'THE STA$E C? KAfiNAT§KA_.
IN THE HIGH COSRT 9? KARNA?AKA A? BANGALQRE
DATED THIS THE 19" DAY SF BECEMBER 2a§é '_
BEFORE V.'
THE HQN'a;E MR. JUSTICE A 5 PACEfi§§Ué: '
CREMINAL APPEAL N@{é§é§'e?r2@§é:
EETWEEN: ' '
SRIBHARA ACHARI
s/0 MUQUKAPPA ACHARI
ASED ABOUT 27 ¥EARs=, ~, V'.
occ: CARPENTER, R/O*?UNABH%GATTén'
TAL:E§%@PANAwMfl£, DES? ?Efiw£RGERE;
.. V»w».j «,g, 'R; R§PELLANT
{BY §R1~g B DEsH§ANDE,'Aau.,;
ANS
. RESPONDENT
.(eg’sRI’A§3Am§MfiéTH¥, HCGP}
_-cRL.§ §::ED7 U25. 3?4g2; CR.?.C BY THE
AD.’.3.3:}CAT:*–‘._} FC’«’}”{“~..THE V3-EPPELLANT AC”.-§AI§~§3T THE JUCJGMENT
“w.aT,5.12.2Q06 PASSES BY THE sJ., DAVANGERE IN s.c.
, NQ.61fQ6 Ans CGNV§CTIN$ THE APPELLAN?XACC§SED yea
<LVTHE;§§EEN€3'P/U/3.5:: F03 HAVING MASK AN ATTEMPT
'.T@_.coMM1$§=éFF2NcE B/S.3?6(2}{f} 3? :90 Amy
SENTENCIH$.HIM TO UNQERGG R.I. FGR A PEREGB OF 5
YaAR$ 5.sfi&LL PA? A FINE G? Rs.20,0G@fm & 1.3.,
T0 EAYa FINE _AMGUNT, BE SHALL UNQERGG R.E. FOR
V" FURTHER PEREDD OF 3 MGNTHS.
‘ CRL.A is coming on for hearing thig day, the
‘Sour: deiiverad tha following:
ané 5 — the villagers and submitted his eompiaiet
— Ex.P.1 to PW.12, whe registered thew_eaid
cempieint in Crime NO.3?fG6 for the saieecfiehee
and sent the complaint — Ex.?.1 and F§%–w_ExL?§ifi*
te the Magietrate end he alee_sent tfie victim f”
PW.9 te the hospital for the euxpcsgvefteédiéai
examinatien. Later, PWLEQ W the §el3ee§inepecter_*
centinued the investigatien and Visited the spot
and heid the spat} mehe2er,W»- Vve
5. it is the conteetieeiVef3 the learned
ceuneel for the appelient ” that ‘eeE£ept.> the,”
evidence sf ?W.9 there ie fie Kmterial to prove
that the victim twee subjected, to the forcible
sexual interCOurse, DY ,th@ xaeCUS@@*°and as there
were no infififi es ét eii ©fi*the body of PW.9 it
cannet be Said that the accused has committed the
fereibie 5exteluWifitefeoezee. it is also his
cententien that PW[3 was a girl aged about five
years at the time of the incident and the accused
wee aged 2?i§ee;§, In case if there was any act
A aft fdrcibie sexual intereeerse the victim: could
i=.heve’,eu$teined the injuries. in addition he
Suemits that the eerusai of evidence of PW.9 doee
net .feyeel any such circumstance to fihew that
‘tfiereV=wes an attempt to cemmit the sexual
e-_iQtercourse. in the circumstances, it is his
submission that if tee evidence of PW.@ is
fiiscarded there ie as material against the
accused for the offence penishabie U/S 3?6£2}if)
R,/’W sec.:e11 of 19:: and that the e:,;cia1,;’;”‘:”,*c~g_’;::__f
committed an iiiegaiitya in CQfiVlCtihg’e theu
appellant for the said effeneeefi t HehCeg. he
submits to set aside the_convietion aid ts graetV
acquittal.
6. Per cont%a{ tee ieatfiee e¢§£;; Pieader
submits that the vietim 1% aged eeéut five years
and immedieteiy. afte%e¢th§Vaifig%§eet she went to
her mothet} ; uewtfli afifis earrated the facts
regerfiingi fltfiéfi” ififiieéfite ~ The mother inturn
infetmed Pfiii Q het tuebeed i.e., the father ef
the vietip, wee aeceefianied tar PWS 4 anui 5 went
to_§ the fiolice V station eed submitted his
iccapiaistfma So, the iearned Gevt., Pieader
“”e©§ten§Sa that even the information which ia
contained in the comgiaint — Ex.P.l is also most
V”»:eie§ant and lacking’ into the age of PW.§ her
“_eHiaence has to be weighed in the context ef the
éontents, as the victim is five years aid and
she stated about the act of the accused and there
is no denial about the accused having taken PW.5
ta his house. He submits that the presence of
BA
and found the bleed stains. It is thereafter
that she informed about this incident te_ her
husband ~ pw;1, who ifiturn went to the “eeiice
station and submitted the complaint w $r.Piiih
8. Now, as could be seeh_frem the efiidenceu
ef PW.9, it reveals that at ithe5 time “wager ha:
evideace was recorded by the Court she States ifia*
the chief examination that the aecheed took her
to hie heuee and mag; her t§”8§£ we the ehair and
asked her to remove fihg ae%e$,eear find inturn he
aiso removeflhlhie ¥under:’WearI=-mfiShe also states
that the acehaee gafie a threat to finish her, if
she Vdiee;eeeéfathie*_incideht to her parents and
she aise states that she was getting pain at that
time; .She”atatee that when the accused went to
Viwear the dhethi she went outside and eemplainee
* Of the ihcifieht ts her mether. As could be seen
frem the cross examieatioh, though ?W.9 states
VV that while she was playing outside the house the
“_aec£sed was deihg carpentry work and at that time
he feend the inetrumeats of cargentry aha fevicol
fallen te the ground and it is because of thia
reaseh that the accused assaulted her. She
etatee abeut the aaaaait by the accused and later
that her mother — ?W.3 came and took ha: back to
the house and than to the police statiQau_a, We
cannot forget the fact that PW.9 is a gig; ag§a_
about five years aad in Case if any saga qaastiana
aw. A,
_. ._é a ‘ ah
is asked andi her attantidn is Efififlflfl
ufia wan?
