Dismissed

State of Karnataka, v. Tukaram Ganapati Kadam

Karnataka HC18 Aug 2020CRL.A/100169/2016

Case brief

AI extract

What is this about?

High Court dismissed the State's criminal appeal against the conviction for unlawful confinement but upheld the Sessions Court's acquittal on rape charges due to lack of evidence on consent and medical findings negating recent intercourse.

What did the court decide?

Criminal Appeal dismissed; acquittal on Section 376 IPC upheld; conviction on Section 363 IPC upheld.

State of Karnataka, Vs Tukaram Ganapati Kadam — Criminal Trial and Appeal | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF AUGUST 2020

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PRESENT

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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CRL.APPEAL NO.100169/2016

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BETWEEN:

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THE STATE OF KARNATAKA REPRESENTED BY SUB-INSPECTOR OF POLICE, YELLAPUR POLICE STATION, UTTARA KANNADA, KARWAR THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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…..APPELLANT (BY SRI. V.M. BANAKAR, ADDL.SPP)

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AND:

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TUKARAM GANAPATI KADAM, AGE: 25 YEARS, OCC: DRIVER, R/O: JOGIKOPPA, MADNOOR, YELLAPUR TALUK.

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…..RESPONDENT

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(BY SRI.DATTATRAY J. NAIK, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL INSOFAR IT RELATES TO ACQUITTAL UNDER SECTION 376 OF IPC PASSED BY THE DISTRICT AND

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SESSIONS JUDGE, U.K. KARWAR ON 30.12.2015 IN SESSIONS CASE NO.13 OF 2013 AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL INSOFAR IT RELATES TO ACQUITTAL UNDER SECTION 376 OF IPC, DATED 30.12.2015 PASSED BY THE DISTRICT AND SESSIONS JUDGE, U.K. KARWAR IN SESSIONS CASE NO.13 OF 2015 AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC.

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THIS APPEAL IS COMING ON FOR HEARING, THIS DAY, V. SRISHANANDA, J, DELIVERED THE FOLLOWING:

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JUDGMENT

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The State has preferred this appeal being partly aggrieved by the judgment dated 30.12.2015 passed by the District and Sessions Judge, Uttara Kannada, Karwar (for short ‘ the Sessions Court’ ) in S.C. No.13/2013 wherein, the learned Sessions Judge convicted the accused for the offence punishable under Section 363 of IPC and sentenced to undergo imprisonment for two years nine months and twenty days and acquitted the accused for the offence under section 376 of Indian Penal Code.

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The prosecution’s case against the respondents is as follows:

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2.1 The accused is a resident of Jogikoppa village of Yellapur taluk and he is a mason. The complainant

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Lakku S/o. Kalu Kokare is an agriculturist and a resident of Jogikoppa village. The victim girl is his younger sister, aged about 14 years. The complaint averments reveals that on 24/9/2012, in the afternoon, victim girl as usual visited agricultural land, but did not return. He searched for her. Since she was not traced, after two days a missing complaint was lodged. But, the complainant who was searching for his sister noticed that the accused was also missing from the village on and from 24.09.2012 and one Janu Pandrameese, a resident of Hosalli village informed him that his sister was found in the company of the accused in the evening of 24/9/2012 in the limits of Kirwatti and then the complainant informed the Police that the accused has kidnapped his sister.

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2.2 On the basis of said information FIR was registered in Crime No.221/2012 at 13.15 hours on 26.09.2012. Thereafter, accused and victim girl returned to village and they were enquired by the police and victim girl was sent to medical examination and accused was arrested. The police after completing the investigation, filed charge sheet against the respondent on 03.06.2014.

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The learned Magistrate, Yellapur upon receipt

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of charge sheet being filed secured presence of the respondent and committed the case for trial to the Principal District & Sessions Judge, Karwar, Uttar Kannada District after complying with the provisions of Section 207 of Criminal Code of Procedure.

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The Sessions Court after hearing the prosecution and the respondent has framed charge against the accused-respondent for the offences punishable under Section 363 and 376 of IPC. The respondent pleaded not guilty and claimed to be tried.

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The prosecution to prove the case against the respondent examined 17 witnesses as P.W.1 to P.W.17.

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P.W.1 : Lakku Kalu Kokare, is the complainant and the brother of the victim. He lodged missing complaint as per Ex.P.1

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P.W.2 : Smt. Savitri Kalu Kokare is the sister of the complainant.

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P.W.3: Bagu Dondu Bore is the resident of Jogikoppa village and panch witness.

