Imran Khan vs The State of Karnataka

A.V. Chandrashekara, J.—Present appeal is filed under Section 374(2) of Cr.P.C. against the judgment of conviction and sentence passed in S.C. No. 81/2013, which was pending on the file of the Court of V Addl. Sessions/Special Judge at Kalaburagi.

The appellant who was accused No. 1 in S.C. No. 81/2013 is convicted for the offences punishable under Sections 366 , 376 and 506 of IPC and is sentenced to undergo R.I. for ten (10) years and to pay a fine of Rs. 1,00,000/- for the offence punishable under Section 376 of IPC and to undergo R.I. for five (5) years and shall pay a fine of Rs. 25,000/- for the offence punishable under Section 366 of IPC and to pay a fine of Rs. 1,000/- for the offence punishable under Section 506 of IPC. The judgment of conviction and sentence dated 23.07.2015 passed in S.C. No. 81/2013 is called in question on various grounds as sought out in the appeal memo.

Facts leading to the filing of the case against this appellant and 11 others are as follows;

"Kumari P (name not mentioned) examined as PW. 13 was aged about 18 years and she is the daughter of PW.9/Jagadish and PW.11/Smt. Manjula. She is a resident of Kalaburagi City. At about 10.00 a.m. on 08.07.2010, she had been to Hanuman Temple. She did not return home and hence her parents searched for her and despite their best efforts, they could not trace her whereabouts. Hence, Jagadish her father of Pooja was constrained to lodge a report about the missing of her daughter, on the next day i.e. on 09.07.2010."

On 31.07.2010 accused No. 1 is stated to have telephoned PW.9/Jagadish that there was no necessity to search for his daughter since she was in his possession. After coming to know about this, Jagadish visited the house of accused No. 1 and where all the remaining accused were there. All of them abused him and threatened him with dire consequences if he were to lodge a complaint. After this incident, he chose to file a report to the police and a case was registered in Crime No. 268/2010 for the offences punishable under Sections 143 , 147 , 365 , 366 , 504 , 506 r/w 149 of IPC.

According to the prosecution, victim some how came out of the clutches of the appellant and she appeared before the police station and her statement was recorded and subjected to medical examination on 27.09.2010. The investigating officer tried his best to secure the accused. After arresting the accused No. 1, he was produced before the medical officer to ascertain his potentiality and obtained a certificate. The victim was produced before the JMFC at Kalaburagi and her statement was recorded under Section 164 of Cr.P.C. After concluding the investigation charge sheet was filed against twelve (12) accused inclusive of this appellant for the offences punishable under Sections 143 , 147 , 365 , 366(A) , 366 , 376 , 506 r/w 149 of IPC.

The accused had denied all the allegations leveled against them and had claimed to be tried. Prosecution has examined in all 20 witnesses to bring home the guilt of the accused. 25 exhibits have been got marked on behalf of the prosecution and 3 material objects have been got marked on behalf of the prosecution. All the accused were examined under Section 313 of Cr.P.C. and their defence is one of total denial of the allegations leveled against them. No evidence is adduced on behalf of the accused.

After hearing the arguments from the learned counsel representing the accused and learned Public Prosecutor, the learned V Addl. Sessions Judge, has chosen to convict the accused No. 1 only for the offences punishable under Sections 366 , 376 and 506 of IPC and has acquitted the other accused vide considered judgment 23.07.2015.

Sri Arun Chowdapur, learned counsel representing the appellant has submitted his arguments. Sri P.S. Patil, learned HCGP has also submitted his arguments supporting the judgment of conviction and sentence passed against this appellant. Following are the points framed by the learned Sessions Judge, as found in paragraph No. 22 at page No. 10 of the impugned judgment for consideration.

"(1) That, whether, the prosecution proves beyond all reasonable doubts on 08.07.2010, at about 10.00 am, near Hanuman temple of Biddapur, whether the Accused No. 1 to 12 formed an unlawful assembly with an intention of committing an offence in furtherance of their common object, thus committed an offence punishable under section 143 read with 149 of IPC?

