Karnataka High Court
Shivaraj S/O Malleppa vs State Of Karnataka on 21 December, 2021
Bench: S Rachaiahpresided Bysrj
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21st DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S. RACHAIAH
CRL.A. No.2543/2013
BETWEEN:
1. SHIVARAJ S/O MALLEPPA
AGE:22 YEARS,R/O.KUREKUPPA
PRESENTLY RESIDING AT KRISHNA
NAGAR VILLAGE, TQ: SANDUR
DIST: BELLARY
2. MULEMANE RAHIMAN S/O. MULEMANE IMAM SAB
AGE:31 YEARS, R/O.2ND WARD
KURUBAGERI, KRISHNANAGAR VILLAGE, TQ:
SANDUR
DIST: BELLARY
3. MUJAVAR NABI S/O MISE IMAM SAB
AGE:23 YEARS, R/O.1ST WARD, KRISHNANAGAR
VILLAGE,
TQ: SANDUR, DIST: BELLARY
... APPELLANTS
(BY SRI. M.B.GUNDAWADE, ADV.)
AND
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
2
HIGH COURT OF KARNATAKA, CIRCUIT BENCH,
DHARWAD
THROUGH CIRCLE INSPECTOR OF POLICE, SANDUR
CIRCLE, BELLARY DIST.
...RESPONDENT
(BY SRI. PRASHANT.V.MOGALI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF
CONVICTION PASSED AGAINST APPELLANTS/ACCUSED
NO.1 TO 3 FOR THE OFFENCE U/SEC. 366(A) R/W 34 OF
IPC AND AGAINST APPELLANT/ACCUSED NO.1 UNDER
SECTION 376 AND 506 OF IPC DATED 08.01.2013 AND
ORDER OF SENTENCE DATED 09.01.2013 PASSED BY FAST
TRACK COURT-I, BELLARY IN S.C.NO.156/2011 BY
ALLOWING THE PRESENT APPEAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, THIS DAY, S.RACHAIAH J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants herein have filed this appeal being
aggrieved by the judgment of conviction dated 8/1/2018
convicting accused No.1 for the offence punishable under Section
376 and 506 of IPC and convicting the accused Nos.1 to 3 for
the offence punishable under Section 366(A) of IPC and they
have been ordered to undergo rigorous imprisonment for four
years and to pay a fine of Rs.5,000/- each, in default of payment
of fine to undergo simple imprisonment for four months for the
offence u/s 366(A) r/w 34 of IPC and further accused No.1 has
been ordered undergo rigorous imprisonment for 7 years and to
pay a fine of Rs.10,000/- and in default of payment of fine, to
undergo simple imprisonment for 8 months for the offence
punishable under Section 376 of IPC and also he has been
ordered to undergo rigorous imprisonment for one year and to
pay a fine of Rs.2,000/-, in default of payment of fine to undergo
simple imprisonment for 2 months for the offence punishable
under Sections 506 of IPC.
2. Brief facts of the case is that on 12/5/2010 at about
8.00 p.m., PW5 Kumari Rekha and PW6 Shashikala had gone for
attending their nature call near Kabarstand situated by the side
of their village Krishnanagar. While coming back to her house,
the three accused persons have forcibly kidnapped PW5 Kumari
Rekha in a TATA Ace vehicle bearing its registration No.KA-
35/9010-1819 and took her to Hospet against her will. There
accused No.1 Shivaraj said to have committed rape on her and
also gave the life threat to her forbade her from disclosing the
fact to anybody.
3. A complaint came to be lodged by the father of the
victim on 14/5/2010 and FIR registered in Crime No.88/2010 of
Sandur Police Station for the above said offences. Police have
investigated the case and filed a charge sheet.
4. The prosecution in support of its case, examined in
all 16 witnesses as PW-1 to PW-16 and got marked documents
as Exs.P1 to P16 and also got marked MOs.1 and 2. On the
other side, the accused have got marked two documents as
Exs.D1 and D2. After having heard both the parties, the trial
Court has framed the points for determination and accordingly,
after having assessed the evidence and material produced on
records convicted the accused for the above said offences.
5. The learned counsel for the appellants submits that
the trial Court has committed an error in believing the version of
PW5-victim girl and also her younger sister who is examined as
PW6 is against to the law and conviction based on their evidence
is not sustainable and prays to set aside the judgment passed by
the trial Court.
6. Further he submitted that the age of the prosecutrix
is 18 years and 6 months as on the date of she adduced
evidence before the Court i.e. on 3/4/2012 and the incident has
taken place and complaint was lodged on 14/5/2010. As per her
evidence, she has clearly disclosed that she had been along with
accused No.1 and she was residing with him for more than 10
days. In the interregnum, she has neither tried to escape from
his clutches nor made any efforts to inform the neighbours
regarding her kidnap and forcible sexual intercourse etc. In such
circumstances, it is unbelievable to believe her version. Hence,
requested to the Court to set aside the judgment.
