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cng;NoJ781/2005cyvv£¢Lgm«;1;g1/20Q5
Cr1.A.NO.1'7S1 2005
BETWEEN:
State by Police -. _ V
Chitradurga. _ " " Appellant
(Bysaj1xwyNau§@f£gKfi.§PP1"; zv ""
R.\fishwa_s_agai". V V' "
S/Q Rarhlariaik X] "Ti
Aged 4551- Years, MéinVagi4:g1§~Dire<:'Lor
Eka1avyéz_VimuK€:hi 'i5"1€3\§.I-*£1~ _S.E{'H"i S'Ef_1eVimukthi Vidya Samsthe
Near Kapr3,vp'e:r01Bank'- " __ "
Davanagefii R0a<i§ Chitradurgga
R/0 Near Ar1ja"11eya '7!..'empEe '
Han1:.man~ihanagar.aA
' Respcmdent
filed uncicsr sectien 37? Cir'.'P.C., praying to
éilhéince ti;-2%} séntence dated 20.06.2005 passed by the Addl.
Ses's§ong.Jz;d§;'e, FTC', Chitraiiurga in S.C.No.55/2003? convicting
{he resp"Qnx:i€:n':-a<:Af:C§I1g him to zincierga R3. far :3 Years and pay {me :3?
Rs,2§OQ€y/~, in <:iefa.L11£. to zznderge RE. far 2 fE1OI1'€.§'1S far an offence
.. __}{'}§,1§}iS}'}'c1'§}1:€% zznéier s:eci:i0r1 313 EPC arzsé §L1:*tE1e:' semgezlcing him to
I\J
undergo R1. fer E Year and pay fine of Rs.1.00*O/~, in de::;{::: to
undergo R3. for 1 month for an offence punishable L1nde:<$e'.1.I"i"€'1'V:1'£Iv}'7_
excluding defauit sentence.
CrLA.N:3.114} 2005
B}E3'FWEEN: ._
R.\r'ishWasaga:' Papanzayak 1
8/0 Ramlanaik
Aged 48 Years, Ex. Managing Di1'€Ci{}'I'
Ekaieaxgra Vimukthi Vidya Samsthe '
Davanagere Reaef, Chitradurga "
R/0 Near Ahjemeya Temple
Hanumanthanagara A ._
Chitradurga. ' __ _ , Appellant
(By Sri.A.N.Radhakrishha' Advecafie}
State of Karnateika V . V _V h'
By Rurai P013-Ce, C_hi't.n:kju'rga~.,__ 'é ' '
Rep. by the S':ate:_P_ub1ie" 22msei;«.1:or.r
High cour:.eBu:'1.din'g'x--;.__ _ " ' " .
Bangalere. ' ' h
Respondent
(By Sri. Nawaz; ;5.§<i4:£II'
The Appeal is'fi;1ee1._1i1}{fi:-er section 374(2) Cr,P5C., against the
judgment dated..20;O6.20-O5 passed by the Add]. Sessions Judge,
Fast;'f--fi'reiek Court, Chitradurga in S§C.N0.55/2003 dated
,_e_20.G6§2(Z2CV5, zeenvieiihg" the appeliant/accused for offences
.pu:1,isha_bie. .urrd,er sections 376{2)(C}, 313 and 201 IPC and
_se:1ten_Ci':2g hhim: "fie uhderge RI. far 5 Years for an offence
"p.uh'1fshah}e" égndee "see1:i<:sn 376(2)(C.] IPC and pay fine of Rs.3,000/~
e in default' under go R}; for 8 menths and also sentenced ta
U,I1d'SfgO_~3':,'€E'ff'S RE. for an offence punishabie under section 313
{PC andvpayh fine of R$.2,QOG["§ in defauit £0 underge R1. for 2
'~.H1eni:hé arid else sentenced to undergo RI. fer a period of one year
" feban offence punishabie under section 201 {PC and pay fine of
"C£7{s.L'®0O/--, in default :0 underge R1. for one month. Al} the
. §s:1b:a:é.ntive sentences Shah run CQf1CEiI'I'€1'i§}:\«2
These appeaizé eeming on fer firzai §'2earing.§ {hie ciay,
uN5é':ha:§<ia, 3., d€:§i'~Xf3E'€{i the fe£Ee%:sJing:~
Q2.)
JUDGMENT
The appellant (hereinafter referred to as V’
‘éried and Convicted for offences plzniehéabie u1V1″d*eV§r’ sVeefiion¥3_V V
37e(23{c}. 313 and 201 IPC. The11efo::~.fg;’,e~;zc<5u_;éd: :a§§"e_e'-fjjéaj
Cr1.A.No.1I-41/2005, seas: ._ –9r:1ec1–. '
Cr1.A.N0. W81/2005 for enhaneexrizentuof sentefiee.
2. We have heard leagmed Counsel
for accused Sri ‘Additional State
Public St’e_tej’ through evidence
and the fl «’ V
3. br:efA.De”r5ie’:’e:2:§se»’Ci§£51*Qs’eeuti0n is as f0110ws:_
fee’i’;gaV.’.vi11age called Nayakanahatti in
Chitgjaciarga VDis:_V1’ViC’t. The victim had lost her parents when
‘;3he”y<")'u.:1g and she had been taken care of by her
I mother. The Victim was studying in V
Siagdarri; {he same time, the victim was xverking as a
V"~.:naidse:fg}é1ni. P'v'v'17eG.Indiran1ma Suggested that the ViC'{',i1T1
eeuid continue her studies in Ekaiax/"ya Vimukihi
' Vidya Samséhe, 2: N0n~G0xs'emn1en£a1 Organieaiien schoei
run by {he asteusech whiz:/h was» fundesi by UNECEE? The
victim was admitted to V Standagrci in the
Thereafter, the victim was ar:in1it'ae<:1 to
Chitradurga, She was staying in '
Chitradurga, The ViC'{,iII1 had studied
the said High School. The Victim xvae 'sta§,*ir:g'V~h-invhv Shzigfahéieae
Haste}. The victim was I'indih'g%'Vh'e'§£.V"di:ffie1i'£i.fiefiakeei beth in
Sharada Hoetel as was neihhaeeilable in
the hostei. The victim wee boarding and
lodging. There§f<:1*e¥_fhe ..e.1e;%§s'v1rnates used to go
to Kanasu Shey were provided with
bathro0th'VfaC::Ii;t}z, .'e0apnL1f'pe\Xrder and oil.
4. The __aeei13ed_ “Was’.._{1’xe_ Director of Ekalavya Vimukthi
Vidya Sa[1:1_s4;Ehe.'”£The’~h:.e;eeiise’d faking advantage of helpless of
ViCiiI1i=li_t5t:d ‘u;,e0::n1e1it rape 011 he: Wl1€1l€V€1 em: utzcd to
h Kahixsu In the meanwhile, Qhe Thippeshi was
V’e_>;%_hEeii the helpless situation of the Victim. The
aee.i,;Vsed, edmitied the victim :0 Di Standard in the
V’-».Geverf:hf_;hent Rtifleilege at Magadi and ihe victim was
V.’-V’_AaV:i_h{i§’,:ed ‘£52 Chiguru Child D€V€}C!p§’11€}.”£i. h}Sii{,Ui€ as: Magadi,
‘ wfihiqth aggain was 3. Nah-Geverhrzzehéai Grgahieaiieh fuheied
:11
by UNICEF, few days aftert the Victim was admitted to
Chiguru Child Development Institute Hostel.
