Ramesh vs The State of Karnataka

Budihal R.B., J.—The judgment and order of conviction dated 23rd March 2013 passed by the II Additional Sessions Judge at Bellary in S.C. No. 97/2011 has been called in question in this appeal.

By the judgment and order of conviction, the appellant/accused No. 1 has been convicted for the offences punishable under Section 376(2)(f) , 506 , 504 , 323 and 324 of the Indian Penal Code.

The brief facts of the prosecution''s case, as per the complaint averments, are that P.W.6-Smt. Manjula, who is the mother of the victim girl lodged a complaint on 31.12.2010 alleging that herself her husband Somashekar, her daughter Roopa aged 14 years and another daughter Indu aged 8 years, who was studying in 2nd standard, were residing together. Her son Ranjith Kumar expired about three years back. Her husband is working in Jindal Factory doing centering work and complainant is doing the coolie work to lead their life. About four days prior to the incident, husband of the complainant had been to Jindal factory to do the work and the complainant was staying along with her daughters in the house. On 29.12.2010, Roopa, the elder daughter of the complainant had been to Kolagal village to their relative''s house. On 30.12.2010 at 6 a.m. while the complainant was going to pay the chit amount, she asked her daughter Indu to stay in the house. On 31.12.2010, in the morning, when the complainant was performing bath to her daughter Indu and was removing her inner garments, the daughter of the complainant told that she is getting pain in her private part. When the complainant enquired as to what had happened, the complainant''s daughter told that on 30.12.2010, at 6.30 a.m., she had been to her grand-mother Eramma''s house and as Eramma had gone outside, one Ramesh, the brother-in-law, came there, took the victim girl into the hut of Eramma and he lifted her gown upwards, removed her inner garments and put his private part into her private part and as she was getting pain in her private part, she started to weep and at that time, Ramesh, the appellant/accused, threatened the victim girl that in case she weeps he would tie her upper and lower limbs and throw her into the canal. In the meanwhile, Eramma, the grand-mother came to the house and saw the accused doing sexual intercourse on her and she scolded the appellant/accused, and when she went to assault him with her hands, the appellant/accused ran away and that she came to the house and as she was knowing swimming, the victim girl went to the canal nearby their house and she took bath in the said water. After hearing the same, immediately, the complainant came to the house of Ramesh at 9.30 a.m. and when she was scolding, the appellant/accused came there and asked the complainant as to what he had done and why she was taking his name and scolding him. So, the appellant/accused also abused the complainant in filthy language. For that, the complainant told that he had ruined the future of her daughter. At that time, Madhavi the wife of the appellant/accused, who is respondent No. 2 herein, also came there and both of them assaulted the complainant with hands and appellant/accused snatched the ''mangalya sutra'' of the complainant and torn it and he assaulted the complainant with left side chappal and he also held her pallu of the saree and dragged her and pushed her down and because of that reason, the complainant sustained bleeding injuries to her left hand and right side knee portion, then one Nagendra, Sudha and others came and pacified the quarrel. Then the complainant informed the same to her husband who was at Jmdal Factory. Then he told her to lodge a complaint. The complainant took her daughter to VIMS Hospital and got the first aid treatment and then she came to the police station and she requested that herself and daughter be sent to the hospital for medical treatment and also requested that legal action may be taken against the appellant/accused and his wife-respondent No. 2 herein.

On the basis of the said complaint-Ex. P.5 a case has been registered in Bellary Rural Police Station Crime No. 324/2010 for the alleged offences under Section 376 , 506 , 504 , 323 , 355 , 354 read with Section 34 of the Indian Penal Code and issued the FIR as per Ex. P.8.

The investigating officer after completing the investigation filed the charge-sheet against the appellant/accused and his wife, who is respondent No. 2 in this appeal for the said offences.

In support of its case, the prosecution examined in all 18 witnesses and got marked the documents Exs. P.1 to P. 16 and also got marked material object as M.O.1. On the side of the defence, no witnesses were examined nor any documents were got marked.

Heard the arguments of the learned counsel appearing for the appellant/accused No. 1 and also the learned High Court Government Pleader for the respondent No. 1-State.

