Shri. Suresh S/O Dundappa Gudami vs The State Of Karnataka
2021 Latest Caselaw 6041 Kant

                             -1-




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

      DATED THIS THE 14TH DAY OF DECEMBER, 2021

                           BEFORE

            THE HON'BLE MRS.JUSTICE M.G.UMA

                      CRL.A.NO.2503/2011

BETWEEN

SHRI.SURESH S/O DUNDAPPA GUDAMI,
OF KAMATENATTI, TALUKA: CHIKODI, DIST: BELGAUM.
                                                  ...APPELLANT

(BY SRI.K.L.PATIL, ADV.)

AND

THE STATE OF KARNATAKA,
BY P.S.I. HUKKERI P.S., HUKKERI,
REP.BY THE STATE PUBLI PROSECUTOR,
HIGH COURT BUILDING, DHARWAD.
                                                  RESPONDENT

(BY SRI.PRAVEEN K.UPPAR, HCGP)

     THIS CRIMINAL APPEAL IS FILED U/S 374(2) PRAYING THAT
THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 10.12.2010 PASSED BY THE HON'BLE V
ADDITIONAL SESSIONS JUDGE, BELGAUM IN S.C.NO.155/2008 ON
ITS FILE MAY KINDLY BE SET ASIDE AND THE ABOVE NAMED
APPELLAN(ACCUSED) MAY KINDLY BE ACQUITTED OF THE OFFENCES
PUNISHABLE UNDER SECTION 366, 344, 376 AND 506 OF IPC BY
ALLOWING THIS APPEAL.

      THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                            JUDGMENT

The appellant-accused is before this court impugning the

judgment of conviction dated 10.12.2010 and order of sentence

dated 13.12.2010 passed in S.C.No.155/2008 on the file of the V

Additional Sessions Court, Belagavi (hereinafter referred to as

'the trial court' for short), convicting him for the offences

punishable under Sections 376, 366, 344 and 506 of IPC and

sentencing him to undergo simple imprisonment for a period of

seven years for the offence punishable under Section 376 of IPC

and to pay a fine of Rs.5,000/-, in default to undergo further

simple imprisonment for a period of one year. The accused is

sentenced to undergo simple imprisonment for a period of three

years for the offence punishable under Section 366 of IPC and to

pay a fine of Rs.2,500/-, in default to undergo simple

imprisonment for a period of two years and six months. The

accused is further sentenced to undergo simple imprisonment of

one year for the offence punishable under Section 344 of IPC

and to pay a fine of Rs.1,000/-, in default to undergo simple

imprisonment for a period of three months. Further, the accused

is sentenced to undergo simple imprisonment for a period of one

year for the offence punishable under Section 506 of IPC and to

pay a fine of Rs.1,000/-, in default to undergo simple

imprisonment for a period of three months.

2. Brief facts of the case are that, P.W.2-father of the

victim filed a missing complaint as per Ex.P4 alleging that his

daughter who was aged 13 years was found missing since

24.01.2008. The FIR was registered in crime No.17/2008 and

investigation was undertaken. In the meantime, the victim who

returned to the house on 27.03.2008 filed the first information

with Hukkeri police station against the accused alleging that on

24.01.2008, when she was proceeding to her school, the

accused, who was known to her came and induced her that he

will take her to the hospital at Chikkodi. Since she had gone with

him to the hospital at Chikodi twice and since accused had

gained her confidence, she accompanied him. But, however, the

accused took her to Chikodi and thereafter to Kolhapur and

further she was taken to Gujarat. When she questioned the

accused about his highhandedness, he criminally intimidated and

gave life threat. The victim stated that she was taken to Gujarat

and kept in a room. She was not allowed to call her parents and

he used to lock the door from outside, whenever he was going

out. Further, the accused committed forcible sexual assault on

her repeatedly for more than two months. Subsequently, the

accused dropped the victim near the house of her grand-mother

and fled away. Therefore, she requested the police to register

the case and to initiate legal action against him. The FIR was

registered, the investigation was undertaken and charge sheet

was filed against the accused for the above said offences.

