IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18?" DAY 01:' NOVEMBER, 20
PRESENT 3 0 ' 0
THE HON'BLE MR. JUS1'1CE_K..SREEDHAR:'fRA;O
AND . 4' . . V _ .
THE HON'BLE MR. JUS'I'1C:E'~E§.N.KESfiAVA?STA£§AYAN3A %
CRL.A. No.21;3ib-2005' «-- . 0_
CRL.A;§]m§mg)B'v« zogg
CRL.A. No.213o.oF 200:5 ' . 0 V 0
BETWEEN:-- _
The State of V' 0
By Bas.a'var:aha11i P:)1§ce*.--.y
_ _ _' Appellant
(By Sri '9.1\/'I, N'ewaz;».Add1;'ewsPP}
AND:-- V V' V 0
J ayann af
0°-S/£5: Beiéappashetiyfl; ""
'A,g'er1,25_year_s§* ..
7.Au,t0 fltijiver", ' '
-- Chic'i:m'aga.I1'1r.
0 V0 V ;{ByS_ri Rajaiah Rai Kallangala, Advocate}
R-1 o'.--..wa;t'er~Ta1a1{ Road,
Gowri Che nnal,
Respondent
"This Crl.A. is filed U/s.377 of Cr.P.C. by the State P.P.
; fdr the State praying that this Hoxfble Court may be pleased
"'t'0 enhance the sentence dated 22.06.2005 in S.C.N0.69/03
&/
on the file of the P.O., FTC-I, Chikmagalur -- convicting the
respondent/ accused for the offences punishable U/Ss;366--A
and 376 of IPC and sentencing him to undergo R."I..._'for'*_5
years and to pay a fine of Rs.5000/- and in..~~<iefa.ultV.j' to,
undergo R1. for one year for each of the offence :«punislfiabIve.g
U/Ss.366--A and 376 of IPC. Both two sente"n--ces.._lto run _y
concurrently. The Appellant--State_,.prays that" »t:h.e" above A'
sentence may be enhanced suitably.
CRL.A NO.1678 OF 2005:-
Jayanna,
S / o. Bassappa Shetty.
Aged about 26 years, _
Auto driver, , _ ._ V
R/ at next to water tank road,
Gowri canal, '
Chikrnagalore. , I
, H _. .6 3 _ Appellant
(By Sri Rajesh T{a'l_1anga.1Va'*.V A A '
for M / s. Subagsl. Rajes«h,"As.sts'.:, Adyocates)
AND:-
The State' l3asavanaliallbiV_'P,jS';'
. .' A Respondent
[By Sri-RAM. Nawaz','Add1. SPF)
A y 6' C::l.A. ishfiledd U/3374(2) Cr.P.C. by the Advocate
for the appellant against the judgment dated 22.6.05 passed
the"=.._yP".O:«,_v Fast Track Court--I, Chikmagalur in
S;C.'N0.69/C3V'ga--V convicting the Appellant/Accused for the
offences » punishable U/Ss.366-A and 376 of lPC and
sentencing him to undergo R1. for 5 years each and to pay
V'-fine of"Rs3;5O0O/-- each in default to undergo RI. for 1 year
V' xforithe offences punishable U/Ss.366--A and 376 of IPC. Both
_ "sentences to run concurrently. The Appe11ant/ State prays
. that the above order may be set aside.
These appeals are coming for hearing on this.__day,
KESHAVANARAYANA, J ., delivered the following: ' *
JUDGMENT
These two appeals, one by the State 0
the accused are directed againstgthe _judgi:ne’nt
dated 22.05.2005 passed the’-.pFl’a,st Coi;41rt+iIl.lf#p
Chikaxnagalur in S.C.No.69/2003:
2. cr1.A.No.16§(8/2o_os;_the gauged. while
Crl.A.No.2130/2005 is accused was
charged for under Sections
366–A and ia76.f1pc ‘.é’1’1eg:i’r§g that.ion703.d04.2003, the accused
k1’dnap’ped__ about 15 years from the
lawful herlparenis in Chikamagalur with an
inteniionpto foicelhelr to marry him and also to subject her to
iiiiervcourse, her to Dharmasthala, where he tied
A*f’i’iial.i'”aroundTher neck and had forcible sexual intercourse
with..__he;f.-at_vflbharmasthala and other places till 07.04.2003.