Learned counsel for the appellant/accused No. 1 during the course of his arguments made the submission that according to the case of the prosecution, the incident is said to have taken place on 30.12.2010 at 6.30 a.m. whereas the complaint was lodged on 31.12.2010 at 2.30 p.m. and hence there is a delay of more than one day, which has not been explained properly by the prosecution. He also made the submission that the main witness as per the prosecution''s case is P.W.3-Eramma, the grand-mother of the victim girl and who is said to have seen the incident and after seeing Eramma the accused ran away from the said place. The learned counsel submitted that P.W.3 grand-mother of the victim girl turned hostile and not supported the case of the prosecution. He also submitted that panch witnesses have not at all supported the case of the prosecution in respect of all the panchanamas said to have conducted in their presence. Counsel submitted that as per the version of the complainant when she informed her husband, who was working at Jindal Factory, he informed her to lodge a complaint and accordingly she went to the police station along with her daughter-victim girl, but looking to the evidence of the husband of the complainant it goes to show that he also accompanied the complainant to the police station. Counsel further submitted that sofar as the medical evidence of the examination of the victim girl is concerned, the doctor has opined that there are no external injuries seen and when the cloth of the victim girl was sent to FSL for examination, the FSL authorities have also mentioned that no seminal stains were seen on those articles and even spermatozoa was also not detected in the articles. Hence, he submitted that inspite of such medical evidence, the learned Sessions Judge only basing on the evidence of P.W.6-complainant and the victim girl, convicted the appellant/accused for the said offences. Counsel submitted that the doctor in his evidence also deposed during the course of cross-examination that if at all such incident had happened, it would not be possible for the victim to walk. Hence, it is his submission that the evidence also goes to show that immediately after the incident, the victim girl is said to have went to canal nearby the house and took bath. This also goes to falsify the case of the prosecution which aspect is not properly considered and appreciated by the trial Court. Learned counsel further made the submission that the accused never absconded. It is also his submission that the bed-sheet or any other cloth on the cot in the house of Eramma on which cot the alleged incident is said to have taken place were not at all seized by the investigating officer during investigation. Hence, he submitted that the appellant/accused has been falsely implicated in the case with false allegations. Learned counsel submitted that the prosecution utterly failed to prove its case beyond all reasonable doubts. Hence, he submitted that the judgment and order of conviction passed by the Trial Court is illegal and it is not sustainable in law. Hence, submitted to allow the appeal and set aside the judgment and order of conviction.

Alternatively and without admitting, learned counsel for the appellant/accused No. 1 also made the submission that about 4 years prior to the alleged incident, the appellant/accused got married, he is having the married wife and the appellant/accused is aged 21 years and there is no other persons in the family except appellant/accused No. 1 to look after the family and hence, on this ground, the learned counsel submitted that a lenient view may be taken insofar as punishment is concerned, since the punishment imposed by the Trial Court is disproportionate. In this connection, learned counsel for the appellant relied upon the decision of the Hon''ble Supreme Court in the case of Janoher Lodhi v. State of Chhattisgarh & another reported in 2015 Cri.L.J. (NOC) 230 (CHH).

Per contra, the learned Government Pleader during the course of the arguments submitted that P.W.6 the mother of the victim girl came to know about the incident on the next day when performing bath to the victim girl. Therefore, the question of delay in lodging the complaint will not arise at all. It is also his submission that sofar as assault made on the complainant, the mother of the victim girl when she had been to the house of the accused to enquire as to why he committed rape on the victim girl, the said incident was on the next day of the alleged rape and the same is supported by the medical evidence and the injury certificate produced as per Ex. P.6 in respect of the injuries to the complainant. It is also his submission that even with regard to the offence of rape on the victim girl is concerned, the evidence of the victim girl who has been examined as P.W.8 and the evidence of the doctor P.W.17 and the sonogram report and so also the FSL report produced in the case clearly go to show that the accused committed rape on the victim girl. Hence, he submitted that the trial Court has properly appreciated the entire materials and rightly convicted the appellant/accused No. 1 for the said offences. Hence, he submitted that there is no merit in the appeal and the same is to be dismissed. In support of this contention, learned Government pleader also relied upon the decisions of the Hon''ble Supreme Court reported in the case of State of Rajasthan Vs. Om Prakash, and Delhi Domestic Working Women''s Forum Vs. Union of India (UOI) and Others, . Hence, he submitted to dismiss the appeal. It is also his submission that even with regard to the quantum of sentence imposed by the trial Court is concerned, the same is just and reasonable and does not call for any interference by this Court.

I have perused the oral evidence of the prosecution witnesses P.Ws.1 to 18 and the documents Exs. P.1 to P. 16 produced on behalf of the prosecution.

