Dismissed

Marappa S/O Basavanneppa Kavalad v. the State of Karnataka

Karnataka HC10 Nov 2023CRL.A/100306/2018

Case brief

AI extract

What is this about?

In this criminal appeal challenging conviction and ten-year sentence for rape under IPC 376(2)(l) of a mentally retarded woman, the High Court found the prosecution evidence reliable. The court dismissed the appeal, convicted the appellant, and upheld the minimum ten-year sentence.

What did the court decide?

Criminal Appeal dismissed; Impugned judgment of conviction and sentence confirmed.

Marappa S/O Basavanneppa Kavalad Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2023)

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CRL.A.NO.100306/2018

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MOHANKUMARB SHELAR Digitally signedbyMOHANKUMARB SHELARDate:2023.11.2211:11:53 +0530

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 10^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON’BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL APPEAL No.100306/2018

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BETWEEN:

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MARAPPA S/O BASAVANNEPPA KAVALAD, AGE: 64 YEARS, OCC: AGRICULTURE, R/O: HUNASHIKATTI VILLAGE, TQ: BAILHONGAL, DIST: BELAGAVI.

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...APPELLANT

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(BY SRI. RAGHAVENDRA A.PUROHIT, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY CPI KITTUR POLICE STATION, BELAGAVI, REP.BY THE ADDL. SPP, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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…RESPONDENT

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(BY SMT.GIRIJA S.HIREMATH, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 19.07.2018 IN S.C.NO.96/2017 PASSED BY THE VIII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI, FOR OFFENCES U/SEC.376(2)(i) OF IPC AND ACQUIT THE APPELLANT SETTING THE APPELLANT (ACCUSED) AT LIBERTY BY ALLOWING THIS APPEAL.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 05.09.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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In this appeal filed under Section 374(2) of Cr.P.C,

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accused has challenged his conviction and sentence for the offence punishable under Section 376 (2) (l) of I.P.C. Vide the impugned judgment and order, the trial Court has sentenced the accused to undergo rigorous imprisonment for a period of 10 years and also pay fine of Rs.50,000/- in default to undergo simple imprisonment for six months. The trial Court further ordered that in the event of realization of the fine amount, the same shall be paid to the victim as compensation.

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For the sake of convenience, the parties are referred to by their rank before the trial Court.

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A charge sheet came to be filed against the accused alleging that prosecutrix who is aged about 21 years is mentally retarded. Accused is neighbour of prosecutrix

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who is the daughter of complainant Mahadevi

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Jamadarakhani. Accused was in the habit of speaking to the prosecutrix and sending her to shop to get him beetle leaves-nuts and pay her Rupee 1 or 2 as reward. In this way, prosecutrix used to attend the accused for getting beetle leaves-nut. Misusing this situation and knowing fully well that the prosecutrix is mentally retarded and she is not in a position to know what is happening and also not in a position to resist, on 21.07.2016, at around 10:30 a.m, accused call the prosecutrix under the pretext of getting him beetle leaves-nuts and took her inside the cow shed belonging to him bearing No.518/1 and squeezed her breasts and pulled down her underwear and inserted his finger into her vagina and thereby committed the offence punishable under Section 376 (2) (l), IPC.

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In respect of the incident, complaint is filed by Smt. Mahadevi Jamadarakhani – the mother of prosecutrix. Based on it, the concerned police registered the case in Cr.No.238/2016 and conducted investigation. The

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prosecutrix and accused are subjected to medical examination. The statement of the prosecutrix was recorded under Section 164 Cr.P.C by the Judicial Magistrate with the assistance of a Psychiatrist. The statements of witnesses were recorded. The spot Mahazar was drawn. The sketch of the scene of occurrence was got prepared. The clothes of the prosecutrix as well as the accused were seized and sent for chemical examination. After completing the investigation charge sheet was filed against the accused.

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During trial the accused did not have the benefit

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of bail.

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Accused pleaded not guilty to the charges framed

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against him and claimed trial.

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In support of prosecution case in all 21 witnesses

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are examined as PW-1 to 21. Ex.P1 to 54, MOs-1 to 15 are marked.

