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Maharudragouda v/s The State of Karnataka, Rep. by Ranebennur Town Police, Dharwad

    Criminal Appeal No. 100122 of 2018

    Decided On, 23 September 2020

    At, High Court of Karnataka Circuit Bench At Dharwad


    For the Appellant: B.V. Somapur, Advocate. For the Respondent: V.M. Banakar, Addl SPP.

Judgment Text

(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., seeking to set aside the judgment and order of conviction and sentences passed by the Principal District and Sessions Judge and Special Judge, Haveri in Spl.S.C.No.46/2016 dated 07.02.2018 and acquit the appellant/accused of the charges leveled against him under Sections 342, 376, 376(2)(f) IPC and under Sections 4 and 6 of POSCO Act, 2012.)B.M. Shyam Prasad, J.1. This appeal is filed impugning the judgment dated 7.2.2018 in Spl. S.C. No.46 of 2016 on the file of the Principal District and Sessions Judge and Spl. Judge at Haveri (for short, 'the Special Court'). The appellant by the impugned judgment is convicted for the offences under Sections 342, 376(2)(f) of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act'). The appellant is sentenced to undergo one year simple imprisonment for offence punishable under Sections 342 of IPC. Insofar as the sentence for the conviction under Section 4 of POCSO Act and 376(2)(f) of IPC, the Special Court, observing that the minimum sentence under Section 376(2) (f) of IPC is ten years which may be extended to life imprisonment and the minimum sentence under Section 4 of the POCSO Act is seven years which may be extended to life imprisonment with fine and the appellant would be liable to undergo the more severe punishment, has sentenced the appellant to imprisonment for life for the offence punishable under Section 376(2)(f) of IPC and to pay fine of Rs.50,000/- with default sentence of rigorous imprisonment of one year.2. The prosecution's case against the appellant- accused is that he, a close relative of the victim aged 11 years and 9 months as of the date of the occurrence, committed the offence of penetrative sexual assault against her and therefore, would punishable under Section 376(2) of IPC and Section 4 of the POCSO Act. The investigation is commenced against the appellant - accused based on the first information filed by Smt. Mamata Basavaraj Gangar, the victim's mother, on18.07.2016, and this first information is scribed by Smt. Honamma, a relative of the victim at the instance of victim's mother.3. It is alleged in this first information that the appellant-accused, who is the victim's cousin being her father's younger sister's son, would frequently visit the victim's home. On 17.7.2016, a Sunday, the victim's parents had left home in the morning for their work in the fields. Their three children, including the victim, were at home. At about 2.00 p.m., when the victim's elder brother had gone out to get his bicycle repaired, the appellant-accused visited the victim's home. At that time, only the victim and her younger sister were at home. The appellant-accused asked the victim's younger sister to go out and play, and when the victim also followed her, he pulled her inside and bolted the door. The appellant-accused pushed the victim to the floor and committed the act of penetrative sexual assault on her. When the victim managed to scream out for help, the appellant-accused ran out. When the victim's parents returned in the evening after their work in the fields, they found the victim disturbed, and on enquiring, she related the incident to her parents.4. It is further alleged that the victim's mother called her Smt. Honnamma, a distant relative, who offered to visit them and help in getting necessary medical attention for the victim. The victim's parents and Smt. Honnamma took the victim on 18.07.2016 to Ranebennur Government Hospital, and on the advice of the Medical Officers at the Hospital, the first information was lodged by the victim's mother.5. The jurisdictional police registered FIR in Crime No.114 of 2016 on 18.07.2016 at 2.00 a.m against the appellant-accused for offences under Section 341, 376 (2)(i) of IPC and Section 4 & 6 of the POCSO Act. The Special Judge received the FIR on 18.07.2016 at 10.50 a.m. The jurisdictional police, who commenced the investigation with the registration of FIR as aforesaid, apprehended the appellant-accused on 19.07.2016, and they filed charge sheet against the appellant-accused for the offences punishable under Sections 341, 376, 376(c) and the provisions of Section 4 and 6 of POCSO Act.6. The Special Court, after securing the presence of the accused was in judicial custody, has framed charges against the accused for the offences under Sections 341, 376 (2) (f) and the provisions of Section 4 and 6 of POCSO Act. The appellant-accused, when the charge was read over, has pleaded not guilty, and he has claimed to be tried.7. The prosecution to prove its case against the appellant-accused has examined in all 16 witnesses. The victim's parents, Smt. Mamatha Basavaraj Gangar and Sri. Basavaraj Goneappa Gangar, are examined as P.W.1 and P.W.6. Smt. Honnamma Somalingappa Chandapur and another relative of the victim, Sri. Rajesh Shekappa Gangar, have been examined