3. The accused appeared before the trial court and

pleaded not guilty for the charges leveled against him. The

prosecution examined P.Ws.1 to 13 and got marked Exs.P1 to

P17 in support of its contention. The accused has denied all the

incriminating materials available on record, in his statement

under Section 313 of Cr.P.C., but has not chosen to lead any

evidence in support of his defence. However, during the cross-

examination of P.W.1, Ex.D1 came to be marked.

4. The trial court after taking into consideration all

these materials on record came to the conclusion that the

prosecution is successful in proving the guilt of the accused

beyond reasonable doubt and accordingly, convicted and

sentenced him as stated above.

5. Being aggrieved by the same, the accused is before

this court challenging the impugned judgment of conviction and

order of sentence passed by the trial court.

6. Heard learned counsel Sri.K.L.Patil for the appellant

and learned HCGP Sri.Praveen K.Uppar for the respondent-State.

7. Learned counsel for the appellant submitted that the

contention of the prosecution that the victim was aged 13 years

at the time of the incident is not proved. Even though the

prosecution examined P.W.10-Principal/Head Master of the

school to prove the date of birth, Ex.P13 is not helpful to the

prosecution to its contention that the date of birth of the victim

was 11.10.1994 and she was aged 13 years at the time of the

incident. Moreover, even according to the victim, she voluntarily

accompanied the accused and they went up to Gujarat traveling

in public transport. The victim was away from home and she was

being taken to Gujarat, but she never resisted the act of the

accused. Even according to the victim, she stayed with the

accused in a room where there are several such rooms adjoining

one another. None of the neighbours or the owners of the

rooms/premises in question were examined by the prosecution

to prove the commission of the offence. The victim has never

raised the issue with any of the occupants of the adjoining

premises or the owner of the building during this period of two

months. If the entire evidence of P.W.1 is taken into

consideration, nowhere she has stated that she was forcibly

taken away or kidnapped by the accused against her will. The

conduct of the victim discloses that she is deposing falsely

against the accused with some motive. Nothing prevented her

from raising the voice and alerting the neighbours if the accused

tried to kidnap her and take her to unknown place as far as to

Gujarat and staying for more than two months. The evidence

lead by the prosecution also discloses that the victim used to

accompany the accused to visit the doctor as she was suffering

from skin disease. Therefore, it is not for the first time, the

victim accompanied the accused on the date on which missing

complaint was registered by the father of the victim.

8. Learned counsel further submitted that, even

medical evidence adduced by the prosecution is not helpful to

prove its contention. P.W.8 is the doctor who examined the

victim categorically stated that there were no injuries found on

the body of the victim when she was examined. The witness

categorically stated that since hymen was raptured, she formed

an opinion that she was subjected to sexual intercourse. But the

witness categorically stated that hymen could be raptured for

variety of reasons. Under such circumstances, no value could be

attached to Ex.P12-medical certificate relied on by the

prosecution.

9. He further submitted that the prosecution also

examined P.W.3 said to be the friend who was studying with the

victim. The witness states that she along with the victim was

studying in the same school, but during cross-examination the

witness categorically stated that she had already married about

1½ years earlier to her deposition before the trial court. She also

states that she got married when she attained the marriageable

age. The witness was examined before the trial court on

30.10.2010 and the evidence of the witness is to be taken into

consideration. She had already attained the majority about 1½

year earlier to October, 2010 and so also the victim girl.

Therefore, by no stretch of imagination, it could be stated that

the victim was aged 13 years at the time of the accident.

10. Learned counsel further submitted that even though

the accused is charged under Section 376 of IPC, none of the

witnesses have spoken to about any act committed by the

accused to constitute the offence under Section 376 of IPC. The

victim only states that the accused had physical relationship with

her. The same would not amount to commission of rape as

defined under Section 375 of IPC. When the prosecution failed to

place sufficient materials to substantiate its contention that the

accused had in fact committed rape, the accused is not liable for

conviction. The trial court ignoring all these facts and

circumstances proceeded to convict the accused without any

basis. Therefore, the impugned judgment of conviction and order

of sentence passed by the trial court is liable to be set aside.

