Sateppa Bheerappa Dange vs The State Of Karnataka
2021 Latest Caselaw 7094 Kant

          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 23rd DAY OF DECEMBER, 2021

                        PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

                          AND

       THE HON'BLE MS. JUSTICE J.M.KHAZI

            Criminal Appeal No.100352/2018
                          C/w.
            Criminal Appeal No.100114/2019


IN CRL.A NO.100352/2018

BETWEEN

1.    SATEPPA BHEERAPPA DANGE
      AGED ABOUT: 25 YEARS,
      OCC: AGRICULTURE,
      R/O: ITNAL, TQ: RAIBAG,
      DIST: BELAGAVI 591 317.

2.    YAMNUR @ YAMANAPPA
      S/O SAHADEV RAJAPURE,
      AGED: 27 YEARS, OCC: AGRICLTURE,
      R/O: BISANKOPPA, TQ: GOKAK,
      NOW AT ITNAL, TQ: RAIBAG,
      DIST: BELAGAVI 591 317.

3.    SURESH SHIVAPPA DANGE
      AGED ABOUT 28 YEARS,
      OCC: AGRICULTURE, R/O ITNAL,
                                                 Crl.A.No.100352/2018
                                           C/w. Crl.A.No.100114/2019

                             2

      TQ: RAIBAG, DIST: BELAGAVI 591 317
                                                  ...APPELLANTS
(BY SRI.VITTHAL S TELI, ADVOCATE)

AND

THE STATE OF KARNATAKA
REP. BY RAIBAG PS,
DIST: BELAGAVI 591 317,
NOW REP. BY ITS SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                                 ...RESPONDENT

(BY SRI.V.M.BANAKAR, ADDL. SPP)

THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT/ORDER OF CONVICTION 31.10.2018 & SENTENCE DATED 03.11.2018 IN S.C.NO.143/2013 PASSED BY THE III- ADDL. DIST. & SESSIONS JUDGE & SPL. COURT UNDER POCSO ACT, 2012 AT BELAGAVI, FOR THE OFFENCES P/U/S 341, 506, 363, 366-(A), 376, 376(D), 307 R/W 34 OF IPC AND SEC. 4, 6 & 17 OF POCSO ACT AND ACQUIT AND DISCHARGE THE APPELLANTS IN S.C.NO.143/2013 OF THE ALLEGED OFFENCES.

IN CRL.A NO.100114/2019

BETWEEN

STATE OF KARNATAKA REPRESENTED BY THE RAIBAG POLICE STATION, RAIBAG, DIST: BELAGAVI, THROUGH THE ADDITIONAL STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

...APPELLANT (BY SRI.V.M.BANAKAR, ADDL SPP) Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

AND

1. SATEPPA BHEERAPPA DANGE AGED ABOUT: 25 YEARS, CASTE: HARIJAN, OCC: AGRICULTURE, R/O: ITNAL, TQ: RAIBAG, DIST: BELAGAVI.

2. YAMANUR @ YAMANPPA S/O SAHADEV RAJAPURE HARIJAN, AGED ABOUT: 27 YEARS, OCC: AGRICULTURE, R/O: BISANAKOPPA, TQ: GOKAK, NOW AT: ITANAL, TQ: RAIBAG, DIST: BELAGAVI.

3. SURESH SHIVAPPA DANGE AGED ABOUT: 25 YEARS, OCC: AGRICULTURE, R/O: ITNAL, TQ: RAIBAG, DIST: BELAGAVI.

...RESPONDENTS (BY SRI.VITTHAL S TELI, ADVOCATE)

THIS CRIMINAL APPEAL IS FILED U/SEC.377(1)(B) OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN SESSIONS CASE NO.143/2013 DATED 31.10.2018 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, BELAGAVI, TO SET ASIDE THE ORDER OF SENTENCE SO FAR IT RELATES TO SECTION 376(D) R/W 34 OF IPC PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, BELAGAVI IN S.C. NO.143/2013 DATED 31.10.2018 AND TO MODIFY THE SENTENCE AND TO IMPOSE MAXIMUM SENTENCE AS PROVIDED U/SEC.376(D) R/W 34 OF IPC.

THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING UP FOR 'PRONOUNCEMENT OF JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE FOLLOWING:

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

COMMON JUDGMENT

1. The accused are before this Court in Criminal

Appeal No.100352/2018 challenging the judgment

of conviction passed by the III Additional District

and Sessions Judge and Special Court under

POCSO Act, 2012 at Belagavi (for brevity 'trial

Court') dated 31.10.2018 in S.C.No.143/2013.

2. By way of the aforesaid judgment, the trial Court

convicted the accused for the offences punishable

under Sections 341, 506, 363, 366(A), 376,

376(D), 307 read with Section 34 of the Indian

Penal Code (for brevity, 'IPC') and Sections 4, 6

were in judicial custody, they were further

remanded to judicial custody.

3. The accused were heard on sentence on

03.11.2018. After hearing the accused and the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

prosecution, they were sentenced to undergo

simple imprisonment for one year and to pay a fine

of Rs.2,000/- each and in default thereof to

undergo simple imprisonment for one month for

the offence punishable under Section 341 read

with 34 of IPC; to undergo simple imprisonment

for one year and to pay a fine of Rs.2,000/- each

and in default thereof to undergo simple

imprisonment for one month for the offence

punishable under Section 506 read with 34 of IPC;

to undergo simple imprisonment for five years and

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

thereof to undergo simple imprisonment for one

month for the offence punishable under Section

366(A) of IPC; to undergo simple imprisonment for

seven years and to pay a fine of Rs.5,000/- each

and in default thereof to undergo simple

imprisonment for one month for the offence Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

punishable under Section 376 of IPC; to undergo

simple imprisonment for ten years and to pay a

fine of Rs.10,000/- each and in default thereof to

undergo simple imprisonment for two months for

the offence punishable under Section 376(D) of

IPC; to undergo simple imprisonment for seven

years and to pay a fine of Rs.5,000/- each and in

default thereof to undergo simple imprisonment for

one month for the offence under Section 307 of

IPC; to undergo simple imprisonment for seven

years and to pay a fine of Rs.5,000/- each and in

default thereof to undergo simple imprisonment for

one month for the offence under Section 4 of the

POCSO Act, 2012; to undergo rigorous

imprisonment for ten years and to pay a fine of

Rs.10,000/- each and in default thereof to undergo

simple imprisonment for two months for the

offence under Section 6 of the POCSO Act, 2012;

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

to undergo simple imprisonment for ten years and

to pay a fine of Rs.10,000/- each in default thereof

to undergo simple imprisonment for two months

for the offence under Section 17 of the POCSO Act,

2012 with substantial sentences run concurrently.

4. The trial Court also directed PW.1-victim to

approach the District Legal Services Authority to

get compensation under the Victim Compensation

Scheme framed under Section 357(a) of Cr.P.C.

5. The accused were given benefit of set off for the

period of imprisonment undergone by them as

provided under Section 428 of Cr.P.C.

6. The State has also filed Criminal Appeal

No.100114/2019 seeking for the imposition of a

maximum sentence as provided under Section

376(D) read with Section 34 of IPC by setting Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

aside the order of sentence insofar as it relates to

offence under Section 376(D) read with 34 of IPC.

7. The parties are referred by their rank in the trial

Court. The names of the victim as also the

witnesses and the names of places are not

mentioned in the judgment in view of the above

matter relating to offences under the POCSO Act.

8. The case of the prosecution in brief is that:

8.1 The complainant i.e. the victim girl-

PW.1/CW.1 was studying in PUC I year. She

would use her bicycle to go from her house to

the village where she used to board a bus to

go to her college. Accused No.1-Sattepa

Bhimappa's family runs a grocery shop, which

is situated close to the house of the victim.

