K.N.Parashurama Vs State of Karnataka

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NC: 2025:KHC:6160 CRL.A No. 640 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 640 OF 2013

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BETWEEN:

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K.N. PARASHURAMA, S/O SRI. NANJAPPA, AGED 23 YEARS, OCC: MASON WORK, R/O KONDAJJI VILLAGE, DANDINASHIVARA HOBLI, TURUVEKRE TALUK - 572 227, DISTRICT TUMKUR.

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…APPELLANT

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(BY SRI. P. PRASANNA KUMAR, ADVOCATE)

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AND:

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY DANDINASHIVARA POLICE STATION, TUMKUR DISTRICT, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE - 560 001.

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…RESPONDENT

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(BY SRI. RAHUL RAI K, HCGP)

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THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:29.05.13 PASSED BY THE P.O., FTC, TIPTUR IN S.C.NO.290/11 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341, 376 R/W 511, 325 AND 506 OF IPC. AND THE APPELLANT/ACCUSED IS

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SENTENCED TO UNDERGO S.I. FOR ONE MONTH FOR THE OFFENCE P/U/S 341 IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 7 YEARS AND TO PAY FINE OF RS.50,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR FURTHER PERIOD OF SIX MONTHS FOR THE OFFENCE P/U/S 376 R/W 511 IPC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.P.Prasanna Kumar, learned counsel for the

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appellant and Sri.Rahul Rai K., learned High Court Government Pleader for the respondent/State.

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Appellant is the accused who suffered an order of conviction in SC No.290/2011 dated 29.05.2013 on the file of

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Fast Track Court, Tiptur for the offences punishable under Section 341, 376 read with Section 511, 325 and 506 of IPC and sentenced as under:

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“The accused is sentenced to undergo simple imprisonment for one month for the offence punishable under Section 341 IPC to undergo rigorous imprisonment for 7 years and to pay fine of Rs.50,000/- in default of payment of fine to undergo simple imprisonment for further period of six months for the offence punishable under Section 376 read with Section 511 IPC to undergo rigorous imprisonment for 4 years and to pay fine of Rs.15,000/- in default of payment of fine to undergo simple imprisonment for further period of 2 months for the offence punishable under Section 325 IPC and to undergo rigorous imprisonment for 4 years and fine of

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Rs.15,000/- in default to payment of fine to undergo simple imprisonment for further period of 2 months for the offence punishable under Section 506 IPC.

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All the sentences shall run concurrently. The accused is entitled for set off for the period he undergone in judicial custody under Section 428 Cr.P.C. Office is directed to pay Rs.70,000/- out of the fine amount to the victim/complainant. Office is directed to destroy MO No.1 to 10 as worthless after completion of appeal period.”

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Brief facts of the case which are utmost necessary for disposal of the appeal are as under:

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3.1. Complaint came to be lodged with Dhandinashivara Police Station, Turuvekere Circle, Tumkur district alleging that on 17.07.2011 at about 2.30 p.m., accused wrongfully restrained the free movement of the victim/P.W.1 near bamboo bush in Boodugundi Halla situated besides the coconut garden of Giriyappa S/o Javaregowda at Kondajji Village and thereafter, taking advantage of the loneliness of the victim girl, forcibly seduced her and had physical relationship with her despite resistance offered by the victim girl.

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3.2. The persons who were nearby the place of incident having heard the hue and cry, assembled there and looking at them, accused ran away from the spot.

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After receipt of the complaint, victim girl was taken to the medical examination and police registered the case and conducted detailed investigation and collected necessary materials inter alia arrested the accused and filed the charge sheet.

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Learned Trial Judge committed the matter to the District Court, Tumkur. Matter was made over from the Principal District Judge to Additional District Judge to sit at Tiptur.

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Learned Additional District Judge took cognizance of the offence alleged against the accused and framed charges. Accused pleaded not guilty and therefore, trial was held.

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In order to bring home the guilt of the accused, prosecution in all examined 15 witnesses as P.W.1 to 15. Among them P.W.1 is the victim girl, P.W.2 is the Head Master who gave date of birth certificate of P.W.1, P.W.3 is another Head Master by name Nagaraju, spot pancha witnesses, recovery pancha witnesses, Scientific officer, Doctor who have the wound certificate, P.W. Engineering who drew the spot sketch and investigation agency.