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P.W.4 : Shyamu Daklu Sinde is the resident of Jogikoppa village and panch witness to Ex.P5.

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P.W.5 : Janu Babu Patgare is the resident of Jogikoppa village and panch witness to Ex.P5. He knows PW4, who is resident of same village.

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P.W.6 : Laxminarayan Mahadev Hegde is the resident of Hegdekatta of Sirsi Taluk and he is residing there since 35 years after his retirement.

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P.W.7 : Abdul Sattar is the Head Master of Government Primary School, Jogikoppa, who issued certificate as per Ex.P7.

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P.W.8 : Ganapati Rama Sattarkar is the ASI of Yallapur Police Station. He has conducted mahazar proceedings as per Ex.P5.

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P.W.9 : Ghandi Basappa Somapurkar is the resident of Bailanduru Village of Yellapur taluk.

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P.W.10: Smt. Shobha Yadav W/o. Indrajeet is the elder sister of accused.

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P.W.11 : Pramod Vittal Naik is working as Head Constable in Yellapur Police Station.

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P.W.12 : Dr. Annapurna Vstrad, W/o. Siddayya N. Bangarimath is working as District Family Welfare Officer, DHO Office, Karwar, who has examined the victim girl.

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P.W.13 : Janu S/o. Sonu Pandrameese is the resident of Kharewada village.

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P.W.14 : Dr. Deepak Venkatraman Bhat is Medical Officer (Gynecologist), Taluk hospital, Yellapur, who examined the accused at the request of Inspector, Yellapur Police Station.

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P.W.15 : Shridhar S.R. is the PSI of Yellapur Police Station, who registered the case and sent FIR to the Magistrate.

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P.W.16 : Rajesh Laxman Naik was working as Police in Yellapur Police Station, who is carrier of FIR.

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P.W.17 : Aravind Narayan Kalagujji was working as P.I. in Coastal Security Station, Karwar.

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The prosecution has relied upon Exs.P.1 to P.24, which includes the missing complaint (Ex.P.1) lodged by brother of the victim, complaint (Ex.P.2), Panchanama dated 03.10.2012 and Statement of PW2 (Exs.P.3 and 4), Panchanama dated 15.12.2012 (Ex.P.5), Rough sketch (Ex.P.6), School certificate of the victim and school certificate of the accused (Ex.P.7 & Ex.P.8), Letter of P.S.I. to Headmaster and Memo of P.I. (Ex.P.9 & Ex.P.10), Report of PW8 (Ex.P.11), Statement of PW9(Ex.P12), Statement of PW10 (Ex.P.13), FSL report (Ex.P.14), Medical certificate and Portion of statement of PW13 (Ex.P.15 and 16), Medical certificate of accused(Ex.P.17), Opinion report (Ex.P.18), Police requisition letter (Ex.P.19), First Information Report (Ex.P.20), Copy of missing complaint

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(Ex.P.21), Requisition for Section 376 (Ex.P.22), Letter to Medical Officer (Ex.P.23), Statement of PW17 (Ex.P.24).

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On closure of recording the evidence, Sessions court recorded accused statement as contemplated under section 313 Cr.P.C. Accused denied all incriminatory material and did not choose to lead defence evidence.

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After hearing the parties, sessions court passed the judgment convicting the accused for offence punishable under section 366 IPC and acquitted the accused for offence punishable under section 376 IPC. Said judgment is under challenge by the state only with regard acquittal of accused for offence punishable under section 376 IPC.

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Learned State Additional Public Prosecutor argued that the trial court having convicted the accused for the offences punishable under Section 363 of IPC, grossly erred in acquitting the accused for the offence punishable under Section 376 of IPC. He further contended that the evidence on record is not properly appreciated by the learned Sessions Court while acquitting

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the accused for the offence punishable under Section 376 of IPC.

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He further argued that finding recorded by the Sessions Court that the testimony of victim that she stayed with the accused in Kolhapur as husband and wife itself is sufficient to conclude that there was a sexual relationship between accused and victim and having regard to the age of the victim, the consent if any, is not a legal consent in the eye of law. Therefore, Sessions Court ought to have convicted the accused for the offence punishable under Section 376 of IPC. He further emphasized that oral testimony of medical officer, who examined the victim girl is totally ignored by the Sessions Court while acquitting the accused for the offence punishable under Section 376 of IPC and sought for allowing the appeal by convicting the accused for the offence punishable under Section 376 of IPC.