The complainant and accused No.1-Sattepa

Bhimappa had developed a friendship, they Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

used to talk with each other on mobile phone

as also when she used to go to the grocery

shop to buy material for her house. The

marriage of the complainant was fixed with

one of her relatives. Accused No.1-Sattepa

Bhimappa insisted for the complainant to

sleep with him and threatened that he would

get the marriage cancelled by showing the

recording of her conversation with him to the

said relative with whom her marriage was

fixed.

8.2 On 26.02.2013 at about 6.20 p.m. when

the victim girl was going on a bicycle in order

to go to college, near the land of

PW.11/CW.15, which was on the way to the

bus stop, accused No.2-Yamanur and accused

no.3-Suresh wrongfully restrained her,

prevented her from going further, accused Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

No.3-Suresh held her hair and closed her

mouth, accused No.2-Yamanur held her legs,

both of them lifted her and took her to the

sugarcane field of PW.11/CW.15. When

accused No.1-Sattepa Bhimappa, with an

intention to have sexual intercourse with her

and thereby committing the offence of rape,

removed her chudidar and undergarments

and had forcible sexual intercourse with her,

by committing penetrative sexual assault.

Thereafter, accused No.2-Yamanur also had

forcible sexual intercourse with her, by

committing penetrative sexual assault.

Thereafter, with an intention to cause her

death they tied her legs with her chudidar

pant, tied her mouth with her odani (veil),

took her on a hero motorcycle and threw her

in a deserted well situated in the land of Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

CW.16 and it is in this background that it was

alleged that all the three accused with a

common intention committed the aforesaid

offences.

8.3 On the basis of the said complaint,

Raibag police registered FIR in Crime

No.50/2013 for the aforesaid offences. The

Investigating Officer conducted the

investigation and filed a charge sheet before

the Court for the said offences. The accused

have been produced before the Court, heard

before framing of charge and having found

prima facie material, the trial Court framed

charges for the said offences, accused

pleaded not guilty and claimed to be tried.

8.4 In order to prove and establish its case,

the prosecution examined 24 witnesses Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

(PWs.1 to 24), got marked 48 documents

(Exs.P.1 to P.48(a)) and 26 material objects

(MOs.1 to 26).

8.5 Upon the evidence being completed,

incriminating evidence against the accused

was put across to them, which they denied

while the statement under Section 313 of

Cr.P.C. was recorded. The accused did not

lead any evidence.

8.6 Upon the arguments being addressed,

the trial Court convicted the accused and

passed the order of sentence as aforesaid.

9. Sri.Vitthal S Teli, learned counsel appearing for the

appellants/accused submits that:

9.1 The trial Court has wrongly prosecuted

the accused for the offences under the

POCSO Act, since the alleged victim is not a Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

minor. The trial court has not considered the

evidence on record relating to the age of the

alleged victim in a proper manner, thereby

resulting in miscarriage of justice.

9.2 The procedure prescribed under Section

34 of the POCSO Act read with 94 of the

Juvenile Justice (Care and Protection of

Children) Act, 2015 (for brevity, 'J.J. Act') has

not been followed.

9.3 Section 34 of the POCSO Act reads as

under:

34. Procedure in case of commission of offence by child and determination of age by Special Court :

(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

the age of such person and it shall record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a persons determined by it under sub-section (2) was not the correct age of that person.

9.4 Section 94 of J.J. Act reads as under:

94. Presumption and determination of age-

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

9.5 He relies upon the decision of the

Hon'ble Apex Court in Sunil v. State of

Haryana AIR 2010 SC 392, more

particularly paragraph Nos.24 to 33 which are

reproduced hereunder for easy reference:

24. The learned counsel for the appellant placed reliance on the judgment of this court in Birad Mal Singhvi v. Anand Purohit AIR 1988 SC 1796. In that case, the court observed that date of birth in the scholar's register has no evidentiary value unless the person who made Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

the entry or who gave the date of birth is examined. The court observed as under:

"The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value."

25. The learned counsel for the appellant further submitted that in pursuance of the complaint of her father she was recovered on 6.9.1996. The alleged school leaving certificate is dated 12.9.1996, i.e. just after 6 days of recovery and three days after the appellant's arrest on 9.9.1996. It was submitted by Mr. Jain that the said document was created just to show the age of the prosecutrix as less than 16 years at the time of the incident. According to him, the document is not at all reliable.

26. The School Leaving Certificate is proved by Chandra Prakash Sharma, PW3 who had clearly stated as under:-

"Date of birth in Ex.PF is on the basis of School Leaving Certificate of 5th class which was given to us at the time of admission of Pinki in 6th class."

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

27. Mr. Jain placed reliance on Arvinder Kaur v. State of Punjab 2007(3) RCC (Crl) 818 to strengthen his submission that the School Leaving Certificate would be no proof of age, without production of admission register. He also submitted that the statement of Bishan, PW8, the father of the prosecutrix also cannot be relied upon. As per his statement, he was married in the year 1972. The incident took place on 30th August, 1996. This shows that the marriage took place about 24 years back. This witness has stated the date approximately, without any basis or any record. He mentioned that his eldest daughter's age is 20 years and thereafter he by imagination and approximation has given the age of other children and showing Pinki as the youngest one. He could not give the exact date and gap between the age of the children but stated -

"All my children are having a gap of one year or two years age approximately." According to Mr. Jain the approximate age given by the witness is not reliable. He also stated that PW8 also tried to show that he had 7 children, 2 among them are not alive. He has not given their age and when they were born. PW8 has given the age of Pinki as having completed 14 years and running 15 years and the said statement has been made on approximation. According to him, the conviction of the appellant cannot be based on such a quality of evidence where on the basis of approximation, the age has been indicated. According to the learned counsel for the appellant, even Pinki's statement in this regard is a hearsay evidence and is not at all reliable.

28. We have heard the learned counsel for the parties at length. It is clearly borne out from the evidence on record that the appellant belonged to the same Caste and Gotra of the prosecutrix Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

and was a frequent visitor to the house of the prosecutrix. There was a love affair between them and the court also observed that she did not ever resist her being repeatedly deflowered by the appellant Sunil. In this background, close and careful determination of the age of the prosecutrix is imperative. Dr. Verma P.W.1, who had clinically examined the prosecutrix, found that her secondary sex characters were well developed.

29. The short question in the facts and circumstances of this case remains to be determined is whether the prosecutrix was a minor? Dr. Sadhna Verma, PW1 who examined the prosecutrix referred her for verification to the Dental Surgeon and the Radiologist. The failure of getting the prosecutrix examined from the Dental Surgeon or the Radiologist despite the fact that she was referred to them by Dr. Sadhna Verma, PW1 is a serious flaw in the prosecution version. We are not laying down as a rule that all these tests must be performed in all cases, but in the instant case, in absence of primary evidence, reports of the Dental Surgeon and the Radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix.

30. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix.

31. The School Leaving Certificate produced by the prosecution was also procured on 12.9.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

32. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced.

33. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.

10.

10.1 The decision of the Hon'ble Apex Court

in Rishipal Singh Solanki v. State of Uttar

Pradesh in Crl.A.No.1240/2021 dated

18.11.2021, more particularly, paragraph

Nos.47 thereof, which is reproduced

hereunder for easy reference:

47. Section 94 of the JJ Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the Committee. But in case the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

Committee or the JJ Board is a juvenile has to be drawn by the said authorities. The said presumption has to be drawn on observation of the child. However, the said presumption may not be drawn when the Committee or the Board has reasonable grounds for doubt regarding the person 59 brought before it is a child or not. In such a case, it can undertake the process of age determination by the evidence which can be in the form of:

(i) Date of birth certificate from the school or the matriculation certificate from the concerned board, if available or in the absence thereof;

(ii) The birth certificate given by a corporation or by a municipal authority or a panchayat and in the absence of the above;

(iii) Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.