(2) That, whether, the prosecution proves beyond all reasonable doubts that the accused No. 1 to 12 in furtherance of their common object, committed an offence of rioting. Thus, the accused No. 1 to 12 committed an offence punishable under section 147 read with 149 of IPC?

(3) That, the prosecution proves beyond all reasonable doubts that on 08-07-2010, at the above time and place that, whether, the accused No. 1 to 12 in furtherance of their common object kidnapped Kumari Pooja, the daughter of Jagadish, aged 18 years, with an intention of confining her wrongfully. Thus committed an offence punishable under section 365 read with 149 of IPC?

(4) Whether, the prosecution proves beyond all reasonable doubts that the accused No. 2 to 12 at the above date, time and place abetted the commission of an offence of kidnapping Pooja wrongfully that the said kidnapped, girl will be exposed to sexual assault in the future days to come by the accused No. 1, thus committed an offence punishable under section 366(A) read with 149 of IPC?

(5) That Whether, the prosecution proves beyond all reasonable doubts that on 08.07.2010, at about 10, am, near the Hanuman Temple of Bidapur the accused No. 1 Kidnapped Kumari Pooja, the daughter of Jagadish, aged 18 years with an intention of subjecting her to sexual assault in the future days. Thus committed an offence punishable under section 366 of IPC?

(6) Whether, the prosecution proves beyond all reasonable doubts that on the above date, time and place, the accused No. 1 after kidnapping Kumari, Pooja, took her to the house of the Accused No. 2 Allabaksha Khan, located K.H.B Colony, Gulbarga, and got married with the said kidnapped girl and on the pretext of the marriage seduced her much against her will, thus, committed an offence punishable under section 376 of IPC?

(7) That, whether, the prosecution proves beyond all reasonable doubts that on 08-07-2010, whether the accused No. 2 to 12 threatened the victim of the case with dire consequences, if the aspect of rape to be revealed to anybody and thus, committed an offence punishable under section 506 read with 146 of IPC?

(8) To What Order?"

Learned Sessions Judge has answered the point Nos. 1, 2 and 4 in the negative and point No. 3 in the affirmative against accused No. 1 only and point Nos. 6 and 7 also affirmatively against accused No. 1 only.

What is contended by the learned counsel for the appellant is that, PW.13/Pooja had married accused No. 1 and this is evident from Ex. P-15 and the marriage certificate marked as Ex. P-15 is not denied by PW.17/Sri Musharaf. Hence, it is contended that the theory of rape is not proved beyond all reasonable doubt and the same is not properly considered by the trial Court. It is contended that inordinate delay in lodging the FIR from the date of commission of alleged offences by this appellant is not explained and thus it has weakened the substratum of the prosecution case. It is further contended that the prosecution has failed to prove beyond all reasonable doubt that PW.13 was a minor as contemplated under Section 366 of IPC when the alleged offence of kidnap and rape was committed. It is further argued that there is no medical evidence suggesting rape and this aspect has been virtually ignored by the trial Court. It is also argued that PW.13 was sent to medical examination after a long delay. It is contended that corroboration of the evidence of PW.13 was required in the present case since her testimony does not inspire the confidence of the Court. It is further argued that the acquittal of remaining accused is a good circumstance to acquit this accused also and the same has not been taken into consideration by the trial Court.

Sri P.S. Patil, learned HCGP has argued that deposition of PW. 1 has inspired confidence in the mind of the trial Court and the same is corroborated by the version of her father and mother. It is further argued that Ex. P-15 the marriage certificate is a strong circumstance, which has gone against the accused and the accused has not explained about the girl with whom he married in the presence of the priest examined as PW.14. The evidence placed on record has amply proved about the confinement of victim by accused No. 1 and forcible rape on several occasions much against her will in his argument. It is further argued that there is no material to disbelieve the deposition of PW.13 and that does not require corroboration on any material particulars. The trial Court is stated to have properly analyzed the oral and documentary evidence in right perspective keeping in mind the circumstances under which PW.13 was abducted and raped by accused No. 1. Hence, he has requested this Court to uphold the judgment of conviction and sentence in its entirety.