K.A.Sar0jamn1a, Secretary pf said haste}
Conduct and behaviour of the Victim x>vas–…n:e'{;
Therefore, PW13 took the vietint to:.AA41?\§J
M.C., whd was running a priVidt_e clinic after retiv-trernent frdm
Government service. PW10 1eet’Vrut’r1Lt§.:f;'(3_rn she
did not have rnenst1*uV2=:iti@n HVv’iv1’1€3F*Ef1″OI’€,
PWIO Collected urine and to laboratory
run by PW1 1. 531$ of report, PW11–
Renukappai’ twas pregnant. PW13
dutifastj responsible for getting
victim Development Institute at
Magadi. V ‘V dd
the caeevefproseeution that accused Came over te
the victim to PW34–Dr.C,J.Sushee1adeV1,
wF1’e’–te1*tni’nfi§:.tedpregnancy ef Vietizn on 19.09.2002.
.0.n3the following day, the Victim also became aware 01°
_:;ern:’i;1atéon at” her pregnancy. it is the ease Qf proeeeutien
that aeeused by taking the victim ti} PW34 fer getting
§
termination if her pregnancy and eemmfited an offence
punishable under section 313 IPC. This has been dofie”.by
the accused in erder to deetrey the evidence Viz»: V.
PW18, to screen himself from punishment iv}:;£:Vé:».;:e::–
punishable under section 376 ..v2Leeuee?ei_”
victim in Clhiguru Child Development1″I:1$titu{e_eAAéinri
back ‘:0 Chitradurga. The act ()’f”‘<I.'e.{'p.€ committed bfxeeeused
and subsequent terminétien einjfiregiiaheey earfiedhy victim
at the instance of accused wereL':1'i'a:1e_1{nc§y2zfi {.0 PW13 by the
victim. Thereafter, the lviexifir va;:a"sv"_'ta,ker1' to a. eeunsefling
center at Mj?$O1f€';, 'I'i'1e..__enti:eV ea1_i'1'1_se1.V1ing was videographed.
6, At necessary to state that the
evideneehiz; hproohfef was not admitted by the trial
Ceurfpv The ue0hipa{e'L"diek {CD} (sf videegrapu eevering
V"eQ1ii'1seI'ii11gV'hwae not eeimitted as evidence by the trial eeurt.
V' taken te» different hespitals fer medical
eXamina.iin_fi4j'..–f0r eenfirmatien ef terminatien of pregnancy
and 2it1ee«:'i'0r deterrninatiee if her age, Some ef the office
'e.afers of Campaign Against Chfld Labour in Karnataka {fer
j A §_he:':, 'CACL~a§{'} he-id a ::1eeti:'::g; in
~;;'Z;f&z«.
,5
M
Park at Bzingaiore to eoniirni from the vietini whether the
accused was responsible for her Condition, The ae<i:it3,eti._4was
also present in the meeting and he confessed .
eoniniitted by him. However, the niernbers"oi* "riieetiiig
Could not arrive at consensual dee.i_siont.r ATi'1ere'i"ore-, they
up a committee to enquire iniio__tiheV'i:i.aiiier out; the
persons responsible for niiserzibieibpieightiiiof Vilotim. The
investigation records to vvxirhethei* the
committee held an ei1quiryv"oArVii.o_ti these facts were
brought to of –i3'W who at the
relevant Mztriaging Director of APSA,
which thganisation. PW} lodged
first inVfori'ii._2itionV 21.10.2002, on the basis of
which a »wss_ i*egistered in Crime No.384/2002 for
offe;ni:;es__iApiinish'abie____iinder sections 3"/°6(2){e} and 313 IPC.
_vietirn<.V_iv:~is subjected to medical examination for
eonfi.i'rné1tio'nV[::of age. The Investigating Gfiieer after
eonipietionhoi' investigation siibniitted eharge sheet against
tiiegieeiised for offences punishable under seetions 3?6(,2)(e},
":3i"3' 5% so: ipe.
7. The learned trial Judge framed <:harg€:s
unden-
“That you bang the Mghzinaging ‘Di1’ec-‘u:_{r’–QfV “”V
Elkaiavya Kanagu (V in11i1«;t,1i§.} EZd1_1 €:a:ViQn” ” 2 ‘ T
Institution which is “‘–C_.}1i1di’t:vn:s
between October 1996 ‘:’~:”\k?iih:i’yOU. during
perio{i”V<;1f'_««a'fAjTa:i:_; ;.Y£:.;:115a_; Committed rape
on Wsagcj. 'V Eihereby committed
an offféxnixg 11'/S~é'76(C} IPC and within
h
you some time: befere
Magadi town voluntarily Caused
said '}'i,L.Pa\}i*d*éi«Vth€n being with Chfld to mis~
without her consent, such mis~t« ‘_’i:\ei:”%;;giJvcaused by you in good faith for the
p}g1’p.$Sé ef saving the life sf said K.L.Pavif{ra and
“éhé1;’€by committed Off€HC€ punishabia 11/8 313
x ‘T and within my cognizance.
Ftmiher that) yea, same {Ems bafere
25,Q§.2002. at Magadi mwr: Einawmg or having
reason £0 beiievfi that the offenca cf .
been cemmitted GI: Ku:.§1}2{Mri”‘«
punishable u/s 3378 {c} :P<:'"=p::§§isf:a1§1a_vA";m;g'
imprisexzmeni fer life <1912}__s. be':-:_1 *":Q::nf:§ii;§i:.<:i3
caused evidence ef the 'V"L'<:t;:§%:z::1issi£')f1 that
offence to disapp:%a:f by 'K';L.PaV'iiraA
caused her with "'cfiji1d".Lt€2 :.Iiii;é{Ca{f1§age with
intention fig; sCr¢e.I3i r_:g 'V3.:0::b1rs;é3if V Iegai
punishmfziii' an offence
and Within my
8. The acbuséd and he was tried.
9. During’ triafi’-._LP’N fa ‘PW3′? were examined for
proseCuti0Ii’.,__Th¢ ‘as per EX.P.1 to Ex.P.2’7 were
markgfi; Gr: befizaiffiéf defence, DWI to DW4 were examined
311:1 fine was examined as DW5 and documents as
Q61’ were marked.
i'(}_.V””._fI’1’i<;s1igTt1 prosecution has examined 3'?' Witnesses,
V _ We fiizd a_:%1'§:ixi<:€ sf several witnessés is either redundant er
. _§r:e§eVar:*t; 'We alga find same of the witnesses
have turned
5%? ,9'?
” ‘ . V’ s c ” /
, }’1f’:S”i;}§’E;. ‘ /
— – : &%:,,~~~~
11. As eouid be seen fm:m defence witneesses, the effort of
accused was to establish that the victim was abusee’;…_”§éi:f:_C1
sexuaiiy expioited by one Thippeshi. The Direet0:s”‘of..’Ce;§_;C3e,7″
K foisted a case against accused to remove him..fr§5m post’ ”
10
of Director of CACL~K.
