Prabhakar vs State of Karnataka

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offence punishable under Section 376(2)(f) IPC on a trial held by the learned Sessions Judge, Shivamogga.

The facts reveal that on 27.04.2007, the victim-P.W. 6 has been to the house of P.W. 1-Lilly Margarett to watch T.V. The appellant had also come to watch the T.V. and at about 12.00 noon, the appellant is said to have committed forcible sexual intercourse on the victim-P.W. 6. She sustained injury and informed about this incident to her mother P.W. 5-Kavitha. The victim was taken to the hospital and ultimately, a complaint came to be filed under Ex. P8, which came to be registered in Crime No. 36/2007 for the offence under Section 376(f) IPC.

During the investigation, the statements were recorded. The victim was examined by the doctor. The appellant was arrested. He was examined by P.W. 2-Dr. S. Rudramurthy. The spot-mahazar was held as per Ex. P9, the clothes of the victim were seized. Relevant documents and the seized articles were sent to the opinion of the expert and on completion of the investigation, a charge sheet was laid against the appellant for the aforesaid offence.

During the trial, the prosecution examined P.Ws. 1 to 13 and in their evidence Exs. P1 to 10 and M.Os. 1 and 2 were marked. Statement of the appellant was recorded under Section 313 Cr.P.C. No defence evidence was made. Anyhow, Exs. D1 to 3 have been got marked.

The trial Court after hearing the counsel for the parties and on appreciation of the material on record held that the appellant was guilty of the charge under Section 376(2)(f) IPC and was ordered go undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000-00, in default to undergo rigorous imprisonment for 6 months. Aggrieved by the conviction and sentence, the present appeal is filed.

I have heard learned counsel for the appellant and also the learned High Court Government Pleader.

The point that arises for my consideration is;

"Whether the appellant has made out any grounds to warrant interference in his conviction and sentence ordered by the trial Court for the offence under Section 376(2)(f) IPC?" 5. Learned counsel for the appellant submits that except the interested testimony of P.W. 6-victim, there is no other material placed on record and as P.W. 1 has turned hostile, the evidence of the prosecution cannot be accepted to sustain the conviction for the offence under Section 376(2)(f) IPC. She submits that the victim had suffered injury elsewhere and the appellant belongs to a different caste, he was falsely implicated in the crime. On these grounds, she has sought for setting aside the conviction order.

On the other hand, learned High Court Government Pleader supports the Judgment and Order of the trial Court and submits that the evidence of the victim is corroborated by the medical evidence and the trial Court was justified in granting an order of conviction.

Learned counsel for the appellant has taken me through the evidence of the witnesses examined and also the documents produced. P.W. 1 is the owner of the house and she has not supported the case of the prosecution. She has been treated as hostile. P.W. 5 is the mother of the victim, whereas P.W. 6 is the victim herself. The victim in her evidence states that she went along with Kum. Shwetha-P.W. 7, her relative to the house of P.W. 1 to watch T.V. At that time, the appellant was also present in the house. When P.W. 1 went outside to bring water and P.W. 7-Shwetha went out side to answer call of the nature, she states that the appellant made her to lie on the cot assuring that he would give her a sweet, removed his clothes and also the clothes of the victim and committed forcible sexual intercourse. In the evidence, she has stated the manner in which the incident of sexual intercourse was done. She cried as she suffered pain. There was bleeding. Immediately, the appellant is said to have worn his clothes and went out. P.W. 6-victim states that she complained this conduct of the appellant/accused to her mother-P.W. 5-Kavita and she was taken to the hospital and thereafter, a complaint is said to have filed by P.W. 5 and the clothes of the victim were also seized. As could be seen from the cross-examination of the victim, nothing is suggested to attribute mala fides on the part of the victim in implicating the appellant except that the appellant belongs to a different caste. Even in the cross-examination, the victim has not changed her version. There is consistency and nothing is elicited to disbelieve her version.

