Arjun S/O Shivaram Chincholi Vs the State of Karnataka

Digitally signed AND: by NIJAMUDDIN JAMKHANDI Location: HIGH THE STATE OF KARNATAKA COURT OF KARNATAKA THROUGH HUMNABAD P.S., REPRESENTED BY ITS ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, KALABURAGI BENCH, KALABURAGI-585103.

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…RESPONDENT

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(BY SRI. SIDDALING P. PATIL, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C., PRAYING TO I) CALL FOR THE RECORDS IN S.C.NO.271/2016 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, BIDAR, SITTING AT HUMNABAD, II) PERUSE THE SAME, ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 27.10.2017 AND 03.11.2017 PASSED IN S.C.NO.271/2016 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, BIDAR, SITTING AT HUMNABAD AND SET THE APPELLANT / ACCUSED AT LIBERTY IN THE INTEREST OF JUSTICE.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE K NATARAJAN)

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This appeal is filed by the appellant – accused under Section 374 (2) of Cr.P.C. for setting aside the judgment of conviction dated 27.10.2017 and the order of sentence dated 03.11.2017 passed in Sessions Case No.271/2016 by the II Addl. District and Sessions Court Bidar, sitting at Humnabad (hereinafter referred as ‘Trial Court’).

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We have heard the arguments of Sri. Rajesh

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Doddamni, the learned amicus-curie for the appellant – accused and the learned Addl. SPP. for the respondent – State.

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The case of the prosecution is that CPI, Humnabad has filed a charge-sheet against the accused for the offences punishable under Sections 448 and 376 (2) (L) of IPC. It is alleged that PW.2 – Smt. Mapamma, who is the mother of the victim lady has filed a complaint before the police on 23.08.2016 stating that on 10.08.2016, when she went to clinic for medical check-up and when she came back to her house, she saw that the accused tress-passed to her house and committing rape on her daughter who is physically retarded woman. Immediately, she has screamed for help, then the PW.5 – Laxmibai who is her sister and neighbouror, came to there and both of them said to be took the sticks and assaulted the accused. Thereafter, the accused ran-away from the spot. Thereafter, she has intimated to the elders of the

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village, but they have not helped. Hence, she then intimated to PW.6, who is her niece. Then she came from Mumbai to the village, thereafter lodged the complaint on 23.08.2016. The police after registering the FIR, arrested the accused and subjected to the medical examination to the accused as well as the victim. After completion of investigation, the police have filed the charge-sheet against the accused for the offences as stated above.

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After filing of the charge-sheet, the learned Magistrate took the cognizance for the above said offences and committed the case to the Court of Sessions for trial.

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After receipt of the records, the Trial Court secured the presence of the accused, who was in judicial custody and framed the charges of the alleged offences. The accused person denied the charges and claimed to be trial. Accordingly, the prosecution called upon to adduce the evidence. The prosecution in support of its case in all examined 10 witnesses and got marked Ex.P.1 to 11 documents.

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After closing the evidence of the prosecution witnesses, the learned Sessions Judge read-over the incriminating evidence of material witnesses to the accused as contemplated under Section 313 of Cr.P.C. The case of the accused person is one of total denial, but not lead any defence evidence, except cross-examining the prosecution witnesses.

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After hearing the arguments, the Trial Court found that the accused is guilty, convicted and sentenced to undergo imprisonment for throughout life and to pay fine of Rs.10,000/- and in default of payment, he shall further undergo simple imprisonment for 03 months for the offence punishable under Section 376 (2) (L) of IPC. However, there is no separate sentence awarded for the offence punishable under Section 448 of IPC.

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Being aggrieved by the same, the appellant –

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accused is before this Court in this appeal.

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The learned counsel for the appellant has

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contended that the learned Trial Court has committed an

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error in giving findings and sentenced to undergo imprisonment for life, without any proper appreciation of evidence on record. There is no supporting medical evidence to corroborate the evidence of PWs.2, 5 and 6 who are the related witnesses. PW.3 – Dr. Smt. Sangeetha has not opined that there was no recent sexual intercourse

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on the victim lady. The victim lady was not examined. Such being the case, without being any proper positive evidence on record, the learned Trial Court held that the

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accused was guilty and convicted and sentenced to undergo imprisonment for life, which is not correct. Even on considering the evidence on record, there is no independent witness is examined. There is no evidence of elder of the villagers is examined by the investigating officer as well as the prosecution side. The mother and aunt are only interested witnesses. Their evidence cannot be believed and they are sterling witnesses. It should be

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very care and cautious to accept their evidence. It is also contended that though the alleged offence was committed on 10.08.2016, whereas the FIR has been lodged only on 23.08.2016. There is a delay in filing the complaint. It is not satisfactorily explained by the prosecution. Such being the case, with the due deliberation the false compliant has been filed. Since, the accused is friend of the father of the victim girl, there is enmity between the father of the accused and PW.2, whereby the accused has been falsely implicated in this case. Even though, the hymen of the victim was not intact, but for various reasons, this aspect was not considered by the learned Sessions Judge. Therefore, prayed for setting aside the judgment of conviction and order of sentence by allowing this appeal.