12. In View of the Charges against aj:e:4se:e1″a::d~’:the = L’
findings recorded by the :ria.IV_..eu0iu1ft;’V.._Vthe hfeilsxeihég paints
would arise for determinéti{m:¥’.L }
1.
Whether– the p;’C>s’e{{ut1’e:; beyond
reasQ’hei’hEe’VdQifiht§fLf1at the ‘z:{Ce:-usjed being the
b Vimukthi Vidya
.. :;::’_Vy’}’1}’.(:Z’}1__:v is « V H§:}’ifld1’€I’1 institution
d13,fih’g.’vVV9efiod<._h'e:wee_11 October 1996 and
«advantage sf his official
position, -eelnhiifited rape of victim. some
' V vtime heflefe 25.09.2002, who was a student
Stsheisrd of the instituiion, thereby
an effenee punishable under
'sé;=:;::i'c;fi 3'?6(2]{e) IPC?
‘}_Whether the prosecution has proved that
some time prior is 19;O9..’2CIO2e accused
Caused miscarriage to the vietime Witheui;
her eensenéi and he: being in geed faith’
11
thereby committed an Qffence punishable
under section 313 IPC’?
3. Whether the prosecutimt has pr0vee”}__jtha–t,’_~
accused caused termination of pregnatie}; L”
19.09.2002 and causedv-dieappez};1’at1ce*V:.”aft ‘
evidence to screen himse1f7.:4freznep’urtishrrier1t’
for an offence put1ei3hab1e”c.uhdereseetteri ‘
378(2}(e) IPC, thereby”-vetimH1itte:i.ar1e_tTe13tce”’ ‘
punishable under secti.ntt”20}.._IPC?’
4-. Vvhether the leetrhed properly
appreciated ev};cie’m–ee’& oh; .:.e,c0r.Ci_?a ” t
5. KR/h’e’t3ief:–t.t;h_e ‘judgment cahs for
__ Vthterfe’re:rgce?
6»; What 5: é 4′
13. Befhoret _ evidence of Victim, it is
C: ~-.4
necessary for us ‘to mini uut’ as to whether the findings
at:°eeei'<teei"t:'hyVh' the Ieetthed trial Judge regarding the age of
_,4fiCiifI1'Ad'ti17tfig° Vicelevattt period is justified by the evidence on
:*eee.;;c;i. .~ ~
W14~. z5xe__etready stated, the victim was an erphan. there is
he_bevE'denee en record that her maternal grand mether was
taking care sf her. Therefore, we can hardiy expect that the
at
2
Fa.
E ‘V [fig/«»,E
prosecution should have predueeel birth eel”-tifi$3′{i~e Cf.:\/”§~Cl;iIl”l
to prove age of the victim at the tin}:-t: olfalsleigeil» H
15. The pre:>seeui;io1: has relied en éfld{3I’S€ff1€I’ii,V E.eii.et’~..ei’._
Sharada Girls’ Residential re;’}§5lf’5}lifr§-Zlllllflaije of
birth of VlCliI’I1 as per l?x.P.12:hatillfiilv–t;he.,_evideht:e.. Ql7’§PW2l in
proof of contents of l2».- has also relied
on contents of e;<i;:*;;1Ct Cllllleidrhjlssiafz._1*eg'is:hei%'ll(EX.P.l6) issued
by the Pri1j.e{p2llC}d§7e1;11{ne:1L:;'Pfe»-llhiversity College at
Magadi. M _ 3 VV —
16. prAV:isec1ifAiCn 1’ell’e'<i' on evidence of PW25-
Dr.S.Reivislhsn}<efif.~l:Atl 'I;hle'«:":elev2.1m; time, PW25 was working
as Pr0fesslo<r_Vllovf in NIMFLANS at Bangalore. On
l4.v_»l'ii2..2QG2V as ureqgeslted by the police, he examined the
'2/iV<V:'t1'_nf1 and 'eeflfiueted ossification test to determine her age.
Slisléhel'eeliltificate issued by PW25.
l7.-__ PW?.5lj.sh radielegieal exanzination cf preximal radial
V'-.,ep1physe_ls~, eapitular epiphysesl eondylar epiphysis have
"_e_,s:h§}e£ely fused by adepiing methed sf' Girdney and Golder
U :1:%et.he::l has de'iem1ihed. £ippl"{}X§YI12':l;,€ sf victim} as mere
than 14 years. PW5 an radieiegieal exanlinattion by'
the method of Greulieh and Pyle has opined th_;{t*– '
aged more than 151 years but tees than .18 yetarefbf
18. PW25 has deposed; the sketetat”–survegif’;:feVez:1e’=-éthztthR.
bone age of x:ietin1 shows that~»:h’ene ztge tnore
than 14 yeans and less.,than.<'I8*.§*e:tfShand'he t1';:«;s issued
certificate as per EX.P.I.%)".V' h 'V a V .
During admitted that
there was due to Incomplete
fusion _ The than crest
epiphyees "distal femoral and proximal
tibia}, not yet {used and age of victim
corregfsponds tci' then 19 years. PW25 has admitted that
J
"fasten "of _b"e=nes mav be delayed cine ta malnutritian.
I L'-.He§tre&éfef4,:"vtheVevi%ienee on record does not indicate that PW18
ufasgéhnot proper food and she had Ina} nutrition.
19. PW21’¥P.C.Ru<:h"appanavar has given eviéenee in preof
iotf the ecjintents of E:,~<;.P.£2. PW21 has deposed that he was
'' hiixefkihng as Head Mastxet' ef Sharada Gigs' High Seheoi at
14
Chitradurga. The Victim was at student of said High’
Wi”1er1 the victim was studying in IX Standard, she »
Trarisfer Certificate. Vxfheri the poiiee_eont_aet’e<:t:'_i?§§J"2 hi:
issued certificate relating to her date of «as_'per'
20. It is seen from Cross~eXaiminatio.n”of PW2»th’at”he:.<
brought admission register ofirthbe sei;o.oi'..Ay$?}:1ereiri"' entry V
reiating to admission oi7'x{i<:tirr1a'is The trial Court
on examination of the same.
PW21 has d(§pL)§€v(i_ the admission register arefiot i has admitted that
entriesX_r}3a.d’e register will be on the basis of
entries Certificate brought by the
studerits. at the __tirr1e of admission. From the contents of
i \!?€Vhfi¥1d was born on 03.08.1987′.
‘=5Eirorrigtheiivcontents of E>:.P.i2 (eneiorsernent letter of
–V Shetradetgéiris’ Residential High school regarding date of
birth oigisietim} and EX.P.16 {true Copy of admission register
‘e;€:rs;L:t} rriairitairted in Government RU.Coi1ege at Magadii,
15
victim was born on 03.08.1987′. PW28 has given evidence in
proof of the Contents efEx.P.16.
22. During the relevant period? PW28 was : V’
Principal of Government P.U.CoHege u
was admitted in 1X Standard of saidbeeiilegev. On.
there was a request from Magatiijflhiguirt Ctiiicii §)e€{ei’epnient * L’
Institute for grant of eopyef adin.isVs’i0_najegis.te’r –e2§t:;.t:t of the
Victim regarding her age.” issued attested
copy of admissiorgxregistef’e:i:tifae’t_as_fie: 16. E:><:.P.16 is
the attestedi of the said
P.U.C011e_ge.: we find that the
victim was _'
We frnnji theenéidenee that PW28 was not cross-
by the"tea__r_nevd Cnunsei fer accused. The evidence
regarding admission of Victim to IX standard
at Magadi and entries made by
-V PER/£8 eiate of birth 0? the victim in the admissinn
Visregisterhvand Contents esf E;:~<;.P. 16 have net been eentmverted.