as P.W.6 and P.W.16. The victim is examined as P.W.8. The Panchas in whose presence different material objects have been seized, and in whose presence spot Panchanama and spot sketch, are prepared have examined as P.W. 2 - P.W.5. .8. The prosecution has examined other witnesses as well. Dr.Prathiba Naik, the doctor who has examined the victim and has issued the medical certificates as per Exs.P.19, 20 and 22, is examined as P.W.9. Dr. Govind U., who has examined the appellant- accused and issued certificate as per Ex.P.23 is examined as P.W.10. Sri. Jagannath N.Koriwad (P.W.11) is an Engineer with PWD, Ranebennur, who has drawn the sketch of the place of the occurrence. Sri Santhosh T.Chandrashekar is a Health Inspector, Ranebennur (P.W.16), who has issued the victim's birth certificate.9. The other witnesses examined by the prosecution are police personnel. Smt. Chennamma B. Hadapad, the Assistant Sub-Inspector of Police, who has registered the FIR, is examined as P.W.12. Sri. Santhosh N.Patil, who has conducted the initial part of the investigation, is examined as P.W.13. Sri. Ravindra N.Kurubagatti, CPI, Ranebennur, who has completed the investigation and filed the charge sheet, is examined as P.W.16.10. The prosecution has also relied upon certain documents. The first information is marked as Ex.P.1. The spot panchnama and a rough sketch of the victim's residence and the photographs taken at the time when this Panchanama and rough sketch are drawn are marked as Ex.P.2, Ex.P.3 and Exs.P.4 - P.5. The panchnama drawn at the time of recovery of a towel piece at the instance of the appellant-accused from the victim's residence and the photographs taken at the time when this Panchanama is drawn are marked as Ex.P.6 and Ex.P.7- P.12. The panchanama drawn at the victim's residence at the time of the seizure of a Dupatta used to tie the victim's hand and the photographs taken at the time when this Panchanama are marked as Ex.P.13 and Ex.P.14 - P.15. The other panchanamas drawn at the time of collecting specimens from the persons of the victim and the accused and their clothes are marked as P.16 and P.17.11. Further, the prosecution has marked victim's statement recorded under Section 164(5) of Cr.P.C. by the JMFC, Ranebennur, as Ex.P.18. The preliminary medical report and the final medical report furnished upon the clinical examination of the victim and after receipt of FSL Report are marked as Ex.P.19, and Ex.P.22. The FSL Report is marked as Ex.P.21. The medical report on the clinical examination of the appellant-accused is marked as Ex.P.23.12. The prosecution in addition to these Exhibits has marked FIR as Ex.P.27. The appellant-accused's voluntary statement is marked as Ex.P.29. The victim's birth certificate is marked as Ex.P.28. The records relating to FIR in Special SC/ST No.34 of 2015 and in the proceedings Special SC/ST No.34 of 2013, which pertain to another penal proceeding against the appellant - accused for similar offences, are marked as Ex.P.30 and31. The prosecution also relies upon material objects which include smear from the victim's perineum and thighs, swab from the appellant-accused's penis, nail scrapings and the clothes worn by the appellant-accused and the victim at the time of occurrence.13. The appellant-accused, who has not led in any evidence in support of his defence that he is falsely implicated by the victim's parents at the instance of Smt. Honnamma taking advantage of the fact that he is being prosecuted for similar offences, has denied the incriminating evidence against him in his statement under recorded section 313 of the Code of criminal procedure (for short, 'Cr.P.C') stating his defence as aforesaid.14. The Panch witnesses, Sri. Nagaraj Sunagar, Guddeppa Adivera, Sri. Sri. Malathesh Kambli and Smt. Bhagya Venkatesh, have spoken about the different mahazars relied upon by the prosecution for the recovery of different material objects, and these witnesses have spoken in support of the prosecution's case. The prosecution's case is that with the testimony of these witnesses the prosecution is able to establish beyond dispute the crime scene as well as the seizure of material objects such as a piece of towel used by the appellant- accused and a dupatta (orange coloured strip of cloth) used by the appellant-accused to tie the victim's hands.15. The prosecution's case as regards substantive evidence is that the victim's parents and her relatives, Smt. Honnamma and Sri Rajesh Gangar, have spoken about the relationship between the appellant-accused and the victim, the appellant-accused preying on the victim (a minor girl) taking advantage of his acquaintances and committing the offence of penetrative sexual assault when the victim and her younger sister were alone at home on a Sunday because the school was closed and their parents were out working in the fields with their elder brother having gone on an errand. The prosecution is also able to establish that the victim was aged below 12 years as on the date of the occurrence being born on 26.1.2005 based on the birth certificate issued by the municipal authority. Sri Santhosh (PW 14), a health Inspector with such municipal authority has spoken about issuance of the birth certificate. There is consistent