10.2 There is no proof of corroboration of the

witnesses alleged against the accused. There

are several inconsistencies in the testimony

of PW.1/CW.1-Victim and other prosecution

witnesses which negate the claim of the

prosecution as regards an offence having

been committed. He submits that the alleged

victim and accused No.1-Sattepa Bhimappa Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

were in love with each other, they used to

talk with each other on phone. It is only to fix

accused No.1-Sattepa Bhimappa that a false

complaint has been filed.

10.3 That in the dying declaration at Ex.P.2,

the alleged victim has stated that the injuries

were caused to her on account of her being

dragged and pushed. There are no allegations

made as regard offence of rape, etc. and

therefore the trial Court ought not to have

convicted the accused for the said offences.

10.4 The medical evidence does not indicate

any rape having been committed. There are

no seminal stains that were detected and

hence, he submits that there is no evidence

to support the case of the prosecution. He

relies upon the decision of the Hon'ble Apex Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

Court reported in Sadashiv Ramrao Hadbe

v. State of Maharashtra and Another

(2006) 10 SCC 92, more particularly,

paragraph Nos.7 to 14 thereof, which are

reproduced hereunder for easy referenc e:

7. The doctor, who examined the prosecutrix at about 3 p.m., did not find any injury on her body. There was only swelling on the upper lip but the prosecutrix had no case that this swelling on the upper lip was caused during the course of the incident. There were no injuries on her private parts and the doctor who had examined her was unable to give any opinion about the sexual intercourse allegedly taken place. It is important to note that vaginal swab was collected by the doctor and it was sent for chemical examination. Exhibit 43 is the pathological report and it shows that on Microscopic examination of the Vagina swab showed desquamated cevical cells and few Co- oxalate crystals and fluid but no spermatozoa was found. The Swab of Vagina was taken on the same day and if any sexual intercourse had taken place in all probabilities, the vaginal swab would have found some spermatozoa. The absence of these sperms cast a serious doubt on the prosecution version.

8. It may also be noticed that the appellant also was medically examined on the same day by PW-10. In his evidence, he stated that smegma was present around the corono-glandia. He further deposed that his examination negatived sexual intercourse and for collection of smegma around corono-glandia period of 24 hours is Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

required. This scientific evidence also did not support the prosecution. Had there been a vigourous sexual act as alleged by the Page 611 prosecutrix there could not have been the presence of smegma on his private part.

9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.

10. In the present case there were so many persons in the clinic and it is highly improbable the appellant would have made a sexual assault on the patient who came for examination when large number of persons were present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbablise the prosecution version.

11. The counsel who appeared for the State submitted that the presence of semen stains on the undergarments of the appellant and also semen stains found on her petticot and her sari would probablise the prosecution version and could have been a sexual intercourse of the prosecutrix.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

12. It is true that the petticot and the underwear allegedly worn by the appellant had some semen but that by itself is not sufficient to treat that the appellant had sexual intercourse with the prosecutrix. That would only cause some suspicion on the conduct of the appellant but not sufficient to prove that the case, as alleged by the prosecution.

13. The Sessions Court as well as the High Court had not taken into consideration the absence of spermatozoa in the vaginal swab of the prosecutrix. It may also be noticed in the FI Statement. In this case the prosecutrix had not given the full description of the incident allegedly taken place but when she was examined in court she had improved her version.

14. On a consideration of the entire evidence in this case, we are of the view that there is a serious doubt regarding the sexual intercourse allegedly committed by the appellant on the prosecutrix. The appellant is entitled to the benefit of those doubts and we are of the view that the High Court and the Sessions Court erred in finding the appellant guilty.

13. We set aside the conviction and sentence of the appellant. The appellant, who is in jail, is directed to be released forthwith, if not required in any other case.

10.5 He relies upon the decision in Rai

Sandeep alias Deepu v. State (NCT of

Delhi) (2012) 8 SCC 21, more particularly, Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

paragraph Nos.31 to 33 thereof, which are

reproduced hereunder for easy reference:

31. When we apply the above principles to the case on hand, we find the prevaricating statements of the prosecutrix herself in the implication of the accused to the alleged offence of gang rape. There is evidence on record that there was no injury on the breast or the thighs of the prosecutrix and only a minor abrasion on the right side neck below jaw was noted while according to the prosecutrix's original version, the appellants had forcible sexual intercourse one after the other against her. If that was so, it is hard to believe that there was no other injury on the private parts of the prosecutrix as highlighted in the said decision. When on the face value the evidence is found to be defective, the attendant circumstances and other evidence have to be necessarily examined to see whether the allegation of gang rape was true. Unfortunately, the version of the so called eye witnesses to at least the initial part of the crime has not supported the story of the prosecution. The attendant circumstances also do not co- relate to the offence alleged against the appellants. Therefore, in the absence of proper corroboration of the prosecution version to the alleged offence, it will be unsafe to sustain the case of the prosecution.

32. In the decision reported as Krishan Kumar Malik v. State of Haryana (supra) in respect of the offence of gang rape under Section 376 (2)

(g), IPC, it has been held as under in paras 31 and 32:

"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.

32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant." (emphasis added)

33. Applying the said principles to the facts of the case on hand, we find that the solitary version of the chief examination of PW-4, the prosecutrix cannot be taken as gospel truth for its face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellants.

10.6 He also relies upon the decision reported in

Dola alias Dolagobinda Pradhan and

another v. State of Odisha AIR 2018 SC

4020, more particularly, paragraph Nos.13 Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

and 14 thereof, which are reproduced

hereunder for easy reference:

13. Although the prosecutrix admitted that she sustained bleeding injuries on her hand because of the shattering of eight bangles worn by her on her right hand and seven bangles on her left hand, and had marks of violence present on her body, the medical records do not support the said version. The report of the medical examination is at Ext. 4. It is clearly mentioned in the said report that there is a bruise mark measuring half a centimeter, which can be caused by a hard and sharp object, on the right cheek. No other mark of injury was seen anywhere on the body. There is no injury on the breasts, there is no internal injury on any part of the body and no injury was found on the vulva, pelvis and vagina. There are no signs of injury on the thighs as well. Except for one bruise on cheek which measures half a centimeter, no other injury was found on the victim and the same is clear from the medical report (Ext. 4).

14. Thus, medical evidence does not support the case of the prosecution. The Doctor (PW-4), who examined the victim, however, has deposed that there were four bruises, each measuring half a centimeter on the left cheek and four bruises each measuring half a centimeter on the right cheek. The Doctor opined that the injuries are simple in nature and might have been caused by a hard and sharp object. The Doctor did not find any other injury on the body of the victim. There was no injury on the back side of the body of the victim. Although the Doctor has deposed in the examination-in-chief that the injuries could have been caused by human bite, he has Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

admitted in his cross-examination that he has not mentioned the shape of the injuries in his report. He further admitted that a bruise can be caused by a blunt object like stone, wood, fist blow etc. and can also be caused by a fall. While a bruise is always accompanied by swelling, an abrasion caused by a human bite is elliptical or circular in form, and is represented by separated marks corresponding to the teeth of the upper and lower jaw. If we were to believe that the abrasion was caused by a bite, the same should have been elliptical or circular in form. The said material is not forthcoming from the records.

Moreover, the medical report (Ext. 4) is contrary to the version of the Doctor with regard to the number of injuries as well. The medical report merely states that the victim has sustained a bruise mark measuring half a centimeter in size, which means that only one bruise was found on the right cheek of the victim. However, during his deposition the Doctor has exaggerated to say that the victim has sustained four bruises on each of her cheeks. In any event, merely on the basis of a bruise or bruises on the cheeks, which can be caused even by a fall or by an assault with a hard substance, it cannot be said that the victim has suffered sexual assault.

10.7 He submits that the presumption under

Sections 29 and 30 of the POCSO Act would

only arise if there was any doubt. In terms of

Ex.P.2 the victim herself having stated that

she had been dragged and pushed which Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

resulted in the injures, there is no

requirement for the accused to prove

otherwise or counter since there is no

presumption which arises.