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Prosecution placed on record 45 documents which were exhibited and marked as Exs.P.1 to P.45 comprising of complaint, mahazar, attendance register of victim girl of 5th standard, mathematics answer script, signature of victim girl on the answer papers, signature of accused found on the admitted documents, FSL report, MLC register, wound certificate, opinion of the Doctor, out-patient slip, voluntary statement etc.

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Prosecution also placed on record, ten material objects comprising of slippers worn by the victim girl, cloths including undergarments of the victim girl and accused on the day of incident, blood sample swab, vaginal swab, cloth piece of inner garment and such other samples which were marked as MO.1 to 10.

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On behalf of the defence, five witnesses were examined as D.W.1 to 5 and did not choose to place on record any documents.

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On conclusion of recording of the evidence, learned Trial Judge recorded the accused statement as is contemplated under Section 313 of Cr.P.C., wherein accused has denied the incriminatory circumstances that were found against him in the

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prosecution case and while answering question No.91, he has specifically stated that when he was working with one Vishwanath at Turuvekere, he had obtained loan of Rs.1,00,000/- and Rajashekhar in turn obtained that money from him and when he demanded the said money, in April, 2011, there as a quarrel between him and Rajashekhar. He has further answered that Dayanna and Manjanna had accompanied him when he had demanded the money. He further answered that in July, 2011, he was not in town and he was in Turuvekere on 17.07.2011 and he has not committed any offence as is contended on behalf of the prosecution.

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Thereafter, learned Trial Judge heard the arguments of the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record, convicted the accused for the aforesaid offences and sentenced as referred to supra.

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Being aggrieved by the same, appellant is before this Court, in this appeal.

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Sri.P.Prasanna Kumar, learned counsel for the appellant reiterating the grounds urged in the appeal

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memorandum vehemently contended that material on record would not be sufficient enough to maintain the conviction of the appellant for the offences under Section 341, 376 read with Section 511 or for the offence under Section 325 of IPC and thus, sought for allowing the appeal.

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He would further contend that material evidence especially, the MLC report and medical examination report, clearly shows that there was no forcible sexual intercourse to the minor victim girl by the appellant. Therefore, learned Trial Judge had convicted the appellant with the aid of Section 511 of IPC which is impermissible in law in the absence of positive evidence placed on record to attract that there was a forcible sexual intercourse and therefore, appeal needs to be allowed.

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In order to attract the offence under Section 325 of IPC as well, there is no material on record where the injury could be treated as grievous injury which is injury No.1 in the wound certificate which is a scare on the cheek. No weapon is used for the said injury to be sustained by P.W.1 as there is no weapon seized by the police and marked as a material object.

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He would also contend that to classify injury No.1 as a grievous injury, there is no disfigurement nor usage of the weapon and size of the scar is not mentioned in the wound certificate. As such, injury that has been found on the body of the victim girl, at best can be traced under Section 323 of IPC and therefore, conviction of the appellant for the offence under Section 376 read with Section 511 of IPC and 325 of IPC needs to be set aside by partly allowing the appeal.

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He also contended that defence evidence placed on record which is an alternate theory put up on behalf of the appellant that as on the date of incident, he was not at all present in the place of incident and he was in Turuvekere is probabilised by examining witnesses on behalf of the accused which has not been properly considered by the learned Trial Judge in the impugned judgment and thus, sought for allowing the appeal.

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Per contra, Sri.Rahul Rai K., learned High Court Government Pleader for respondent supports the impugned judgment.

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He would contend that in the matter of this nature, it would be oral testimony of P.W.1 which has to be examined cautiously to assess the ingredients to attract the offences and very fact that learned Trial Judge has convicted the appellant for the offence under Section 376 read with Section 511 of IPC would clearly indicate that there is sufficient application of mind and proper appreciation of the material evidence on record and therefore, appeal needs to be dismissed.