evidence to establish that the appellant - accused committed penetrative sexual assault on the victim inasmuch as the victim in her statement recorded under section 164(5) of Cr.P.C as well as her evidence has spoken about the penetrative sexual assault on her.16. The Special Court, upon considering the evidence placed on record by the prosecution as regards the victim's age, the relationship between the appellant- accused and the victim, the victim's statement under section 164(5) of Cr.P.C, the different seizures (including the seizure at the instance of the appellant) and the evidence as regards the penetrative sexual assault of the victim, has opined that the evidence on record coupled with the presumption available under the provisions of POCSO Act establish the appellant-accused's culpability for offence punishable under section 376(2)(f) of IPC and under section 4 of the POCSO Act. Therefore, the appellant-accused is liable for punishment for such offences.17. The learned counsel for the appellant argued in support of the appeal contending that there is contradiction in the evidence of the victim's mother and the victim. Significantly, the medical evidence on record does not corroborate the charge against the appellant- accused. The learned counsel also pointed out that the victim's mother in her evidence has spoken about discharge being found on the victim's genitalia when she examined the victim. However, this ocular assertion is belied by both the doctor's evidence and the forensic laboratory report, which is submitted after examination of the victim's clothes and the smear of victim's perineum and a swab of her thighs. The medical evidence is also clear that the victim's hymen is intact and that there is no evidence to suggest that the victim is subjected to any sexual assault. In the absence of medical corroboration, the Special Court could have not believed either the evidence of the victim's mother or the victim as regards the penetrative sexual assault.18. The learned counsel for the appellant-accused next contended that the prosecution's case, based on the victim statement recorded under section 164(5) of Cr.P.C, is that the appellant-accused spread a towel on the floor, pushed the victim down on the towel, tied her hands with Dupatta, gagged her into submission, and committed the offence of penetrative sexual assault. But, the victim has not spoken about any of these circumstances in her evidence. There is material contradiction in the victim's evidence going to the root of the matter. The victim is a tutored witness. Thus, the victim's evidence by itself is also not credit worthy. Therefore, the Special Court could not have relied upon the victim's testimony to convict the appellant-accused either under 376(2)(f) of IPC or under Section 4 of the POCSO Act..19. The learned counsel canvassed that the prosecution, having failed to establish the necessary ingredients for an offence under the aforesaid provisions, the Special Court could not have relied on any presumption available under the provisions of the POCSO Act, especially ignoring the defence that the appellant- accused was being falsely implicated because of certain civil dispute between the two families.20. The learned Additional State Public Prosecutor argued in support of the judgment urging that it is settled law that in cases of Rape/Penetrative Sexual Assault, the consistent testimony of prosecutrix would be sufficient to bring in the guilt of the accused and the Courts, except in the rarest of rare cases, should not seek corroboration of the prosecutrix's testimony. He also argued that it is also settled that primacy must be given to the prosecutrix's testimony over the medical evidence in the event they are at variance with each other. In the present case, the victim has spoken about the appellant-accused committing penetrative assault and her clear and cogent evidence would suffice to establish the ingredients both under section 376(2)(f) of IPC and section 4 of the POCSO Act. Therefore, the Special Court's judgment is neither perverse nor contrary to law.21. In the light of the rival submissions, the question that arises for consideration is:"Whether the Special Court's finding that the prosecution has established the appellant- accused's culpability for punishment under the provisions of section 376(2)(f) of IPC and section 4 of the POCSO Act is either perverse or otherwise contrary to law."22. The challenge to the appellant-accused's conviction for the offences punishable under section 376(2)(f) of IPC and section 4 of the POCSO Act, as is obvious from the submissions canvassed by the learned counsel for the appellant-accused, is that the victim's testimony is not creditworthy and the medical evidence does not corroborate the prosecution's case. Therefore, based on the victim's evidence, or her mother's evidence, the Special Court could not have concluded that the appellant-accused committed penetrative sexual assault on the victim. However, there is no challenge to the Special Court's finding as regards the victim's age or the scene of crime.23. In view of the grounds urged it would be helpful to refer to the law elucidated by the Hon'ble Supreme Court as regards the appreciation of evidence