After hearing the learned counsel for the parties and perused records, the following points arise for consideration of this court:

"1) Whether the learned sessions judge is justified in convicting and sentencing the accused for the offences punishable under Sections 366 , 376 , 504 , 506 , I.P.C.?

2) Whether any interference is called for, and if so, to what extent?"

REASONS

Point No. (1): The case of the prosecution is mainly based on the deposition of PW9-Jagadeesh, PW13-Pooja (daughter of Jagadeesh), PW11-Manjula (mother of PW13 and the evidence of PW14-Khaja..... author of marriage certificate, as also the medical evidence placed on record by PW6-Dr. Renukadevi and PW7-Dr. Purushottam.

The case of the prosecution is that PW13 and her parents are residents of Biddapur Colony, Kalaburagi, and she was studying in Govt. Women''s Polytechnic in 2010. One day she received a missed call in her mobile and she did not pick up the same. Again there was a missed call from the same number and the caller asked her whether her name was Pooja. He introduced himself as Imran Khan and asked her whether she was studying in Women''s Polytechnic and on getting an affirmative answer, he told her that he could identify her and that he loved her. Suddenly she disconnected the call. The 1st accused-Imran Khan attempted to talk to her several times over phone and she disconnected the call.

It is alleged that Imran Khan was following her, although she had warned him not to follow her. On 8.7.2010 at 10.00 a.m. she had gone near Hanuman temple. At that time 1st accused had brought some people and obstructed her movements. When she told him not to come in her way, he threatened her with dire consequences to her life and took her in an auto to his house through the road behind Biddapur Colony. It is alleged that she was confined in a room on that night and was provided with food and she developed giddiness. It is alleged that Imran Khan raped her and she did not regain consciousness till the next day. On getting consciousness, she raised a hue and cry. At that time, 1st accused threatened her that if she were to shout, he would eliminate her parents. Being afraid of the threat held out to her, she kept quiet and when she got the mobile phone, she informed her father about her confinement in the house of 1st accused.

Having seen this, 1st accused tried to make arrangements to marry her and she was taken before a Khaji who performed her marriage under duress, threatening her not to disclose it to anybody, lest, she would be put to difficulty. Her marriage was solemnized as per Muslim community customs and on the said night, he once again rape her and troubled her many times. On coming to know that police were watching for him, 1st accused took her to Mumbai and mixed something in the food and she again got giddiness and did not have strength in her limbs. She was confined in the house of his sister and there also he raped her several times and later on confined her in different places and even sent ugly messages to her father in her name.

It is the case of the prosecution that somehow PW13 came out of the clutches of the 1st accused and reached Gulbarga on 27.9.2010 and straightaway went to Super Market police station and narrated to the police as to what was done by the 1st accused and others. Later her parents were called and she was subjected to medical examination and her statement was recorded by the JMFC.

On 8.7.2010, she did not return from Hanuman temple and therefore, the parents of PW13 were worried and they tried to locate her. In spite of their best efforts, they could not locate her. Therefore PW9-Jagadeesh chose to lodge a report before the PSI of Gulbarga police station on the morning of 9.7.2010 at 10.30 a.m. Ex. P24 is the report submitted by PW9 on the basis of which first information was registered in Crime No. 225/10 and copy of the same is marked as Ex. P25.

PW9-Jagadeesh is the father of the victim. He has deposed that since his daughter did not return from the temple and since she could not be traced, he had to lodge a report. He has reiterated the contents of Ex. P25 in his examination-in-chief. It is his case that on 18.7.2010 he received a call from 1st accused-Imran Khan to the effect that there was no necessity to search for his daughter since she was in his possession and that he had already married her and if he were to intimate the police, they would cause serious threat to his daughter. This was brought to the notice of the police on 1.8.2010 and he went to the house of Imran Khan along with Suraj Singh and police. At that time 1st accused and his family members and others were present and they told him that 1st accused had married PW9''s daughter-P. They threatened him with dire consequences if he were to lodge any complaint. Subsequently PW9 is stated to have received a mobile call from his daughter that 1st accused and his family members have performed her marriage with him forcibly and she requested him (PW9) to save her at any cost. On the basis of the threat held out to him in the house of 1st accused and the information received from his daughter through phone, he lodged a complaint to the police and it is marked as Ex. P13.