‘ hecommitted the aforesaid offences.
“A3. The accused pleaded not guilty for the charges
” “levelled against him. The prosecution in order to bring home
the guilt of the accused for the charges levelled against him
examined PW1- K.Umesh ~»–~ Principal of the Govt. Pre-
University College, Basavanahalli, Chickamagalurllwho
issued the birth certificate as per
Dr.Pankajakshi, who examined the Victim-girls
medical report. PW3 — Syed Moosa and
witnesses to the mahazar regardingarrest of»’theVaccu;seCi;
PW5–Ravi, a witness to the mah’aear_draavi1lAin’vthe¥house of
the accused; PW6~– Ie.aksih’I~:_1arr_Lma_ — Moéahnagowda
the parents of the victimjgirl; as PW–8 and
Devendrappa–PSl}gthe 1.33. as V.
‘ “plahced reliance on Exs.P.1 to P7
and M.Osl.xi–..ar1d ‘l”he ‘defence of the accused was one of
A’ total igjeixiialpv and t1’1a.t____of false implication. After hearing both
sides’ ar_1d.pon””assessment of oral as well as documentary
e’v1’d’ence,’ learned Sessions Judge by the judgment under
‘V appeal heldxsthat the victim girl–PW8 was aged about 15
years asflon the date of the incident, as such she was a minor
“that the evidence on record establishes that the
“accused kidnapped the victim, aged less than 16 years from
W
the lawful guardianship of her parents and took to
Dharmasthala where he married her against
subjected her to sexual intercourse in spite V’
therefore the prosecution has ‘Icha_rge”s.,& ll
levelled against the accused.
Sessions Judge convicted the””-accused forlv.Vth’e,l”offences ” V
punishable under sections “I’PC_, _.liowever,
after hearing the accused. sentence, the
learned SessionsA’Jvudge-“s’entenc’ed=,the’. to undergo
irnprisonrnenfr 3′-l”,or fine of Rs.5000/–
on each__coun:t.l hy the judgment of
conviction ‘«s_ent_ence. the accused has filed the
appeal. the sentence ordered by the
learned’ i_Session_s”lJudge, more particularly for offence
section 376 1190. the State has presented
section 377 Cr.P.C. seeking enhancement
of se«ntenc’eJ A
5. Both appeals were heard together. We have
:fheai*:l RM. Nawaz, learned Addl. S.P.P. and Sn’. Rajesh
— Kalllangala, learned counsel appearing for the accused. We
/3
6
have perused the records, carefully examined the oral and
documentary evidence and also the judgment underu
6. In the facts and circumstances of H
points that arise for consideration in this appealparei it
i} Whether the learned
holding that the app’elia_nt/ accused iisvidgijigiltyflof the
charges levelled against u.him_ and ‘injco’nvic§ting him
for the said offerices?;””” ” it it V
ii} Whether the suffers from
perversity or callif1_g_foririterference by this
court’? V ~
u it Rajesh, learned counsel for
the ayccuseddéthatrthe of the learned Sessions Judge
V. .1L1’1$f;..”[‘2l’1IE5.._’\,’.”lC4L§1fI1 girl dvvasvaged about 15 years as on the date of
is perverse, illegal and without any
to him, the evidence placed by the
“V..,prosec’utii:;n does not satisfactorily establish that PW8 was
,.:l_%iCSs’.”than 16 years of age as on the date of the alleged
incident, as the prosecution has not placed any acceptable
evidence to prove the birth certificate marked at Ex.P.l nor
M
any medical evidence with regard to her age. Therefore, the
learned Sessions Judge is not justified in holding that the
victim was less than 16 years of age as on the datebofrathe
alleged incident. it is his further submission
absence of any acceptable evidence with regardjto loft b
the victim and in View of the fact1;.that:A’she”«was”
working as a receptionist in a Nursing”Home,..”.1t A’ has tobe
inferred that she was aged more”l»i:han V1.8′ ‘ye.ars:7_ltWis his
further submission that the evidence ol'”t_he prosecutrix read
as a whole, would clearly a consenting
party to the act to have .bee’nA’cojm.niitjted by the accused,
as such, :’attr’a,c’L-..o_1″fence punishable either Section
366–A or’.3i7’l6y IPC. submits that the judgment
of ccgnvictionl recordedllby the court below is perverse and
llillegall, theflmslaine is liable to be set aside and the
I to be acquitted.