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During the course of his statement, the accused

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has denied incriminating evidence led by the prosecution.

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He has not chosen to lead any defence evidence.

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Vide the impugned judgment and order the trial Court convicted the accused and sentenced him as detailed above.

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Being aggrieved by the same, the accused has filed this appeal, contending that the impugned judgment and order of sentence is illegal, perverse and opposed to law, facts and evidence on record. It is it illegal, erroneous, onesided, and purely based on conjectures and surmises. The trial Court has committed error in blindly accepting the evidence of PW-10, 11 and 12. It is a clearly a cooked up case by the complainant. During the course of his crossexamination, PW-11, the Medical Officer has admitted that the victim is able to understand common things and she is a person of sound mind. Such being the case PW-10 could have given voluntary statement before the Court.

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11.1 The trial Court has failed to appreciate the fact that there is improvement in the evidence given before the Court and the same cannot be taken into consideration. The prosecution has failed to prove the ingredients of Section 376 (2) (I) IPC. There is inordinate delay in filing the complaint and the same is not taken into consideration by the trial Court. The prosecution has failed to prove the allegations against the accused beyond reasonable doubt. There is no judicial application of mind. Viewed from any angle the impugned judgment and order is not sustainable and prays to allow the appeal, set aside the impugned judgment and order and set the accused at liberty.

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On the other hand, the learned High Court Government Pleader supported the impugned judgment and order and sought for dismissal of the appeal.

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Heard elaborate arguments of both sides and perused the record.

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Thus, it is the definite case of the prosecution that the prosecutrix though aged 20 years is mentally retarded and is not having mental maturity of her age. For this reason, accused person was utilising her services as though she is a child and making her to fetch him beetle leaves-nuts from the shop and in return used to tip her Rupee 1 or 2. This was being done since long. However, on the ill-fated day i.e., on 21.07.2016, under the pretext of sending her to the shop to get beetle leaves-nuts, accused called the prosecutrix and took her inside the cow shed belonging to him. There, he squeezed her breasts and pulled her underwear and inserted his finger in her vagina. When she cried, hearing the commotion, her mother Mahadevi Jamadarakhani, her neighbour Suvarna Uppin, Rathnavva Angadi and sister of prosecutrix Savithri Kurubetta rushed to the spot. Seeing them accused ran away. Prosecutrix narrated as to what happened. After the father of prosecutrix returned home from the land, complainant brought the

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incident to his knowledge and after consulting elders of the

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village, they chose to file complaint.

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14.1 It is pertinent to note that as on the date of incident the prosecutrix was aged about 20 years. Ex.P23 is the certificate issued by the School where she studied. According to this document, the date of birth of prosecutrix is 02.06.1996. the incident took place on 21.07.2016. Thus, as on the date of incident, she was aged 20 years. As per her medical examination she was aged about 22 years, though on account of her poor built, as per Ex.P31 her skeletal age is in between to 16-18 years and her dental age is above 22 years. Thus, through these documents the prosecution has proved that as on the date of incident, prosecutrix was not a minor.

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However, it is the specific case of prosecution that the prosecutrix is mentall retarded and as such the offence punishable under Section 376(2) (l) is attracted.

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The fact that prosecutrix is mentally retarded is not seriously disputed by the defence. Ex.P16 is the certificate of mental retardation for Government benefits (in Annexure-B) dated 04.09.2007 in respect of the prosecutrix. As per this document out of Mild/Moderate/Severe/Profound, the mental retardation of prosecutrix is categorized as "Moderate" and her IQ is 45. PWs-1, 6, 9, 11 and 19 apart from the Investigation Officers have deposed with regard to the prosecutrix being mentally retarded.