Ex. P13 was lodged at 8.30 a.m. on 27.7.2010 and the case is registered in Crime No. 260/10 for the offences punishable under Sections 143 , 147 , 366 , 365 , 504 , 506 , I.P.C. Ex. P14 is the copy of first information lodged before the magistrate. He has virtually reiterated the contents of the information submitted by him in Ex. P13, in his examination-in-chief.

According to the prosecution, the marriage of PW13 was forcibly solemnized with the 1st accused by PW14-Khaji in the presence of his family members. On 27.7.2010, PW13 came out of the clutches of the 1st accused and straightaway went to Super Market police station at Gulbarga and she was subject4ed to medical examination. Later on, she gave voluntary statement before the V Additional JMFC under Section 164 , Cr.P.C. and it is marked as Ex. P17. Ex. P 17(a) is the certified copy of Ex. P17. The author of Ex. P17-JMFC is also examined before the trial court as PW19.

After securing the accused and subjecting him to intensive interrogation, he was subjected to potency test. Ex. P11 is the report of the said test and there is no reason to disbelieve that the 1st accused is impotent or does not have any in capacity to have sexual intercourse. Ex. P10 is submitted by a senior specialist, Dr. Renukadevi of District Hospital, Gulbarga, relating to the medical condition of PW13. She has mentioned her age as 18 years. She has opined that there was no indication of recent sexual intercourse when the victim was examined, and that she was used to the act of sexual intercourse.

The author of Ex. P11-potency certificate is examined as PW11-Dr. Purushottam. He is not cross-examined. There is no reason to disbelieve his evidence insofar as it relates to the capacity of the 1st accused to have sexual intercourse. PW6-Dr.Renukadevi chose to file Ex. P10 only after receipt of FSL report marked as Ex. P8. Nothing is elicited from her mouth to discredit her version about the absence of hymen in the victim''s vagina and she being used to sexual intercourse.

What is argued before this court by the learned counsel for the appellant is that medical evidence is not in favour of prosecution and that the doctor has not spoken anything about the recent sexual intercourse the victim had. The word ''recent'' is relative in character. The case of the prosecution is that the victim was adducted by the accused on 8.7.2010 and was confined in his house and raped and her marriage was forcibly solemnized with him on 12.7.2010. Within 4 days of her abduction , her marriage was forcibly performed. Ex. P15 is the marriage certificate. Nothing is elicited from the mouth of material witnesses about the genuineness of Ex. P15.

Though a ground is urged in the appeal memo to the effect that the marriage of the victim with the 1st accused was solemnized and therefore, subsequent sexual intercourse is not rape. The material witnesses have not been cross-examined on that line. No reliance is placed by the accused on Ex. P15. Though PW14-Mr. Musharaf has admitted his signature as Ex. P15(a) and solemnization of the marriage of 1st accused with PW13, he has not supported the prosecution case in entirety. Hence he has been cross-examined with the permission of the court by the public prosecutor. If he could identify the 1st accused as the bridegroom, it was incumbent upon him to state about the girl whom the 1st accused had married. When PW13 has specifically asserted that she was forcibly married to the 1st accused, that portion of the evidence of the hostile witness which is in favour of the prosecution has to be taken into consideration and this is considered by the trial court.