P.W.1 who is a panch witness for seizure of the chappal as per spot mahazar Ex. P.1 has not supported the case of the prosecution and turned hostile and even in the cross-examination by the Public Prosecutor nothing has been elicited. P.W.2-Shankar is also said to be panch witness to Ex. P.1-panchanama and he also not supported the panchanama and also seizure of M.O.1 the left side chappal said to be of the appellant/accused.

P.W.3 who is the grand-mother of the victim girl also turned hostile and not supported the prosecution case and her statement during the course of cross-examination by the PP was got marked as per Ex. P.2.

P.W.4-Raghavendra, who is said to be eye witness to the incident of the quarrel between the appellant/accused and the complainant-P.W.6 also turned hostile and in the cross-examination also nothing has been elicited to believe the case of the prosecution. P.W.5 who is also said to be one of the eye witnesses turned hostile and not supported the case of the prosecution.

P.W.6 is the mother of the victim girl and is the complainant in the case. In her evidence she has deposed that she is having two daughters; the second daughter i.e., the victim girl in this case was aged 8 years who was studying 3rd standard. She further deposed that about one year back when she was performing bath to her daughter, at that time, she removed her inner garment and at that time, victim girl told that there is pain and she was screaming and she also told her that there is also pain in her private part and when enquired, the victim girl told that the appellant/accused took her inside the house of P.W.3, the grandmother, and made her to lie on the cot and then he caused pain in her private part. The victim girl also told before her mother that the accused put his penis into her vagina yesterday morning Then she scolded ramesh, the appellant/accused and in turn Ramesh also abused the complainant in filthy language and the appellant/accused and respondent No. 2 both assaulted the complainant with chappal. She sustained injuries to her right lower limb on the back and on head. One Nagendra came and pacified the quarrel. People gathered there. Then she informed her husband and he told her to lodge a complaint. Accordingly herself and her daughter went to the police station and she filed the complaint as Ex. P.5 and Ex. P.5(a) is her signature. She further deposed that she herself shown the spot to the police and there was one chappal lying on the spot. She identified the said chappal as M.O.1. Police have seen the spot and taken the photographs. After she lodged the complaint, her daughter was medically examined and she was also examined. In the cross-examination, she denied the suggestion that even though her daughter has not at all told anything before her, she is giving false evidence. She denied the further suggestion that there was no tenderness or reddish colour in the vagina of her daughter. When the incident took place on her daughter, i.e., in the morning of Thursday, she had been to pay the chit amount. There was no money transaction between her and the appellant/accused. The relationship between herself and the accused Nos. 1 and 2 was cordial. She denied the suggestion that she was getting amount from the appellant/ accused for paying the chit amount. She also denied the suggestion that at the instance of one Huliyappa she had lodged the complaint. She denied the suggestion that as there was illicit relationship between herself and said Huliyappa and as the appellant/accused came to know about the same, she filed false complaint against the appellant/accused. She also further denied the suggestion that the appellant/accused has personally seen about the illicit relationship between herself and Huliyappa.

P.W.8 is the victim girl and she has deposed in her examination in chief that her father is doing coolie work and when she was studying in 2nd standard her mother was going to pay the chit amount and as her mother told not to follow her she went towards the house of her grandmother at that time, the accused by holding her hand took her inside the house of her grandmother and made her to lie on the cot, then he caused pain by putting his penis into her vagina. There afterwards, she took bath in the canal as she was knowing swimming Her grandmother came after the incident was over and on the next day, when her mother was performing bath to her, she told about the said incident and also told that she was getting pain in her private part. Her mother asked the appellant/accused why he has done so, at that time, accused Nos. 1 and 2 assaulted her mother with chappal and kicked with lower limbs. Herself and he mother went to the police station and the police sent them to the hospital for examination. She also identified M.O.1 chappal but in the cross-examination, she told that at about 7.00 a.m., she went to her grandmother''s house and when the accused came to her, it was 8.30 a.m.. when she was playing outside the grandmother''s house and the grandmother was not in the house. Nobody told her tutored her that she has to give her evidence in that way. She denied the suggestion that her mother tutored her to give evidence in such a manner. She denied the suggestion that she is giving false evidence against the accused. She also denied the suggestion that the appellant has not at all committed the offence on her and she is giving false evidence.