other incident which might havé~happahed an thatj
day, aha would have “Stated iany*WQth@r such
instances. Eut,. as far “aa4Vthe accfiséd taking
PW.9 to his house and camflittifigitfia act there is
no suggasti¢n «made ,by; tie udafénca denying the
statemant”%afié~by 9%,? ifi flap Chiéf examination.
As PW,9-_iE_ aigahiid, witnasa, more particularly
aged about fivé,yQara ahd who is the victim of an
incidentéaofv attamp:i;to commit rape, we cannat
expaét the éVid@fiC€ in a éaiaiiad manner as aha
‘is got §?fiazured and is not aware of sexual act.
*~so; it is ia”thia context the avifienca cf ?W.5
haa_tQ*ba§iGoked inte. it is no daubt true that
>afta§»;adging of the cwmpiaint aha was examined
~::1A”;a»:.5 »» the dcctor who has issued the
dartificata ~* Ex.P.3 states that tfiaze were HO
axteznal injuries on PW.§. So, if this aapecé Of
the absence of injuries is taken into
cansideration, it appears that there ia some
oi;
£0
exaggeration in the complaint at Ex.?.1 by PW.1.
But, the fact that after the examination of ?W.9
her ciethee, i.e., pentyg the mighty” and «ether
$7: e
clothes were sent for FSL examinatiem fiefifi’
LL’/_. .
report — Ex.P.8 was received and it re#eal&it{at’
the penty of the victim and,the4nighfiymeofitaineéu
the seminal stains. Se, athé ~§:esen¢é ueix&Efie
seminal etains on the CiethesAef ?W;§ woe;@x1ead_”
to a direct inference aboufi the peseibilify ef an
attempt :3 sexual ifitercoereeja$&_this aspect cf
the matter in my eeieienfiie a strcng circumstance
to ceenecti tfie veceueed. with “the crime, as” the
accused had taken PW}§_t0 his house and cemmitted
the aet ‘which fweeg_e3m§lained by PW.§ to her
mother immediately thereafter.
9; u Thdugh,;a contention has been xaised by
;the learhe5_ceensel for the appellant that there
“.eag, eome_V§e1i:ical rivalry befiween the accused-
and tee fiether of the victim, I de net thiak that
e daughter aged five years weuid be made to
iéveive felseiy is take revenge due to political
Wfiiealryp In the eireumstancee, E am of the
“Qpinien that the evidence ef PW.9 considered with
the FSL repert ~ Ex.P.8 ie Sufficient to prove
X
E2
Ki)
to cammit the forcible sexsai intercourse on ?W.
4
M a girl aged about five vests. Eh athe
circumstances, the trial Court has taken ‘ififQ
consideration ail tbs xfiteriai piaced_0fifmscG:fi
and has Came ts a tight conélusiq§;ifi.cb3viCtis§
the appellant for the said. Qffence.W,”E :dC:”aCt_
find any such grsunfis to Vuwarfafit” that
interference. In, the Vcirdumstancssgu. 3 answer
the point in negatiVe*hQifiing that the appellant
is guilty ifs; ;tHé’t:of§s§céIaifisnishabie S/S
375<2;:fy,éxgs§§g;5i17Qf 32:.'
11»_AS0 far as the senténce is concerned, it
is the contenfiQfi,d§_tte'learnsd counsel is: the
appellafit_that the stsused is a person aged about
27"jysars afié,i@Qor{ mans fioing carpentry' work and
viihgt tfisté is no injury either on ?W.9 G: on the
""ascssed:i t§hérefwre, he submits that these are
mitigating! circumstances and requests to reduce
" the zssfitence of imprisonment. its is no doubt
x"_t:ué'that the Qffence Committed by the accused is
3 serious sue but, at the same time it is
relevant to note that it was an attsmpt and not
the comission of rape. Taking into
consideratisn the citcumstances statsé shave as
M
B
regards the accused and absence of the injuries
etc., I am of the opinion that it would be just
and proper to reduce the imprisonment to _three
years and order to pay fine of Rs.2G,8Q®§a and
in eefauit to undergo simple imprisonfientefiegge.
period ef six menths. In the circumetaneesfi ,1"
proceed to pass the feilowieg:
The appeal is ailowe&Jin_part-rii Copvietion
of the appellant for tfie_offefiee punietable U/S
376(2}(f) RXW Seo.511 is ¢§§f::fié§,¥ The sentence
orderedwb§gtHe;triei Ceurt is modified and the
a§pei§aet- iisy ic;da§@q.« to undergo rigorous
imprisonment 55:2; period of three years and to
pay _fineiuof’.RS.23,GOO/W, in defauit to undergo
simgierimprieeeeent for a period of six months.
V iifigi defiositz of the fine amount an ameent or
iflufieiiflififififerehail be paie to PW}3 M the mother of
thew vietimf and the remaining amount shall be
oreditee to the State. The appellant is entitled
“”»:’t¢ the eet eff U/S 428 Cr.?.C.
Sd/~
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