PW14-Musharaf is aged 65 years. He has deposed that he knew all the accused who are residing under one roof. He has denied about the facts of the case and about the marriage being solemnized between the 1st accused and PW13. He has not denied the authenticity of Ex. P15 and his signature found thereon. The learned judge has elaborately discussed the authenticity of Ex. P15 and competence of PW14-Musharaf to issue such certificate. In what way PW14 is connected with the office of Quazath at Gulbarga, is not forthcoming. When reliance is placed o Ex. P15 as one of the grounds in the appeal, onus is upon the accused to show that PW13 had consented to marry the 1st accused on her own and the marriage was solemnized in accordance with law and that the same was not held under duress. On the other hand, Ex. P15 strengthens the prosecution case insofar as it relates to the assertion of PW13 that she was abducted and her marriage was forcibly solemnized with the 1st accused. On receiving telephonic threat from the 1st accused about his marriage with PW13, PW9-father of the victim went to the police station and lodged a report and a case was registered on 20.7.2010 in regard to abduction and threat held out to PW9 by the accused.

In a case of rape and abduction, the victim would be the best witness. Her corroboration in material particulars is not required. Corroboration is only rule of evidence. The uncorroborated testimony of a victim in a rape case could be the basis for conviction. In the present case, medical evidence discloses that there was no hymen and she was used to sexual intercourse. If the victim had been subjected to medical examination within a reasonable time from the time she was raped for the first time, it would have disclosed some evidence in regard to the recent sexual intercourse. Admittedly PW13 has asserted that right from the first day she was subjected to constant rape by 1st accused in Gulbarga as well as Mumbai and therefore, the doctor has rightly opined that she (victim) was used to sexual intercourse. At the time she was subjected to medical examination, more than 2 months had already elapsed from the time of first rape and therefore, hymen was clearly absent and the doctor could not speak anything about the evidence relating to recent sexual intercourse.

On the other hand, medical evidence of the accused discloses that he is potent. The evidence of PW13 was recorded on 5.11.2014 and long prior to the recording of evidence before court, she had given statement before the V Additional JMFC on 29.9.2010, i.e. 4 years prior to her deposition in court. She had narrated the manner in which she was held by the 1st accused forcibly in a two-wheeler to his house and the threats held out to her life and limbs if she refused to marry him. It is her case that her marriage was solemnized on 12.7.2010 in accordance with Muslim community customs and later she was taken to Mumbai and was made to stay in the house of the sister of 1st accused for two days. It is her case that during night time, accused was raping her and threatening her not to telephone anybody and had even snatched her mobile phone.

PW13 has virtually reiterated the contents of her voluntary statement given under Section 164 , Cr.P.C, in her examination-in-chief. We will have to see whether the accused has been able to elicit anything from the mouth of material witness to discredit her deposition, or to probablize his defence that she had married him on her own volition and therefore sexual intercourse he had is not rape within the purview of Section 375 , I.P.C. PW13 has deposed that when the case was registered, she had completed 18 years. She is not able to specifically state the number of days she was confined in the house of the 1st accused she had showed the places where she was subjected to rape by the 1st accused and room where she was confined. Suggestion put to her that she did not tell the police about forcible rape by the accused, has been specifically denied. She has deposed in cross-examination that the 1st accused confined her in a house in Meera Road in Mumbai for 15 days and he had not taken her to see places in Mumbai. It is her assertion that after she was forcibly taken to Mumbai by a bus, she was not able to contact her father and soon after returning from Mumbai, she went straight to the police station directly.

Several suggestions have been put to PW13 stating that she was made to give a statement before the JMFC at the instance of the police. Those suggestions have been specifically denied. She has asserted that she had disclosed to the police that she was forcibly taken in an auto from a road behind Biddapur Colony, and also the threat held out by him. What is suggested to PW13 is, that she was not forcibly taken to any place and she was not subjected to any rape and that she is deposing falsely. Those suggestions have been specifically denied.

PW14-Musharaf should have deposed something about the persons who identified the girl as bride in the marriage. He has feigned ignorance about obtaining affidavit from the parties to the marriage. He has deposed that marriages will be solemnized only if the bride and bridegroom give consent for such marriage. Therefore, it is suggested to him that Ex. P15 is a got-up document. Whether he is competent to solemnize marriages and issue certificates, is the question. In what way he is connected with Quazath is not spoken to by him in any manner.

