Partly allowed

Venkatesha v. State by Chamarajanagara

Karnataka HC24 Apr 2015CRL.A/39/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, quashing the conviction for rape due to lack of medical evidence. The court found the injuries consistent with sexual assault rather than forcible intercourse and convicted the appellant for outraging modesty under Section 354 IPC instead.

What did the court decide?

Conviction for rape set aside; appellant acquitted of rape charge but convicted for outraging modesty (Section 354 IPC) and sentenced to 2 years 6 months rigorous imprisonment and fine.

Venkatesha Vs State by Chamarajanagara — Medical Negligence | Karnataka HC (2015)

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1 Crl.A 39/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF APRIL, 2015 BEFORE

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THE HON’BLE MR. JUSTICE A.S. PACHHAPURE

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CRIMINAL APPEAL No.39 OF 2015

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BETWEEN:

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VENKATESHA S/O LATE JANNAIAH AGED ABOUT 46 YEARS AGRICULTURIST R/AT HONGANUR VILLAGE CHAMARAJANAGARA TALUK AND DISTRICT – 571 313.

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... APPELLANT

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(BY SRI: MANJUNATH N D, ADV)

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AND:

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STATE BY CHAMARAJANAGARA EAST POLICE – 571 313.

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... RESPONDENT

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(BY SRI: K NAGESHWARAPPA, HCGP)

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THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 08/09.12.2014 PASSED BY THE DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA IN SC NO.18/2014 -

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Crl.A 39/2015

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CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(2)(1) OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF TEN YEARS AND ALSO TO PAY A FINE OF RS.30,000/- (RUPEES THIRTY THOUSAND ONLY), IN DEFAULT, APPELLANT/ACCUSED SHALL SUFFER IMPRISONMENT FOR A FURTHER PERIOD OF TWO YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(2)(1) OF IPC AND THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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THIS CRL.A. COMING ON FOR ORDERS, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though the matter is listed to hear on

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interlocutory application, with the consent of learned Counsel, it is taken up for final disposal.

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The appellant has challenged his

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conviction and sentence for the offence punishable under Section 376(2) of IPC on a trial held by the Sessions Judge, Chamarajanagar.

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The facts reveal that on 11.03.2013 at

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11.40 a.m. the appellant is said to have committed

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Crl.A 39/2015

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an act of rape on the victim (PW7) while she was alone in the residential house of her uncle. In the circumstances, a complaint came to be filed by PW1. The investigation was taken up and the statements were recorded. The spot mahazar was held, the victim and the appellant were examined by the doctor. The seized articles were sent for the opinion of expert. The reports were received. After completion of investigation, the chargesheet was laid against the appellant for the charge under Section 376 IPC.

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During the trial, the prosecution examined PWs.1 to 21, got marked Exs.P1 to P20 and MOs.1 to

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After recording the statement of appellant, the Trial Court heard the counsel and on appreciation of the evidence on record, convicted him for the charge under Section 376(2) of IPC and ordered him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.30,000/- in default to undergo imprisonment for two years. Aggrieved

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Crl.A 39/2015

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by the conviction and sentence, the present appeal is filed.

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Heard the learned Counsel for the appellant and learned High Court Government

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Pleader for the respondent.

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5. It is the contention of learned Counsel

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for the appellant that there is no evidence on record to prove the commission of an act of rape and conviction of the appellant for the charge under Section 376 IPC is improper. He submits that in the absence of any evidence, the impugned judgment and order is illegal.

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On the other hand, learned High Court

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Government Pleader supports the judgment and order and submits that there is evidence against the appellant for the charge under Section 376 IPC and the Trial Court was justified in convicting him for the said offence.

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Crl.A 39/2015

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The scrutiny of the material placed on

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record reveals that PW1 - the uncle, PW2 – the

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wife of PW1, PW3 - the neighbor, PW4 - the aunt and PWs.9 to 14 the witnesses for the spot

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mahazar, seizure mahazar and the neighbors have turned hostile to the prosecution. Though they have been cross examined, nothing is elicited in the cross examination to support the case of prosecution. Therefore, it is only the evidence of doctor (PW5) who examined the victim, the research assistant (PW6) and the medical officer (PW18), in addition to the evidence of victim (PW7) only deserves consideration.

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8. So far as the act of commission of rape

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is concerned, the prosecution relies exclusively on the evidence of PW7, and there is no medical evidence supporting the victim’s version. The doctors have stated in their evidence that on examination, they did not find any evidence of forcible sexual intercourse except the scratch

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Crl.A 39/2015

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marks on the back of victim. The doctors have

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stated that the scratch marks could occur even in

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case where there is sexual assault. In the background of aforesaid medical evidence, it is necessary to scrutinize the evidence of victim (PW7).

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It is in her evidence that on the date

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of incident, she states that accused came to her house, held her hands and took her to the place of incident. He removed her clothes and also of his own and hugged her. He offered money, she refused to receive the same. Thereafter, he went running away from the house. Except the aforesaid facts deposed by her in the Court, there is nothing on record to say that she was subjected to an act of rape. Taking out the clothes and hugging at the most would attract the offence under Section 354 IPC i.e., the act of outraging the modesty of a woman.

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Crl.A 39/2015

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The victim was 21 years of age at the

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time of incident. So when the victim does not say anything as regards the act of rape, the conviction of the appellant for the said offence is improper and illegal. The Trial Court has over looked the evidence of PW7 and other evidence

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which is made available and despite the fact that there is no material for the conviction under Section 376 has ordered the conviction.

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The scrutiny of evidence of other

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witnesses pertains to the scientific officer (PW19) who examined the articles seized and submitted the report. The contents of said report does not support the version of prosecution. PWs.17, 20 and 21 are the police officers who registered the crime and held the investigation. Except the aforesaid evidence of victim (PW7) and the doctor (PW5), there is no other material. In my opinion, the only offence for which the appellant could be held responsible is the act of

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8 Crl.A 39/2015

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outraging the modesty of a woman which is punishable under Section 354 IPC.

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The sentence for the said offence is five years. The appellant has been in custody for

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a period not exceeding 2 years. Taking into consideration the nature of offence, punishment provided, I think the sentence of imprisonment for 2½ years would be appropriate in addition to fine. Therefore, the judgment and order convicting the appellant for the offence under Section 376(2) IPC has to be set aside.

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Consequently, the appeal is allowed in part. Conviction of the appellant for the offence under Section 376(2) IPC is set aside. The appellant is acquitted of the said charge.

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The appellant is convicted for the offence under Section 354 IPC. He is ordered to undergo rigorous imprisonment for a period of 2½ years and

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9 Crl.A 39/2015

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to pay fine of Rs.10,000/- in default to undergo simple imprisonment for a period of six months.

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He is entitled to set off under Section 428

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Cr.P.C.

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Sd/JUDGE

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*bgn/-

Venkatesha v. State by Chamarajanagara

Case brief

What is this about?

What did the court decide?

Venkatesha v. State by Chamarajanagara

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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