,::S:1ep_rerne Court has held:-
16
Therefore, we e/an safely conclude that the victim afar-sf”horn
on 03.08.1983′?
23. The learned Counsel for ‘:¢rm~:.§f:g_:§>”‘l*:hé«
evidence of PW25 and the eontentsV__oll’.Vx»~ray
Ex.P.l5 would submit PVVQ55D12.SfRaVtslhankar,V
Assistant Professor ofvRaoiology’ that the Victim
was more than 14 16 years as on
14.12.2002. has-g»¢a:éI;1 be margin of
error of two thellearneelllleounsell for accused
would the victim was aged
about »o:1V,Tl\’3-4.’l22.2OO2, which we are not
persuaded M a(:’Cle-E$t.’l:’§.frlCA)1′ following reasons: —
E’ The laxlv is fairly livell settled that assessment of age by
“ra<:li'ologfleall' examination is subject to margin of error of two
A years 'on =e.:t::e:-. side.
lnl ail-eeijsion reported in AIR 1 958 SC I43 (in the case
of l.Sid§i»est:3rzr Ganguly v. State of West Bengal), the
17
yfhe only conclusive piece Of
the gitfs age may be the
unfortunateiy, in this eQuntr§9′.e1LtC1ft’ta cieeittixaenttv
is not QfdiH8.ffly! V S
Court or the juvr32…V.Ir1as&..t(5′ cefic’}ustens
upon all the faete’ étid disclosed
an eXattiif1t11.g vVi’e:tt;;tjtres of the
persefi tC:%%€?¥*»iiot:~e§i}1 Conjunction
with tiitgtl. _te–s:t1:ti0Ia1y–.21VsV_r1}1ay be available.”
25. Ifig Cieeisioti tfepe’1’t_ie.d«ih AIR 2004 SC 4404 [in the case
of SAtate 0 Hi_zfrzae.P£aZ ttgprédesh Vs, Shree Kant Shekari}, the
Supfeme (hurt pléeed reliance on the entries Ccmtaineci in
theuSeh”G.Qi ‘v:iCa§ri’tssion register in preference 0f determination
at age by fa9a}i’ei0giea1 exarrtinaticm.
viriiirri was born or: 33,08. 1987.
E8
26. in a decision reported in {.’2005}i SCC 283 [in the case
of Vishnu Alias Undrya v. State of Maharashtrtifieihe
Supreme Court has held that opinion given by
Officer is to assist the court as he is not a wiineeeiiof ‘ie;’r1″.é;he witiJ_ies’s of “feet.
The Supreme Court has he1(i”.”i5hefl7_eeVs.e of
determination of date o.f”‘i:.i_rih of iheébesiieifidenee is of
the father and the mother!
2?. In the “is”‘.:;in orphan and she
had lost her yojurig age. Therefore, the
evidence oi; gureilable to the prosecution,
We eariiioxt” prosecution should have
exarnin-ed *uie”persoi: mm had 20: acirimieii the vieiim to the
.7:»”«<:h{ioi'. ?TFhei"efore, x%;%;~§" have to necessarily rely upon the
'vaeiiimission register extract marked as EXP. i2
& i6.'iri–_.feiei, the evieieriee of PW28 in proof of <:orit;eriis
Ref adni'is3S;iori register extract as per Ex.P.i8 has met been
"«i:ee.rri,re_Ve1*ied. As eer the eeriierits of E}:.P.i£3 & Ex,P.i2, the
wt
19
28» At this juncture, it is necessary “(:0 state that M
was studying in [X standard during”‘th.e&year
find {rem the contents nf Eix.P.15, x7i:'{:Atti1n
LXI. standard Government ‘»t?v;i2J,C011ege on * L’
07.09.2002. Thus, an the dateV__t:hev:_Vietin1trévashlahtfted tram
Chitradurga to Magad~:;fi7anttL ._tc:) Governrnent
P.U¢C011ege, she was Ieggthan The incident
is afleged te years prior to
25.09.2002; learned Counsel for
accusezjtthattet agectlwabeut 18 years of age at
the time”-Qf jmcieient’ accepted.
29. On rfiappreetatioxz Votevidence, we find that the victim
was ;b(3rn o”1Q3′.O8.198 . During the period between
25.C’3″§’.20{}2, the victim was aged abeut 15
2 days, We have fixed the date as
O5.A€T’-.9§2Q¥fr2 evidence on record shows that the victim
Vwas actrrnttted to Chiguru Chfld Development Institute at
an €}5,{)9.2OCt2§ which has not been eerteusty
eej§3.troverteé by the defence, Theugh there is eentreversy as;
wk”
.’ bjfhatne Ganganna; at that time, PW17~Ehdi.ram
20
:0 whether the victim was admitted to said M
instance of accused or some body else, the fact i9erIiaih’eV’_tha’EV_ V
v:i<:ti:rn was admitted to said 1'1CsS'£€1."'1Thi::'_5'A'€?{§I1fT'QV'€I'$}' Wii1.he_:
discussed in the later part of the'j~ddgme-Ht. .
30. In View of the above diaedssion, We ‘h
J the
victim was born on O.3;”(}B&.198’7’§’ }”V$:4df1e._the ‘date ‘(it alleged
incident, she was aged —
It is Q5″ of the victim,
we have fihetim to record a finding
as to vx;i1etherV.theV proved offences for which
the aeeuedeed hwtas’ Chaififeq ~ 4′ J
31′ VPW18″‘~{vtet§1jn”f§ h.._as””‘deposed that she had lost her
~._par¢%?ffi:ts;b_A€h11*ing her ‘eh-fidhood and she was being taken care
dot”. “m;at,erha1 grand mother, Whose whereabouts were
net.”1{n0§e:t7j*;_t’de1’the victim as an 17.06.2004. PW18 has
–V depdsed”;VAth’a’t she studied ug to V standard in Nayakaenahatti
fitilfiange ahd she was working in the house of a sehcaoi teacher
ma advised
f
/~.
.$ //,_\m§: /av/-«.:<,
vi
E
Fa.)
PWI8 that she Could Continue her studies in Ekalaxya
Vimukthi Vidya Samsthe at Chitradurga; PW18 informecfihe
matter to her maternal grand mother and she _
to Ekalavya Virnukthi Vidya Sarnqsthe, which~wae}:'~bVeir§g«_
by the accused. PW18 was admi;§te(:1:.,.tAof} .:Sf:&fidalr*rjWé.r1o.«
Kabirananda School at Chi:ra4_durg:1._e;::d cjo;rrrpi'e1':ed':'; VII
standard in the same eohooIL':=.:'after of VII
standard, PW18 j0iI3é:'d~.,_" at
Chitradurga; however, in Sharada
Hostel; she was studying in
IX standard€'ir1 Veier1r§'1'–:beoritinued to stay in the
same that there was some
lnconvevrneriee fiifiarada Hostel. There was no
proper watVe1~.._ faci1j'ty__. 7_I'h'er-efore, PW18 and her classmates
«_ deeiriezd re go toA'E1ia_iavya Vimukthi Vidya Samsthe to take
some of her classmates used to stay in
Ekarlavyer V{§:fr".t1i:£{{hi Vidya Samsthe during night; en a certain
–V day; }?5’\i?18 was sieeping in computer room aiong with
u«lf:1erVee1_aserr1ates, PWES has deposed that accused came and
_ e”1nb’:*3.Aeed her, however: she was no: abie to say what was
Ex.)