10.8 Ex.P.17 being the medical report stating

that there is no sexual assault/rape, he

submits that there is nothing required of the

accused to prove or rebut.

10.9 The prosecution had not produced the

MLC certificate as admitted by PW.23/CW.43.

It is only during the course of hearing of the

above appeal that on an application the same

has been marked as Ex.D.1 this certificate

would indicate that there is no allegation of

rape in the MLC. The MLC only refers to

injuries caused.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

10.10 On allowing the application filed for marking

of the MLC report as Ex.D.1 this Court had

also marked the supporting case history as

Ex.C.1. He submits that the said marking is

not proper and in this regard he relies upon

the decision of this Court reported in Prappa

and Another v. Bhimappa and Another

2008 (4) AIR KAR R 122, more

particularly, paragraph No.20 thereof, which

is reproduced hereunder for easy reference:

20. This provision should not be confused with the general law governing the admissibility of an expert's evidence. In a criminal case when the prosecution relies on the expert's evidence to prove the charges against the accused mere production of the said expert's report into Court is not sufficient. It does not become a part of the Court record on mere production. If the prosecution relies on a report of the expert, not only the report is to be produced, the author of the report is also to be examined in the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness of the report. It is only then the said evidence becomes admissible and not otherwise. In such a criminal prosecution, the Court has not appointed the expert. It is the prosecution, to prove its case, needs report and they have to examine such an expert to prove their case. In a criminal trial, Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

expert is a witness for the prosecution. He is not a Commissioner appointed by the Court in the proceedings.

10.11 He submits that the investigation in any

crime more particularly one under the POCSO

Act has to be fair. In the present case, he

states that the investigation has not been

conducted in a fair manner prejudicing the

accused and therefore the judgment of

conviction needs to be reversed. In this

regard, he relies upon the decision of the

Hon'ble Apex Court reported in Harendra

Sarkar v. State of Assam (2008) 9 SCC

204, more particularly, paragraph No.64

thereof, which is reproduced hereunder for

easy reference:

64. India is a signatory to the Universal Declaration of Human Rights. Article 2 thereof provides for rights without discrimination, without restriction of any kind based on race, language or religion etc., Article 7 provides for equality before law and to the equal protection of the law for all, Article 8 postulates the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

availability of an effective remedy in law for acts violating the fundamental rights guaranteed to an individual and Article 12 provides for the right to a fair trial. These rights are enshrined in Articles 14 and 21 of the Constitution of India as well. Can it be said in all honesty that the investigation and prosecution in matters relating to communal riots which is really based on protecting human dignity and the right to life, accord with the above principles? The question posed must, of necessity, give cause for introspection. Such being the background, can we evaluate a murder committed during a communal riot as a crime committed in the normal course - a common place crime as ordinarily understood? The answer must be in the negative and for the reasons already quoted above. It is in this background that the arguments raised have to be examined.

10.12 Based on the above he submits that the

judgement of the trial court has to be

reversed and the accused to be acquitted.

11. In reply, Sri.V.M.Banakar, learned Additional SPP

submits that:

11.1 The evidence of the minor victim implicates

the accused. The minor victim was engaged

to be married at that stage, the said bride to

be, would not have made allegation that Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

someone had committed an offence of rape

on her let alone a gang rape, which would

have an impact on her future life.

11.2 The injuries which have been suffered by the

minor victim due to which she was

unconscious for nearly a week, and was

operated upon, indicate the heinous offence

of gang rape having been committed.

11.3 He submits that the trial court has rightly

relied upon the certificate issued by the

college, in this regard he relies upon the

decision of Hon'ble Apex Court in Ashwani

Kumar Saxena v. State of Madhya

Pradesh (2012) 9 SCC 750, more

particularly para Nos.24, 31 and 32 thereof

which are reproduced hereunder for easy

reference:

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

24. We may, however, point out that none of the above mentioned judgments referred to earlier had examined the scope, meaning and content of Section 7A, Rule 12 of the 2007 Rules and the nature of the inquiry contemplated in those provisions. For easy reference, let us extract Section 7A of the Act and Rule 12 of the 2007 Rules:

"Section 7A - Procedure to be followed when claim of juvenility is raised before any court. (1)Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary(but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect."

12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or

(iii) of clause

(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.

(emphasis added)

31. We also remind all Courts/J.J. Board and the Committees functioning under the Act that a Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.

32. "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

11.4 He also relied upon the decision in Jarnail

Singh v. State of Haryana (2013) 7 SCC

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

thereof, which are reproduced hereunder for

easy reference:

22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under :

"12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or

(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.

11.5 He submits that the age of the victim in all

the places has been properly given. The age

as reflected in the certificate issued by the

college is corroborated by the medical

evidence as per Ex.P.21, which refers to

dental examination, and indicates the age of

the victim as between 16-17 years. Her age

is also been mentioned for the first time in Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

164 statement as 16 years. There is

absolutely no doubt as regards the said age.

11.6 He submits that all the evidences on record

implicates the accused and as such this Court

ought not to intercede in the

Crl.A.No.100352/2018. But however, he

submits that Crl.A.No.100114/2019 is

required to be allowed and the sentence

imposed be enhanced to the maximum

sentence as that prescribed under section

376(D) of IPC. In this regard, he relies upon

the decision of Hon'ble Apex Court in State

of Madhya Pradesh v. Basodi (2010) 1

SCC (CRI) 228, more particularly at para

No.21 thereof, which is reproduced hereunder

for easy reference.

21. In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

"adequate and special reasons" in the judgment and not fanciful reasons which would permit the Court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no strait-jacket formula can be indicated. What is applicable to trial Courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is that the accused belonged to rural areas, was an illiterate labourer and belonged to scheduled tribe. The same can by no stretch of imagination be considered either adequate or special. The requirement in law is cumulative.

11.7 He also relied upon the decision in State of

Madhya Pradesh v. Najab Khan and

Others (2014) 1 SCC (CRI) 153, more

particulary para No.12 thereof, which is

reproduced hereunder for easy reference:

12) In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, this Court expressed that:

"It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

collective for justice, which includes adequate punishment cannot be lightly ignored."

13) This Court, in Gopal Singh vs. State of Uttarakhand, JT 2013 (3) SC 444 held as under:-

"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....."

14) Recently, the above proposition is reiterated in Hazara Singh vs. Raj Kumar & Ors., 2013 (6) Scale 142.

15) In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

11.8 Based on the above, he submits that the

Crl.A.No.100352/2018 has to be dismissed

and Crl.A.No.100114/2019 has to be allowed.

12. It is in the above background that we are required

to appreciate/reappreciate the evidence on record

in order to ascertain if the prosecution has proved

the guilt of the accused as regards the offences of

which they were charged with and if the sentence

awarded by the trial Court is proper and correct.

13. CW.1/PW.1 is the victim girl who has stated that

13.1 She is studying in I PUC, she used to go

to college by bicycle from her house to the

village where she used to board a bus. The

distance from her house to the village is 1

k.m. and thereafter, from the village to

college is around 5 k.m.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

13.2 She knows all the three accused. She

used to go to the shop of accused No.1-

Sattepa Bhimappa to buy groceries, everyday

she used to leave her house at 6 a.m. to the

village and then take a bus.

13.3 Her marriage had been fixed with her

relative, it is at this time that on 26.02.2013

when she left her home usually at 6.00 a.m.

and when she was on the way to the village

on her bicycle, accused Nos.1 to 3 restrained

her, accused No.3-Suresh held her hands and

closed her mouth, accused No.2-Yamanur

held both her legs, they carried her to the

sugarcane field put her on the ground,

accused No.3-Suresh continued holding her

mouth and hands, while accused No.2-

Yamanur held her legs, accused No.1-Sattepa

Bhimappa removed her pant and Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

undergarments and had forcible sexual

intercourse with her. Thereafter the same

was repeated by accused No.2-Yamanur

when accused No.1-Sattepa Bhimappa held

her legs.