PW9-Jagadeesh, father of the victim, has reiterated the contents of his report in his examination-in-chief about the threat held out by the 1st accused and abduction of his daughter. Suggestion put to him that his daughter had not telephoned to him about her marriage with the 1st accused, has been denied. Suggestion that PW13 had never informed him about the rape committed on her is also specifically denied. He has deposed that on 18.8.2010, his daughter telephoned him and he does not know the place from where she spoke.

On scanning the entire evidence of PW9, it could be said with certainty that no useful answer is elicited from his mouth to discredit his version. Same is the version of PW11-Manjula-mother of PW13. Parents are competent to speak about the missing of their daughter and threats held out to PW9 by the 1st accused and the marriage forcibly solemnized.

Initial investigation was done by PW18-Rajashekar, inspector of police. It was he who conducted mahazar at the spot where abduction was done and alleged rape of PW13 was committed. Though certain omissions have been elicited from the mouth of these witnesses, they are not material omissions amounting to contradiction. Suggestion put to him that PW13 had told him about the love she had with the 1st accused, has been specifically denied. Suggestion put to him that PW13 had never told him about the mixing of something in the food given to her and becoming weak, is denied. Subsequent investigation was conducted by Chandrashekar-PW5, Inspector.

Though other witnesses relating to spot mahazar have not supported prosecution case, material witnesses have withstood the rigor of cross-examination. Taking into consideration the missing of PW13 and the complaint lodged to that effect and subsequent complaint of PW9 and the voluntary statement of PW13 recorded by the magistrate, it makes out a clear case of abduction by the 1st accused and rape on her on several occasions and forcibly solemnizing the marriage.

Learned counsel for the appellant, Mr. Arun Chowdapur has relied on a decision rendered by the Hon''ble apex court in the case of Ram Murti Vs. State of Haryana, . On the basis of the decision, he has argued that no evidence is placed on record to demonstrate as to who noticed her being taken away on the day of the occurrence. As per the facts of the said case, there was sufficient evidence on record on behalf of the accused to show that Satnam Kaur herself went to the house of the accused and then to other places. The evidence placed on record disclosed that Satnam Kaur had consented for sexual intercourse with Rama Murthy several times and as a result of which she had become pregnant. The facts of that case also disclosed that the accused had arranged for a second-hand car and took her to various places and raped her. The evidence of Satnam Kaur did not inspire confidence and hence corroboration was insisted in the said case. Therefore the accused was acquitted by giving him the benefit of doubt.

The facts of the present case stand on a different footing. PW13 has asserted about the 1st accused abducted her and confined her and committed rape and also performed her marriage forcibly. Therefore the said decision is squarely distinguishable on facts and hence, it is not favourable to the accused.

Mr. Arun Chowdapur has relied on yet another decision of the Hon''ble apex court reported in State of Rajasthan Vs. Babu Meena, . It was also a case of rape. As per the facts of that case, the sole testimony of the prosecutrix was unreliable on account of material contradictions. In the light of there being no other supporting evidence, acquittal of Babu Meena was upheld. As per the facts of that case, the owner of the house in which the alleged rape took place, did not support the prosecution case and PW12 also did not support prosecution case. FSL report also did not support the allegation of rape. Taking into consideration the serious infirmities noticed in the prosecution case, the trial court had acquitted the accused on the ground that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence the benefit of doubt was given to the accused.