U3
accused sent the victirn to Chiguru Child Developrrient
Institute at Magadi and she was admitted to IX
Government P.U.Co1iege at Magadi and she V’
hostel PV\?13~K.A.Saroj21mma was here
was visiting her. PW18 developed
getting seared. PW13 inform’eCi”‘*ihe Same to ivho = L’
came to Chiguru Child I_)eve1oprrierrt__m.§tittite* and
enquired the Victim. ..ei.{:<:ti:§_e(:12.:_bt§ii<';ir– to Continue
her studies in thesame 'C3hivt'1*e1durga. On the
following day, téok 2: to': some hospital at
Neiamarigalét, wfhere the xabout menstruation of
victim. {After e;:a__m_iri'ation',"-the said doctor took the victim to
examination. ei1arri1'jie.ri"'..:;tr1»c1 injected some drugs and
thereafter some other room. PW18 noticed
" '~ hea:;?jf«:.bieAediVrig arid thought that it was due to menstruation.
brought back the victim to Chiguru Child
Irxetitute. After few days, the Victim was taken
~V to a""¢oi:;1sei1:ng eeritre called "'Odanadi" organisation at
vr,Mg:sore. She was queetioned 218 to the person responsible for
.' PWL3 and others irrformed that the victim had
conceived and also enquired the Vietirn as to the hereon
responsible for such condition of vietirn. The 3
PWIB and others that accused had slept with on
three occasions, however she had not
frightened by one Paraehurarn, one
and P\?\J13 tutored her to incriiiminate the aeotreed VVd;ii'1'i11g': her " V
counselling at Mysore. 'l'liereaftie.rflA.theWzietirri Wee brought to
Bangalore. There was persons had
attended the meeting. :Th'e; present. The
victirn was ,acC.ne:ed"hadfldeornrnitted rape on
her. sleeping with her and
he not .on her and she had not
eonoeiVedxfl'he had gathered there told PW18
thatéeherwasd tecryodunvg' to understand the implications and
eonoeived, Thereafter, one Suchitra brought the
Wrietimdl iv le:ft.V.vher in the house of her maternal grand
mother,
l)nring Cross»-exarnination by the learned counsel for
aeeuézed there is positihze suggestion that accused was
steeping with the Victim’ The accused after getting undressed
/{V
;,:*jj:j;–r._§/”Ff; E,-‘ /’ ‘”<~""%.»_, 2.5 "M ,
£2
. h3etit*dte at Magadi. when the victim feii til, PW13 took her to
2"
a?
used to sleep with the victim; however, he was not using
force. The Victim has affirmed that accused was ~e1’ee’p:r1g
with her. PW18 has not stated that he wag usihg ‘
the Victim was not aware of the H1€8;I1i~f1g’ of
has deposed that accused had committjedd A~:§eX1ua1″~3cts.u
been suggested to Victim that7€3_h’e_VbecaAme zheritaliyttpeet as -. L’
the accused was sleeping d_e%ndvVVf%he was
embracing her and th§ this suggestion.
The victim has deposed. sleeping and embracing held of other acts committed to PVV18 that
accusezvjivuxeete the school. PW18 with
deep sehse etgeited that though accused was
properly hehdavithgtvith. other girls, accused had committed
V’ v.acte.r_dr12/.Athev-Victim’éirrdhthe victim was not able to guess or
L_ui:derSt:¢md..é:eT_VtQ What sin she had committed. The victim
‘dented.V.V’theotdshe was roaming with one Thippeshi. PW18
j has that she was not attending the schoo} properly
‘u_*,ahti=.fished was admitted to Chiguru Chiid Development
,iIAf’1’t’E’:~}f.C:{)’:.l1l°–S€ which the accused had with the victim.
26
hospital. The Victim has denied that she was tutored by
PWl3 and others to give statements implicating the aeetleed.
The Victilh has denied suggestion that aceuse;d”‘h.’e:~a__j’
cemmitted forcible sexual lhtereouree with
has deposed; the accused e0mmitte;:l sepgulale lzltelfeetilfsetwlth
her; however, she was not aware whether it,.–iNaS lbreible ‘
sexual intercourse; yet the vietimdxvas ai}va_feetVl1atl~;the acts
Committed by accused were xvrengll
32. From the efaid’enee. accused has
not with PWIS and
he used__tev himself undressed. It
was accused while sleeping with
PW18 vtfié1:3Lllemhfa:eil;ll€g,biheleldtherefere, PW18 was mentally
upset.’ ‘V _
tenor ef erosswexamlnation of PWl.8, we find
tl3a.t’–3eet:ee’dl made. an unsuccessful attempt to establish
that was 3 eensehtihg party fer the sexual
2 .
I
1 “e,/xam e;:::?””g,xa_,_m\_:j_”T/Ex.
27
34. The learned counsel fer accused would submit that
totality ef the circumstances would suggest that PV€.1:S««.¢\_}xT>ais a
tutored witness and one Thippeshi was
the victim {PW18} and she was misused
Directors of CACL~K had hatchedala p_1e€.z:1a4«’ax;1.9e.cVk Veageazigeee
against the accused.
35. On careful c0nsic1zerati&x013\..;§f:.§afie»cAfz§ac’1{‘greun:f£ of Victim
and close asseciatien ef victim and also
role. played by 4t1jVe.__acc111se’d’as ‘PW18 (victirrfl by
shifting PjRf}§’*8 ee’Ve§/iagadi, we find that
PW18 __cI_id to falsely implicate the
accused. -positive suggestions made by
the accasecieate’ PW18 was a consenting party,
w01;;1C£” revealfhai accused had sexuai intercourse with
” it is assumed that one Thippeshi had sexualiy
A e>:pIeitveer-«theeieietim, that cannei; be a ground for the accused
to ;;.;1s?;iVii;7’1’3,i:é’ acts,
” §’36;- The evidence of PWE3 weuid reveal that accused was
1’espte:1sibEe :5: shifting’ PW18 {rem Chiirafiurga fie Magaeii. L
;
_4;,1 1..2r®§2 and found the foiiowing:
28
PWES has deposed that at the instance of acc:used,_.._F’W13
granted admiseinn for the v:c’Lin1 to Ch:gLze–f{;–.:.:”€:’:§f’:11d
Develepmeni Institute in Magadi. We also find
evidence of PWE3 that the vi<:tirn…ha_d c:5fi¢e:a%é;d §n':i.V}';eer '
pregnancy was terminated. Th€I'€:fQ1"€; 'f}7{§fI1'7§h'€ _e*£i€iei:ee11,:3f
PW18 and subsequent <:0ndi1 Cé.._Qf aeeueeri f1e=r§fn.;shjff§ing
Victim from Chitradurga to Mnugaeh-.w0u1d«.eT1e'ar1yi establish
that accused had sexual' :n:§ere_enfse'..e§ifith the victim, as a
result, vietirn had e0neei.x.ze-fin.