13.4 Thereafter, they tied her legs with her

pant, her mouth with her odani (veil), took

her in a hero motorcycle and threw her in a

deserted well. This they did despite her

pleading with accused Nos.1 to 3 that she

was like their sister, she was getting married

and that she would not inform anybody about

what had happened.

13.5 When she was thrown into the well, she

held the rope attached to the pump set and

slipped down sustaining lacerated injuries,

she was semi-conscious and was screaming.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

Her screams were heard by her aunt

PW.9/CW.13, who on hearing her sounds

came to the well, called some other people,

lifted her out of the well and took her to a

hospital on the same day i.e. on 26.02.2013.

13.6 She has stated that she gained her

consciousness in the night of 27.02.2013.

She gave a complaint as per Ex.P.1 to the

Raibag police, when they visited the hospital,

she has also given a statement to the Police

Inspector. When she was in the hospital, the

Tahasildar had also come and recorded her

statement as per Ex.P.2. She was in the said

private hospital for four days, thereafter on

03.03.2013 she was shifted to the District

Hospital, Belagavi in an ambulance, where

she was hospitalized and underwent

treatment from 03.03.2013 to 20.03.2013.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

13.7 She has stated that she had suffered

two injures, one of the injuries on her

stomach requiring surgery which has done at

the private hospital. She has stated that upon

her discharge the police took her to show the

spot where she was stopped. She showed the

same to them where a panchanama was

conducted and photographs were taken as

per Exs.P.3, 4 and 5. She has stated that she

was medically examined by the doctor in

Belagavi, her clothes, bicycle, etc. were

identified and marked as MOs.1 to 9.

13.8 She has denied all the suggestions put

to her. She has admitted that there are

nearly 20 houses around the place where she

was assaulted. When suggested that there

were 15-20 buses which would ply near the

place, she denies the same. She has admitted Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

her mobile number but state that the said

mobile is usually with her mother. She has

denied that she has lodged complaint at the

instance of an advocate, who was inimical to

the family of accused No.1-Sattepa

Bhimappa. She has denied that there were

numerous telephonic conversations between

her mobile number and the said lawyer. She

has denied that accused No.2-Yamanur is not

a resident of her village. She has denied that

accused No.3-Suresh would only come to the

village to attend to any festivities.

13.9 She has stated that on 26.02.2013 she

was going to college to write her exams and

hence she has not taken any of the text

books. She has stated that she does not take

mobile phone to her college. She has denied

that on the said day there was dense fog so Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

that she could not see anybody or anything

and she accidentally fell into the well. She

has stated that her father was imprisoned on

account of he having committed the murder

of his brother and hence she and her mother

were staying in the house. She has admitted

that in the morning, in the area where she

lived there would be peace and quiet. She

has stated that though she tried to scream

and shout, accused No.3-Yamanur had

covered her mouth and she could not do so.

13.10 She has denied all suggestions put

across to her. She has stood the test of the

cross-examination and supported the case of

the prosecution.

14. CW.2/PW.2 and CW.3/PW.3 are the mahazar

witnesses who have turned hostile. They have Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

denied any knowledge of the panchanama which

had been drawn up at Ex.P.7. The learned Public

Prosecutor sought permission to treat them as

hostile witnesses and cross-examined them.

During the course of the cross-examination they

have denied all the suggestions. Nothing much was

elicited from them to support the case of the

prosecution. They have not been cross-examined

by the counsel for the accused.

15. CW.5/PW.4 who is the owner of the land in which

the well was located, denied any knowledge of the

incident. The learned Public Prosecutor sought

permission to treat the witness as hostile and cross

examined him. During the course of the cross-

examination, he has denied all the suggestions.

Nothing much was elicited from him to support the

case of the prosecution. He has not been cross-

examined by the counsel for the accused.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

16. CWs.8 and 9/PWs.5 and 6 respectively, also denied

any knowledge of the incident. Both of them have

stated that the police took them to the spot and

took their pictures. They denied that any material

objects were seized in their presence. The learned

Public Prosecutor sought permission to treat them

as hostile witnesses and cross-examined them.

During the course of the cross-examination, they

have denied all the suggestions, nothing much was

elicited from them to support the case of the

prosecution. They have not been cross-examined

by the counsel for the accused.

17. CW.10/PW.7 is the mother of the victim girl who

has deposed that

17.1 From two years they were staying in the

said village. PW.1/CW.1 is her daughter, she

knows and has identified the accused. She Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

has also stated about how PW.1/CW.1 would

go to college by bicycle and thereafter by

bus, and about the distances.

17.2 About 7.30 a.m. she came to know from

CW.13/PW.9, about PW.1/CW.1 being found

in the well. When she went there she was

informed that CW.12 had lifted her from the

well, she was lying on the road and was

unconscious.

17.3 Hence, she and her brother

PW.8/CW.11. took her to the hospital and

after 1½ days PW.1/CW.1 gained

consciousness. She has stated about how

PW.1/CW.1 informed her that when she was

restrained her took her to the sugarcane field

and accused No.1-Sattepa Bhimappa and Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

accused No.2-Yamanur having raped her

while accused No.3-Suresh was helping them

and of her being taken in two wheeler and

thrown into the well.

17.4 She has also stated about CW.13/PW.9

having heard the sound and screams of

PW.1/CW.1. They lifted her out of the well.

She has also handed over MOs.1 to 5 being

the cloths of PW.1/CW.1 to the police.

17.5 During the course of cross-examination,

she has stated that there are around 40-50

houses around the place of the incident and

there was an existence of kacha road, the

people using the said kacha road to travel.

17.6 She has admitted that in the morning

the area is very quiet. The well in question

was situated 15 feet from her house. That Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

her husband has been convicted in a criminal

case. She has denied that her daughter would

take a mobile phone along with her while

going to college.

17.7 She has denied that because of fog

nothing could be seen. She has denied that

because of the fog PW.1/CW.1 has

accidentally fallen into the well.

17.8 She had admitted that she had informed

the doctor that PW.1/CW.1 had fallen from a

bicycle into the well.

17.9 She has denied that the advocate who

had enmity with accused, met her and her

brother in the hospital and they have created

story of gang rape and filed a false case.

17.10 She has stated that her daughter was

engaged to be married and her daughter had Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

certain objections to the said marriage. She

has denied that PW.1/CW.1 had a love affair

with accused No.1-Sattepa Bhimappa and it

is for that reason they were getting her

married in urgency. She has denied that the

family members of accused No.1-Sattepa

Bhimappa also had objection to the said

marriage. She has further denied that

PW.1/CW.1 wanted to marry accused No.1-

Sattepa Bhimappa.

17.11 She has denied all other suggestions.

She has withstood the test of the cross-

examination and stuck to the prosecution

story.

18. CW.11/PW.8 is the brother of PW.7/CW.10. He has

deposed that Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

18.1 PW.7/CW.10 is his sister and

PW.1/CW.1 is daughter of PW.7/CW.10. On

the date of the incident when he was in the

field, he heard the voice from the well he had

gone there, he and CW.12 got down in the

well and lifted PW.1/CW.1 from the well, at

that time PW.1/CW.1 was unconscious, they

took her to the hospital.

18.2 He has stated that PW.1/CW.1 did not

tell him anything about the incident. The

learned Public Prosecutor sought permission

to treat the witness as hostile witness and

cross-examined him. During the course of the

cross-examination, he has denied all the

suggestions, nothing much was elicited from

him to support the case of the prosecution.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

18.3 During the course of the cross-

examination by the counsel for the accused,

he has stated that there was dense of fog on

the date of the incident and that PW.1/CW.1

on her own fell into the well from the bicycle.

19. CW.13/PW.9 is the wife of CW.12. She has

deposed that

19.1 She heard sound near the well. She saw

PW.1/CW.1 in the well, she called people,

including her husband CW.12, who came and

lifted her out of the well and then PW.1/CW.1

was taken to the hospital. After two days she

gained consciousness.