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He would also contend that for classification of injury No.1 as grievous injury, P.W.1 being a young girl and her marriage prospectus would be affected by scar on the cheek. Therefore, classifying injury No.1 as grievous injury is well founded in the facts and circumstances of the case to treat it within the meaning of disfigurement to maintain the conviction under Section 325 of IPC is thus sustainable in the attendant facts and circumstances and sought for dismissal of the appeal.

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In view of the rival contentions of the parties, this Court perused the material on record meticulously.

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On such perusal of the material on record, following points would arise for consideration:

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1. Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellant for the offences punishable under Section 341, 376 read with Section 511, 325 and 506 of IPC?

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2. Whether the appellant makes out a case of legal infirmity or perversity in the finding of the guilt recorded by the learned Trial Judge insofar as the aforesaid offences are concerned?

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3. Whether sentence needs modification?

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4. What order?

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REG.POINT Nos.1 AND 2:

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In the case on hand, acquaintance of the appellant with the victim girl is established by placing cogent evidence on record. According to the prosecution, when the victim girl was proceeding on the bicycle, accused came all of a sudden and near the bamboo bush situated in Boodugundi Halla which is adjacent to the coconut garden of Giriyappa S/o Javaregowda, accused restrained the free movement of the victim girl and took her inside the bamboo bush and thereafter, disrobed her and said to have committed forcible sexual intercourse.

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It is also found from the material on record that accused wanted to bring her back near the bicycle but by then the victim girl raised alarm and hearing the hue and cry, the person who were working in neighboring lands, came near the spot and immediately, accused left her and ran away from the spot.

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It is also found from the material on record that there was bleeding from the private part of the victim girl and therefore, she was immediately taken to the hospital. MLC report is placed on record by way of exhibiting the same as Ex.P.38.

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P.W.14 is the person who gave MLC report. Based

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on the said MLC report, police visited the hospital and then registered the case. Why would a minor girl foist a false case against the appellant is a question that would usually arise in a matter of this nature. Accused tried to explain the same while answering to question No.91 by stating that he had borrowed sum of Rs.1,00,000/- from Vishwanath who is at Turuvekere and that money was taken by Rajashekhar and when demanded, there was a rib between Rajashekhar and accused.

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Said Rajashekhar when refused to pay the money, appellant again demanded the money in the presence of Dayanna and Manjanna. All these things have happened in the year 2011. Rajashekhar is examined as P.W.5.

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It is pertinent to note in the cross-examination of P.W.5, it has been suggested that appellant was working as a labourer in the construction work with Vishnanath but same was denied by P.W.5. It is also suggested that whenever he used to get the salary or the labour charges from Vishananth, there used to be a party hosted by the appellant wherein P.W.5 used to be a member.

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Likewise, said suggestion was also denied by P.W.5. It was also suggested that he had borrowed a sum of Rs.1,00,000/- from the appellant and when he demanded for the repayment, there was an ill will developed between them and pursuant to the said ill will, taking advantage of the age of the victim girl, a false case has been foisted against the appellant.

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Said suggestion was also denied by P.W.5. He has answered that taking advantage of somebody else who has committed the forcible sexual intercourse to P.W.1, himself and P.W.4 joined together and tried to falsely implicate the appellant on record as accused for the said incident is also denied by P.W.5.

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D.W.1 to 5 are examined on behalf of the appellant. Among them, D.W.1 is one Ramakrishnaiah, who is a civil contractor. He deposed about the appellant visiting Vishweshwar Naika @ Vishwa who had taken a contract work from him wherein the appellant used to attend the civil work along with Rajesh and Govind Naika.

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He has further stated that since 1½ years, appellant had not attended the work. In his cross-examination, it has been elicited that he does not possess any document to show that he was a civil contractor and he had given sub-contract to Vishweshwar Naika @ Vishwa. He has also stated that he has not seen any document whereby he can specifically say that appellant was also part of the contract work.

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D.W.2 is K.R.Manjunatha @ Manjanna who was the Vice President of Kondajji Gram Panchayat. According to the appellant, this Manjanna had accompanied the appellant for demanding the money from P.W.5. However, in his examination-in-chief itself, he has stated that there was an altercation and they had been to police station and thereafter, they did not return with him.