of a victim, as well as a minor victim, in cases where the accused is charged with the offence of Rape/Penetrative Sexual Assault. In State of Himachal Pradesh v. Sanjay Kumar @ Sunny (( 2017) 2 Supreme Court Cases 1) it is held:"It is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood.In this case the Hon'ble Supreme Court was considering the probative value of the testimony of a minor victim who could not inform her family members about the repeated sexual assault on her over a period of time in the light of the grounds argued on behalf of the perpetrator that the minor victim's testimony was not creditworthy because of the delay in lodging the first information report and that neither the medical evidence nor the other circumstances corroborated the victim's testimony. As regards the appreciation of a minor victim's testimony, it's been held thus:By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well.24. The evidence on record will have to be appreciated in the light of these settled propositions. The incident has occurred on 17.7.2016 in the afternoon at around 2 o'clock when the victim's parents had been to work in their field and the victim's elder brother was out on an errand. The victim relates the incident to her parents when they return home from work at around 7 o'clock in the evening. The first information about the incident is filed with the jurisdictional police at around 1:40 AM on 18.7.2016 after visiting a Hospital. The FIR is filed with the Special Court at 10:50 AM. These circumstances indicate that the victim's parents, despite being grief stricken, have acted with alacrity. In fact, both the victim's parents have stated in their evidence that when they returned home in the evening after completing their work, they found the victim unusually sullen and lying in the bed, and she related the incident on enquiry. At the instance of the victim's mother, Smt. Honnamma was summoned who offered to help them and accordingly, they went to a Hospital and later to the police.25. These circumstances, which are credibly established, would be important in assessing the evidence as regards what must have transpired in the afternoon. The Doctor, who has examined the victim and as furnished Preliminary Medical Report dated 18.7.2016 (Exhibit P 19), at 1:40 AM, has recorded that the victim stated before her that the appellant-accused dragged her inside the house. She tried to escape, but could not. The appellant - accused closed the door, tied the victim's hands with a dupatta, put her on the ground and tried to rape her closing her mouth with one hand. The appellant - accused removed her undergarments, opened the zip of his pants and tried to rape her. The Doctor has also recorded that after the assault the victim has passed urine and she was complaining of burning sensation in her genitalia. The victim had not attained menarche.26. The victim's statement under section 164 of Cr.P.C is recorded on the same day by the jurisdictional Magistrate. The victim has repeated almost verbatim the incident saying that the appellant-accused removed her undergarments, opened the zip of his pants and placed his male organ inside her genitalia - pudendum. The victim has spoken about her statement recorded under section 164 of Cr.P.C in her evidence before the Special Court. The victim's evidence is recorded by the Special Court after ascertaining that the victim, who was aged thirteen years as of the date of her evidence, was competent to give evidence. As regards her statement under section 164 of Cr.P.C, she has stated that after the police recorded the statements, a woman police accompanied her to the court and the learned Magistrate (a woman officer) enquired her in-camera about the incident; she related what happened and her statement was later transcribed on a typewriter.27. The victim even in her evidence before the Special Court, explaining how the appellant-accused constrained her when the others were not at home except her younger sister who was sent out by the appellant- accused, has stated that the appellant-accused removed her undergarments and opened his pant and inserted his male organ in her pudendum and attempted to penetrate. She felt pain, and requested the appellant-accused not to assault her but the appellant-accused tried to calm her down saying that he had done the same thing with another girl in the village who was initially reluctant but enjoyed later. He later left, and she felt disturbed and humiliated by this experience.28. It is seen that the first information is lodged with the jurisdictional police in the most natural circumstances given the victim's situation, and she has been consistent right from the time she related the incident to the Doctor who has issued the Preliminary Medical Report (Exhibit P 19). Her statement under section 164(5) of Cr.P.C is consistent with her statement before the Doctor, and she not only stands by the statement recorded under section 164(5) of Cr.P.C in her evidences but deposes in similar lines. Thus, her evidence about the appellant-accused coming to her home when she was alone except for her younger sister who was sent out and the appellant-accused placing his male organ in her pudendum is consistent and cogent, and