19.2 On her regaining consciousness, when

she enquired with CW.12, he informed her

that the accused had raped PW.1/CW.1. Then

the police came and she showed them the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

well. She has denied that the police showed

her the slippers (MO.7), writing board (MO.8)

and the bicycle (MO.6).

19.3 At this stage, the learned Public

Prosecutor sought permission to treat

PW.9/CW.13 as hostile witness and cross-

examined PW.9/CW.13. She has denied the

suggestions put across to her. She has

denied that panchanama was prepared in her

presence. Nothing much was elicited from her

during the course of the prosecution.

19.4 In the cross-examination by the counsel

for the accused, she has admitted that there

was dense fog on the date of the incident.

She has stated that PW.1/CW.1 on her own

had fallen into the well. She admits that she

states that she was asked to depose in this Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

particular manner by the father of

PW.1/CW.1. She retracts and states that he

has not told her anything.

19.5 She has also retracted that CW.12 told

her about the accused having committed the

rape on PW.1/CW.1. She has stated that after

lifting PW.1/CW.1 from the well when they

made her to drink water she regained

consciousness.

20. CW.14/PW.10 has denied any knowledge of the

incident. She has denied that she went to the well

and saw PW.1/CW.1 in it. The learned Public

Prosecutor sought permission to treat

PW.10/CW.14 as hostile witness and cross-

examined PW.10/CW.14. During the course of the

cross-examination, she has denied all the

suggestions, nothing much was elicited from her to Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

support the case of the prosecution. She has not

been cross-examined by the counsel for the

accused.

21. CW.15/PW.11 has denied that he knows

PW.1/CW.1, however he states that he knows the

accused. On the date of the incident, he admits

that sugarcane was being grown in his field,

however denies any knowledge of the incident as

also of having given a statement to the police. The

learned Public Prosecutor sought permission to

treat the witness as hostile witness and cross-

examined him. During the course of the cross-

examination, he has denied all the suggestions,

nothing much was elicited from him to support the

case of the prosecution. He has not been cross-

examined by the counsel for the accused.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

22. CW.17/PW.12 stated that he does not know

PW.1/CW.1 and the accused. He admits the

number of his motorcycle, however denies any

knowledge of the incident as also of the use of the

motorcycle in the incident. The learned Public

Prosecutor sought permission to treat the witness

as hostile witness and cross-examined him. During

the course of the cross-examination, he has denied

all the suggestions, nothing much was elicited from

him to support the case of the prosecution. He has

not been cross-examined by the counsel for the

accused.

23. CW.6/PW.13 is the seizure mahazar witness, he

had gone to the private hospital where PW.1/CW.1

was being treated where the mother of PW.1/CW.1

produced the clothes of PW.1/CW.1 worn at the

time of the incident. He has identified the seizure

mahazar as Ex.P.16 and the cloths seized as MOs.1 Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

to 5. He has stated that CW.7 was present with

him at that time, who has affixed his thumb

impression. During the course of cross-

examination by the counsel for the accused, he has

stated that he is semi-literate. He has denied the

suggestions put across to him during the course of

cross-examination. He has stood the test of cross-

examination and supported the case of the

prosecution.

24. CW.17/PW.14 is an independent witness. He has

deposed that on the date of the incident at 6.00

a.m. when he was proceeding on his two wheeler

after watering the sugarcane field he saw the

accused standing near the place, close to the scene

of occurrence, after that he came to know of three

people having raped a girl, he does not know the

name of the girl. In the cross-examination by the

counsel for the accused, he has answered all Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

questions relating to the road, distances from one

place to the other, existence of houses,

government school, etc. He has denied that the

advocate who is inimical to the accused is his

relative. He denies the knowledge of any dispute

between the said advocate and the father of the

accused. He has withstood the test of the cross-

examination and supported the case of the

prosecution.

25. CW.18/PW.15 is an independent witness who has

deposed that on the date of the incident at 7.30

a.m. in the morning when he was standing near

the bus stand that all the three accused on a

Honda motorcycle had crossed the bus stand. On

the cross-examination by the counsel for the

accused, he has denied all the suggestions. He has

also denied that he is deposing falsely. He has

supported the case of the prosecution.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

26. CW.24/PW.16 is the doctor in a private nursing

home/hospital, who had first examined the victim

on 26.02.2013.

26.1 He has stated that he has issued the

wound certificate as per Ex.P.17 in terms

thereof the victim PW.1/CW.1 has suffered

the following wounds:

26.1.1 Multiple linear scratches over left lumbar and gluteal regions.

26.1.2 Multiple linear scratches over right subcostal and lumbar regions in area of 10*10 cms.

26.1.3 Right arm : 10 * 6 cms (anteromedial side ) abrasion.

26.1.4 Right cubital fossae : 4 * 5 cms abrasion.

26.1.5 Left arm : 6 * 4 cms (anteromedial side ) abrasion.

26.1.6 Left cubital fossae : ( anteromedial aspect ) 5 * 6 cms abrasion.

26.1.7 Left mid fore arm : 2 * 6 cms abrasion.

26.1.8 Laceration of inferior surface of the liver.

26.1.9 Multiple mesentric tears (of jejunum and ileum.) Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

26.1.10 Multiple omental tears. In my opinion the injuries listed from 8 to 10 (i.e 8, 9 and 10 ) are grevious in nature. The remaining are simple in nature.

26.2 He has further stated that all the

wounds are fresh in nature.

26.3 In the cross-examination by the counsel

for the accused, he has stated that his

hospital is a general hospital, whenever any

accident case or assault case comes to them,

they report to the police by sending MLC. He

has stated that no MLC was sent in the

present case. He has further stated that the

victim PW.1/CW.1 has responded to the

treatment given and recovered. He has

denied that a sponge bath is given to the

victim before the surgery, but her cloths were

changed.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

26.4 He has stated that though different

names were mentioned in various reports,

both the names relate to the victim

PW.1/CW.1. He has denied that the report

given by him is relating to someone else and

not relating to the victim PW.1/CW.1. He has

survived the test of the cross-examination

and supported the case of the prosecution.

27. CW.4/PW.17 is a mahazar witness, he states that

CPI had called him for drawing the mahazar. He

went to the spot shown by the CPI. He was also

shown the well, where PW.1/CW.1 victim was

thrown. He identified the bicycle as MO.7. He has

stated that apart from the above he does not know

anything else. The Public Prosecutor sought

permission to treat the witness as partly hostile

and cross-examined him. In the cross-examination

he has admitted that a writing board had also been Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

seized from the spot which was behind the bicycle

career which is identified as MO.8. In the cross-

examination by the counsel for the accused, he has

denied that he was not a resident of the said place

and that he has been called only to depose falsely

in the matter. He has stated that in the well there

was only sufficient water for grass to grow and

nothing more. He has denied other suggestions. He

has withstood the cross-examination and

supported the case of the prosecution.

28. CW.32/PW.18 is the village accountant who has

submitted his report as regards the location of

grocery shop and that sugarcane crop was being

grown in the field where PW.1/CW.1 victim was

raped. In the cross-examination, he has admitted

that in the revenue document the presence of

houses, well, etc. is not reflected. Otherwise, he Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

has stood the cross-examination and supported the

case of the prosecution.

29. CW.31/PW.19 is the retired Principal of the college

where PW.1/CW.1 victim was studying. He has

deposed that he has furnished the date of birth

certificate of PW.1/CW.1 victim as per Ex.P.19 as

per which the date of birth is 02.08.1996. During

the course of cross-examination by the counsel for

the accused, he has denied that he has given a

certificate as per the instructions of the police by

showing the age of PW.1/CW.1 as minor.

Otherwise, he has stood the cross-examination and

supported the case of the prosecution.

