State Of Karnataka vs Maruti Hanamanti Pujeri
2021 Latest Caselaw 6929 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

      DATED THIS THE 21ST DAY OF DECEMBER, 2021

                           BEFORE

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

                     CRL.A.NO.2630/2011
                             c/w
                     CRL.A.NO.2726/2011

CRL.A.No.2630/2011

BETWEEN

MARUTI S/O HANAMANT PUJERI
AGE: 23 YEARS, OCC: STUDENT,
R/O MALDINII,
TQ: GOKAK, DIST: BELAGAUM.

                                                      ...APPELLANT

(BY SRI.SABEEL AHMAD, ADV. FOR SRI.A.S.PATIL, ADV.)

AND

THE STATE OF KARNATAKA
REP: BY GOKAK RURAL POLICE STATION,
NOW BY SPP, CIRCUIT BENCH, DHARWAD.

                                                ....RESPONDENT

(BY SRI.PRAVEEN K.UPPAR, HCGP )

THIS CRIMINAL APPEAL IS FILED U/S SET ASIDE THE IMPUGNED JUDGEMENT AND ORDER OF CONVICTION DATED 05.02.2011 PASSED IN S.C.NO.283/2009 BY THE V ADDL. SESSIONS

JUDGE, BELGAUM, AND TO ACQUIT THE APPELLANT/ACCUSED FOR THE OFFENCES P/U/S 376 OF IPC.

CRL.A.No.2726/2011

BETWEEN

STATE OF KARNATAKA BY GOKAK RURAL POLICE STATION, REPTD. BY ADDL. P.P., CIRCUIT BENCH, DARWAD.

...APPELLANT

(BY SRI.PRAVEEN K.UPPAR, HCGP)

AND

MARUTI S/O HANAMANT PUJERI AGE: 21 YEARS, R/O MALDINII, TQ: GOKAK, DIST: BELGAUM.

...RESPONDENT

(BY SRI.SABEEL AHMAD, ADV. FOR SRI.A.S.PATIL, ADV.)

THIS CRIMINAL APPEAL IS FILED U/S ALLOW THIS CRIMINAL APPEAL AND MODIFY THE SENTENCE IMPOSED BY THE LEARNED V- ADDL. SESSIONS JUDGE, BELGAUM, DATED 5.2.2011, IN S.C.NO.283/2009 AND IMPOSE SENTENCE PRESCRIBED FOR THE OFFENCES P/U/S 376 OF IPC, IN ACCORDANCE WITH LAW IN THE INTEREST OF JUSTICE.

THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 29.11.2021 COMING ON FOR PRONOUNCEMENT OF THIS DAY, THE COURT DELIVERED THE FOLLOWING:

COMMON JUDGMENT

The accused being the appellant in Crl.A.No.2630/2011 is

before this court seeking to quash the impugned judgment of

conviction and order of sentence dated 05.02.2011 passed in

S.C.No.283/2009 on the file of the V Additional Sessions Judge,

Belagavi, convicting him for the offence punishable under

Section 376(2)(f) of IPC and sentening him to undergo rigorous

imprisonment for a period of 3 years and to pay a fine of

Rs.25,000/-.

2. The State has preferred Crl.A.No.2726/2011

impugning the order of sentence passed by the trial court

reducing the minimum sentence prescribed under Section

376(2)(f) of IPC for only 3 years and to seek enhancement of

sentence.

3. Brief facts of the case are that, P.W.3 is the minor

girl and her father lodged the first information against the

accused stating that he has committed the offence under Section

376(2)(f) on the minor girl. The investigation was undertaken

and the charge sheet for the said offence was filed. Prosecution

examined P.Ws.1 to 18, got marked Exs.P1 to P13 and identified

material objects 1 to 5. The accused denied all the incriminating

materials available on record, but not chosen to lead any

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

examination of P.W.5, he got marked Ex.D1 & D2.

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. Accordingly, the accused was

convicted and sentenced to undergo rigorous imprisonment for a

period of 3 years and to pay a fine of Rs.25,000/- for the reason

that, even though minimum sentence under Section 376(2)(f) is

10 years, the accused has shown special and adequate reason

i.e., since he was aged 19 years 11 months and 11 days, his

father is not alive, he has to look after his widowed mother, he

being a bachelor and earning member in the family, is liable to

undergo rigorous imprisonment for a period of 3 years only

instead of 10 years.

5. The accused is before this court challenging the

impugned judgment of conviction and order of sentence passed

by the trial court, while the State is before this court impugning

the order of sentence and seeking to enhance the sentence

imposed on the accused.

6. Heard the learned counsel Sri.A.S.Patil for the

appellant/accused and learned HCGP Sri.Praveen K.Uppar for the

respondent/State.

