taking the girl to the hospital and also 4′
compiaint statement and that” -the
remained unexplained, cannot be a–ccepte’d.,. «. V’
20. In View of the cogentdxand eigidence of
P.Ws.1, 2 8: 6 her uncle
and her mother, and..aJ_s0 Ofiicers
namely, ‘ddthefconsidered opinion
that the beyond reasonable
doubt t’heT”.a._ce1ised who committed sexual
intercourse forcibiy without her
consent. andddespitevher resistance and for that purpose
i11_egai13;..,.6fltered into the residential house of the
as such, the Trial Court was quite
justitieyd recording its finding that the accused
if coinmitted the offences under Sections 448 8: 376 of
; .p.c.
as
21. As to the sentence imposed on the accused»
appellant, the learned counsel for the appe11ant~accuse_d
has produced in this appeal the affidavit of the accused-
appellantd The presence of the accused–appel]ant_:’can1e
to be secured on dated 05.08.2009 by_.issuing.. __%t,i”+T)._.C_;1’j,§
warrant against him. On thattlate, _th”e” .
was sworn to by the accused”-:,as;’_’to’i’the
other conditions of his to” are
mitigating circumst.ances__.in:”vreducing’-the_:3period of _
imprisonment imposledsubstance of the
the affidavit is as under:
— — in the said case by the P.S.I.
ofee1:hengedy’«;§e1:ee Station on 22.12.2005 i.e.,
it on the verysecond day of the incident, and since
he has been in custody. Thus, he has
about three years and seven and
hail’1..V_n’ionths in jail. He has two sons aged about
i ,. years and two years and his wife is aged about
’22 years as on this date. Himself and his wife are
iiliterates and he was doing coolie work. His
family does not own any property, such as
agricultural land, for the livelihood of his family
‘,_,\g*~x.-..,…..
:9
members. His father died three months before his
birth. Though he has three elder brothers and one
elder sister, they are also Very poor and they
themselves have their respective large families and
as such, they are not in a position topfrlprroyide
anything to his family. His aged mot1§;.er,’
living with him, as he is her last son}.__Byj:reason_,’of”
his absence in the fam..iiy,-.,theremhaVs been
person to look after them.
stigma attached to him by realson o,f”his.:con\:}ictiori ;
for the offence of rapvegihis neighbcursfhaye been
looking downthe me1nbers»…pf his”~fa’rr1ily. His
behaviour in the;}’ai1_,_f,ejver’.sinc’e_Vthe date of his
,..arre_sti.an’d; Vde’ten.tion been good enough. In
case visv-relea’sed._fI’o’m jail by reducing the period
of,_sentence«~.,’impo_sed on him, he shall become a
good’ also a dutiful father, husband
,_and_ son.’ ‘ ‘~–s–n’tinuation of his imprisonment would
.’2.”Z’.f
..vin hardship to his entire family.
‘jaliove facts stated by the appellant-accused in
his affidavit sworn to on 05.08.2009, which have
.,rerifs.ained undisputed, constitute special and adequate
Ereasons for reducing the period of imprisonment
imposed on him by the T rial Court. Therefore, i am of
e:’-.–5uK””\r~\_,_..».
20
the considered View that the ends of justice would be
met with if the period of rigorous imprisonment imposed
on the appe11ant–accused for the offence under Section
376 of I.P.C. is reduced from seven years to fonrjrears.
However, the sentence of fine of
the defauft sentence imposed onmhim fo_r”the::jsai’d offence’ ,
do not deserve to be reduced._to::”anyfczitentg”‘é§iid”*:i;11e
sentence imposed on him’for_ theAoffence”..nnder”S~ection.S’
448 of I.P.C. also does not »vfo1wg1ny. idnterference.
23. In View of my foregoirfigAidiscnsgsions, I proceed to
passcjfthe _ _
‘ ‘ S ‘V
The-.p1’esen_._t filed by the accused in Special
/2o’os.._en the file of the learned 11 Additional
D.K., Mangalore, is hereby aifowed in
if ‘A confirming the impugned judgment and
orderof conviction convicting the accused–appe11ant for
offences under Sections 448 8: 376 of I.P.C., the
__sentence of rigorous imprisonment imposed on him for
the offence under Section 376 of I.P.C. is hereby
,¢-.__S.””°””‘\..»-~..»
reduced from seven years to four years and the sentence
of fine of Rs.25,000/– and also the default sentence
imposed on him for the said offence aI1(i_.”~a:_1:?~.o’~».vthe
sentence for the offence under Section 448:-.o’f
left undisturbed. The impugned
stands modified aecordingiy.
A copy of operative shail
be sent forthwith the direction to
communicate the if vAA.’aut_’horities of the
concerned prispri. shall be furnished
to the themappellant.
Sd/-‘-I
JUDGE