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Per contra, the learned Addl. SPP. supported

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the judgment of conviction and order of sentence passed by the learned Trial Court. It is contended that the victim is a mentally retarded person, she is unable to speak and

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taking advantage of the loneliness, the accused tresspassed into the house and committed the rape on her. The

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PW.2 and PW.5 are eyewitnesses to the incident. They have assaulted the accused and he ran-away from the spot. The evidence of the witnesses are very clear and cogent and nothing on record to disbelieve their evidence. Even though, the complaint was lodged after 13 days of the incident, but that itself is not a ground to disbelieve the evidence of PW.2, 5 and 6. There is supporting medical evidence is available on record. There is no proper crossexamination and there is no denial of the incident in the cross-examination of PW.2, 5 and 6 regarding commission of the offence. Such being case, their evidence is sufficient to prove the guilt of the accused and it cannot be disbelieve for any reason. The Trial Court rightly convicted the accused. Hence, prayed for dismissal of the appeal.

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Having heard the arguments and perused the

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records, the points that would arise for our consideration

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as under:-

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i) Whether the prosecution proves its case beyond all reasonable doubt that on 10.08.2016 the accused by tress-pass into the house of PW.2 – Smt. Mapamma and committed rape on the victim who was mentally retarded person, thereby the accused committed offences punishable under Sections 448 and 376 (2) (L) of IPC.?

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ii) Whether the judgment of conviction and order of sentence passed by the Trial Court call for interference.?

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We have perused the records and meticulously

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perused the evidence of the prosecution witnesses. By appreciating the evidence on record, it is wroth to mention the evidence adduced by the prosecution witnesses before

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the Trial Court.

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PW.1 – Dr. Raghuvendra Wagole, who is the psychiatrist gave evidence stating that he has examined the victim lady on 09.11.2016 at 03.30 p.m. that the victim lady was aged about 40 years. He has examined the mental status of the victim lady, he has found that she is suffering from schizophrenia and given report as per Ex.P.1. In the cross-examination, the learned counsel for the accused has suggested that with the condition of the patient, it is difficult to say whether she could have resisted any onslaught on her. He further stated that she was not in a position to interact.

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On perusal of the evidence of PWs.1, 2, 5 and 6 it is seen from the records that the victim lady though aged about 40 years, but she is mentally retarded person. Hence, she is not able to speak and not able to understand the things. The accused has not denied the fact that the victim lady is mentally disabled person. Therefore, there is no necessity to go in deep in respect of the condition of the victim lady as she is mentally retarded person. Therefore, the prosecution has proved that the victim lady is mentally disabled/retarded person.

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PW.2 – Smt. Mapamma, the mother of the

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victim, has given evidence stating that the victim lady is

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her daughter and she is not able to speak. She has provided treatment to her, but unable to cured. Herself and her daughter were residing in the house, since her husband has deserted her. Her sister PW.5 – Smt. Laxmibai is also residing in the adjacent house. The PW.6 – Smt. Kalavathi is said to be residing in Mumbai. She further stated that the accused’s house is situated in front of her house. She further deposes that about 11 and half months back, one day she went to Hospital in Gadwanti for treatment, when she returned back to home at about 08.00 p.m. she saw that the accused was committing rape on her daughter, by lifting her langa and blouse and by closing her mouth. She has also stated that by removing his Dhoti the accused had put his pennis into the vagina of her daughter. At that time she loudly abused him in filthy language stating he has spoiled the life of her daughter. On hearing her screaming voice, her sister Smt. Laxmibai (PW5) also came, she took a stick and assaulted the

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accused on his back by 2 – 3 times. Then the accused ranaway from the spot. By next day morning she has informed the fact before the Panchayat Members. They told that they would enquire the accused, but they did not done anything. Therefore, she has contact PW.6 – Smt. Kalavathi and informed about the incident. After 10 – 12

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days, she came to village and then they went to Police Station and lodged complaint. The police received the complaint. She further stated that the police have came to the spot, she has shown the spot to the police, the police prepared the panchanama. She has also stated that the police took the victim lady to the Hospital at Humnabad and Bidar. She has stated that the accused had committed the rape on her daughter.