11. Alternatively, learned counsel submitted that the

incident in question said to have occurred during January, 2008,

the accused was hardly aged 22 years at that time. Now he is

married and is having a family and 13 long years have elapsed

from the date of the incident. The accused was in custody for

about three years during the trial and also after conviction till

the order of sentence is suspended by this court. Therefore,

leniency may be shown in favour of the appellant and set off

could be given to the sentence already undergone by the

appellant. Hence, he prayed for allowing the appeal.

12. Per contra, learned HCGP opposing the appeal

submitted that serious allegations are made against the

appellant for having committed the offence. The victim was

hardly aged 13 years at the time of the incident. The accused

took advantage of his position and under the guise of taking her

to the doctor for treatment, kidnapped her from the custody of

her parents. She was taken to Gujarat and kept in a room. The

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victim explained the commission of the offence by the accused in

detail both in the first information and also while deposing before

the court as P.W.1. She categorically stated that under the

pretext of taking her to the hospital, the accused took her away

and even when she resisted to go with him, he criminally

intimidated and taken her to Gujarat. Since the victim was

hardly 13 years, the accused cannot take the defence that the

act was committed with her consent. The victim categorically

stated that, she was kept in a room locked, when he used to go

outside and she was not permitted to call her parents over

phone. The victim also stated that during her stay for about two

months with the accused in Gujarat, he was having physical

relationship with her and he spoiled her. The witness also stated

that since she was helpless and unable to resist the accused, she

finally refused to take food and thereafter, the accused took her

and dropped her in Kamatenatti. When the victim is a child aged

13 years, the court cannot expect her to explain the act of the

accused in detail which will amount to traumatizing the victim

again and again. Moreover, there is no cross-examination to the

victim to disbelieve her version. The accused has taken the

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defence of total denial, but failed to explain the incriminating

materials that are placed before the court.

13. Learned HCGPP further submitted that P.Ws.1 and 2

have categorically stated in their evidence that the date of birth

of the victim is 11.10.1994 and that she was 13 years at the

time of the incident. It is also stated that she was studying in 8th

standard during that period and there is absolutely no cross-

examination to these facts deposed by the witness. The

prosecution also examined P.W.10, the Head Master of the

school in which the victim was studying. The school certificate as

per Ex.P13 also corroborates the evidence of P.Ws.1 and 2.

There is absolutely no reason for P.W.10 to issue Ex.P13

mentioning the date of birth as 11.10.1994. The witness stated

that the date of birth mentioned in the school register is on the

basis of the documents that were furnished while admitting the

victim to the school at the first instance. There is nothing to

conclude that all these witnesses are deposing falsely.

14. Learned HCGP further submitted that P.W.3, the

classmate of the victim deposed before the court that she was

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also studying with P.W.1 and she was aged 13 years. During the

cross-examination, it is only elicited that she has already been

married about 1½ year ago and that she married at the

marriageable age. The witness has categorically stated that she

was 13 years while she was examined before the court in 2009,

it cannot be concluded that she had attained the age of 18 years

since she stated that she married at the marriageable age. When

the prosecution is successful in proving that the victim was a

minor aged 13 years at the time of the incident, the accused

cannot contend that he took the victim with her consent and act

was committed with her consent.

15. Learned HCGP further submitted that P.W.8 is the

doctor who examined the victim after returning to the village.

She issued Ex.P12-Medical certificate wherein it is specifically

stated that hymen was not intact and she has given the opinion

that the victim had undergone sexual intercourse. Even though

during cross-examination, it is suggested that hymen could be

raptured for other reason including cycling, there is no cross-

examination to P.W.1 or P.W.2 that the victim was used to such

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activities like cycling. When the prosecution proved the

commission of the offence by the accused by examining the

victim herself and also produced materials which are clinching, it

cannot be concluded that the victim was a major as on the date

of the incident. The victim has also deposed before the court

that she was criminally intimidated. Under such circumstances,

the trial court convicted the accused by assigning cogent reasons

in its judgment. There are no reason to interfere with the

impugned judgment of conviction and order of sentence passed

by the trial court. Hence, he prayed for dismissal of the appeal.

16. Perused the material on record. The point that would

arise for my consideration is:

Whether the impugned judgment of conviction

and order of sentence passed by the trial court in

S.C.No.155/2008 for the offence punishable under

Sections 366, 344, 376, 506 of IPC calls for

interference by this court in this appeal?