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In his cross-examination on behalf of the prosecution, he has answered that only on the basis of oral say of the appellant, he has deposed before the Court that P.W.5 had obtained sum of Rs.50,000/- as loan from him and he has not seen any document. Rajesh is yet another person who had accompanied the appellant to demand the money from P.W.5. His evidence is also in line with examination-in-chief of D.W.2 and in his cross-examination, he admits that he has not seen any document with regard to financial transactions that appellant had with P.W.5.

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Govinda Naika is examined as D.W.4, who is a coworker along with the appellant under Vishweshwar Naika who has deposed that usually every Monday, there used to be

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disbursement of wages and appellant was also receiving wages every Monday. He has further deposed that in the year 2011, Vishweshwar Naika had lent sum of Rs.1,00,000/- to the appellant sometime in April or May. In his cross-examination, he has answered that he has not seen any document with regard to lending of Rs.1,00,000/-.

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Vishweshwar Naika is D.W.5 from whom appellant said to have received Rs.1,00,000/- loan. Initially, learned counsel for the accused refused to examine this witness and later on, he has examined him as his witness. In his examination-in-chief, he has stated that D.W.3 and 4 and the appellant were working under him and he is used to pay wages at rate of Rs.250/- per day in the year 2009 and Rs.300/- per day in the year 2010. He has stated that accused has worked with him as a labourer till August 2011.

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He further deposed that in November, 2011, accused had borrowed sum of Rs.1,00,000/- as loan for the purpose of repairing his house. In this cross-examination, he has answered that he has not maintained any accounts for the

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payment of wages so also, no document to show that there was a loan lent by him to the appellant.

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On cumulative consideration of the oral evidence of D.W.1 to 5, in the light of the theory put forward on behalf of the appellant that there was a false implication taking advantage of somebody else committing the rape on P.W.1, when the material on record is appreciated, appellant failed to establish that there was a loan obtained by him from D.W.5 and out of that loan, sum of Rs.50,000/- was lent to Rajashekhar (P.W.5) and Rajashekhar in turn did not repay the money and therefore, there was an ill-will between Rajashekhar and appellant which has resulted in foisting a false case against the appellant stands not established.

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No doubt, degree of proof that is required to be placed on record whenever accused is required to prove a fact is to be considered on preponderance of possibilities. But the material evidence placed on record on behalf of the appellant would not even pass the test of preponderance of possibilities and therefore, alternate theory of false implication of the appellant losses its significance.

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When once the false implication lost its significance in a given case, where the offence of rape is alleged, yet another theory that would be relevant to consider is why would anybody pledge the dignity of a minor girl only with an intention to proceed criminally against the accused person allowing the real culprit to escape from the clutches of law.

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With that test, when the material evidence on record is appreciated, the persons who gathered in the place of incident after being the alarm raised the by victim girl have specifically deposed about the accused running away from the spot. There was no loss of time in shifting the victim girl to the hospital after intimating the concerned and MLC report and police thereafter visiting and then assessing the situation and taking the complaint lodged and investigating the matter.

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However, the wound certificate and the medical examination report of the victim girl was not sufficient enough to conclude the offence under Section 376 of IPC as could be seen from the detailed discussion carried out in the impugned judgment by the learned Trial Judge.

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For the reasons best known to the prosecution or to the victim or defacto complainant, no appeal is filed challenging the acquittal of the appellant for the offence under Section 376 read with Section 511 of IPC.

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Therefore, further discussion as to the existence of all ingredients to conclude the offence under Section 376 of IPC, in an appeal filed by the accused need not be carried out. As such, task before this Court is whether the material evidence would be sufficient enough to test whether same would be sufficient enough to maintain the conviction of appellant for the offence under Section 376 read with Section 511 of IPC.

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In order to appreciate the said aspect of the matter, it is just and necessary for this Court to call out Section 376 of IPC and Section 511 of IPC:

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Section 376 of IPC:

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“ Punishment for rape- (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which¹ [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine].