37. In the we have held that the
victime.W–as_ 2;ige.(i y*e9,r$’é0n the date of incident. In
the there was Consent of PW18 far
What we1S,gi€)ne tn accused, such Consent would
nQi:._ibe of any eeneequenee.
,’ jnedical evidence relating to examination of Victim
Dr.G.J.Jayashree. E2x.P-14 is the medical
0p’ini0t__1′ ‘fm:’*nished by her. PW124 had examined vieiirn on
V. meéieai terniiriaiien sf pregnancy.
“Secondary Sex character were well
develeped. I did not notice any scare either an
her breasts or inner thighs.
Or: examiriediieri of her private p_arts”‘i”V–.
noticed pubic: hairs present. Labia ma_j9.ra:’ahd.::’
minera were normal. Herfihyrrieri i-«wags . ‘fie; V ‘
intact. There were several ‘:_7,I’E1:1′._1t7,I”LE1I’ pf ”
tissue on the edges of ir1tiei*-zeitus.’-.01: Vspec’ul«furriV
examinaiion I found “::ee_:~’v:x arid
cylindrical. Exterrial utr2_1r1svers’e~ slit.
Vvhite discharge it hcrrnal.
On P,_V.exarr1i.ne._ti.QriI :r1o”Eicee:f jirrier~0itue
admits i;3dé:;§;:VZ’€inger ea§=iIy;’«. &’Ufer1;.§:fh0rn1a1 size
andai1fe¥§z_er:e;:V~_V_ ‘V ‘V V i
____ * age of the girl I
referreéi’
: Police “re:qu.es£{;ed me to clarify certain
poirmsi _ _ _ .
‘Poi-iee”haci requesied me to clarify ae if:
.{‘w?(1eth–er the’g1i’i’hwas subjected tci rape and for
th.;{t~ii:’«hé.d._clarified that there were no signs of
V”i..__«fcireefiiivihiereourse. But the girl had repeated
$6.”./fit}£3c1f.vif1{€1’~CO1lI’S€3,”
main the contents 0f EXP-14, PW-24 has opined as
i’ , ‘ §ier– epecuium examination there is a peseihiiity of having
30
During cross examination of PW124, evidence ef FWE24
and cements of E::e:.P~14 that victim had been
sexual intercourse has not been e0ntr0verted*;.’_ ” From ‘the7 M
contents of EX.P~14. we find tha.t;v-{here was CY.
victim having had medical terminatiézn 5:? pregfiahey, 2 ”
39. We have already referrec’f’iL’e’v:h>’ the Vze§f’VVVIV5XR7–1O
Dr.M.C.Ma11amma PW-34
Dr.C.J.Sushee1adeVi as e_e’.rried by victim
and terminatieq:,§f,, sulfih there is
positive eeX1′}j’VaI”»§:.h£efeourse committed by
accused “eh mé:,v1cti¥m–. ‘ .
40. Oh’ behalf’ of to 4 were examined. The
aeeusecfé got himeeif examined as DW5. From the naiure of
“ex»jiei”er..1ee’L by to 5, we find that accused had tried
wte he was not acquainted with victim and he
r;hi<:i'–.1%_1o's; hav_e4f.se;x:uaE intereeurse with victim.
Dfionnappa had depesed that during the year
hhhit-QQQLZGQD, he wee studying PJZJC in Chiiradurga Boys
U)
…..
Junier Ceflege and one Tippeshi had introduced Vietirn as
his friend. The said Tippeshi and Victim were freel§,*v~rea,¢:r;ing.
During’ c:ress~exan1inati0n, DW–]. has aCi’:ni’L1;ed. -‘fie V’
knew aeeueed and he had not 3in’fI:V>r1″neg;i “..:he« aeenseciefiixeat
victim was freely lnevirig with one ‘I’hi15′{3eshi. .’ ” » 2 V
42. During the year was
studying in Madakari n{ae_ i=esidin§A Sharadha
Hostel along with “‘i’1:ae’»~:V._’:}ve~f)osed that said
Tippeshi wag ” and they had
developed » eieposed that the said
they found that victim
was <:«fV_{,enrfie¢r had to Continue her education,
they gave "up" the; i¥:E.ea"°f marrying by entering into an
” ‘~ ag.refernent.__as per E2;-;DV.5.
it is relevant to refer to the evidence
of ‘D._X7*J~;f%é ‘P.,uBeraiaha who has deposed absent the eentenie ef
E3>;:.D–5.v…: DW4 during eross exanlination by the learned
Preseeuier had admitted that vieiirn was Eeee ihan E4
an years of age and {he ef Tippeehi was abonf; 38 er E9
niefngher ei”vie:i,n1 nanieiy Eienehainnia had breughi the vieiini
years. DW~4 was Convinced that both Tippeshi
were minors. They could not have entered inie H
as per E>Qiisih1e.V.’fafA'{he wrong done to Victim, cannot be accepted;
44. ‘ aeeused get; examined hiinseif as SW6. T he
‘ “ae<:use{:17.had deposed that during the year 2€)Oi«2002 he was
'n:_ejn'iher ef 'CACLK1 Sn 268.2802, the maternal grand
9"
Wm:
M
V
by
D)
to accused. The grand mother of victim toid aeeusea that
victim had eieveioped intimacy with one Tippeshifi
not been properly atteridirig the school.
rustieated from the hostel and therefore req’u*erstec,1v aee1.iA$er,t
to rehabilitate the Victim in some other:-seh~oo–L 1 .’
spoke to PW-13 K.Sarojamma’tQ_. shiftyietim te”V’Mahg_adifi’;arii}
got her admitted to Chiguru _i)eV;e1oomerithilnstitute
(hostel) and Goxrernme’rit”‘:Pre “Cfiollegieht Magadi.
The accused has \x:i*ote~».:1_’an__fetter to PW43
and sent the v§:etirr1:o:’a1ortg The victim was
admitted fiéexreléphient Inetitute. The
victim staridard in the pre University
Cellegeizfiat had deposed that on
2’?.9.2002,xtthe ‘Dire{:to~r_:oi7-‘”tCACL~K’ had summoned him and
que’:stieri_ec1 __aeeuéed…..a55 to whether he was responsible for
‘eaiieing.__p’r’egnai1ey ofvietim, the accused denied the same.
aeeiieed had examined DVJS.1 to 4 to prove the
VV”~eonduet:V_oi’ victim and her intimacy with one Tippeshi. The
‘_aee_afaed has deposed that he saw the victim} fer the first time
eh 2€3.8,2{)02§ which is apggarently {raiser The aeerieesj had
34
not only examined DV-‘v”s.1 to 4 but also predue.es’:i h€;he
agreement {EZXD-5 dated 17.10.2002) said
entered into between the victim and Tippeshii;’»f1’1§eV:e¢fore’,” 1
from the defence evidence that it is1e1ea1flA4ift;at«_yie:1r11 ‘V5as’1eVs_s
than 16 years as on the date of V1’n_ei:d.eht.
defence evidence has strengthexajefiihe.eV§c1en.ee_: by
the prosecution. Therefmje, thafacetised had
committed rape on Vietihi: 1ess than 16
years of age, he consequence.