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In fact suggestions are made to the prosecution witnesses including the prosecutrix that she is not having normal intelligence and she listens to whatever taught by her mother, etc. PW-12 Dr.Farhath M.Khan is the Medical Officer, who has examined the prosecutrix regarding the sexual assault on her. PW-11 Dr.Rajendra Kumar Katte is the Psychiatrist. In fact at the time of her medical examination, the prosecutrix was referred to him and he has examined her and noted the said fact in the summary sheet at Ex.P18. While recording the statement of prosecutrix, PW-19

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Sri.Maruthi K, the learned Magistrate before whom the prosecutrix was produced for recording her statement under Section 164 Cr.P.C, after observing the prosecutrix, has sought for assistance of Psychiatrist and PW-11 has assisted him in recording her statement. In fact during the crossexamination of PW-9 the defence has made suggestions that the prosecutrix is mentally retarded. Thus, through the oral as well as documentary evidence placed on record, the prosecution has proved that prosecutrix is mentally retarded and as per the medical records her mental retardation is 'Moderate' and her IQ is 45.

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It is relevant to note that the houses of prosecutrix, accused are situated in the vicinity of each other. In fact the accused is also having a cow shed wherein the incident has taken place. This fact is also not disputed by the accused. PW-1 Mahadevi Jamadarakhani, PW-6 Rudrappa Jamadarakhani, the parents, PW-8 Basavaraj Jamadarakhani, a relative of prosecutrix, PW-9 Rathnavva Angadi, an eye witness to the incident and also the

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prosecutrix i.e., PW-10 are residents of the same area. Their evidence prove the fact that the houses of prosecutrix and accused are situated in the vicinity of each other. PW-13 Rajesh Kittur, Assistant Engineer has prepared the sketch of the place of incident as per Ex.P4.

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As per this document, the house of accused is shown at Sl.No.7 whereas Sl.Nos.1 and 2 are the cow shed belonging to him. They are separated by the house of one Dyamappa as shown at Sl.No.6. The house of accused at Sl.No.7 and that of the complainant at Sl.No.9 are separated

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by the house of one Bheemeshappa Paddannavar shown at Sl.No.8. The house of PW-3 Sidappa Hatharaki is also in the

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same area shown at Sl.No.10. Ex.P3 is the spot mahazar. PW-3 Siddappa Hatharaki is the witness to the spot mahazar. He has deposed with regard to the concerned police drawing mahazar at the cow shed of accused. Of course there is evidence of Investigating Officer i.e., PW-21 Raghavendra Hawaldar, who has deposed that on 23.07.2016, he visited

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the spot and drawn the spot mahazar as pointed out by the

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complainant and prosecutrix in the presence of witnesses. Thus, through the evidence of these witnesses and the documents, the prosecution has proved that the houses of complainant and accused are situated in the vicinity of each other and the accused and these witnesses are known to each other.

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So far as the actual incident is concerned, it is the definite case of the prosecution that though the prosecutrix was aged 20 years, on account of her mental retardation, her IQ was that of a child and because of this reason, her marriage was not performed and in fact accused was treating her like a child to do some errands viz., to get him beetle leaves - nuts from the shop and use to reward her by paying Rupee 1 or 2. It appears in the expectation of getting some change, the prosecutrix was also obliging him and it was not objected to by her parents. The evidence of PW-1 Mahadevi Jamdarkhani, PW-8 Basavaraj Jamdarkhani, the parents and PW-14 Savithri Kurubetta prove the fact that though PW-14 Savithri Kurubetta is married and was staying in her

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matrimonial house, at the time of incident she had delivered

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a baby and as such was in her parental home.

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PW-9 Rathnavva Angadi is living in the same area.

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According to the prosecution, at the time of incident, she was collecting water from the public tap, which is situated opposite to the place of incident and PW-1 - Mahadevi Jamadarakhani and PW-14 - Savitri Kurubetta, the mother and sister of prosecutrix were inside their house. They have deposed in unequivocal terms that hearing the cries of the prosecutrix, they ran to the spot and on sighting them, accused ran away from the cow shed. On enquiry, the prosecutrix revealed that the accused called her saying that she would get him beetle leaves-nuts and holding her hands, took her inside the cow shed, squeezed her breasts, pulled her underwear and inserted his finger into her vagina and when she shouted and cried, he left the place. Though PW-5 - Suvarna Uppin is also resident of the same area and according to the prosecution, she was also present at the public tap and went to the place of the incident on hearing

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the cries of the prosecutrix, she has not supported the prosecution case.