‘ the other hand, Sri P.M.Nawaz submits that
jndgrnent under appeal does not suffer from any
it perversity or illegality, since the learned Sessions Judge on
…proper appreciation of the evidence on record has recorded
finding of guilt. It is his submission that the evidence of
PWs1 and 2 coupled with the contents of EXP1 and«ja1s_’0.fth_C
evidence of the parents of the victim clearly *
the victim was aged less than 16 ye_ars_as xtheu if if
incident. therefore. the learned Sess’ions’J~udge.is j.{m’:a’ed
holding that the victim was 1cs_s”—than’it-62years:vfofiageuuwas on
the date of the incident. It the
evidence of PW8~victirn ‘4tog’v’inc’ii.cate that the act
committed by the.Vaccuse.d:va:s and therefore,
even assum.in§:V the prosecution
falls fvictim–girl as less than
16 years, under Sections 366–A and
376 IPCA,” Judge is justified in
convicting the’-.accused. It is his submission that having
regard theminimum sentence prescribed under section
Sessions Judge is not justified in
sentencing .the accused to undergo imprisonment only for 5
3u””.__fV”~years :the offence punishable under section 376 IPC in
i”fthe._.absence of any special and adequate reasons in that
_,jLfdgment for ordering lesser sentence. Therefore, he submits
9
that the order regarding the sentence passed by the court
below is liable to be modified and the accused is liable to be
sentenced atleast for the minimum period as provided under
section 376 {PC
9. We have bestowed our anxious considerations ~
the submission made on both sides.Mm To attract –:t_he”ofibn(:e
punishable under section 366–A essential.llilo’i=._th1e:
rosecution to rove that the 0″ir1..__induc’e_d’was leAciv1e_ss than -. L’
18 years and such minor girl xyasiiinduced’ go from any
place or to do any actwilth intent girl maybe. or
knowing’*’tha.tgAl.it;is lii;:el.y that sl1.e”WiliV:be, forced or seduced to
illicit intercourse lano’ther__person.
,10.p ..per’iiSecV.’ 3:75 of IPC a man is said to have
°(:ommitt3e’d rape, if he has sexual intercourse with a woman
against without her consent, or with her consent,
whenher. is obtained by putting her or any person
– V’-in whomvsiie is interested in fear of death or with or without
V”-ljer’pc.o’i1sent when she is under 16 years of age. From this, it
is clear that if the victim is under 16 years of age, even if
__f
i
3;:
ll}
consent on her part, could be inferred from the attending
circumstances, it will not be ‘consent’ within the mevan’in_g.of
Sec. 375 IPC. Therefore, the act done
circumstances would attract offences bunder”‘s’cc;’v3’75″_IPCl
punishable under section 376 IPC.