The medical” aathehsed had repeated
sexuai v1v1f11t;eVr_<A:'V'Cs1e1ri*se–i111 View of this, we hold
that aeeus_ed -an offence punishable under
section 375 4ef1PC.,1V * '4
45._”5′.,The neXtA””poi_1_1t.~ for consideration is whether the
‘p1j’eeeCut_i0n”haispreved that accused had committed rape as
e1ef111edVv’i:h.d5eife:=.V$eetion 378(2)(<:} of IFC. Section 3?6(2)(c}
reaéiis thus:-1:
11 ”376(2)(c): being’ on the management; 01* on
,W3:he staff of a jail, remand heme or other piaee of
Hjeustedey established by 0:’ uhfier any iaw fer the
time being in farce er 0? a w ‘
g 57,.,_,s,W~§v,,% – ~.._. V N:
DJ
U1
institution takes advantage of his offieiai position
and Commits rape on any inmate of such jail?’-e
remand home, place or institution”
Further, explanation 2 to Sub Section 2″ .o
reads thus:
“Explanation 2:fWomen’s “or chiI.;dfe’11*’s ” ‘
institution’ means an inst.tti;.tion,”whethei1ea1ie’d”
an orphanage or a home _fQf:’n_egv1ected’ wotneniior
children or a xvidofezs’ 7_hon1e'<.o;~._"by any other
name, which is establhishved :an.d_ddV1nai:n'_t3ined for
the reception..and:_'oafe wonxen or~;:hi1dren."'
46. We find:*..fro§in “evidence of Latha that in the
year 2002, PW?21’V.yyas Ekalavya Vimukthi Vidya
Samsthe. _ jvietirn was admitted to Bala
Karrnikad Vishehsa name ‘Kanasu’. She has
deposed that she V knewthe accused.
PW>~3″«.ff1p_peswami had deposed that he knew the
accused.’ was Working as a social worker in the Ekalaxya
j Vidya Sarnsthe and he has Worked in Kanasu Baia
Iiannika Vishehsa Shaka, a child labour school. The Victim
Avzasdadrnitted in Kanasu sehooi. The accused was a Director
36
of Kanasu school. The eviclence of PW~2 and PV’£?=8-
been eontroverted.
48. The learned Counsel fer a.(:eu_’eed3 nae-. n0t”V:e1_fe:’::;3A
examined PW»3 to deny the abéwe fe1etl”sA..v_F’inIn the e’.ri;len_(:-e elf ;
PWs.2 and 3 that accused was llh.el’DireetaOr ef Kanesu Bale
Karmika Vishehsa Shalzlétnd aéleigl 123.115 nrithin the
definition of Children’s lnsliiutilen es.-pe:;.’efip_iianation to sub
Section 2(0) <:3f:Ser:.ii'Q–n 3376 _ _
49. The leaifnec;ili’l§:o.s1i1seJ_ for accused referring to the
evidence of v–i.etim’,and déhlez? witneséges would submit that at
the relevant lii:r:1.e V5ictim*was staying in Sharaclha Hostel.
Therefore she was mniate of Kanasu Bale Karmika
Vishehsa VW:e f1vn<fl""ifr0rn the evidence of Victim and
~._Aetl1¢§.lilA:.Vx,:itne$ses, lhe-vii: the victim was staying in Sharadha
lieetel,"v.;5fhei*eVl'Ehere was no adequate facilities for bath,
ifieiini af1C';:'jOfl'1€r girls staying in Sharadha Hnsiel, were
f visitingliianasu Bale Karmika Vishehsa Shale once in
"V.:i,4,f'ei«m;gi§£' or month. They were taking bath in Kanasu Bela
Vishehea Shela' They need in stay there fer csne er
two days. The a<::cusecl had permitted Vietin:1 to stay in
Kanasu Bala Karmika Vishehsa Shala to take a:h'due
advantage of her helpless situation. The aeCL1sed..~*¢¢a_sj.i:;"1e-
management of Kanasu Bala Karmika
which is meant for rehabilitation of eprphanie-an(i._ethe1*l
ehilelren who were met being faken 'preper care hf by 'ifiheirl
parents. It is immaterial viethim._§Vae:.'.=pei*hlahently
staying in Kanasu Bala':'ii,armfj§a'Vllahellsa Shala she was
staying in Kanasu :_5hala once in a
fortnight. victim to stay at
Kanasu Baslal to exploit her helpless
f0"eohtend that Victim was not
the inrhlate ef l{{l_lIl1ika Vishehsa Shala.
50. :V”!’L/?1ki’1(i€I’ Czeetian ll4–A of me Indian Evidence Act, a
prele1;rfi§jtie:3e« as to the absence of consent in certain
rape, under Clause (a) or (b) or {C} or {Cl} 01′
{el’-elf Slll} Seelion 2 of Section 376 ef {PC would arise when
the sexgéal intereeurse by accused is preved. The question
a1s_te: whether it wae wiihlout the eenseni of wemari alleged to
U have been rapefi and if he etaies her evielenee before the
52. The accused has been ;;n_”:§i1″e:i::e T
punishabie under Section 313 0fA:’iE(f–_and ‘§i’:,;:cg
under Sectien 201 01″ IPC. {§:*:;h;as§ that
accused with an inzteniioni-‘ea. jciehs-»’*i,1_’.c>y evidence (if rape
committed by hirné” viyhieiim to PW–34
Dr.Sushmadei/ii” and of accused
t€I’H1iHat€:Ci–~f,i2(?’ has deposed that
PW»15v’_’ i’ to her. PW~13 had
intirnaieci “acciised and victim would come to
the h0sp:a;,xciiii{¢cr¢is pvv~34 has admitted that she
terrgiiriaied the pregnancy of Victim as if she was authorised
LO””terfiifnéihiie_pregnancy as per The Medical Termination of
A *-. Pfegna-r1:cy .
careful consideration of The Medical Termination of
Pregnancy Act, in particular Section Ztfd} of the Act and the
where the pregnancy may be terminated as etated
__Lin<:ier Sectien 5} of the Act: and the registered medical
praciitiener, whe had been authorised to terminate
pregnancy and necessity as to the consent of guardian, inciieates
pregnancy of a E'J€)IIf1Eif1 0f iese than 38 years is ffiffllififiififii we
are :3? the epinion ihai {he aces cornnziiteci by
2'
\ »*"MW*»
' .0
r<«ri%
\ t
. hieeding niay be due tn menstruation; In View ef the positive
40
PW’-34 [termination of pregnancy} are againet the prev’iei’ene
of the Act. PW134 had caused mis~earriage of
Even if what is alleged against the aecuse.d_.i::.e.t’rtie,i the
accused should have been Charged ahetteir
rnis~Carriage. In the case on hand, whefiiad
inisaearriage should have been”a_rra.yed as .1;j:’i.ni’21r3}”:Vaeeu’sedg
instead PXR/~34 has been arrayed witne’s:~:- as if the
termination of pregnancy was; ii’:-§€1T.1’fiitted under the
provisions of vMedf;eaIb “Fe1″rni’nVat_i0n V Pregnancy Act,
1974. 3 g. ‘x 3″” ‘\v«’»a.