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21.1 The prosecutrix is also examined before the Court as PW-10. Her statement given before the jurisdictional magistrate i.e., PW-19 - Maruthi.K, is treated as Examination-in-chief as provided under Section 164(5-A) (b) of Cr.P.C and she is subjected to cross-examination by the defence in the presence of Physiatrist PW-11 Dr.Rajendra Katte. During her cross-examination, the prosecutrix had admitted that she listen to he mother and is giving evidence as directed by her. However, she has denied the suggestion that she is falsely deposing that accused took her to the cow shed, pulled her underwear and inserted his finger into her vagina. Learned counsel for accused submitted that in the light of this admission and having regard to the fact that the prosecutrix is mentally retarded, no reliance could be placed on her evidence.

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21.2 It is relevant to note that though the prosecutrix is mentally retarded, as noted earlier the extent

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of her mental retardation is 'Moderate' and her IQ is 45. It is nobody's case that the prosecutrix is unable to understand anything. The very fact that accused used to utilize her services to certain his errands indicate that her intelligence was that of a child and it was taken advantage by the accused to send her to the shop for getting beetle leavesnuts and was rewarding her by paying Rupee 1 or 2. The over all examination of testimony of PW-1, 9, 10 and 14 prove the allegations against the accused. The testimony of the prosecutrix is supported by the evidence of PW-1, 9 and 14, who are though not strictly speaking eye witnesses to the actual incident, they have reached the spot immediately on hearing the cries of the prosecutrix and seen accused running away from the cow shed belonging to him, wherein the prosecutrix was found crying.

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21.3 The testimony of PWs-1, 9, 10 and 14 is corroborated by the evidence of PW-19 Maruthi K, learned Judicial Magistrate, who has recorded the statement of the prosecutrix in the presence of PW-11 Dr.Rajendra Katte,

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Physiatrist. At the first available opportunity the statement of the prosecutrix is recorded and it corroborates with the prosecution case and the testimony of PW-1, 9 and 14.

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21.4 As evident from the cross-examination of PWs-1, 9, 10 and 14, neither the family members of the prosecutrix nor PW-9 Rathnavva Angadi, an independent witness are having any ill will or motive to falsely implicate the accused. They all living in the same area along with the accused and as such natural witnesses. They have no reason to falsely implicate the accused. In fact it is elicited through their cross-examination that the accused is a respectable resident of that area and he was treating the prosecutrix as his daughter. They have admitted that there are no similar allegations against the accused earlier to the present case. Having regard to the nature of the offence in question, it cannot be expected that accused was committing such offence day in and out and for that reason to accept the contention of defence that accused has not committed the alleged offence.

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21.5 The accused has not attributed any motive for PWs-1, 9, 10 and 14 to falsely implicate him. On the other hand, it is alleged that the relationship of accused with his brother and his family members is not cordial and at their instance, accused is being falsely implicated. Of course, they have denied the said suggestion. Though it has come in the evidence of PW-9 that at the time of alleged incident, the wife and daughter of brother of accused namely, Mahadevi and Sridevi were in their house, but she has specifically stated that they did not come out of their house. Probably being the relative of accused or on account of their stained relationship with the accused, they chose to remain inside despite the commotion outside the house. However, the defence has failed to prove that at the instance of the brother of accused and his family, he is falsely implicated.

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PW-12 Dr. Farhat M. Khan (wrongly typed as Farath) has examined the prosecutrix and given report as per Ex.P-31. Her evidence reveal that she found a fresh

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injury at 10 o'clock on the libia menora and a scratch. She also observed a fresh tear at 6 o'clock on the hymen. They were fresh. During her cross examination, though she has conceded that she has not noted the age of the injury but explained that fresh injury means within 24 hours. A suggestion is made to her that if a finger is inserted into the vagina or scratched such injury is possible. Though there is no allegations that accused tried to have sexual intercourse

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with the prosecutrix, having regard to the nature of the injury sustained by her which resemble a person trying to have forcible sexual intercourse, the Medical Officer has given the report that there was sexual intercourse immediately prior to the examination. Her evidence is required to be appreciated in light of the testimony of the other witnesses. Of course, PW-12 has also referred the prosecutrix to PW-11 - Rajendra Katte, Psychiatrist.