My answer to the above point is in the 'Partly in the

affirmative' for the following:

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REASONS

17. It is the specific contention of the prosecution that

the victim was aged 13 years at the time of the incident. P.W.1

is the victim and P.W.2 is her father. Both the witnesses in their

evidence stated that the date of birth of the victim is

11.10.1994. It is pertinent to note that this date of birth was

elicited from the victim by the learned counsel for the accused

during the cross-examination. The witness categorically stated

that she was 13 years 8 months at the time of the incident.

Similarly, P.W.2 the father of the victim and he also stated that

the victim was 13 years as her date of birth is 11.10.1994.

Similarly, P.W.3, the classmate of the victim deposed before the

court stating that she is aged 13 years and she is studying along

with the victim. There is absolutely no cross-examination about

the age of the victim to any of these witnesses. Nothing has

been elicited from P.Ws.1 and 2 to disbelieve their version. The

contention of the learned counsel for the appellant that P.W.3

stated that she already married for about 1 ½ years and that she

married at the marriageable age is sufficient to conclude that the

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victim already aged 18 years or at least 16 years at the time of

the incident cannot be accepted under any circumstance. There

is absolutely no reason as to why there is no cross-examination

regarding date of birth and the age as mentioned by P.Ws.1 and

2.

18. The prosecution is also relying on Ex.P13-date of

birth certificate issued by P.W.10-Principal of LBS College where

the victim was studying in 8th standard during the year 2007-08.

As per this document, the date of birth of the victim is

11.10.1994. Even though this witness was cross-examined at

length, nothing has been elicited from him to disbelieve his

version or falsify Ex.P13. It is only stated by the witness that

Ex.P14-attendance certificate produced before the court is issued

by him to assist the police. It is pertinent to note that it is not

even suggested to P.W.10 that he has given a false certificate

for any reason. Of course, it is elicited from the witness that date

of birth mentioned in Ex.P13 was on the basis of the date of

birth mentioned in the transfer certificate issued in favor of the

victim after completing her 7th standard. There is absolutely no

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reason as to why all these materials both oral and documentary

are to be ignored while determining the age of the victim. It is

also pertinent to note that the accused has not probabalized his

contention that the victim was a major as on the date of the

offence. Therefore, I do not find any substance in the contention

taken by the learned counsel for the appellant that the age of

the victim is not proved by the prosecution.

19. The second contention raised by the learned counsel

for the appellant is with regard to the allegation that the victim

was kidnapped by the accused from the lawful custody of her

parents. To prove this contention, the prosecution again relied

on the evidence of P.Ws.1 and 2 and also the investigating

officer who has drawn the mahazar of the scene of occurrence in

Gujarat, as the same was shown by the victim, which is as per

Ex.P9. There is absolutely no cross-examination to any material

witnesses who have spoken to regarding these aspects of the

matter, including the investigating officer. When the prosecution

is successful in proving that the victim was a minor aged 13

years at the time of the accident, the contention of the appellant

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that she had not resisted or raised voice while she was being

taken by the accused cannot be the reason to disbelieve the

version of the prosecution. The evidence given by the victim

regarding her kidnap by the accused that it was only under the

pretext of taking her to the doctor for treatment inspires

confidence in the mind of the court. Moreover, when the

prosecution is successful in proving that the victim was minor at

the relevant period of time, the accused cannot raise the defence

of consensus of the victim.

20. The next contention raised by the learned counsel for

the appellant is that the ingredients of Section 375 of IPC are

not spoken to by the victim. This contention is also cannot be

accepted in view of the evidence led by the prosecution in that

regard. P.W.1 is the victim herself who specifically states that

she was taken to Gujarat in spite of her resistance and the

accused developed physical contact and spoiled her. The age and

the social background of the victim is to be considered while

appreciating the oral evidence of this witness. She is a girl aged

13 years from a rural area who studied up to 8th standard. She

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stated that she was taken by the accused in spite of her

resistance. She also stated that the accused developed physical

contact and spoiled her. There is absolutely no cross-

examination on these points spoken to by the victim. Without

there being any cross-examination to disbelieve the version of

the victim or to probabilize that there was no offence as defined

under Section 375 of IPC, it cannot be concluded by saying that

the victim has not narrated the entire act in detail to attract

Section 375 of IPC.