T he depneed that on a certain
day, AV her to Nagamangala
Governrnent,Hbrzldiitai.V had missed her menstrual
period abdti*i..i 8 Vda.ye~.V.b’pr.itV)r to that day. The Medical
.. 4. }>rae:;:ti=*:iQt1e:’.V_0f that’h0.s.pitai examined Victim and took her to
the” room and injected a drug to Victirn.
The.reafter,*.V-éheri’tvas shifted to andther room and the victirn
~V becarne “ttne’nnsei0us. After she regained Consciousness she
that there was heavy bleeding and victim thenght that
3
:9!’/,.v~” .
5
Er gs.” 3;» V ‘~~
1′ V’
4}
evieience given. by PW-18, the case of the presecuiien that,
accused had taken the victim to PW–3é anég.
respeesible fer causing mis~ea:’r’ie.ge earmet .¥§;e’ e.eee1:i:e{:1i.’
The learned trial Judge has ignoredjihe pesi’éi:ze:j’e§?ie..e::ee *
PW28 by holding evidence of PW1thE3.-: {héid
Victim ta PW34 and PW34 had_.1n3eer_¢’d som.e”V’%c{;{;g; c1_};1e :o_ ‘e.
which victim had bleeding, was ides of PW18.
54. On appreciation} that her
evidence relating to There was ne
eenfusien in as taken her to the
also of the Doctor
who ::ierreji1:e%tion« leer pregnancy. At this
juncture is that neither accused nor
victim VVaSV’kI1O”iR’I1vV§O On the other hand, PW–34 had
= that P’iK7¥’1 related to her and in fact PW~13 had
Therefore, we hohti that the evidence
afieligeed ‘§:?:§eVpr0seeu1:ier: in partieuiar evidence ef PWJS
is fleet.’ euffhieient fie heid the accused gufity ef an offence
x V’ ..:if:eie;’ Seetien 313 of IFC. In View ef iihie finciing, Ehe ease sf
— $336 fireeeeutiefi that aeeueeé had ceased miejeerriege of
x
I’
3;:/,§;;f»i» :;«”‘¢”‘~.., 5/’E./”2,/*-~/~
42
victim with a View to cause disappearance of evidence with
the intention of screening himself from legal punlshrnentior
an offence under Section 3’76(2)(c) cannot
Therefore, we hold that the learned t1fial~.–
committed an error in convicting accused hdfof ‘o’fl’ence–s.l
punishable under Section 3l3.eand 2(l)Vl._olӤPC. l
55. In View of the above \&?e*vvconiLirrn the
conviction of accused fol’ ‘Section 3’76{2)(c)
and set aside the conv1;c’t1’on:”of “a.e’e_used offences under
Sections of ”
56. “file”.:i c3;%l;zx;i\m.17e1/2005 interalia
contending: that “le’2i1*ned,:l:S.essions Judge having held the
accused guilty efen ¢.ff¢’1:-ége under Section 3’E’6(2)(c) of IPC
..-_ has_”_the AAéen.te.nce for an offence punishable under
Section IPC. The learned trial Judge sentenced
accused to7.und:efgo rigorous imprisonment for a period of 5
‘ Yearell.
l’4″‘f§’he learned Government Advocate appearing for the
State would submit that an offence under Section 3′?§{2}{c}
of {PC is punishable with rigorous in1p:*isonrnentjo’f«n§:st__les:_s’
than 10 years which may extend to life and ehall V
also be liable to fine. Therefore.1;.thel::leafn_eetA
committed an error in sentencing accused fo:.*”;an ‘offence ‘
under Section 37’€-(C) of IPC.
58. We have gone judgment and
find that the learned _ held the
accused under Section
376(2)(Cl, for an offence under
Section:’ll3;?6′(€:l:;vf,’V isltnanltfest on the face of the
record. accused has to be sentenced
for an offeriee lpuntlsllatylelulnder Section 378(2){c).
59. _’.f’he learned Governfnent Advocate would submit that
being in clxarge of an educational institution meant
torlllrveltaloiititatiton of orphans, children engaged in child
labour, eeaually exploited victim and there are no
– special reasons to reduce the sentence from the rninirnuni
ll 9 oseneteneelllof rigorous imprisonment for a period of M10 years.
i
ff: V
*\…~ .
44
60. The learned Ccsunsel fer accused submits that Vaecused
was aged about -44 years, when he faced trial hiafse
and chiidren to eaye for. The accused app’earejV’tteL’have
eemmitted the offence in a spu:’Jcst”a.gngsment”ahdiateii
regretted for illegal acts c0mmitteci.__hy_Vhimthahd».the%eto:{e;~_u
shifted the victim from ChVit’raci~:.1rga “ta acth’
shows a sense of repe;r1.tahceV,t———-‘1}he a~::_cuse<3'*h.ad.ft"aced the
trauma of trial frern thejtreare Thereafter, he
had suffered arxggiety of since 2005.
by accused cannot
be justtfiegi21’g¢ to delay in conclusion of trial
and heamltig Yet, the fact remains that
h
h be aged about 50 years. He has wife
care for. If the accused is sentenced to
a:;§ierg0_ ifitprxteenmeht, for a perieci of 10 years, his children
wu1<:1'~ heceme destitute, In alt the probabilities, they have to
" be taken care :3? by some rehabilitation ihetitutien. The aecused
hat} suffered traama et' atria} fer a §}€}i'§Q{i sf 2 years and this
45
appaeai is pérxciing fmm the year 2685, In “:_}:;::s «’ fire
record these special yeasims, W6 maintain ..¥:hé”v.sé:ifie::ce ‘;’>;.; .pé::*i0d*. cif
years. Hewever, in czrder to C0’iI3f§5E:31S8.i€V¥’5§:f:iI’£? veé, direct the
accused tax pay 9. fine §f’.§§s.5€};{3’0CVX{–. ._
61. In the result, We pass the §fa§1owi;3.g’9:der:
Criminal Appea1AA.I\1r§, aafitcepted in part.
The csnxrictigfifi far Emnishable under
Section e:V§€)I1xric:tic>:1 of accused far
313 and 201 of IPC is set
asida v;jf;<3:.:\"a,j'CV€1uitted of offences punishable
undgg secti'ong" 3.1.3. and ':26: of 1190.
' ~._ Vappeai filed by the State in
f2i3G5 is acceptgd in part. The sentence
im}::.0s<=:_d' Athe trial Ceurt in terms of the impugneé
}13JC§gm'€–:i*: is mzadified. The accused is senienced to
' fifléififgfl rigarezzs imgrisenmeni far a peried 0f 5 years
gay fine 55 Rs§§G§QGG,i'-» if': dgfauli, ion uzzdsrga
46
simple imprisonment for a period ef one
offence under Section 376[2)(e) of IPC.
amount to be deposited by :”é{ceuse<:.–1, .;
Rs.45§OC)O/~ shall be paid as c:e1n}5ehsati.Qh1j:. At'o
(PW-18). The period of detefitfih.unelergenehV.1hg;*:V%eehsed
during the Course ofPh"%,;;1 Of
this appeal is given section
Office. the records to the
trial hhfihhhplement the sentence
in terme ' this '" ' «h
Szi/w
EEEEGE
3&5/L
Eiiffigg