7. Learned counsel for the appellant/accused contended

that the prosecution is only relying on the evidence of P.W.3.

The age of the victim girl is not disputed by the accused.

However, the very incident is disputed and the witnesses were

cross-examined at length. Even though P.W.5 is cited as an eye-

witness, his version cannot be believed even for a moment. Even

as per the evidence of the victim, there was earlier dispute

between the two families and as the informant was having

motive against the accused, a false complaint came to be

lodged. P.W.12 is the doctor, who examined the victim and he

has categorically stated that she has not sustained any injuries

and issued Ex.P6. Even as per this document, there were no

external injuries and the doctor has not expressed his opinion

regarding commission of the offence. There were material

contradictions in the evidence of the prosecution witnesses which

falsifies the case of the prosecution. Under such circumstances,

the trial court could not have proceeded to convict the accused.

The trial court should have extended the benefit of doubt to the

accused and should have acquitted him.

8. Learned counsel further submitted that the accused

was 20 years at the time of the incident. Now he is a practicing

advocate. He married the victim and now they are living happily.

Under such circumstances, to meet the ends of justice, the

accused is to be acquitted. Accordingly, he prays for allowing the

appeal filed by the accused and dismiss the appeal preferred by

the State.

9. Per contra, learned HCGP opposing the submissions

made by the learned counsel for the accused contended that

serious allegations are made against the accused for having

committed the offence. Even though the father of the victim

lodged the first information regarding the commission of the

offence, he expired during the trial and therefore, he could not

have been examined before the court. P.W.3 is the victim girl,

who categorically stated regarding commission of the offence by

the accused. P.W.5 is the eye-witness who also spoken about the

incident and the offence committed by the accused. Both these

witnesses were cross-examined at length, but nothing has been

elicited from them to disbelieve their version. P.Ws.4, 6 and 8

are the circumstantial witnesses who have also supported the

case of the prosecution. P.W.9 is the scribe who wrote Ex.P4. All

these witnesses were cross-examined by the learned counsel for

the accused, but their evidence is not shaken during the cross-

examination. P.W.12 is the doctor who examined the victim

categorically stated that the victim was a minor aged about 8

years. Investigating Officer was examined as P.W.18 and he

categorically stated that there was delay in receiving the FSL

report and therefore, he submitted the charge sheet without

getting the opinion of the doctor regarding commission of the

offence. At the same time, the evidence of P.Ws.3 and 5 cannot

be ignored regarding commission of the offence by the accused.

Therefore, the prosecution is successful in proving the guilt of

the accused beyond reasonable doubt. Rightly, the trial court

convicted the accused by forming an opinion that the guilt of the

accused is proved beyond reasonable doubt. There are no

reasons to interfere with the same.

10. Learned HCGP further submitted that under Section

376(2)(f) of IPC, the minimum sentence that is to be imposed on

the accused is rigorous imprisonment for a period of 10 years

with fine. But in the present case, the trial court has shown

misplaced sympathy on the accused and reduced the rigorous

imprisonment to 3 years. The provisions appended to Section

376(2)(f) states that only when adequate and special reasons

are shown, the minimum imprisonment prescribed under the Act

could be reduced. The reasons shown by the trial court are not

either special or adequate. Under such circumstances, at least

the minimum sentence prescribed is to be awarded to the

accused.

11. Learned HCGP further submitted that the submission

made by the learned counsel for the appellant/accused that the

accused was aged 20 years at the time of the incident, he is

practicing advocate or that he married the victim herself are not

the grounds either to acquit the accused or for showing any

leniency. He further submitted that even the victim had also lost

her father after this incident, which was not taken into

consideration by the trial court while determining the quantum of

sentence. Therefore, he prays for allowing the appeal preferred

by the State and dismiss the appeal filed by the accused.

12. Perused the materials including the trial court

records. The point that would arise for my consideration is:

Whether the judgment of conviction and order

of sentence passed by the trial court calls for any

interference by this court?

My answer to the above point is in the 'Negative' for the

following:

REASONS

13. The charge against the accused is that he committed

rape on the minor girl aged 8 years who is examined as P.W.3

on 03.04.2009 at about 1.25 p.m. in Maladinni in the house of

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P.W.10, where the accused was residing and thereby committed

the offence punishable under Section 376 of IPC. To prove this

contention, the prosecution examined the victim girl herself as

P.W.3. The witness stated that she was aged 9 years at the time

of examination before the trial court and that on 03.04.2009, the

accused committed rape on her at about 1.30 p.m. The witness

stated that she was playing near Bagoji vatara-cluster of houses

along with her friends. The accused called her and offered

chocolate and thereafter he took her inside his house and

committed the rape on a cot. Since she experienced pain, she

started crying. P.W.5-Vithal came inside the house by forcibly

opening the door. On seeing him, the accused got up and by

wearing his clothes, ran away from the spot. The witness has

stated that she was bleeding in her private part and the said

Vithal took to her to her house and narrated the incident to her

parents. She also narrated the incident to her parents.