21. The act of committing rape on a minor girl itself is a

devastating experience for the victim and asking her to relive the

said experience again and again even before the court of law,

will amount to traumatizing the victim again and again. When

there is no serious cross-examination about the facts that are

deposed by the victim, it cannot be contended that all the

ingredients of Section 375 of IPC are not spoken to by the victim

in detail. It is not the victim who is facing the trial. Moreover,

when the age and social background of the victim are taken into

consideration, even if the victim has explained the act committed

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by the accused in detail in terms of Section 375 of IPC, definitely

that would have been an artificial evidence which was required

to be arrived at by the court as unnatural. The evidence deposed

by the victim before the court is quite natural to her age with her

social background. There is no reason to reject such evidence or

to suspect regarding commission of the offence by the accused.

Therefore, I do not find any merit in the contention taken by the

learned counsel for the appellant in that regard.

22. P.W.7-ASI who accompanied the victim to Gujarat

and Ex.P9 is drawn at the scene of occurrence, as the place was

shown by the victim. Nothing has been elicited from this witness

to disbelieve his version.

23. The prosecution examined P.W.8 and relied on

Ex.P12-medical certificate. Even though there were no external

injuries found on the body of the victim, it is stated that hymen

was not intact and the victim was used to sexual intercourse.

Though this witness was cross-examined by the learned counsel

for the appellant, the medical certificate Ex.P12 is never

challenged in the cross-examination of the witnesses. It is

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elicited from the witness that since hymen was not intact, she

formed an opinion that the victim has undergone sexual

intercourse. It is also elicited that hymen could be torn for

various other reasons including cycling. But it is not the

contention of the accused that the hymen of the victim was

raptured as she was used to cycling etc.

24. The learned counsel for the appellant placed reliance

on the decision of the Hon'ble Apex Court in the case of State of

Madhya Pradesh Vs Munna Alias Shambhoo Nath1 and in

the case of Vishnu Alias Undrya Vs State of Maharashtra2;

and in the case of Birad Mal Singhvi Vs Anand Purohit3, to

contend that the prosecution is not successful in proving the age

of the victim in accordance with law. I have gone through these

decisions in the light of the facts and circumstances of the

present case. In Munna Alias Shambhoo Nath (supra), the

Hon'ble Apex Court observed that, even though the prosecution

produced evidence including school certificate, opinion of the

doctor who conducted medical examination of the prosecutrix,

(2016) 1 SCC 696

(2006) 1 SCC 283

1988 (Supp) SCC 604

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including the bone ossification test, examination of the Principal

of the school, the age of the victim was not proved, since the

Principal of the college pleaded ignorance about the fact as to

the date of birth mentioned in her letter of declaration. The

doctor who conducted medical examination had not supported

the case of the prosecution. But on the other hand, deposed that

the girl could not have attained the age of 14 years. As per the

x-ray report of the ossification test, the doctor opined that the

age of the prosecutrix could not be more than 14 years. But the

said doctor was never examined. Nothing has been elicited from

the prosecutrix about her age, even though she was examined

before the court. Even though the mother of the victim stated

the age of the prosecutrix as 13 years, during cross-

examination, she stated that she had married about 20 years

back and she begotten eldest daughter within two years and

within 2-3 years thereafter the prosecutrix had born. Thus, the

finding of the High Court that there were no sufficient materials

to come to the conclusion about the exact age of the prosecutrix

was accepted by the Hon'ble Apex Court, as no clinching

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materials were produced to prove the fact that the girl was less

than 16 years of age at the time of the incident.

25. The Hon'ble Apex Court considered its earlier

decision in Birad Ml Singhvi (supra) wherein it is held that

entries regarding dates of birth contained in the school register

and the secondary school examination have no probative value

as no person on whose information the date of birth of the

candidates were mentioned in the school record was examined.

The Hon'ble Apex Court also placed reliance on Sunil Vs State

of Haryana4, wherein it is held that in a criminal case, the

conviction of the accused cannot be based on the approximate

date of birth which is not supported by any record. It would be

quite unsafe to base conviction on an approximate date. Thus,

the Hon'ble Apex Court held that the age of the prosecutrix was

not proved by the prosecution.