7. Further, he submitted that though it appears from
the records that the victim girl was medically examined by
Dr. B.Jyothi who is examined as PW13 in this case. The Doctor
has not produced any medical certificate about the alleged rape.
Hence, in absence of medical evidence, it is unsafe to arrive at a
conclusion that the accused No.1 has committed the rape.
Further, he submitted that, there are numerous contradictory
statements between the victim girl PW5, her sister PW6 and
PW1-Hampaiaha-father and PW7-Smt.Nagamma-mother. The
trial Court has ignored all this contradictory evidence of the
witnesses and passed the impugned judgment, which requires to
be set aside.
8. Per contra, Sri P.G.Mogali, learned HCGP vehemently
argued that the trial Court has rightly convicted accused No.1 for
the offences punishable under Sections 376 and 506 IPC and
further rightly convicted accused Nos.1 to 3 for the offences
punishable under Sections 366(A). Hence, prays to uphold the
judgment in accordance with law. Further he has submitted that
the evidence of PW5-victim girl and her sister-PW6 are the most
important witnesses as they are the eye witnesses to the
incident. There is no reason to disbelieve their version at any
point of time. Though the defence had made several attempts
and subjected PW5 and PW6 for lengthy cross examination, the
defence has utterly failed to rebut the evidence which was
adduced by PW5 and PW6. In other words, they withstood the
lengthy cross examination and also supported the case of the
prosecution. Hence, he prays to dismiss the appeal.
9. Heard both the parties and perused the records.
10. The points that arises for consideration are:-
i) Whether the appellants herein have made
out a ground to interfere in the judgment
passed by the trial Court?
ii) Whether the prosecution has proved the
case beyond all reasonable doubt that
accused No.1 has committed a rape of PW5-
victim girl?
iii) Whether the prosecution has proved that
accused Nos.1 to 3 have forcibly kidnapped
her from her place?
iv) What order?
Answers:-
Point No.1 - Affirmative
Point No.2 - Affirmative
Point No.3 - Affirmative
Point No.4 - As per the final order
11. For the sake of convenience it is necessary to discuss
all the above mentioned points together.
12. It is necessary at this point of time to discuss about
each witness and their role in the present case.
13. PW-1-Hampaiah-is the father of the victim, he has
lodged the complaint to the respondent-Police. The crime came
to be registered in Crime No.88/2010 for the offence punishable
under Section 366(A) read with 34 of IPC. PW-2-Umashankar
relative of PW-1 and witness to the mahazar which is marked as
Ex.P-4, supported the mahazar. PW-3-Anjani is the hearsay
witness, supported the case of the prosecution. PW-4-
Kumaraswamy-witness to mahazar which is marked as Ex.P-4,
supported the case of the prosecution. PW-5-victim girl, she has
supported the case of the prosecution. PW-6-Kumari Shashikala
sister of the victim, supported the case of the prosecution PW-7
Nagamma wife of Hampaiah, supported the prosecution. PW-8
Nagaraj-witness to the spot panchanama at Ex.P-3, supported
the case of the prosecution. PW-9-Dr. Ramashetty is the doctor
who examined accused, Shivaraja-A1 and he has given his
opinion as per Ex.P-6. PW-10-Marappa is the witness to the
seizure of MO-2 and the said seizure mahazar is marked as Ex.P-
7 supported the case of the prosecution. PW-11 B.S. Nagaraj
Head Master he has issued school certification showing her date
of birth. The same is marked as Ex.P-8. PW-12 Nagappa Police
Constable he was deputed to trace out accused persons. He has
deposed that he has traced accused Nos.1 and 2 at first
instance, thereafter on interrogation A-2 and A-3 have shown
the place of A-1, where the victim girl was also present. He has
apprehended all the three accused and rescued the victim girl.
And brought to the police station produced before the I.O. PW-
13 Dr. Jyothi she has examined the victim girl and issued
certificate as per Ex.P-12, supported the case of the prosecution.
PW-14 B.K. Raghavendra, ASI of Sandur Police Station, upon
complaint lodged by PW-1, he has registered the case and sent
the FIR to magistrate. PW-15 P.M. Harishkumar, PSI of Sandur
Police station. He has conducted partial investigation and handed
over the case to the CPI, Sandur Police Station. PW-16
Ramakant Yallappa Ullur he was working as CPI of Sandur police
station jurisdiction. He has conducted further investigation after
taking the charge from PW-15, after investigation he has filed
charge sheet.
14. The case of the prosecution is that the victim girl
was aged about 16 years as on the date of incident and she was
kidnapped by the accused Nos.1 to 3. While she was coming
along with her sister PW-6 Shashikala near Muslim Kabaristan,
fort area, Krishnanagar. PW-6 the younger sister has narrated
the incident to the parents and relatives. Thereafter they all
searched the whereabouts of the victim girl. But, they could not
trace her. As they could not trace her, they have lodged the
complaint to the respondent police on 14.05.2010 at about 12-
00 noon. The police have registered the case in Crime
No.88/2010 for the offence punishable under Section 366(A),
376, 506 read with 34 of IPC.