11. Therefore, to att1’act._goffeln-cell punishable_gu.nder
section 376 IPC, the prosecution -havehtotprovevfieither of
the two ingredients less than 16
years of age as on_ the or if the victim
is aged l.th_e4lact’l.co111’rnitted was against
her will or with’o_L1;ther co1is’ent”oi– her consent but such
consentywas oebtaiiiedl her or any person in whom
she is interestedllin death. In the instant case, the
prosecution inl’lor.der___to prove the age of the victim girl has
»’:3}:(‘8;TIV1i11.(il(l.,PVjV”l. and PW2 and has also placed reliance on
lExl§’?.._l.VVTh’e».pr’oslecution has also placed reliance on the oral
evidenceV:of”the parents of the victim with regard to the age of
,:tl1es.victirn girl. The learned Sessions Judge referring to the
.l and documentary evidence has opined that the evidence
it “placed on record would establish that PW8 was under 16
years of age as on the date of the incident. Therefore, the
learned Sessions Judge proceeded to hold that even’~i_f
the evidence on record an inference of consent .
the Victim girl could be drawn s_uAcVh_
construed as consent in the eye of
committed by the accused c%on–s_ titutes lloffencel’
under section 366–A and 376 — K _ ‘V
12. Ex.P.1 is b3t rwi with
regard to the date of ioi;I§V’Wl has issued
Ex.Pl in the Government Girl’s Pre–
University». vBasavana.hai.ii,*§ Chickmagalur District.
According to victim–girl was admitted
to the 2001-2002 and while admitting
her.» said her date of birth is entered as
date of birth of the victim as mentioned in
as true and correct there will be no
disfiute Victim Was under 16 years of age as on the
of alleged incident. PWI in his evidence has stated that
.0 been working as Principal of the said institution from
‘”‘1’0.01.2001. According to him, during 20012002, PW8 was
admitted to the said institution to 8″? standard and on the
request of the Basavanahalli Police, he issued
according to EXP} her date of birth was
further states that he has issued on_–‘the”..the_
records maintained in the institution. the ex_amiriatit5n¢iii–_’
chief of PW} is considered,V’tdit_irth of the victim was entered in the admission register of
~
the institution on the basis of the transfer certificate
produced at the time of the admission. The _.vt.1fan_sfer
certificate said to have been produced by the .
parents at the time of her admissionmto the inst’itu_tioi1. isnot
produced before the Court. It is
gave the date of birth of the victimegirl to ‘i’he}:in_StitLiition
where she was admitted first uof study. It is
also not forthcoming V she “Was first
admitted to the 15¢ VA the transfer
certificate ori§iii’al~——Veadmission register
maintainedifiyn iiirhere she was initially
admitted Whenvfshe was admitted to 8″‘
standard before the Court to verify the
credence of”‘t1;’iei..c’ontents of Ex.P1: Therefore, the oral
of the contents of Ex.P1 does not
r__satifs’fac:to.rj”ilyVd’establish the date of birth of the victim as
20.94. 19.88;:
Ex.P2 is the certificate issued by PW2 — Dr.
A f”Pankajakshi. In Ex.P2 age of the victim is not mentioned.
‘ PKJVZ in her exan1ination–in–chief does not say anything
1959/
about the age of Victim–gir1 whom she examined on
08.04.2003. However, in cross–eXamination she hasgstated
that at the time of examination of victim, she was .
15 years and for the purpose of determining .11’e’r’ag_e,
referred to Radiologist, but the re:p4ort_”fro’m’eathel
was not received. However, accordingyto the :’vlv”1tpi1e_§s since
there was a school certificate, llfecllit ‘necessary to
get the report from radio1:ogist;l_filIt from the
evidence of PW2 as to had shown
her the school3__.:vCelI:jI’ificate Principal at any point
of time. referred the victim to
radiologist» her age, radiologists
report to before court and it is
only based o’n_:lsucl’i the age of victim girl could be
.0 it –ass’essed.: The age asmsltated by PW2 that victim was 15 years
._.ast_l*:e of examination is only an assumption and
lby her. Non–produCtion of radiologist’s report
l*.,w1’th regard to age of victim girl, entitles drawing of an
“lladi/elrise inference drawn against the prosecution. in the
absence of radio1ogist’s report, oral evidence of PW2 which is
y
based on surmises and conjectures can not be a basis to