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(2) Whoever,—

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(a) being a police officer, commits rape—

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(i) within the limits of the police station to which such police officer is appointed; or

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(ii) in the premises of any station house; or

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(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

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(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or

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(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

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(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

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(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

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(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

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(g) commits rape during communal or sectarian violence; or

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(h) commits rape on a woman knowing her to be pregnant; or

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(j) commits rape, on a woman incapable of giving consent; or

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(k) being in a position of control or dominance over a woman, commits rape on such woman; or

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(l) commits rape on a woman suffering from mental or physical disability; or

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(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

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(n) commits rape repeatedly on the same woman,

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shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

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(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:

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Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

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Provided further that any fine imposed under this subsection shall be paid to the victim.”

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Section 511 of IPC:

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“Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment- Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempts does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.”

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Section 376 of IPC is a punishing section and

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offending section is 375 of IPC. Therefore, it is just and

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necessary for this Court to call out Section 375 of IPC as well:

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“1[2[375. Rape. -- A man is said to commit "rape" if

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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 so 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,

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under the circumstances falling under any of the following seven descriptions:

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First-Against her will.

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Secondly-Without her consent.

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Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

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Fourthly-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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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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Sixthly-With or without her consent, when she is under eighteen years of age.

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Seventhly-When she is unable to communicate consent.”

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Taking note of the age of the victim girl, the question of victim girl being a consenting party with the appellant for the alleged physical relationship of appellant with the victim girl cannot be of any significance. Therefore, material on record is to be appreciated whether the evidence of victim girl and other corroboratory evidence placed on record especially the medical evidence would be sufficient enough to conclude the offence of 376 read with Section 511 of IPC is to be considered.

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Since necessary ingredients to attract the offence under Section 376 of IPC is not established, taking note of the support lent by P.W.1 to the case of the prosecution which was corroborated by the medical evidence placed on record and testimony of the circumstantial witnesses who has seen the

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appellant running away from the spot after seeing other persons gathering near the place of incident, this Court is of the considered opinion that conviction of the appellant under Sections 341, 506, 376 read Section 511 of IPC needs to be maintained.

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However, with regard to conviction of the appellant under Section 325 of IPC is concerned, it is noticed that there was no charge framed at all for the said offence. Only on the basis that injury No.1 being shown as grievous injury that too a scar on the cheek, learned Trial Judge straight away convicted the appellant under Section 325 of IPC which is per se impermissible and therefore, conviction of the appellant for the offence punishable under Section 325 of IPC needs to be set aside.

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In view of the foregoing discussion, point Nos.1 and 2 are answered partly in the affirmative.

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REG.POINT No.3:

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Appellant was in custody on and from 10.08.2011 to 26.11.2013. Later on, sentence was suspended. Taking note of the relevant aspects of the matter especially when the

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material evidence is not sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 325 of IPC for which he has been acquitted and taking

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note of the fact that conviction is maintained for the offence punishable under Section 376 read with Section 511 of IPC and also taking note of the fact that by this time, victim girl would have been married and appellant having married and he is having two children to maintain, this Court is of the considered opinion that custody period already undergone by the appellant, if treated as period of imprisonment for the proved offences under Section 341, 376 read with Section 511 of IPC and offence under Section 506 of IPC by enhancing the fine amount in a sum of Rs.25,000/-, would meet the ends of justice. Enhanced fine amount of Rs.25, 000/- if ordered to be paid as compensation to P.W.1 under due identification, ends of justice would be better served. Accordingly, point No.3 is answered partly in the affirmative.

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REG.POINT No.4:

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In view of the foregoing discussions on point Nos.1 to 3 as above, following:

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ORDER

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i. Criminal Appeal is allowed in part.

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ii. While maintaining the order of conviction of the appellant for the offences punishable under Section 341, 376 read with Section 511 of IPC and under Section 506 of IPC, conviction of the appellant for the offence under Section 325 of IPC is hereby set aside.

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iii. Consequently, sentence ordered by the learned Trial Judge is modified as under:

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a. Custody period undergone by the appellant from 10.08.2011 to 26.11.2013, is treated as period of imprisonment for the aforesaid offences by enhancing the fine amount in a sum Rs.25,000/- which is to be payable on or before 15.03.2025 failing which the appellant shall undergo simple imprisonment for a period of one year.

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