15. As far as the kidnap is concerned, the evidence of
PW-6 Shashikala is clinching and reliable and she has supported
the case of the prosecution even though she was subjected for
lengthy cross examination. Her evidence has been corroborated
by PW5 victim girl, PW1 father of the victim and PW3 and 4.
There is no reason to disbelieve her version and the other
witnesses. The prosecution has proved the case beyond all
reasonable doubts with regard to the kidnap the victim girl is
concerned. Hence, this court is of the opinion that the
prosecution has successfully established that the victim girl was
kidnapped by accused Nos.1 to 3. The vehicle which was used
for commission of such offence has also been seized at the
instance of accused Nos.2 and 3 and the said seizure mahazar
has been supported by the witnesses.
16. It appears from the record that, there is a delay in
lodging the complaint. As per the FIR and complaint, the
incident has occurred on 12.05.2010 at about 8-00 p.m., the
complaint was lodged on 14.05.2010. The evidence of PWs-1 to
4, 6 and 7 reveals that PW-5 -victim girl was kidnapped and
PW1-father of the victim girl relatives were searching her
whereabouts. Hence, they could not file the complaint at the
earliest point of time. The prosecution has successfully
explained the delay and the trial Court rightly accepted the
delay. Hence, interference in such reasoned order is uncalled for.
Hence, this Court declines to grant any relief on the point of
delay.
17. As regards rape is concerned, the victim girl has
clearly deposed before the Court that, she was subjected to
sexual assault by Shivaraj-A1 in a room at Hospet where she
was confined under threat. After she being rescued by the
police, she has narrated the incident to PW1 and also to the
police about the said incident. Thereafter, she was subjected to
medical examination. The doctor has opined that Hymen was
found to be absent and further noticed that sexual intercourse
had taken place and also further she opined that the possibility
of such act could not be ruled out. After obtaining the opinion of
the Doctor, the police have taken permission from the Magistrate
and inserted Section 376 of IPC. The evidence of PW-5
corroborated with the medical evidence. The prosecutrix has
fully supported the case of the prosecution. She has been
consistent right from the beginning. Nothing has been
specifically pointed out as to why the sole testimony of the
prosecutrix should not be believed? In this regard, it is relevant
to place reliance on the judgment of Honb'le Supreme Court in
the case of State (NCT Delhi) Vs. Pankaj Choudry reported
in (2019) 11 SCC 575 wherein the Apex Court held that
"conviction can be sustained on the sole testimony of the
prosecutrix if it inspires confidence and that there is no rule of
law or practice that the evidence of the prosecutrix cannot be
relied upon without corroboration.
18. It is true that rape is one of the most heinous and
reprehensible of crimes that can be committed on the women
and it is for this reasons that Courts have leaned heavily in
favour of such a victim. In this regard reliance is placed on the
judgment of the Hon'ble Supreme Court in the State of Panjab
Vs. Gurmit Singh reported in (1996) 2 SCC 384 para 21
reads thus:
"21. Of late, crime against women in general
and rape in particular is on the increase. It is an irony
that while we are celebrating women's rights in all
spheres, we show little or no concern for her honour.
It is a sad reflection on the attitude of indifference of
the society towards the violation of human dignity of
the victims of sex crimes. We must remember that a
rapist not only violates the victim's privacy and
personal integrity, but inevitably causes serious
psychological as well as physical harm in the process.
Rape is not merely a physical assault - it is often
destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a
rapist degrades the very soul of the helpless female.
The Courts, therefore, shoulder a great responsibility
while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The
Courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw
out an otherwise reliable prosecution case. If evidence
of the prosecutrix inspirers confidence, it must be
relied upon without seeking corroboration of her
statement in material particulars. If for some reason
the Court finds it difficult to place implicit reliance on
her testimony, it may look for evidence which may
lend assurance to her testimony, short of
corroboration required in the case of an accomplice.
The testimony of the prosecutrix must be appreciated
in the background of the entire case and the trial court
must be alive to its responsibility and be sensitive
while dealing with cases involving sexual
molestations."
19. Considering the above two judgments of the Hon'ble
Supreme Court and also further taking into consideration the age
of the victim girl and also the medical certificate issued by the
Doctor clearly and irresistibly leads this Court to come to the
conclusion that the prosecution has successfully proved the case
beyond all reasonable doubt that the accused No.1 has
committed rape on PW5-victim girl. The accused No.2 and 3
along with accused No.1 have committed an offence punishable
under Section 366A r/w 34 of IPC.
20. In view of the above, the present appeal filed by the
appellant fails to convince the Court to interfere in the judgment
of the Trial Court hence, the appeals is deserves to be dismissed.
21. Accordingly, the appeal stands dismissed.
22. The conviction passed by the trial Court is herewith
confirmed.
Sd/-
JUDGE
Vmb/Naa