hold that victim was aged 15 years or less than 16
14. It is also pertinent to note that PW8 *
girl in her evidence states that as on the édat:-ehof it ”
she was working as a receptiori.ist1’_”in’: Nischita&tC:linici_.:
Chickmagalur. From this, it”li’S«.._qQ1earA”that fhad
already been employed by a « _c:1tn3’gLA;v;?/nursing
home. Therefore, it cann’o.t’bf: had employed
a minor or a childaged 8 in her cross-
not know her date of
birth. This appears to_be”‘a1iyeyasgive answer given by the
victim Viayersselfi she had studied up to 8th
standard. VS-he nto’tt.stat.ed as to whether she studied, if so
in which~institu’t–ion. It is not the say of PW8 that she was
»adm_ittedx_to”‘~-Government Girl’s Pre–University College,
further studies. Therefore, the very
certificate ‘Eic.Pi becomes suspicious in the light of the
it it ‘ e~.r:d€I1¢é’ of PW8. &~.«
16
15. PW8 is not an illiterate girl. Even accordipg to
her, she has studied up to 8″‘ standard and
employed in a clinic/Nursing Home. Thereforeliwlitl’
difficult to believe that she does notmrbemembe1″—-lherlldate
birth. Therefore, it is reasonable*._
deliberately not disclosed her: date of-,bi1’th whle.rr.sh¢_ll3wals
asked in the cross–eXamination date
16. PW6 – the..v:m«other the victim.
She in her chieffexamiriatiorly her daughter
had completed of 15 years of age
as on the date .(_3l’.incider1_t’;iAl.’1r1the cr~os’s~examination she has
stated llthat: in which year she
married arid_4ash.Ve any document to show that
_ A the was the year 1988.
— Moganna Gowda, father of the victim in
has not stated anything about the
ageflof zhvivsldaughter. In the cross–eXamination, he has stated
ifll’itlitithat-t_lf1evvils not in a position to state the date of birth of his
— d:aughter. Thus the parents of PW8, who are competent to
a
state the date of birth of their daughter have not disclosed
the same. Thus, there is no convincing or aceept_ab.1e
evidence on record placed by the prosecution to _
establish the correct date of birth ofMV1’ctim'”or” establish’
that Victim was under 16 years of ‘age:_’or.,undefr-.l’8 ‘rzifi
age as on the date of the inci::len_t. Therefore, in’o_fur.,,QPinion
learned Sessions Judge is not in that victim
was aged 15 years as “aliegedffincident. In
this View of the__1natter.,. the learned
Sessions basis, as such
said finding therefore, it cannot be
sustainfedfv _ above, the important
ingredients to under Sections 366–A and
376 iPC establishedffby the prosecution.
coursefto attract offence punishable under
W age is not the only criteria, as even a
woinan rnore than 18 years can complain of offence
f””«.__f”*»under” Section 376 {P0, if it is estabiished that the act
V.”x_comp.£ained had been done against her will or without her
if consent. The question as to whether victim was a consenting
»@
party to the act committed by the accused will have to be
gathered from various circumstances brought out o_n.r_e~cor_d.
In the instant case, according to the pros.ecutio.f1′;–. .
03.04.2003 while PW8 was in Nischita Clinic,’ canzet
there in an auto, called the victim toeeegiecompariy “hi-r._I__1
Dharmasthala, and accordingly-,.___ she went. and in _
Dharmasthala, he tied a threaddyvityh tofiher neck
and then subjected intercourse. PW8 in
her oral evidence has EA’-i.<'i.'€:0.€§d_ at about
4.00 p.m. in htitite 'accused came there in
an auto, him to Dharmasthala.
shewshould inform her mother
before that accused told her it is not
necessary to her mother, therefore, she accompanied
Dhannasthalta. It is her further say that in
they stayed in a room, where accused tied a
beads to her neck. It is her further say
”._that going to Dharmasthala, accused told her that they
many in Dharrnasthala to which she told him that
0 since he is already married, she does not want to marry him.
It is her further say that inside the room accused subjected
her to forcible intercourse and from Dharmasthala tl1ey:”we’nt
to Hassan where they stayed in a hotel and ~
accused committed intercourse. From Hassanltitey Went to
Belur, where they stayed in a h:ote1;”ancdl’there”alIso._,_the:
accused had forcible intercourse with her. “U’l.tA§4:I11.E1V,tV€”l},-‘l on
07.04.2003, they came to Chiclgrnagaitir fro”rn~Be.lurL?