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At this stage it is relevant to refer to the definition of 'Rape' under Section 375 I.P.C. Prior to the amendment dated 03.02.2013, the term 'Rape' was defined as when a

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man has sexual intercourse with a woman. However, as per

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the amendment a man is said to commit rape if he-

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(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

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(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

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(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do to with him or any other person; or

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(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-

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Firstly - xxx Secondly - xxx Thirdly - xxx Fourthly - xxx

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Fifthly - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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Of course, in this case there is no consent. Thus,

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the act committed by the accused which is proved by the

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prosecution comes under the definition of 'Rape', as defined under Section 375 I.P.C.

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Based on the complaint of the mother of the prosecutrix, the concerned police have registered the case and taken up investigation. The incident took place at around 10.30 a.m. It has come in the evidence of PW-6 Rudrappa Jamadarakhani, the father of the prosecutrix that at the time of incident, he had gone to the land and returned around 12.00 noon and came to know about the incident. After bringing this fact to the notice of PW-7 and CW-14, he, complainant and prosecutrix went to the Police Station and lodged the complaint. In fact, PW-7 has also deposed that after coming to know about the incident, he advised the parents of prosecurtix to file complaint.

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PW-8 Basavaraj Jamadarakhani is the nephew of PW-6 Rudrappa. He has deposed that after coming to know about the incident, he accompanied the complainant, PW-6 and prosecutrix to the Police Station. As per the directions of

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the complainant, he wrote the complaint and it was given to the concerned Police. Thus, the prosecution has proved lodging of the complaint. PW-18 R.R. Bannur has assisted the Investigating Officer in the investigation. As discussed earlier PW-20 Ninganagouda Patil has received the complaint, registered the case and transmitted the FIR to the Court, with the assistance of PW-18 R.R.Bannur, Head Constable. PW-16 Shivabasappa Kajgar, Head Constable has carried the FIR and handed it over to the judicial Magistrate. PW-15 Smt.Shobha Bhosle, PSI has recorded the statement of prosecutrix as per the directions of the Investigation Officer. While PW-20 Ninganagouda Patil, has conducted the investigation, PW-17 Ishwar Jinnavvagol and PW-18 R.R Bannur, Head Constable have assisted him in the investigation. PW-21 Raghavendra Hawaldar, CPI has conducted further investigation including arresting of accused, subjecting him to medical examination and filed charge sheet. The evidence of these witnesses prove the investigation. Except suggesting that a false complaint is

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filed, at the instance of persons inimical towards the accused, nothing much is elicited through the crossexamination of these witnesses.

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Appreciating the oral and documentary evidence placed on record, the trial Court has rightly come to the conclusion that the allegations made against the accused are proved beyond reasonable doubt. When the offence established against the accused comes under Section 376(2)(l), the minimum punishment prescribed is rigorous imprisonment for a term of 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that persons natural life and shall also be liable to fine. Taking into consideration the allegations proved against the accused, the trial Court has imposed minimum punishment of 10 years. Learned counsel for accused submitted that the accused has suffered paralysis and is under treatment. Having regard to the nature of the offence committed by the accused and the fact that minimum sentence is imposed, there is no scope for

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interference by this Court, despite the fact that the accused has allegedly suffered paralysis.

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In the result, the appeal fails and accordingly, I proceed to pass the following:

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ORDER

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(i) Appeal filed under Section 374 (2) Cr.P.C by the accused is dismissed.

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(ii) The impugned judgment of conviction and order of sentence dated

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19.07.2018 in S.C.No.96/2017 on the

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file of VIII Addl.District and Sessions

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Judge, Belagavi, is confirmed.

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(iii) The Registry is directed to send back

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the trial Court record along with copy of this judgment forthwith.

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Sd/JUDGE

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Marappa S/O Basavanneppa Kavalad v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Marappa S/O Basavanneppa Kavalad v. the 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

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