14. This witness was cross-examined by the learned

counsel for the appellant at length. The tenure of cross-

examination is to elicit from the witness that no incident had

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occurred, but due to ill-will between the two families, a false

complaint was came to be registered. But the witness withstood

her cross-examination and denied all such suggestions were all

denied by the witness in toto. Nothing has been elicited to

disbelieve her version. It is noticed that even an attempt was

made by the learned counsel for the accused to emotionally

blackmail the minor girl by stating that if she deposes falsely,

the deity in her village may not do good to her. But in spite of

that, the witness who was aged 9 years withstood and supported

the case of the prosecution.

15. Another material witness examined by the

prosecution is P.W.5-Vitthal. This witness also fully supported

the case of the prosecution and stated that about 1½ years

earlier at about 1.00 and 1-30 p.m. he heard a girl screaming

near the house belonging to Yellappa Hukkeri while he was

passing through the house. Immediately, he pushed the door

and gained entry inside. P.W.3 victim girl and the accused were

on a cot and the accused was committing rape on the victim.

The witness stated that on seeing him, the accused got up, wore

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the clothes and ran away from the spot. Thereafter, he took the

minor girl to her house and informed the facts to her parents.

The witness stated that the victim girl has also informed him

regarding the commission of the offence by the accused by

offering her a chocolate. This witness was also cross-examined

at length by the learned counsel for the accused, but nothing has

been elicited from him to discard his version. He fully

corroborated the say of P.W.3 and supported the case of the

prosecution.

16. P.W.4 is the mother of the victim who is examined as

a circumstantial witness. Even though she was not an eye-

witness to the incident, the witness stated that on 03.07.2009 at

1.30 p.m. she along with her husband were filling jowar in a

sack and P.W.3 was playing outside in Bagoji vatara. After

sometime, P.W.5 brought the minor girl who was crying and on

enquiry, both P.Ws.3 and 5 stated that accused had committed

rape on the minor girl and that the Vithal who heard the cry of

the girl went inside and saw the commission of the offence. He

also stated that on seeing him, the accused ran away from the

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spot and he brought the minor girl to the house. The witness

stated that she also enquired her daughter, who also stated that

the accused had committed rape on her in his house on a cot.

The witness stated that the clothes that were worn by her

daughter were stained with blood and it was bleeding from her

private part. Therefore, the first information was registered

against the accused for the offence he has committed. She

identified M.O.1 as the bed on which the offence was committed

and M.Os.3 to 5 the clothes which were worn by the victim girl

at the time of the incident. She also identified the accused

before the court. The witness identified the first information

lodged by her husband as Ex.P4. The witness stated that since

the minor girl was experiencing pain, she was taken to the

Government Hospital for treatment. This witness was also cross-

examined at length by the learned counsel for the accused and

an attempt is made to elicit that a false complaint is filed due to

ill-will and motive against the accused. All such suggestions were

denied by the witness and withstood her evidence.

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17. P.Ws.1 and 2 are the mahazar witnesses who

supported the case of the prosecution identification M.Os.1 and 3

to 5 respectively and seizure of the same under the mahazar.

18. P.W.12 is the doctor who examined the victim girl

immediately after the incident. The witness stated that on

07.04.2009, the WPC 424 brought the victim girl for

examination. He noticed that there was no external injuries, but

her peticot was stained with blood. As per the opinion of the

dentist, the victim was aged 7½ or 8 years. He forwarded

M.Os.3 and 4 for FSL examination and issued the wound

certificate as per Ex.P6. This witness was also cross-examined at

length by the learned counsel for the accused and stated that

there were no traces of commission of sexual intercourse and

there is no deep penetration since the victim was hardly aged

7½ year. He denied the suggestion that the victim girl had never

come to his hospital nor he examined her and that he issued a

false certificate at the instance of the investigating officer.

19. As per Ex.P6-wound certificate issued by P.W.12, the

victim was aged 7½ or 8 years and no external injuries were

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found on the body of the victim. But however, Ex.P6 was issued

awaiting the report from RFSL, Bengaluru.