26. In Vishnu Alias Undrya (supra), the Hon'ble Apex

Court considered the fact that the date of birth of the prosecutrix

has been concurrently recorded by both the trial court and the

(2010) 1 SCC 742

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High Court on consideration of the evidence of the father and

mother of the prosecutrix and also the date of birth register in

the municipal records and hospital record. Therefore, it was held

that the finding of the trial court that the prosecutrix was less

than 16 years of age on the date of commission of the offence

was not at all challenged by the accused and thus, held that

there are sufficient materials to hold that prosecutrix was below

16 years of age and her consent, if any, for committing any act

is immaterial, under clause sixthly of the definition of "rape"

under Section 375 of IPC. Therefore, this decision relied on by

the learned counsel for the appellant is not helpful for him.

Moreover, in the present case, P.W.1-victim and P.W.2-father

have consistently stated about the date of birth of the victim and

also that she has been still studying in 8th standard. There is

absolutely no cross-examination to any of these witnesses

regarding this aspect of the matter. Moreover, the school

certificate relied on by the prosecution, i.e., Ex.P13 is supported

by the evidence of P.W.10 where he states that date of birth

mentioned therein is on the basis of the date of birth which was

found in the school leaving certificate produced at the time of

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admission of the victim to the school. When the evidence led by

the prosecution regarding the exact date of birth of the victim is

corroborated by both oral and documentary evidence, I do not

find any reason to suspect the age of the victim as 13 years to

be precise and under any case below 16 years.

27. Learned counsel for the appellant placed reliance on

the decision of the Hon'ble Apex Court in the case of Kavita

Chandrakant Lakhani Vs. State of Maharashtra and

Another5 to contend that mere abduction of the victim is not

sufficient to attract Section 366 of IPC, but it is necessary to

prove that the accused abducted the girl with intent to compel

her to marry against her will or to force her or seduce her to

illicit intercourse. But this decision referred to a woman who was

admittedly a major and there were multiple statement by the

victim regarding commission of the offences, which were quite

contradictory to one another, which gave an impression that the

story of commission of the offence was built after due

deliberation and the victim was having relationship with the

accused who was known to both the families. Under such

AIR 2018 SC 2099

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circumstances, the allegation that the accused kidnapped the

victim forcibly from her house with an intention to marry her or

seduce her to illicit intercourse was held to be an after thought.

28. Learned counsel also placed reliance on the decision

of the Hon'ble Apex Court in the case of Sakshi vs Union of

India and Others with Smt.Sudesh Jakhu Vs. Narender

Verma and Others6 to contend that ingredients of Section 375

of IPC are not at all attracted to the present case. It is the public

interest litigation filed by an NGO seeking declaration in the form

of an appropriate writ or direction that the word "sexual

intercourse" as contained in Section 375 of IPC shall include all

form of penetration and also to issue writ, order or directions to

register such cases falling within these broadened interpretation

of word "sexual intercourse" as offence under Section 375, 376

and 376A to 376D of IPC. Under such circumstances, the Hon'ble

Apex Court considered as to when Section 375 of IPC is

applicable and can it be altered so as to include all forms of

penetration as tried to be suggested by the petitioner and held

that, it is well settled principle that the intention of the

AIR 2004 SC 3566

- 26 -

Legislature is primarily to be gathered from the language used.

It is also equally well settled that a statute enacting an offence

or imposing a penalty is to be strictly construed. It is highlighted

that the fact that an enactment is a penal provision is in itself a

reason for hesitating before ascribing to phrases used in it a

meaning broader than that they would ordinarily bear. However,

while dismissing the writ petition, the Hon'ble Apex Court issued

certain directions to be followed while dealing with such offences

concerning Section 354, 375 and 377 of IPC and the cases of

child sexual abuse or rape. This decision which suggests strict

construing of the meaning used in the enactment is of no help to

the appellant to seek acquittal of the offence alleged.