cannot be termed unbelievable.29. The Doctor, Dr Pratibha Nayak, who has recorded the victim statement as regards the history of assault in Exhibit P 19, has deposed that the victim stated before her that the appellant - accused tried to assault her and committed penetration. The Final Medical Report-Exhibit P 22, which is furnished after the FSL Report - Exhibit P 21, is that there is no evidence to suggest that the child has undergone any sexual assault. The FSL report is that no seminal stains were found on smear from victim's perineum or her thighs. The learned counsel has relied upon this evidence to contend that the victim's evidence that she was subjected to penetrative sexual assault cannot be believed. But, this evidence does not in any manner undermine the consistent and cogent evidence by the victim that the appellant-accused, after de-robing the victim waist below and opening is pant placed inserted his male organ in the victim's pudendum and pushed himself to penetrate.30. The Hon'ble Supreme Court in B.C. Deva v. State of Karnataka ((2007) 12 Supreme Court Cases 12) as regards the precedence to the victim's testimony over the medical evidence, has declared, and this proposition is also reiterated in State of Madhya Pradesh v. Preetham ((2018) 7 Supreme Court Cases 729), thus:"Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."The victim, who was below 12 years of age when she was violated and who at that age could not have know the significance or the implications of expressions such as Sexual intercourse or rape or such others expressions, has described what happened to her. She has said that the appellant-accused de-robed her waist below and opening his pants inserted his male organ in her pudendum and pushed himself to penetrate causing her pain and burning sensation in her genitalia. Therefore, the next question is whether this act would be sufficient to conclude that the offence of Rape as contemplated either under section 375 of IPC or section 3 of the POCSO Act is made out.31. The Hon'ble Supreme Court in Parminder @ Ladka Pola v. State of Delhi4 in a case arising from a similar incident in the year 2001, referring to its earlier decision in Wahid Khan v. State of Madhya Pradesh5 4 (2014) 2 Supreme Court Cases 592 5 (2010) 2 Supreme Court Cases 9] has referred to an extract from Modi on Medical Jurisprudence and Toxicology (Twenty First Edition) and held as follows:"Thus, to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains." Section 375, IPC, d

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efines the offence of 'rape' and the Explanation to Section 375, IPC, states that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. This Court has accordingly held in Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9] that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. In the aforesaid case, this Court has relied on the very same passage from Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) quoted above.The underlining by this Court32. This enunciation as regards what amounts to penetration to constitute an offence of Rape would continue to apply even after the Amendment Act of 2013 by which the provisions of section 375 of IPC are substituted. The provisions of section 375 of IPC, prior to amendment stipulated that a person is said to have committed Rape, subject to exceptions provided therein, when such person has intercourse with a woman under the circumstances described therein. The 1st Explanation to this unamended section 375 of IPC stipulated that penetration, without defining the expression penetration, would be sufficient to constitute the sexual intercourse necessary for an offence of Rape. After amendment by the Amendment Act of 2013, section 375 of IPC stipulates that a man is said to commit Rape under four circumstances mentioned in sub-clauses (a), (b), (c) and (d) thereof, and sub-clause (a) reads, "penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes are to do so with him or any other person. The expression penetrates his penis, to any extent, into the vagina ......, in the light of the victim's consistent and cogent evidence that the appellant- accused inserted his male organ in the victim's pudendum and pushed himself to penetrate would constitute Rape as contemplated under section 375 of IPC as well as Penetrative Sexual Assault as contemplated under section 3 of the provisions of the POCSO Act.33. The Special Court, convicting the appellant- accused under section 375 of IPC and section 3 of the POCSO Act, has sentenced the appellant to undergo greater punishment prescribed under section 376 of IPC considering that the appellant - accused is facing similar charges as per Exhibit P 30 and 31 - the records in Special SC/ST No.34 of 2015 and in Special SC/ST No.34 of 2013. The sentence would be in accordance with the stipulation under section 42 of the POCSO Act; and the sentence, given the circumstances of the case and the appellant-accused's antecedents, is just and appropriate.For the foregoing, this Court is of the considered opinion that the Special Court's judgment and order of sentence does not suffer from any perversity or otherwise any irregularity in law. Accordingly, the appeal stands dismissed.