Reliance is placed upon yet another decision of the Hon''ble apex court in the case of MOHAMED ALI v. STATE OF UTTAR PRADESH (2015 CRL. RULINGS-KARNATAKA SERIES 421 (SC)). As per the facts of that case, there was a delay in reporting about the alleged rape. The evidence of the prosecutrix who was stated to be a minor aged 14 years, was not of such quality as to place reliance. The victim had gone out to answer nature call but did not return. When her mother (PW2) waited and searched for her, Abdul Waris informed her that he had left her daughter at the door. PW2 and her son went for searching for the girl. Sensing foul play, they informed the police that Mohamed Ali and Waris had kidnapped her daughter. First information was lodged on 3.12.1996 almost 11 days after the incident and the delay had not been explained. There was no proper appreciation of evidence and the High Court had failed to exercise the appellate jurisdiction in right perspective. Though the delay in filing report will normally be ignored in such cases, if the surrounding circumstances appear to be doubtful, such delay would weaken the substratum of the prosecution. What is held in the said case is that when the prosecutrix was missing from her home, it is expected of her mother or brother to lodge a missing complaint to the police, but the same was not done. Hence the judgment of conviction and sentence was set aside.

In the present case, missing complaint was lodged without any undue delay, that too, after making hectic efforts to trace the victim. Soon after receiving telephonic call from PW13, her father-Jagadeesh (PW9) went to the house of 1st accused and on coming to know that her marriage had been forcibly solemnized with 1st accused, and after the threat, he came to the police station and lodged report on the basis of which a case came to be registered and serious investigation was done. PW13 has virtually withstood the rigor of cross-examination insofar as material aspects are concerned. A few contradictions elicited from her are not so serious as to go to the very root of the case. It is her assertion that soon after escaping from the clutches of the 1st accused, she came straight to Gulbarga without any delay. These aspects have been properly analyzed by the court in the backdrop of the facts of the case. The learned judge has properly analyzed the oral and documentary evidence on record in right perspective by referring to various decisions cited before him.

In the light of prosecution being not able to effectively prove the involvement of the other accused in the offence of abduction and threat held out to PW9 or PW13, benefit of doubt is given to them. The same cannot be made applicable to the present appellant. False in one aspect cannot be considered false in all aspects. The maxim ''falsus in uno, falsus in omnibus'' is not applicable in all its rigor in India. Suffice to state that the trial court has adopted right approach to the real state of affairs and appreciated the evidence on the touch stone of intrinsic probabilities. The prosecution has been able to effectively discharge the initial burden and the onus on the accused is not effectively discharged in regard to the alleged volition of PW13 in marrying 1st accused. The sequence of the case have demonstrated the case of the prosecution effectively. In this view of the matter, conviction of the appellant-1st accused for the offences punishable under Sections 366 , 376 and 506 , I.P.C. is sustainable both in law and on facts.

Insofar as the sentence of imprisonment is concerned, the trial court has imposed 5 years imprisonment though the maximum punishment would extend upto 10 years for the offence punishable under Section 366 , I.P.C. So far as the offence punishable under Section 376 , I.P.C. is concerned, the minimum punishment prescribed is 7 years and it may extend upto life imprisonment or 10 years. In the light of the gravity of the offence committed on a young girl aged 18 years and the circumstances in which the incident is stated to have taken place and the number of times she was raped in different places, that too, in confinement, the trial court is justified in imposing punishment of 10 years for the offence punishable under Section 375 , I.P.C. No extenuating circumstances are forthcoming to impose a lesser sentence in a case of this gravity. In fact the learned judge has been lenient so far as Section 506 is concerned.

Thus no interference is called for even in regard to the quantum of sentence. Suffice to state that no interference is absolutely called for and the judgment impugned does not suffer from absurdity or illegality. Hence point No. (1) is answered in the affirmative. Point No. (2) is answered in the negative holding that no interference is called for.

In the result, the following order is passed:

The appeal filed by the accused under Section 374(2) of Cr.P.C. challenging the judgment of conviction and sentence passed in S.C. No. 81/2013, on the file of the Court of V Addl. Sessions/Special Judge at Kalaburagi, is dismissed. The judgment of conviction and sentence passed in the said case is confirmed.

Registry is directed to send a copy of this order to the Karnataka State Legal Services Committee, Siddaiah Road, Bengaluru, to award suitable compensation in terms of Section 357(1) & (2) of Cr.P.C. to the victim PW.13/Kumari Pooja daughter of Jagadish and W/o: Suresh Kumar, Mehboob Nagar (Telangana State).