29. Learned counsel for the appellant placed reliance on

the decision of the Hon'ble Apex Court in the case of Pratap

Misra and Others Vs State of Orissa7 to contend that on

consideration of facts and circumstances of the case, the act

complained was held to be a consensual act. But in the said

case, the victim was a married woman aged 23 years. Under the

facts and circumstances of the case, the court observed that

(1977) 3 SCC 41

- 27 -

there are serious contradictions in the case made out by the

prosecution as to the manner in which the accused committed

rape on the prosecutrix. Therefore, the Hon'ble Apex Court held

that the contentions of the prosecution cannot be accepted and

the impugned judgment of conviction is to be interfered with.

But in the present case, the victim is a minor aged 13 years.

Under such circumstances, the accused cannot contend that the

act complained is a consensual act. Therefore, the decision relied

on by the learned counsel for the appellant is not helpful to get

acquittal of the accused.

30. Learned counsel for the appellant also placed

reliance on the decision of the Hon'ble Apex Court in the case of

Santosh Prasad @ Santosh Kumar Vs State of Bihar8 to

contend that the evidence of the prosecutrix is not corroborated

by any other evidence or materials and therefore, the accused

cannot be convicted. In the said case, the Hon'ble Apex Court

categorically held that the accused can be convicted for the

offence of rape on the solitary evidence of the prosecutrix,

provided the same inspires confidence and appears to be

2020 AIAR (Criminal) 220

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absolutely trustworthy, unblemished and should be of sterling

quality. In the present case, P.W.1-victim categorically stated

that she was induced and taken by the accused to Gujarat, kept

her in a room and committed sexual assault repeatedly. It is not

the contention of the prosecution that there are any witness who

witnessed the act of the accused. Even though the victim has

categorically stated regarding the commission of the offence by

the accused in her chief-examination, nothing has been elicited

from her during cross-examination to disbelieve her version. It is

only suggested to the witness that she is deposing falsely

against the accused which has been denied by the witness.

When there is no effective cross-examination to take any specific

defence, the accused, cannot contend at this stage that the

victim was a major or she has consented for the act. Therefore,

all these decisions are not applicable to the facts and

circumstances of the present case.

31. In view of the discussion held above, I do not have

any hesitation to hold that the prosecution is successful in

proving the guilt of the accused beyond reasonable doubt and I

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do not find any reason to interfere with the impugned judgment

of conviction passed by the trial court.

32. The contention raised by the learned counsel for the

appellant that leniency may be shown in favour of the accused in

sentencing him is concerned, the same is to be considered in the

light of the nature of the offence committed by the accused. The

prosecution is successful in proving that the victim aged 13

years was kidnapped from the custody of her parents on

24.01.2008 and she was brought back by the accused only on

27.03.2008. Therefore, accused had taken the victim with him

for almost two months to Gujarat and committed sexual assault

repeatedly. It is also pertinent to note that initially the victim

was induced to take her to a doctor for providing treatment for

her skin disease and thereafter, she was taken away to Kolhapur

and from there to Gujarat. This conduct on the part of the

accused demands no sympathy, as suggested by the learned

counsel for the appellant. Even though it is contended that the

accused was hardly aged 22 years at the time of the incident, it

is to be noticed that the trial before the trial court was concluded

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and the impugned judgment of conviction was passed on

10.12.2010, i.e., within three years from the date of the offence.

The appeal which was filed in the year 2011 came to be listed

from time to time and on many dates of hearing, the learned

counsel for the appellant was absent, as per the order sheet

maintained. Under such circumstances, the accused cannot be

permitted to take advantage of his own wrong to seek leniency

in the matter of sentencing him for the heinous offence of

committing rape. Moreover, as per Section 376 of IPC, which

stood as on the date of the incident, the minimum sentence of 7

years is to be imposed on the accused for the offence in

question. Of course, proviso to Section 376(2)(f) suggest that

for any special or adequate reasons, the lesser punishment could

be imposed. The discussions held above do not suggest that

there is any adequate or special reason for invoking the said

provision.

33. Learned counsel for the appellant placed reliance on

the decision in the case of State of Rajasthan Vs

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N.K.(Accused)9 in support of his contention that even if the

accused is to be convicted and the appeal is to be rejected,

leniency may be shown in favour of the accused and the benefit

of set off for the period which the accused has already

undergone in prison is to be given. The Hon'ble Apex Court

considering the fact that the incident had taken place during

1993 and the accused was in custody for little less than two

years, felt it proper to sentence the accused to undergo

imprisonment for a period already undergone by him and to pay

fine.