20. P.W.9 is the scribe of the first information-Ex.P4. He

fully supported the case of the prosecution. This witness also

denied the suggestion that he has taken over the pooja right of

the local deity in the village, therefore, he has ill-will against the

accused and hence, he has deposed falsely. All such suggestions

were denied by the witness. He fully supported the case of the

prosecution with regard to writing of the first information-Ex.P4

as per the instructions given by the father of the victim and filing

it with the police.

21. The accused was examined under section 313 of

Cr.P.C. with regard to the incriminating materials that are placed

before the court. He denied all those incriminating materials and

stated that there is dispute regarding pooja right in the village

between his family and one Laxman Bandi and his family

members. Therefore, a false complaint was came to be filed

against him to defame him. It is stated that P.W.9 is now doing

pooja in Hanuman Temple in the village. But however, even

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though P.W.9 was cross-examined at length, nothing has been

elicited from him to contend that he is responsible for filing of

the false complaint against the accused, even though no incident

had taken place. Moreover, nothing has been placed before the

court to suggest that either the informant or P.W.3, 4 or P.W.4

having any ill-will against the accused for filing a false complaint

that too alleging commission of rape on a minor girl aged 8

years.

22. It is unfortunate to state that the investigating

officer has not produced either the final opinion of the doctor or

FSL report, even though it is stated that M.Os.1 to 5 were

forwarded for FSL examination. However, even in the absence of

the report from RFSL, the evidence of P.W.3 who is the victim

and P.W.5 who is the eye-witness inspire confidence in the mind

of the court regarding commission of the offence by the accused.

There is absolutely, no reason to disbelieve the version of any of

these witnesses. Their version is also supported by P.W.4 mother

of the victim and P.W.9 scribe and P.W.12 doctor who examined

the victim after the incident. Even though the material witnesses

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were cross-examined at length, nothing has been elicited from

them either to disbelieve them or to support the contention of

the accused that he is falsely implicated in the matter without

any basis. Under such circumstances, I do not find any reason

to extend the benefit of doubt to the accused. Therefore, I am of

the opinion that the prosecution is successful in proving the guilt

of the accused beyond reasonable doubt. The accused has not

probabilized his defence of filing false complaint against him.

Hence, he is liable to be convicted.

23. Learned counsel for the appellant alternatively

contended that leniency may be shown in sentencing the

accused, as the accused had married the victim girl and they are

leading a happy married life. He also contended that incident in

question had occurred during 2009 and 12 longs years have

elapsed from the date of commission of the offence. The

appellant is the only bread earner of the family and he has to

support the victim as he had married her. Under such

circumstances, he prays for showing maximum leniency in

favour of the appellant.

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24. Learned counsel for the appellant placed reliance on

various judgments of Coordinate Bench of this court to contend

that in such circumstances, leniency was shown and the period

of substantive sentence was reduced to the period which the

accused has already undergone. Accordingly, he submits that the

appellant was in custody for about 8 month during trial and

therefore, the substantive sentence to undergo imprisonment for

the period which he has already undergone could be imposed.

25. However, learned HCGP opposes the said submission

stating that looking to the nature and seriousness of the offence

committed by the accused, no leniency could be shown in his

favour as the same would amount to misplaced sympathy.

26. I have considered the contention taken by the

learned counsel for the appellant and learned HCGP. The offence

alleged against the accused is of serious in nature. 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(1) suggest that for any special or adequate reasons,

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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.

27. The contention of the learned counsel for the

appellant that substantive sentence for the period which the

accused has already undergone is to be imposed cannot be

accepted for the simple reason that the victim was hardly aged 8

years at the time of commission of the offence and the accused

has taken a defence of total denial and cross-examined all the

material witnesses including the victim at length and even made

allegation of false implication. However, now it is stated that

accused had married the victim who is now aged 20 years.

Under such circumstances, the contention of the prosecution to

impose rigorous imprisonment for a period of 7 years as

provided under Section 376 of IPC would definitely affect the

victim girl as well. But at the same time, showing more leniency

in favour of the accused solely on the ground that he married the

victim girl would also give a wrong signal, as in all such cases,

the accused may think that they can get away after committing

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such heinous crime by marrying the victim or offering her to

marry her after commission of the offence. Therefore, I am of

the opinion that the impugned order of sentence passed by the

trial court sentencing the accused to undergo rigorous

imprisonment for a period of three years is to be confirmed. The

prayer of the accused either for acquittal or for further reducing

the sentence and restricting it to the period for which he has

already undergone and the prayer of the prosecution to sentence

the accused with maximum imprisonment for which he is liable,

cannot be accepted. Hence, I am of the opinion that both the

appeals are liable to be dismissed as devoid of merits.

Accordingly, I answer the above point in the "Negative" and

proceed to pass the following:

ORDER

Both the criminal appeals are dismissed.

Sd/-

JUDGE

MBS/-