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The cross-examination conducted by the learned counsel for the accused where it was elicited that the house of the accused in front of the house of the victim. Her sister’s house is near to the victim lady. She was deserted woman. There is no one goes to the house of

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the victim lady. There are no talking terms with the husband of the PW.2. It is suggested that the accused used to visit their house oftenly and he never thought about the misuse of the victim lady by the accused. It is suggested that the accused is falsely implicated by the PW.2, the same was denied by her. Except this crossexamination nothing is elicited in the cross-examination. There is no denial about incident narrated by the PW.2 in her deposition that accused committed rape on her daughter by removing her cloths. Even formal suggestions are not made by the learned counsel for the accused. On the other hand, the evidence of PW.2 goes to show that when she returned from the Hospital, she has found that the accused was lying on her daughter by removing her cloths and sexually assaulting on her daughter. Then she had screamed loudly and her sister – Smt. Laxmibai (PW.5) came who is residing adjacent house and she took the stick, assaulted the accused, thereby the accused ranaway by adjusting his Dhoti.

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The evidence of this witness clearly goes to show that the witness is not only an eyewitness, but also she was mother of the victim lady and she was given evidence against the accused that he was committed the rape and she saw along with the PW.5.

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PW.3 – Dr. Sangeetha who examined the victim lady on 23.08.2016 and the incident has been told by the mother of the victim lady to the doctor. She was said to be sexually assaulted by the accused 12 days prior to the date of examination. This witness physically examined the victim lady, she was aged 40 years and she was not responsive to any commands giving indication that she is mentally depressed and there are no injuries found on any part of the body. Hymen was raptured, there was no bleeding. She has collected the swab and slides, nails, pubic hairs, blouse, saree and petticoat and send to the FSL. On the clinical examination there was signs of recent sexual intercourse. She has given the provisional report to that effect, which is marked as Ex.P.4. However, after

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perusal of the FSL report on 01.07.2017, she has given final opinion that there was no evidence recent sexual assault as per Ex.P.5.

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In the cross-examination, it was suggested that there will be likelihood of injuries on the back, if there is an forcible sexual assault. On the clinical observation of the sexual intercourse can be seen up to 72 hours notwithstanding there being any external injuries. The rapture of hymen could be for any reason also.

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The evidence of doctor suggests that on the medical examination, the sperm would found only up to 72 hours, but not beyond 72 hours. There is no injury on the private part, as the alleged incident was on 10.08.2016, but the victim was medically examined after 13 days i.e., on 23.08.2016. Therefore, there is no possibility of finding any injury on the any part of the body while medical examination. That apart, she has categorically stated that after looking to the hymen rapture, there was recent sexual intercourse. However, after verifying the FSL

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report, the examination of the material objects collected from the cloths of the accused and the victim lady, which suggest that there is no recent sexual intercourse. Admittedly, the complaint was filed after 13 days of the incident. Therefore, there is every chances of non availability of the medical corroboration is sculled out. Even one cannot expect in the medical examination for any injury found on the body of the victim lady, while examination after 13 days after the incident. Therefore, only left the evidence to the Court the evidence of PWs.2, 5 and 6 who are the eyewitnesses to the incident.

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PW.4 – Dr. Basavanthrao, the medical officer who examined who examined the accused on 23.08.2016. He has examined the accused and he do not found any injuries on the body of the accused and gave the provisional certificate as per Ex.P.6. According to his evidence, the accused is capable of performing sexual inter course.

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PW.5 – Laxmibai who is the elder sister of the

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PW.2 and aunt of the victim lady. She has also given evidence in support of evidence of PW.2. She has stated that about 01 year 10 days back at 08.00 p.m. she was in the house and she heard the noise of her sister and she went there, PW.2 assaulted the accused with stick and accused ran-away from the spot. She was also stated that the victim lady does not speak. Even in the crossexamination it is elicited by the learned counsel for the accused that her house is near to the house of the victim lady. It is also once again elicited that there is no door to the house and there is no talking with the PW.2 and her husband who is also residing with some other lady in the same village. There is no denial that the accused was found in the house of the PW.2. The witness clearly stated that when she heard the scream, she came out and saw the PW.2 was assaulting the accused with stick and he ran-away from the spot. The PW.2 narrated the sexual assault and she also saw the incident and accused ranaway from the spot. There is nothing to disbelieve the

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evidence of PW.5 who is the mother of PW.6 and the evidence of PW.5 not impeached by the learned counsel for the accused in the cross-examination to disbelieve her evidence.