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Per contra, learned counsel for the respondentaccused vehemently contended that the trial court has rightly acquitted the accused for the offence punishable

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under Section 376 of IPC. He further pointed out that the accused has already suffered sentence which was passed by the Sessions Court under Section 363 of IPC. He has not challenged the finding of the Sessions court in regard to conviction under Section 363 of IPC and therefore, prayed for dismissal of the appeal.

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He further pointed out that evidence on record is not sufficient enough to convict the accused for the offence punishable under Section 376 of IPC and therefore, the impugned judgment does not calls for interference.

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In view of the rival contentions urged by the parties, the sole point that would arise for consideration is

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Whether the finding of the Sessions Court that prosecution failed to establish the offence punishable under Section 376 of IPC is suffers from legal infirmity or perverse and thus calls for interference by this Court?

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Answer to the above point is negative for the

following :

REASONS

The fact that the respondent – accused have not challenged the conviction recorded by the Sessions Court under Section 366 of IPC reduce the gamut of this appeal.

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PW1, who is the complainant and brother of the victim girl, has supported the case of prosecution in toto. He has deposed about the eloping of the victim girl to Kolhapur (Maharashtra) and returning from Kolhapur to their native place and being taken to Yellapur Police Station. On enquiry with the victim girl, he lodged the complaint vide Ex.P1. In his cross examination no useful material are elicited except suggesting that himself and his wife and his sister-in-law have not enquired the victim girl as to where she had gone. Thus, the fact of accused and victim girl having left Lamani tanda on 24.09.2012 and reached Kolhapur stands established. So also the victim and the accused returning to their native place after fifteen days and then taken to Yellapur Police Station is established.

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To establish the offence under section 376 of Indian Penal Code, it is evidence of the victim girl which assumes the greater importance. The victim girl is examined as PW2.

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The victim girl deposed about the acquaintance

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of the accused and they proceeding to Kolhapur and stayed there in a room and spent about 15 days as husband and wife. Except to this extent she did not support the case of the prosecution by deposing about forcible sexual intercourse. In the cross examination she has answered that she is not acquainted with English language and she does not know the meaning of the word rape. She also admits that accused did not improperly behave with her.

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In order to attract the offence under Section 376 of IPC, prosecution is bound to establish the following ingredients

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Against her will.

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Without her consent.

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With consent obtained by putting her or any other person in whom she is interested in fear of death or of hurt,

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With consent but given under the misconception of fact that the man was her husband,

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It is well settled principle of law that prosecution is bound to establish that accused without the consent of the victim girl had penetration into vagina to any extent which is sine qua non to attract the offence under Section 376 OF IPC.

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The victim girl is the best witness to speak about the same. In the case on hand, the victim girl did not depose about forcible sexual intercourse in the examination in chief itself. Mere deposing that herself and respondent lived like husband and wife for a period of fifteen days would not be sufficient enough to attract the ingredients of offence of rape.

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Further, the medical evidence also does not improve the case of prosecution. Dr. Annapurna-PW12,

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who gave the medical certificate (Ex.P15) did not notice any signs of recent sexual intercourse. The vaginal swab collected during the medical examination of the victim girl was sent to FSL examination. In Ex.P14-FSL report spermatozoa were not detected in vaginal swab. Thus, in the absence of positive evidence on record, learned Sessions Judge has reached the right conclusion that prosecution is unable to establish the offence under Section 376 of IPC.

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In a criminal case, accused is presumed to be innocent till charge/s leveled against him is proved beyond reasonable doubt. Recording of an order of acquittal by a competent court after full fledged trial strengthens such innocence of the accused as is held by in the decisions of Hon’ble Apex Court reported in (1953) SCR 418 ( Ajmer Singh v. State of Punjab) and (1963) 2 SCR 405, (M.G.

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Agarwal v. State of Maharashtra and (2008) 16 SCC 686 (Suraj Singh vs State of Uttar Pradesh) . So also, it is settled legal proposition that if two views are permissible

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in a given case, the view which favours the accused must be preferred.

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In the light of above, even after reappreciation of the evidence on record, we do not find any good grounds to interfere with the well reasoned finding recorded by the Session Court in acquitting the accused for the charge under Section 376 of IPC as against the accused.

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In view of the foregoing discussions, point is answered in the negative and we pass the following:

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ORDER

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The appeal sans merit. Hence dismissed.

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Sd/JUDGE

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Sd/JUDGE

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MNS/

State of Karnataka, v. Tukaram Ganapati Kadam

Case brief

What is this about?

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State of Karnataka, v. Tukaram Ganapati Kadam

Case brief

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