Basavaraja vs State and Others

A.S. Pachhapure, J.

This appeal is directed against the conviction and sentence for the offences punishable under Sections 376 and 366 r/w Section 34 of IPC on a trial held by the Sessions Judge, Davanagere.

The facts reveal that PW.1 is the father of the victim-PW.2. On 22.07.2010 at 4.30 p.m., the appellant with an intention to marry the victim said to have been kidnapped her from the lawful guardianship of her father-PW.1 and kept her in the house of PW.4-Durgamma. It is also alleged that the appellant committed forcible sexual intercourse and threatened her not to disclose the incident. She availed an opportunity and ran away. Thereafter, PW.1 - her father approached the police and submitted his complaint-Ex. P1. It came to be registered and in the course of the investigation, the spot mahazars-Exs. P2 to 4 were held and statements of PW.4 to PW.6 were recorded. The victim was sent to the doctor for medical examination. Mos. 1 to 4, the clothes of the victim were seized and the seized articles were sent for the opinion of forensic experts. The report-Ex. P15 and the medical certificate-Ex. P14 were collected. The birth certificate of the victim was secured from PW.7 and on completion of the investigation, the chargesheet was laid against the appellant and another accused for the aforesaid offences.

During the trial, the prosecution examined PW.1 to PW.10 and got marked Exs. P1 to P17 and Mos. 1 to 4. Ex. D1 was got marked in the evidence of prosecution. The trial Court after hearing the counsel and on appreciation of the evidence on records, convicted the appellant for the offences under Section 366 r/w Section 34 of IPC and Section 376 of IPC. For the major offence, the trial Court has awarded imprisonment for 7 years and to pay fine of Rs. 5,000/- and lesser sentence was awarded for the other offences. Accused No. 2 was acquitted of the charges. Therefore, the appellant-accused No. 1 has approached this Court challenging his conviction and sentence for the offences punishable under Sections 366 and 376 of IPC.

Heard the learned counsel for the appellant and also the learned Government Pleader for the respondent-State.

The point that arises for my consideration is:

"Whether the conviction of the appellant and the sentence thereon for the charges under Sections 366 and 376 of IPC warrants any interference?"

It is the contention of the learned counsel for the appellant that there is no medical evidence to support the version of the prosecution and he also submits that except the evidence of victim, which is not corroborated in material particulars, no other evidence is made available by the prosecution to support the conviction. He submits that no case is made out either for the offences under Section 366 or Section 376 of IPC. On this ground, he sought for setting aside the order of conviction.

On the other hand, learned Government Pleader supports the judgment and order and submits that the evidence of victim is corroborated by the evidence of PW.1-the father of the victim and therefore, he submits that the prosecution has proved the case beyond reasonable doubts.

PW.1 is the father of the victim, whereas, PW.3 is the attesting witness for the mahazar, Exs. P2 to 4.

PW.4 is the owner of the house in which the victim was kept by the appellant for more than three days. She has not supported the case of the prosecution.

PW.5-Shivakumar is the owner of the vehicle bearing registration No. KA-14-M-9338 said to have been used for kidnap of the victim from her house to the house of PW.4. He has also not supported the case of the prosecution.

PW.6-Dheerendra is said to be the driver of the said vehicle and he has also not supported the case of the prosecution. Therefore, the evidence of the aforesaid witnesses i.e., PW.4 to 6 is of no help to the prosecution.

PW.7-Doctor-Akbar Alikhan is the head master of the school in which the victim was studying. He has produced Ex. P8-the birth certificate which reveals the date of birth of the victim as 10.01.1994. The victim sought admission in the school of PW.7 and she was transferred from another school to this School. Anyhow, it is relevant to note the date of birth mentioned in Ex. P8 was on the basis of the register maintained in the school. This entry in the register as come into existence at a time when there was no controversy relating to the age of the victim. PW.7 author of Ex. P8 spoken to the contents of the document Ex. P8 and there is no bar to consider it as piece of evidence to prove her birth date. As per date of birth mentioned in Ex. P8, she has not completed 16 years of her age. Therefore, whether there was a consent for sexual intercourse or otherwise has no relevance as she is below 16 years. The document Ex. P8 was collected by the Investigating Officer in the course of the investigation and the investigating officer has also spoken to the said facts.

PW.9 is the police officer who held the investigation, drawn the spot mahazar Exs. P2 to 4, collected the photograph and drawn the sketch-Ex. P11 scene of occurrence. He also recorded the statement of witnesses.

PW.10-Dr.Prasad examined the victim on 31.07.2010 and on examination, he did not find any external or internal injuries. Ex. P16 is the certificate issued by PW.10. He also examined the accused and issued potency certificate.

As could be seen from the evidence of PW.10, though it is stated that hymen was not intact, the doctor has stated that there is no medical evidence to support the version of the prosecution as regards the commission of sexual intercourse on the victim PW.2.

So scrutiny of the aforesaid evidence does not reveal any supporting material so far as the commission of the offences under Sections 366 ad 376 of IPC.