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PW.6 – Smt. Kalavathi who is the daughter of the PW.5. She came to know the incident and came to Gadawanti village. Thereafter, they approached the villagers, they are not came for helping them. Therefore, she along with the mother of the victim went to the police station and lodged the complaint. The evidence of this witness is also not properly cross-examined and not impeached by the learned counsel for the accused. This witness speaks only after knowing the incident from the PW.2 and PW.5 and she came to village and took them to the police station. Her evidence corroborated the evidence of PW.2 and PW.5.

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PW.7 and PW.8 are the panch witnesses to the spot. The Ex.P.9 is the spot panchanama, where the police have visited spot, prepared the spot panchanama. The

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PW.7 and PW.8 have not supported the case of the prosecution. The house of the PW.2 situated at their village and there is no door to their house is not in dispute. Therefore, even though these two witnesses were not supported the case of the prosecution, that itself not fatal to the prosecution case, they are only the spot panch witnesses. The place of occurrence, the evidence of PW.2 and PW.5 who are the eyewitnesses and explained about the incident, which was occurred in the house of the PW.2. Even though these witnesses do not support the prosecution case, but the evidence of PWs.2, 5 and 6 cannot be disbelieved because of hostile of these witnesses.

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PW.9 – Gurulingappa Gouda, who is the PSI,

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received the complaint from PW.2 as per Ex.P.3 and he registered the case in Crime No.189/2016 for the offences punishable under Sections 448 and 376 (2) (L) of IPC, issued the FIR as per Ex.P.10, then he sent the victim lady to the Government Hospital for the medical examination

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along with the Woman Police Constable and the Police Constable. Thereafter, he got the information and he apprehended the accused, recorded the voluntary statement of the accused, then he has send the accused for the medical examination and thereafter, produced the accused before the Court. This witness speaks only about the setting the law into motion by registering the FIR, on the complaint of PW.2.

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PW.10 – Investigating Officer, who was took up the investigation, recorded the statements of the witnesses. He received the medical examination report and collected the material objects and send to the FSL through Dy.S.P. After receipt of the FSL report, he has filed the charge-sheet.

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We have meticulously examined the entire evidence on record especially the evidence of PWs.2, 5 and 6 are corroborative each other that the accused came to the house of PW.2, when PW.2 was out of the house for medical check-up, when she was return back at 08.00

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p.m. the accused was found laying on the victim lady who is mentally retarded by committing rape on her daughter by removing her blouse and petticoat and by removing his Dhoti. She was screamed by abusing him as he was spoiling the life of her daughter and hearing the scream the PW.5 also joined with her and PW.2 took a stick and assaulted the accused on his back, thereby the accused ran-away from the spot by adjusting the Dhoti. By the next day, they had intimated the elders of the villagers, though they were stated that they will enquire with the accused, but they were not enquired the accused. Therefore, PW.2 and PW.5 forced to intimate the incident to the PW.6 who was in Mumbai. PW.6 came back after sometime, she has also approached the elders of the village, they did not come forward for helping the victim’s family. Therefore, they went to the police station and lodged the complaint after 13 days of the incident. Of course there is a delay in lodging the complaint for 13 days, whereas the prosecution witness satisfactorily explained why there was delay occurred in lodging the

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complaint, since, the PWs.2 and 5 approached the elders of the villagers, they are all though came forward for enquiring with the accused, but they are actually not supported the victim lady who is mentally retarded or PW.2 who is mother of the victim.

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It is not the regular case, where the victim girl was mentally retarded to show that she was consented for the sexual intercourse in order to say that there must be any injury on the private part, if there is forcible sexual intercourse took place.

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Here in this case, the victim lady not able to speak and she was dump and mentally retarded and not able to understand and not able explain the same to her mother or other person. Her mother being woman definitely will not lie and making a false allegation against the accused by falsely implicating that he has committed rape on her own daughter and no woman will lie in this regard for making false allegation against 3^rd person that she has lavished on her own daughter. Definitely, they are

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aware that it will damage the image of the woman and her daughter. Such being the case, the evidence of PW.2 that the accused has committed the rape on the victim, cannot be disbelieved, there is nothing to suggest and nothing brought on evidence to disbelieve the evidence of PW.2 and PW.5 that they are telling lie to falsely implicating the accused. Even though PW.2’s husband was residing in the same village with some other lady, she was the deserted woman. The accused may be the relative and known person or friend of her husband, that cannot be a ground for falsely implicate the accused in a rape case stating that some 3^rd person committed the rape on her own daughter. Definitely she will aware that it will spoil the name of her own daughter and name of the victim lady in the society.