P.W.7 is the doctor. He deposed in his evidence that on 31.12.2010 at 5.20 p.m., one Manjula, wife of Somashekar came to the hospital along with WPC 699 of Rural PS, Bellary, with the history of assault. When he examined the said woman, he notice three injuries as mentioned at Sl. Nos. 1 to 3 in his deposition and he also deposed that the said injuries can be caused if a person is dragged and assaulted with the chappal like M.O.1. He also issued injury certificate as per Ex. P.6 and Ex. P.6(a) is his signature. In the cross examination by the advocate for the appellant, he denied the suggestion that if a person slips and falls down, such injuries can be caused, but the doctor explained that in such a situation and while protecting the body, there may be some abrasion injuries on the palm. He also deposed that if a person fell down there may be abrasion injuries to knee portion. So also to the elbow.

I have also perused the evidence of P.W.15, who is the investigating officer in this case and he has deposed in his evidence that he has conducted the investigation of the case and during the course of his cross-examination, nothing has been elicited by the defence so as to disbelieve the evidence of the prosecution. So perusing the documents Ex. P.6, the injury certificate pertaining to the complainant it goes to show that she sustained three injuries, x-ray was also taken of the chest, the doctor opined that injuries Nos. 1, 2 and 3 are simple in nature and could have been caused by blunt object. The wound certificate of the victim girl is marked at Ex. P.13. it is mentioned by the doctor that hymen is ruptured and it might be due to sexual intercourse. But the doctor has also mentioned that there are no recent sexual intercourse. Perusing the FSL report marked at Ex. P.15 in the opinion column regarding reports on seminal stains, it is mentioned that seminal stains was detected on item Nos. 2 cervical swab. It is true that seminal stains was not detected on item Nos. 1 and 5 and spermatozoa was not detected on item Nos. 3 and 4. Perusing this material on record it inspires the confidence of the Court that the witness more particularly, the complainant who has been examined as P.W.6, the victim girl who is examined as P.W.8, the doctor who is examined as P.W.7 and the injury certificate of both the complainant and the victim girl and the FSL report. So also the oral evidence of the investigating officer goes to show that the evidence of these witness is consistent and worth believable. The Trial Court rightly appreciated the materials both oral and documentary and rightly convicted the appellant/accused for the said offence. I do not find any illegality in the judgment and order of conviction passed by the Trial Court looking to the entire materials on record. The view taken by the Trial Court is one of the possible views. Hence, there are no grounds for interference in the judgment and order of conviction. Accordingly, the judgment and order of conviction is confirmed.

Sofar as the quantum of sentence is concerned, it has come on record that the appellant/accused is married person and respondent No. 2 is his wife and he was aged about 21 years as on the date of the incident and he is the bread winner of the family. I have also perused the decision of the Hon''ble Supreme Court rendered in Appeal (Crl.) 667 of 1998, decided on 21st April, 2004, which is relied upon by the learned counsel for the appellant/accused. The Hon''ble Supreme Court insofar as the sentence is concerned observed as under:

"The question that arises what should be the sentence that should be imposed on the accused. The trial Court as stated above has sentenced the respondent for an offence under section 376(2)(F) to 10 years RI. We are told by learned counsel for the respondent that he was hardly 18 years of age at the time of the incident in question and has already served about 6 years imprisonment consequent to the sentence imposed on him by the trial Court. It is also submitted that he has since married and has a family. In such circumstances we think a sentence of 7 years RI would be appropriate in the facts and circumstances of the case. Hence, while allowing the appeal of the State, setting aside the judgment of the High Court and restoring the conviction recorded by the State, setting aside the judgment of the High Court and restoring the conviction recorded by the trial Court, we reduce the sentence to 7 years RI. We further direct that if the respondent has undergone any part of the sentence as submitted by learned counsel, set off shall be given for the said part of the sentence and he will also be entitled to any legal remission permissible in law for having served 6 years'' imprisonment."

Looking to these aspects of the matter, I am also of the opinion that the sentence imposed by the trial Court for a period of 10 years Rigorous Imprisonment is little on the higher side and in this case considering the materials placed on record, I am of the opinion that seven years Rigorous Imprisonment is reasonable and proper and it is proportionate to the alleged offences under Section 376 of the IPC. Accordingly, the following order if passed.

Appeal is allowed in part only to the extent of modification of the quantum of sentence. The sentence of imprisonment of 10 years Rigorous Imprisonment is reduced to 7 years Rigorous Imprisonment the judgment and order of conviction passed by the trial Court is hereby confirmed. With this modification the appeal is disposed of.