34. Learned counsel for the appellant contended that the

incident had taken place during 2008 and 14 long years have

been elapsed and the accused was then aged 22 years. He is the

only bread winner of the family having aged parents. Now, he is

married and having a child aged 9 months. The victim is also

married and settled down in her life. The appellant being a

young man should be given a chance of reformation.

AIR 2000 SC 1812

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35. Learned counsel placed reliance on the decision of

the Hon'ble Apex Court in the case of Phul Singh vs State of

Haryana10 to contend that leniency may be shown to the

appellant as long incarceration would not serve any purpose. On

the other hand, reasonable substantive sentence of 2-3 years

could be imposed to enable the appellant to lead a decent life.

Learned counsel highlighted that Section 376 in unamended IPC

enables this court to reduce the sentence for special and

adequate reasons. In view of the same, he prays for showing

maximum leniency in favour of the appellant which would serve

the ends of justice.

36. Learned HCGP opposing the submissions of the

learned counsel for the appellant submitted that maximum

leniency is already shown in favour of the appellant by the trial

court. The accused being aged 22 years at the time of

commission of the offence, aged parents, he is married and now

having a child cannot be termed as special and adequate reason

to reduce the period of substantive sentence. The lapse of more

than 14 years after commission of the offence cannot be the sole

1980 Madras Law Journal (Crl) 533

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ground to reduce the sentence. Therefore, he prays for

confirmation of order of sentence passed by the trial court.

37. Considering the rival submission regarding quantum

of sentence that is to be awarded for the offence punishable

under Section 376 of IPC, the proviso to Section 376(1) which

stood before substitution of Act 13 of 2013 w.e.f. 03.02.2013,

the imposition of sentence of imprisonment for a term less than

7 years could be imposed, subject to adequate and special

reasons to be mentioned in the judgment. In the present case,

accused was aged 22 years at the time of commission of the

offence and 14 long years have elapsed from the date of

commission of the offence. It is stated that victim is already

married and she has settled down in her life. The accused is also

married and having a child. The responsibility to support his

family is on the accused. Learned counsel for the

appellant/accused submits that accused has repented for the act

which was committed while he was still at the age of 22 years.

These facts and circumstances could be considered while

sentencing the accused. The suggestion given by the learned

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counsel for the appellant that, by payment of compensation to

the victim workout to be disastrous, as the victim is said to have

been settled down in her life by marrying another person. Under

such circumstances, I am of the opinion that appellant/accused

may be given an opportunity to reform himself as he has

repented for the act which he has committed. At the same time,

the sentence imposed by the trial court could be reduced to

reasonable period of substantive sentence and by increasing the

fine amount that is payable by the accused. Even though the

victim is entitled for compensation under Section 357 of Cr.P.C.,

no information is available as to her present status. Awarding of

compensation in her favour at this length of period when she is

already been married and settled in life, may prove to be

disastrous. At the same time, if the victim is willing to claim

compensation, not passing any order in that regard would also

workout injustice to the victim. Therefore, I deem it proper to

reserve liberty with the victim to claim compensation, if she is

willing to do so. Hence, I answer the above point "partly in the

affirmative" and proceed to pass the following:

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ORDER

The appeal is allowed in part.

The judgment of conviction dated 10.12.2010 passed in S.C.No.155/2008 on the file of the V Additional Sessions Judge, Belagavi convicting appellant/accused for the offences punishable under Sections 376, 366, 344 and 506 of IPC is confirmed. However, the order of sentence dated 13.12.2010 passed by the trial court for the offence punishable under Section 376 of IPC is modified and the appellant/accused is sentenced to undergo rigorous imprisonment for a period of 4 years with fine of Rs.50,000/- and in default, he shall undergo rigorous imprisonment for a period of 1 year.

The remaining portion of the order of sentence passed by the trial court is confirmed.

The victim is at liberty to claim compensation from the trial court by filing a simple application in that regard. In case of filing such an application, the trial court should proceed to award the compensation from out of the fine amount that is to be deposited by the accused.

Registry is directed to send back the trial court records with a copy of the judgment to the trial court.

SD/-

JUDGE MBS/-