30. CW.38/PW.20 is the lady doctor at Government

hospital. She has deposed that as per the

requisition of the police she visited the private

hospital where PW.1/CW.1 victim was treated and Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

examined her on 28.02.2013. She has stated that

PW.1/CW.1 had secondary stage sexual

developments, her hymen was not intact, there is

bleeding from her vagina, she took blood samples

of PW.1/CW.1 and sent it to Government hospital

for examination through woman police constable.

She also collected the clothes of PW.1/CW.1 victim

and sent it to RFSL for examination, sent her to

dentist and radiologist for verification of the age.

She has stated that as per the report of the dentist

her age is 16-17 years and as per the report of

radiologist her age is 16-18 years. She has

identified the RFSL report as Ex.P.20. As stated in

terms of the said report there is evidence of sexual

intercourse both the past as well as recent. She is

the author of the medical certificate at Ex.P.21. In

the cross examination by the counsel for the

accused, she has stated that there was no lady Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

doctor present in the Government hospital where

the victim was residing in. She denied she has not

examined PW.1/CW.1 victim or that she has not

given the certificates. She has stated that if there

is forcible sexual intercourse, there is possibility of

injuries being caused to the private parts of the girl

in question. She has withstood the test of the

cross-examination and supported the case of the

prosecution.

31. CW.41/PW.21 is the Additional Senior Civil Judge

and JMFC before whom the statement under

Section 164 of Cr.P.C. of PW.1/CW.1 victim was

recorded in terms of Ex.P.6 on 13.03.2013. In the

cross-examination she has stated that before

recording the statement, she had ascertained if

PW.1/CW.1 victim was in a condition and fit

enough to give her statement. She has stated that

she recorded the statement of PW.1/CW.1. She Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

has stated that no one else was present on that

day. She has not recorded the audio or video

statement of PW.1/CW.1. She has denied the

suggestions put across to her and supported the

case of the prosecution.

32. CW.40/PW.22 is the Tahasildar who had recorded

the dying declaration of PW.1/CW.1 as per Ex.P.2.

In the cross-examination he has stated that he has

verified if PW.1/CW.1 was in a position to give her

statement from the doctors, however he has not

obtained the same in writing. He has denied that

PW.1/CW.1 has not given the statement as

recorded by him. He has further denied that he is

deposing falsely to support the case of the

prosecution. He has denied the other suggestions

and supported the case of the prosecution.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

33. CW.43/PW.23 is the Police Inspector who has

conducted the investigation. He has stated that on

receipt of information about the incident he had

visited the private hospital where PW.1/CW.1

victim was being treated and he recorded the

statement of PW.1/CW.1 victim, received the

cloths handed over by the mother of PW.1/CW.1

victim, seized the cloths and drawn the

panchanama as per Ex.P.16. He has given a

requisition to the Taluka Executive Magistrate to

record the dying declaration of PW.1/CW.1 victim.

He has recorded the statement of PW.8/CW11,

PW.9/CW13, PW.10/CW14 and CW.12, had drawn

panchanama of the spot and well as per Ex.P.8,

seized the bicycle, chappal, writing pad and her

ticket as MOs.6 to 8. He had also received the

articles belonging to PW.1/CW.1 victim collected by

the medical officer, took the accused into police Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

custody from 01.03.2013 to 04.03.2013. He has

recorded the voluntary statement of accused on

02.03.2013 which have been marked as Exs.P.24-

26, produced them for medical examination. He

has also received the articles belonging to the

accused collected by the medical officer on

03.03.2013. He took the accused along with

panchas and photographer to the spot and well

where they took photographs, collected bangle

pieces in the spot where the rape is alleged to

have occurred. He has seized the cloths owned by

accused No.2-Yamanur and accused No.3-Suresh

at the time of the incident as also the two wheeler

used at the time of the incident, received the

medical certificate of the accused from the medical

officer at Exs.P.28-30. He has recorded the

statement of PW.11/CW.15, PW.4/CW.5,

PW.15/CW.18 and CW.16 on 05.03.2013, recorded Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

the statement of PW.8/CW.11 and CW.12 on

12.03.2013, gave requisition for recordal of

statement under Section 164 of Cr.P.C. of the

victim which was recorded on 13.03.2013. He has

also stated about the medical examination carried

out, the samples collected and sent for analysis,

receiving the report and after investigation being

completed having filed the charge sheet. In the

cross-examination by the counsel for the accused,

he has denied that there are 40-50 houses around

the scene of occurrence. He has denied any

knowledge of several buses being plied near the

scene of occurrence. He has denied that

PW.1/CW.1 would use bicycle to go to her college

and not take a bus. He has denied that during the

course of investigation he came to know about

several calls made by the mother of PW.1/CW.1 to

the advocate who was inimical to the accused. He Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

has admitted that there were telephone calls

between the mobile number of PW.1/CW.1 and

accused No.1-Sattepa Bhimappa. He admits that

PW.1/CW.1 has elder sister, who is 24 years age,

he denies that PW.1/CW.1 is 21 years of age. He

denies that for that reason SSLC marks card of

PW.1/CW.1 has not been produced. He has denied

all other suggestions which were put to him during

the course of cross-examination. He has supported

the case of the prosecution.

34. CW.42/PW.24 is the PSI of police station. He

received a call on 27.02.2013 at 10.30 a.m.

informing him that PW.1/CW.1 had been

hospitalized in the private hospital. He recorded

the oral complaint of PW.1/CW.1 at 2.00 a.m. on

27.02.2013 on which basis they registered case in

Crime No.50/2013 and sent the FIR to Court,

thereafter on coming to know the severity of the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

case investigation was handed over to

PW.23/CW.43. In the cross-examination he has

denied any cases where somebody false into well

or falls down from a bicycle no MLC is received. He

has stated that he received the MLC in the present

case. He has examined this and as per the said

examination report received was as regards

PW.1/CW.1 having fallen down in a well. He has

denied rest of the suggestions which were put to

him. He has withstood the test of the cross-

examination and supported the case of the

prosecution.

35. Before we advert to the evidence on record, one

matter which would have to be decided is whether

the victim was minor at the time of the incident or

not?

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

35.1 The case of the prosecution is that the

victim was a minor as on the date of the

incident and her age was 16 years. As

regards the same, reliance is placed on

Ex.P.19 being a certificate issued by SSR

Composite Pre-University College, Mudalagi

wherein the date of birth of the victim is

stated to be 02.08.1996. The incident having

occurred on 26.02.2013 she was about 16

years and 6 months as on the date of the

offence.

35.2 The contention of Sri.Vitthal S Teli is

that the author of Ex.P.19 has not been

examined. Inasmuch as it is the requirement

that the register mentioned at Ex.P.19 to be

produced, the person who had made the

entries in the said register to be examined so

also the persons who had given the date of Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

birth of the victim to be examined. He further

states that the said certificate has been

issued after the offence was committed or

rather after the accused were arrested.

Hence, the document not being of a time

prior to the incident when there was no

dispute, the trial Court ought not to have

taken the said document as gospel truth of

the age of the victim.

35.3 The SSLC certificate of the victim has

not been produced requiring an adverse

inference to be drawn under Section 114(g)

of the Indian Evidence Act. He also refers to

the evidence of PW.1/CW.1, wherein she has

stated that her sister is aged about 23-24

years and she is 2-3 years younger than her

sister, thereby implying that PW.1/CW.1

victim is at least 20 years.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

35.4 He refers to the deposition of

PW.7/CW.10, mother of PW.1/CW.1 minor

victim, wherein she has stated that her

marriage took place 25 years ago, one year

after the marriage elder daughter was born

and one year thereafter PW.1/CW.1 was

born. Therefore, he submits that PW.1/CW.1

was 23 years of age.

35.5 As regards the FSL report, he submits

that though the dental age estimation is

shown as 16-17 years the radiologist opinion

is that the skeletal age is 16-18 years.

Neither the dentist nor the radiologist has

been examined. Therefore, the said age

cannot be taken into consideration.