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Such being the case, we are of the opinion that the evidence of PWs.2, 5 and 6 inspires the confidence of the Court that they are deposing truth and in support of the prosecution case and there is nothing to disbelieve their evidence is false. Therefore, the judgment relied

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upon by the learned counsel for the appellant in the case

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of Raj Sandeep Alias Deepu vs. State of NCT of Delhi, reported in AIR 2012 S.C. 3157, wherein the Hon’ble Supreme Court has held that while accepting the evidence of the sterling witness, the Court should always very careful and cautious. We are aware of the principles laid down by the Hon’ble Supreme Court in the catena of decisions that while accepting the evidence of the family members, the Court always very cautious in accepting the evidence of the relative of victim girl or the mother of the victim girl.

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Here in this case, though the victim lady was 40 years, but she is mentally retarded woman, not able to speak and not able to understand as per the evidence of PW.1 and PW.3. Such being the case, the evidence of the PW.2, 5 and 6 coupled with evidence of PW.3, we are of the opinion that the prosecution successfully proved the

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guilt of the accused that on 10.08.2016 the accused tress-

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passed into the house of the PW.2 and committed sexual assault on the victim lady. As we already stated above, there is no denial of the incident by the accused. Of course even the accused can keep silence and the prosecution required proves the case, as per Section 101 of Indian Evidence Act.

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Here in this case, from the evidence of PW.2, 5 and 6 and evidence of the PWs.9 and 10, the prosecution successfully is proving the guilt of the accused for the offences punishable under Sections 448 and 376 (2) (L) of IPC. As per the provision under Section 375 of IPC, 5^th description clearly falls under the category of 375 of IPC which is punishable under Section 376 of IPC. The Trial Court after considering the evidence and documents on record, rightly given the findings holding that the accused is guilty for the offences punishable under Sections 448 and 376 (2) (L) of IPC.

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However, while sentencing the accused person, the Trial Court imposed the punishment up to the full term of life of the accused. It is the settled principle that while imposing the punishment for the sentence, it should be followed by the Court, the principles of sentencing policy. The Court can impose sentence either minimum sentence of 10 years for the offence punishable under Section 376 (2) (L) or extended up to life. However, the sentence cannot be full term of life or till the death of the accused, the Court cannot take away the power of the State under Sections 432 and 433 of Cr.P.C. Such being the case, the Trial Court though rightly held that the accused is guilty. However, looking to the facts and circumstances of the case, we are of the opinion that the sentence passed by the Trial Court that full term of the life is required to be modified and the minimum sentence of 10 years awarded to the accused, that will meets the ends of justice.

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For the reasons stated above, we proceed to

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pass the following;

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O R D E R

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The appeal is allowed in part.

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The judgment of conviction dated 27.10.2017 and order of sentence dated 03.11.2017 passed in Sessions Case No.271/2016 by the II Addl. District and Sessions Court Bidar, sitting at Humnabad, in respect of the offences punishable under Sections 376 (2) (L) and 448 of IPC, is hereby upheld. However, the sentence is modified as under:-

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i) The appellant is sentenced to undergo rigorous imprisonment for 10 years and pay fine of Rs.10,000/-, in default to pay the fine amount, he shall further undergo simple imprisonment for 03 months.

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ii) However, there is no separate sentence imposed for the offence punishable under Section 448 of IPC.

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iii) The appellant is said to be in judicial custody from 23.08.2016 till date. Hence, the appellant is entitled for the set-off under Section 428 of Cr.P.C.

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iv) If the appellant is already served the sentence, the concerned jail authorities are directed to release the appellant forthwith, if he is not required in any other cases.

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The office shall communicate the operative portion of the judgment to the concerned Jail Authority forthwith.

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Send back the Trial Court records with copy of the judgment to the Court concerned forthwith.

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The submission of the amicus curie is placed on record. He is entitled for Rs.20,000/- as Honorarium and

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shall receive the same from the High Court Legal Services

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Committee, Kalaburagi Bench.

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Sd/(K NATARAJAN) JUDGE