The only evidence that is available is that of PW.1 to PW.3. PW.1 is the father of the victim. On the date of the incident, he was not in the house. He speaks to the facts, which were narrated to him by PW.2 and also her absence in the house from 07.10.2010 till 30.07.2010. Therefore, it is only the evidence of PW.2-the victim which appears to be relevant for the purpose of appreciation.

Anyhow, as could be seen from the evidence of PW.2, she states that both the accused i.e., Basavaraja and Ningappa came to her house in a car stating that her father is not well and closed her mouth and taken her in the car despite her resistance. She states that initially, she was kept in the house of PW.4. She was threatened by accused No. 1 in the said house. He caused bite injury and she also states he slept on her. Thereafter, she was taken to another house in an auto rickshaw and she was kept in the said house for four days. She states that accused No. 1 assaulted her and also bite her. She states that in the said house, the appellant-accused No. 1 spelt on her and committed forcible sexual intercourse. After four days, as the latch of the door was kept open, she came out and in an auto rickshaw, she returned to the bus stop and then to her house at Harihara by securing a sum of Rs. 10/-from the driver of the auto rickshaw.

From the aforesaid evidence, it is clear that she was brought in car by the accused, she stayed in the house of PW.4 for three days. Thereafter, she was shifted to another house and she stayed in the said house for four days and immediately after seven days, as the door was not latched, she took the opportunity and came to the Davanagere bus stop and then to Harihara by bus.

Admittedly the victim and the appellant are the residence of Harihara. It is a town. There are many houses adjoining the house of victim. If the appellant had forcibly taken her in the car, she could have cried for help and invited the attention of the neighbours. She did not raise her voice before she was taken from the house. From Harihara, she was taken to Davanagere and she was in the house of PW.4 for three days and in the house of accused No. 2 for four days. The appellant after alighting the car when she was taken to the house of accused No. 2, she could have sought for help of the people and it is relevant to note that Davanagere is a District place and there would be many people in very street. She was there in the said house for three days. Thereafter, she was shifted to another house in an auto rickshaw. While she was leaving the house of accused No. 2 and got into an auto rickshaw or even thereafter while she was taken to another house, she could have tried for help and could have drawn attention of the public towards the conduct of the appellant. So these all facts which have been brought on record and the evidence of PW.2 could clearly indicate that there is no force caused by the accused in taking her from the house. Therefore, the case put forth by the prosecution that she was forcibly taken in a car or that she was threatened, appears to be unacceptable.

So far as the conduct of accused is concerned, it is relevant to note that in her evidence, she states that accused slept on her. So far as the forcible sexual intercourse, except stating in a single sentence that "the accused committed forcible sexual intercourse on her", she has not stated any facts relating to the act of the sexual intercourse. As to what is the sexual intercourse according to her is not stated by her in the evidence. Merely, stating there was sexual intercourse, in the absence of facts relating to the act, the use of word "sexual intercourse" itself is insufficient to conclude that there was a sexual intercourse.

That apart, there is no medical evidence placed on record by the prosecution. In the aforesaid circumstances, there arises a doubt as to whether there was really a sexual intercourse between the victim and the appellant. Anyhow, the material placed on record reveals that the appellant slept on her. She was a girl less than 16 years old. This conduct on the part of appellant amounts to outraging the modesty of a woman and is punishable under the provisions of Section 354 IPC.

So far as the offence under Section 366 IPC is concerned, there is no material worth acceptance to prove that the victim was taken by the accused to compel her for marriage. PW.2 has not stated anything in this regard, therefore, the provisions of Section 366 IPC are not attracted. Anyhow, the PW.2 - the victim is less than 16 years, she was a minor. The parents are the guardians. She was unmarried. Therefore, even if she is to be taken by any other person from the lawful guardianship of her parents, it was necessary to obtain the consent. In the absence of consent, the conduct of appellant would attract the provisions of Section 363 IPC.

PW.2 is the victim of tender age less than 16 years. She has no capacity to take any decision. She has not attained the age of majority. In the aforesaid circumstances, I am of the opinion that there is ample material for the offence under Section 363 IPC.

From the scrutiny of material placed on record, it is clear that the appellant is responsible for the offence under Sections 363 and 354 IPC and not for the offence under Sections 366 and 376 IPC. The approach of the Trial Court in convicting the appellant for the charge under Sections 366 and 376 is unwarranted for the aforesaid reasons. The Trial Court has not taken into consideration the aforesaid aspect. Therefore, the point raised is answered in affirmative.

Consequently, the appeal is allowed in part. Conviction of the appellant for the charge under Sections 366 and 376 IPC and sentence thereon are set aside. He is acquitted of the said charges.

Anyhow, the appellant is convicted for the offence under Sections 354 and 363 IPC. He is ordered to undergo simple imprisonment for a period of 5 years and to pay fine of Rs. 2,000/- in default to undergo simple imprisonment for three months for the offence under Section 354 IPC. Further, for the offence under Section 363 IPC, he is ordered to undergo simple imprisonment for one year and to pay fine of Rs. 1,000/- in default to undergo simple imprisonment for one month. Both the sentence to run concurrently. He is entitled to set off under Section 428 Cr.P.C.