Partly allowed

Sri Suresh v. State of Karnataka

Karnataka HC28 Apr 2015CRL.A/79/2013

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal in part, confirming the conviction for rape. Considering the context of a planned marriage and the birth of the victim's child, the Court partially set aside the sentence, reduced the rigorous imprisonment from seven years to 3.5 years, and directed the appellant to deposit Rs.50,000 as compensation for the child.

What did the court decide?

Appeal allowed in part; conviction confirmed; sentence reduced to 3 1/2 years rigorous imprisonment; awarded compensation of Rs.50,000 payable within one year.

Sri Suresh Vs State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2015)

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1 Crl.A 79/2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^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.79 OF 2013

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BETWEEN:

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SRI.SURESH S/O BABU GOWDA AGED ABOUT 25 YEARS R/AT DAASARAKOODI HOUSE BANDARU VILLAGE BELTHANGADY TALUK, DK

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... APPELLANT

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(BY SRI:C H JADHAV, SR.ADV FOR SRI:P PRASANNA KUMAR, ADV)

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AND:

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STATE OF KARNATAKA REP BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE

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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) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 26.11.2012 PASSED BY THE

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Crl.A 79/2013

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ADDL. SESSIONS JUDGE, FTC, PUTTUR, DK IN SC NO.133/2011 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RI FOR 7 YEARS AND TO PAY FINE OF RS.3,000/- IN DEFAULT TO PAY FINE, HE SHALL FURTHER UNDERGO SI FOR 6 MONTHS FOR THE OFFENCE P/U/S 376 OF IPC.

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

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J U D G M E N T

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The appellant has challenged his conviction

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and sentence for the offence punishable under Section 376 of IPC on a trial held by the Sessions Judge, Puttur.

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The facts reveal that nine months prior

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to the complaint (Ex.P1), the appellant is said to have had forcible sexual intercourse with the victim (PW1), consequently, she was pregnant. The victim gave birth to a child on 01.06.2011. The victim was less than 15 years of age. A complaint in this regard was filed under Ex.P1 by the victim (PW1) and in the course of investigation, the

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Crl.A 79/2013

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statements were recorded, the spot mahazar and the sketch were drawn, the victim and accused were examined by the doctor. The appellant was arrested. DNA test was held and it revealed that the appellant was the biological father of the child. The school leaving certificate was obtained and the chargesheet was laid against the appellant for the offence under Sections 376, 417 and 420 of IPC.

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In the trial, the prosecution examined PWs.1

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to 12, got marked documents Exs.P1 to P14. After recording the statement of appellant under Section 313 Cr.P.C., no defence evidence was led, therefore, the Trial Court heard the counsel and on appreciation of the evidence on record, convicted the appellant for the charge under Section 376 IPC and ordered him to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.3,000/-. The said order of

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Crl.A 79/2013

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conviction and sentence is challenged in this appeal.

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Heard Sri.C H Jadhav, Senior Counsel for

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the appellant and learned High Court Government Pleader for the respondent-State.

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consideration is:

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“Whether the appellant has made

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out any grounds to warrant interference in his conviction and sentence for the offence punishable under Section 376 IPC?”

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Learned Senior Counsel Sri.C H Jadhav

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submits mainly on the ground that the victim had married the appellant prior to the incident and as such, she is the wife of appellant, hence, the act

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of sexual intercourse does not amount to an offence of rape and therefore, he submits that Section 376 IPC is not attracted. He submits that at the most, the punishment for the forcible

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Crl.A 79/2013

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sexual intercourse against the wife morethan 12 years of age and less than 15 years would be two years and as the appellant has been in custody for morethan three years, he submits that he is entitled to be released, forthwith.

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On the other hand, learned High Court Government Pleader supports the judgment and order and submits that there is no evidence of marriage and therefore, the benefit cannot be extended.

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Perusal of the material placed on record

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reveals that the victim (PW1) was less than 16 years of age. The school certificate is produced at Ex.P7 and the Head Mistress is examined as PW6. It is revealed from the certificate that she was born on 01.02.1996 and the victim was approximately 15 years of age on the date of incident. The prosecution version further reveals that PW1 is the victim, PWs.2 and 3 are the mother

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and father of victim respectively. PW4 is the

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6 Crl.A 79/2013

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grand father. These are the witnesses examined by the prosecution to prove the act of forcible sexual intercourse.

