Sri Richardson S/O Sagainathan Vs the State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 30.03.2013 PASSED BY THE P.O., F.T.C.(SESSIONS)-XI, BANGALORE IN S.C.NO.288/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 417 AND 376 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 7 YEARS AND PAY FINE OF RS.50,000/-, IN DEFAULT TO PAY FINE, HE SHALL FURTHER UNDERGO R.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 376 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 1

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YEAR AND PAY FINE OF RS.1,000/-, IN DEFAULT TO PAY FINE, HE SHALL FURTHER UNDERGO R.I. FOR 1 MONTH FOR THE OFFENCE P/U/S 417 OF IPC. THE ABOVE SENTENCES SHALL RUN CONCURRENTLY.

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THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant-accused in S.C.No.288/2012, on the file of the learned Fast Track (Sessions) Judge, Bengaluru, is impugning the judgment of conviction and order of sentence dated 30.03.2013, convicting him for the offences punishable under Sections 376 and 417 of Indian Penal Code (for short 'IPC'), and sentencing to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.50,000/- for the offence punishable under Section 376 of IPC; and to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1,000/- for the offence punishable under Section 417 of IPC, with default sentences.

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Brief facts of the case as made out by the prosecution are that, the accused had contacted the victimPW.3 over phone and developed intimacy with her. He induced

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her by promising to marry and committed forcible intercourse from 20.12.2009 to 23.12.2009, again on 17.04.2010 and 18.04.2010 in Bagini Lodge of Marathhalli. Thereby, he has committed the offence under Section 376 of IPC, and thereafter refused to marry her and thereby committed the offence under Section 420 of IPC.

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After filing of the charge sheet, the Trial Court took cognizance of the offences and committed the matter to the Sessions Court. The accused has appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution has examined PWs.1 to 8 and got marked Exs.P1 to P9 in support of its contention. The accused has denied all the incriminating materials available on record in his statement

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under Section 313 of Cr.PC, but has not chosen to lead any evidence in support of his defence. However, he got marked Ex.D1 during cross examination of PW.2.

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The Trial Court, after taking into consideration all these materials on record held that the prosecution is successful in proving the guilt of accused No.1 beyond reasonable doubt. Accordingly, passed the impugned judgment

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of conviction and order of sentence for the offences punishable under Sections 376 and 417 of IPC. Being aggrieved by the same, the accused is before this Court.

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Heard Smt.P.V.Kalpana, learned Amicus Curiae for the appellant and Smt.Rashmi Jadhav, learned Additional S.P.P for the respondent-State. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?”

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My answer to the above point is in the 'Affirmative' for the following:

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REASONS

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It is the specific contention of the prosecution that

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the accused has induced the victim girl examined as PW.3, took her to Bagini Lodge of Marathhalli, committed penetrative

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sexual intercourse by promising her to marry, from 20.12.2009 to 23.12.2009 and again on 17.04.2010 and on 18.04.2010. Thereafter, he refused to marry her and thereby committed the offences as stated above.

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The materials on record disclose that Ex.P1 is the mahazar drawn in the house of the victim. It is never the contention of the prosecution that the incident had occurred in the house of the victim. But the specific case made out by the prosecution is that, the offence in question was committed in the Bagini Lodge, Marathahalli. No mahazar whatsoever was drawn in the said lodge and none of the persons in the said lodge were cited or examined as witnesses. Therefore, it is only the interested version of PW.3-the victim is available in support of the contention of the prosecution.

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It is the specific case made out by the prosecution that accused has committed forcible sexual intercourse on the victim from 20.12.2009 to 23.12.2009 and again on 17.04.2010 and 18.04.2010. The first information came to be lodged belatedly on 19.06.2010 and the victim was subjected to examination by PW.4 on 19.06.2010. Strangely the report of

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the medical officer Ex.P3 discloses that there were signs of committing sexual intercourse on the victim about four days earlier to examination. There is no explanation whatsoever by the prosecution in that regard when it is specifically stated that the accused had committed sexual assault only till 18.04.2010.

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When it is the contention of the prosecution that the accused committed sexual intercourse on the victim girl and promised to marry the her, prima facie she has cooperated with him from 20.12.2009 to 23.12.2009 and once again on 17.04.2010 and 18.04.2010. The victim was aged 19 years - a major whereas, the accused was aged 22 years. Under such circumstances, the conduct of the victim in not raising alarm even after commission of the sexual intercourse at the 1^st instance creates serious doubt in the mind of the court. There is no witness or materials to corroborate the version of the victim PW.3. When the prosecution has not at all identified the place where the incident had occurred by drawing the mahazar and by examining any of the persons in Bagini lodge, I am of the opinion that the prosecution has miserably failed to make

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out a case against the accused. The accused is entitled for the benefit of doubt and thus he is to be acquitted.

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I have gone through the impugned judgment of conviction and order of sentence. The Trial Court ignoring the material facts and inconsistency in the evidence of PW.3-the victim as highlighted above, proceeded to convict the accused for the offences punishable under Sections 376 and 417 of IPC.

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In view of the discussions held above, I am of the opinion that the impugned judgment of conviction and order of sentence is liable to be set aside. Accordingly, I answer the above point in the 'affirmative' and proceed to pass the following:

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ORDER

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(i) The Criminal Appeal is allowed.

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(ii) The Judgment of Conviction and Order of Sentence dated 30.03.2013 passed in SC.No.288/2012, on the file of the learned Fast Track (Sessions) Judge, Bangalore is hereby set aside.

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