19. If the evidence a whole, it is
reasonable to party to the
alleged act really she was not a
CO1’lS€1’llZlI’lg” no”voc;dasion for this girl to go
with accused’ straight away from the
Nursing home at Chiclgniagalur where she was Working even
i’r1fonntn’g.he_r,parents. As could be seen from the
answersv ‘e1i’ci_ted_ in the cross–examination of PW8 on the
alleged vdatégidoctlor was not present in the clinic and she was
-V alone giritthefclinic. Soon after the accused called her, she
00 Llociied the clinic and went with accused by keeping the key
. only. It is not her say that she was forced to go with
nor it was her say that she was induced to go with
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20
accused. It is in her evidence that accused was known to her
for about 2 months prior to the incident. If accused-javas
known to her only from 2 months prior to the «’-tisf’ _
highly difficult to believe that PW8 would have
the accused on his mere asking.
does not indicate that she was ei__therio_rced ;
with accused from the clinic. the oflif?W8, it is
further clear that accuised_ and room in
Dharmasthala and there with black
beads aroundjiherfnneele;piti “say5that she protested
for the saicihaclt thread with black
beads has stated that while
they were!slelepinéliiiilltiie”rlo’om in Dharmasthala, accused
had jforcibleu”intercourseliirith her, it is not her say that she
” ‘~..l.,p1fo:teste’d If really, the act committed by the
her will or without her consent, it was
PW8 to disclose the same to police or any
other “person in Dharmasthala. Dharmasthala is a religious
l”:ll_AAp.ilé1jfimage place where thousands of people including the
policemen would be moving around. It is not her say that
&/
21
she was confined to a room and that she was not allowed to
go out nor it is her say that she was put under threat .o”r«,fear
by the accused. Therefore, PW8 had all the .
disclose to anyone in Dharmasthala about the ‘acticommitted
by accused, if it was against her will .. and vIiti1out’es..__h’e:r_*
consent. She had not raisedfiany in Diiarm.asthala.
Subsequently when they went “}rlassan also Belur.
they have stayed in a and the accused said
to have had intercourse appears to
have not any one. From
these, it is fact committed by the
consent of PW8 or
against circumstances brought
out from the evidence. 51” PW8, it is reasonable to infer
V’ “consent on her partvforfthe act committed by the accused. In
any acceptable evidence to establish that
was than 16 years of age, offence under Section
“.376 lPC_is not made out. The learned Sessions Judge has
“tf1otVi;’5’roperly appreciated the circumstances brought out in
the evidence of PW8 which is sufficient to draw inference of
K”)
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consent on the part of the victim. Therefore, judgment tinder
appeal convicting the accused for the offences under
366–A and 376 11°C is perverse and illegal.
20. Having regard to the abeve’ discuslsioljns “in_l_’ou’r_V it
opinion, the offence under Section :3&76-.’:_lPC
since the evidence on record doesnot satisfactovrilglzgl’establish = ‘
that the act committed by theV_acct1_sedx was the will
or consent of PW8. has utterly failed
to prove the charges accused. The
judgment of is perverse and
illegal as such. aside.
211. S’ finding, the appeal filed by
the State lforulenha1<1ce'mlent' of sentence does not survive for
p_ con_si'deration. ln'vievv.of the above, the appeal filed by the
*a:clcu..sed,_'in".(§rl,A.No.1678/2005 is allowed. The judgment
lanpelqjrderit-Eiatedl22.06.2005 passed by the learned Sessions
'V Judge zaS..V(3.No.69/2003 convicting the appellant/ accused
':"'.,f(AA)1"'V'l'1:lC offence punishable under Sections 366–A and 376
IPC is hereby set aside. The accused is acquitted of the
charges levelled against him.
The appeal filed by the State in ”
hereby dismissed. »