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As could be seen from the evidence of PW2, in the cross examination at para 5, she states that in the presence of elders they have agreed to perform the marriage of victim with the appellant. She also admits that on 07^th June, the marriage of victim was performed with the appellant. After the marriage, the victim was left in the house of appellant for a day. She also admits that a day after the marriage, she was brought back and ultimately, they decided to go against the appellant by way of complaint.

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Perusal of this admission in the cross examination of PW2 would reveal that she alongwith the elders performed the marriage only after it was made known that victim was pregnant, thereby the inference could be drawn that the appellant

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Crl.A 79/2013

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had sexual intercourse with the victim prior to the marriage. Therefore, the contention of learned Senior Counsel cannot be accepted. When the victim is less than 16 years of age and when the appellant had sexual intercourse with her, the act amounts to offence under Section 376 IPC.

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The victim (PW1) herself states in her evidence the actual act of sexual intercourse with the appellant and as per the certificate that has been issued as per Ex.P7, she was less than 16 years of age. In the circumstances, the aforesaid material placed on record is sufficient to confirm the conviction for the offence under Section 376 IPC.

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The prosecution has examined PW3, the father of victim. Though he has not admitted about the marriage, he speaks to the conduct of appellant and the victim. PW4 is the grand father, whereas, PW5 is the attesting witness for the mahazar and he turned hostile. PW7 is also

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Crl.A 79/2013

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another attesting witness for Exs.P2 and P3. PW8

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is the Asst. Sub Inspector of police who registered the complaint (Ex.P1) and PW9 is the doctor who examined the victim. The appellant was also examined by the doctor and the certificate (Ex.P13) was secured. The doctor states that he was capable of performing the sexual intercourse.

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PWs.10 and 11 are the police officers who held the investigation and filed the chargesheet, whereas PW12 is the forensic expert who held the DNA test and submitted the report (Ex.P10) to the effect that appellant was the biological father of child of victim. The aforesaid material proves the version of prosecution so far as the act of rape is concerned.

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So far as the sentence is concerned, it is relevant to note that Section 376 IPC provides minimum sentence of 7 years and the Trial Court

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has awarded that much of sentence. If there are

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adequate reasons, the sentence could be reduced. It is purely a discretion of the Court to weigh the circumstances and reduce the sentence. It is relevant to note that there was a decision to perform the marriage of appellant with the victim. They had sexual intercourse prior to the marriage. The decision was taken by the elders to perform their marriage before the act of sexual

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intercourse.

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PW2 also states that because of this

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decision, both the victim and appellant are very close to each other. This circumstance might have led them and could have made them to have sexual intercourse. Even thereafter, there was a marriage of victim with the appellant. So these circumstances will have to be weighed and lenient view has to be taken to reduce the sentence awarded by the Trial Court. In my opinion, the

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aforesaid circumstances are exceptional which made the victim and appellant to have co-habitation, in the context of an expected marriage. It appears that at the instance of police and others, the matter has been brought before the police with a complaint (Ex.P1). The appellant has been in custody for a period exceeding morethan 3 ½ years.

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Looking to the aforesaid circumstances, the sentence undergone appears to be just and reasonable. But anyhow, as the appellant is the biological father of the child, he has the responsibility to look after the child and it appears to be just and proper to order payment of compensation for the act done by him, so that, if

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the amount of compensation is deposited in the name of child, it would be of some help to the child in the course of time. Therefore, looking to the circumstances, and the liability of appellant to look after the child of the victim, I

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11 Crl.A 79/2013

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deem it proper to award compensation of Rs.50,000/- which is payable by the appellant within a period of one year from the date of this order. On recovery of the said amount, it has to be deposited in the name of child.

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In the aforesaid circumstances, the appeal is allowed in part. The sentence is modified. The conviction of appellant for the offence under Section 376 IPC is confirmed. He is ordered to undergo rigorous imprisonment for a period of 3 ½ years. He is entitled to set off under Section 428 Cr.P.C.

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He shall deposit the compensation amount of Rs.50,000/- within a year from today. On deposit of the compensation amount, the Trial Court shall secure the victim and child and deposit the said sum in the name of child in any of the nationalized bank until the child attains the age

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Crl.A 79/2013

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of majority and later the same shall be paid to

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the child after it attains the age of majority.

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Sd/JUDGE

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*bgn/-

Sri Suresh v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Suresh v. State of Karnataka

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

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Case details

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