P.W. 5-the mother of the victim has stated in her evidence that at 1.00 p.m., on the date of the incident, she saw the victim weeping and getting pain in her abdomen and she was informed about this incident. P.W. 5 took her to the hospital and on the advise of the doctor-P.W. 4 and then another doctor-P.W. 2, the victim was taken to P.W. 3-Dr. Padmavathi. The complaint of this incident was filed by P.W. 5 under Ex. P8. The scrutiny of the letter issued by the doctor at P.W. 5 reveals that there is consistency in the evidence of the victim and also her mother P.W. 5-Kavita.

That apart, the neighbours P.Ws. 7 to 9 have also supported the version of as regards the presence of the appellant/accused at the place of the incident and at the nearby place immediately after the incident as well. Therefore, there is consistency in the evidence of all the witnesses including the victim so far as the occurrence of the incident at the relevant point of time.

Now, to consider the medical evidence, it is relevant to note that at the first instance, the victim was taken to the doctor-P.W. 4. He referred the victim to the hospital at Shivamogga and he states that the victim was brought to him with the history of sexual assault. It is thereafter, the victim was taken to the doctor-P.W. 2 with the same history, who also advised to take the victim to a Lady Medical officer and in this regard, HMR Memo-Ex. P2 was also issued. It is in pursuance of the advice of P.Ws. 4 and 2, the victim was taken to the doctor-Padmavathi-P.W. 3, who examined the victim and found an abrasion measuring 1 cm., at the vaginal orifice. There was bleeding. The clothes of the victim were taken by the doctor-P.W. 3 and were given to the Police. On examination of the private part as well, gave her opinion-Ex. P7.

The perusal of Ex. P7-opinion would reveal that there were signs of recent attempts for sexual intercourse and the girl was not used to act like that of intercourse. Basing on the opinion of the doctor furnished, though it is contended that at the most it can be an attempt to commit forcible intercourse, it is relevant to mention here that the victim-P.W. 6 has stated about the sexual act on the part of the appellant, at the time of sexual assault. Though there were no seminal signs either on the body or the clothes of the victim, that itself is insufficient to discard the evidence of the prosecution.

So far as the contention of attempt to commit rape as defence, even the facts itself is not sufficient to discard the act of sexual intercourse. There is no necessity that there should be discharge of semen. Penetration itself is sufficient to complete an act of rape.

The medical evidence which has been placed on record supports the version of the victim and in turn other neighbouring witnesses also support the evidence of the prosecution. Looking to the materials placed on record, I am of the opinion that the prosecution has proved the act of rape on the victim-P.W. 6, who was 6 years old at the time of the incident and therefore, I do not find any grounds to warrant interference in the conviction ordered by the trial Court for the offence under Section 376(2)(f) IPC.

P.W. 1 is the attesting witness for the spot mahazar-Ex. P9. P.W. 11 is the carrier of the HMR Memo. P.W. 12 is the ASI, who registered the complaint-Ex. P8 and sent the FIR to the Magistrate and P.W. 13 is the Police Officer, who held the investigation and after completion of the investigation, has filed the charge-sheet. The scrutiny of the aforesaid material reveals that there is abundance material for the offence under Section 376(2)(f) IPC. The prosecution has proved his case beyond all reasonable doubt.

So far as the sentence is concerned, it is the submission of learned counsel for the appellant that the accused was 21 years old and it is the age, wherein they cannot have the control over their emotions and therefore, she submits to show some leniency to reduce the sentence. The trial Court awarded imprisonment for 10 years and to pay the fine.

Taking into consideration that the assault is on the victim, who is just 6 years old, the minimum sentence requires to be granted. Considering the age of the appellant and the possibility of getting into emotions at that age, I think rigorous imprisonment for 7 years would be appropriate with fine as ordered by the trial Court. To this extent, the sentence needs modification.

Consequently, the appeal is allowed in part. The conviction of the appellant for the offence under Section 376(2)(f) IPC is confirmed. The sentence is modified. The appellant is ordered to undergo rigorous imprisonment for 7 [seven] years and to pay the fine of Rs. 5,000-00, in default to undergo rigorous imprisonment for 6 [six] months. The appellant is entitled to set-off under Section 428 Cr.P.C. The trial Court is directed to secure the appellant to undergo the sentence.