35.6 It is on the above basis, he contends

that the age of the victim was at least 20 Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

years and as on the date of the offence she

was above 18 years.

35.7 In order to appreciate the above

arguments, the first aspect to be taken into

consideration is that PW.1/CW.1 deposition

was recorded on 19.08.2015 and the incident

had occurred on 26.02.2013 i.e. after a

period of 2½ years. Even if the submissions

made by Sri.Vitthal S Teli is taken at face

value in respect of the deposition of

PW.1/CW.1 since the elder sister of the victim

was 23 years of age as on 19.08.2015 there

is a difference of three years between her

and PW.1/CW.1. Her age could have been

taken as 20 years as on 19.08.2015 and as

on 26.02.2013 it would have been 16½

years.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

35.8 Be that as it may, the victim has

specifically denied the suggestion made to

her that she was 21 years of age as on the

date of recordal of her deposition. She has

reiterated that as on the date of the incident

she was 17 years of age. As regards the

evidence of PW.7/CW.10, referred to and

relied upon by Sri.Vitthal S Teli, PW.7/CW.10

was examined on 17.10.2015 and that she

states that she was married 25 years ago.

Though as per the said deposition it appears

that the victim is aged 23 years as on the

date of recordal of the deposition, we have to

take into consideration the fact that

PW.7/CW.10 is a rustic villager, who has

deposed on the basis of her memory which

cannot be taken to be a pristine quality.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

35.9 In this regard, the oral evidence of

PW.1/CW.1 would have more probative value

since PW.1/CW.1 is speaking of her own age.

35.10 The argument of Sri.Vitthal S Teli is that

the SSLC marks card has not been produced

and it is only a certificate issued by the

college, which certificate has been produced

after the incident, the same also does not

hold us any longer.

35.11 Ex.P.19 has been produced by

PW.19/CW.31, who was the Principal of the

college where the victim was studying. He

has stood the test of the cross-examination.

He has denied that the date has been entered

wrongly to support the case of the

prosecution in the said cross-examination.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

35.12 The counsel for the accused has not

sought for production of the register nor

made enquiry as to who has made the entry

in the register or the like. The only

suggestion made is that a wrong entry has

been made at the behest of and to suit the

case of the prosecution.

35.13 In our considered opinion, the certificate

which has been produced at Ex.P.19 issued

by the college when the victim was studying

in a Pre-University College would be sufficient

proof of the age of the victim.

35.14 The decisions relied upon by Sri.Vitthal

S Teli in Sunil's case (supra) would not be

applicable in the present case, since it was

held in that case that the scholars register

would have no evidentiary value unless the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

person who has made an entry has been

examined. In the present case, it is certificate

issued by the college, where the victim was

studying, on the basis of the entry made in

the register maintained by the college, since

it is not a mere scholars register or a transfer

certificate.

35.15 The decision of the Hon'ble Apex Court

in Rishipal's case (supra) would also not be

applicable to the present case, since that was

a case under Section 94 of the J.J. Act. As

regards a child who was in conflict with law

and was being prosecuted and the procedure

under Section 94 of the J.J. Act was required

to be followed to ascertain if at all an accused

was eligible to claim the benefit of being a

juvenile.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

35.16 The Apex Court in Ashwani Kumar

Saxena's Case has held that in the absence

of the matriculation certificate, the court can

rely upon the date of birth certificate from

the School. Similar was the view of the Apex

court in Jarnail Singh's case.

35.17 In the present case, firstly the child in

question is one who needs protection of law

and has produced a certificate issued by her

college to establish her age. Furthermore,

even at the time of recordal of the statement

under Section 164 of Cr.P.C. she has

indicated that her age is 16 years on or

around the date of the incident. In this

background we are of the considered opinion

that the victim was minor as on the date of

the incident and therefore, the provisions

under the POCSO Act would be applicable and Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

it is in this background that the evidence has

to be considered.

36. It is in the background of the above depositions

and cross-examination and the finding above that

we have to examine whether the prosecution has

been able to prove the guilt of the accused and if

the sentence awarded by the trial Court is proper

and correct?

37. The deposition of various witnesses and the

uncontroverted evidence on record would indicate

that the prosecutrix i.e. PW.1/CW.1 was less than

16 years of age as on the date of the incident, as

observed and analyzed above.

38. PW.1/CW.1 has stated about how she used to

travel from her house to the village by a bicycle

and from village to her college, in a bus. This

evidence has also been supported by her mother Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

PW.7/CW.10. There are no eye witness to support

the case of the prosecution as regards the incident

described by PW.1/CW.1.

39. PW.1/CW.1. has stated that on the fateful day i.e.,

26.02.2013 she left her house on her bycycle to

the village to go to her college to take her exams.

40. CW.17/PW.14 who is an independent witness has

stated that on the date of the incident at 6.00 a.m.

when he was proceeding on his two wheeler, he

saw the accused standing near a place, close to the

scene of occurrence.

41. PW.1/CW.1. that while on the way to the college

accused No.1--Sattepa Bhimappa, accused No.2-

Yamanur and accused No.3-Suresh restrained her,

accused No.3-Suresh held her hands and closed

her mouth, accused No.2-Yamanur held both her

legs, they carried her to the sugarcane field, put Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

her on the ground, accused No.3-Suresh continued

to hold her mouth and her hands while accused

No.2-Yamanur held her legs, accused No.1-

Satteppa Bhimappa removed her pant and

undergarments and had forcible sexual intercourse

with her and thereafter the same was repeated by

accused No.2-Yamanur when accused No.1-

Sattepa Bhimappa held her legs.

42. PW.1/CW.1. has also deposed that in order to

destroy the evidence of their crime, they threw her

into the well in order to kill her, however she

managed to hold on to the rope attached to the

pump set and slid down, saving her life, but

suffering several injuries in this regard as indicated

by CW.24/PW.16, the list of injuries are extracted

above. She has further stated that after throwing

her into the well the accused left the scene.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

43. CW.18/PW.15, who is another independent

witness, has stated that on the date of the incident

at 7.30 a.m. in the morning when he was standing

near the bus stand, all the three accused passed

before him on a hero motorcycle.

44. Thus from the above it is clear that the Accused

were waiting to ambush CW.1/PW.1, knowing fully

that she used to take that particular route

everyday, they waylaid her, committed the offense

of Gang Rape as defined under Section 376 D of

the IPC, threw her in the well in order to kill her

and destroy the evidence and left the spot in their

bycycle and went before the bus stand.

45. This aspect of a sexual intercourse having occurred

or not could not be completely medically proved in

view of the fact that the victim being unconscious

and the aspect of the above sexual assault not Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

being known to the doctors, the doctors in order to

save her life on account of the injuries suffered by

her had carried out a surgery. Thus, the medial

evidence could not be collected immediately.

However, CW.38/PW.20 had examined her on

28.02.2013, took her samples including the clothes

and sent it to the RFSL. The RFSL certificate as per

Ex.P.20 has categorically indicated that there were

seminal stains present on the chudidar pant of

PW.1/CW.1. It is clear that, if not from this event

having occurred, there could not have been the

presence of seminal stains present on her clothes.

However, unfortunately there is no test done by

RFSL to ascertain as to whom the semen belonged

to i.e. to say that it has not been compared or

matched with any sample.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

46. PW.1/CW.1 in her evidence has categorically stated

that during the time of the incident she had

scratched the accused.

47. A perusal of Ex.P.28 being the medical examination

report of accused No.1-Sattepa Bhimappa indicates

that he had scratches over the left arm measuring

2.2 c.m. x 0.1 c.m. as also scratches on the right

abital fisso. A perusal of Ex.P.29 being the

examination report of accused No.2-Yamanappa

indicates that there were scratches over the right

side of right maxillary bone measuring 0.7 x 0.1

c.m., scratches over the ear measuring about 0.5 x

0.2 c.m., scratches over the upper left ear

measuring 0.1 x 0.1 c.m. A perusal of Ex.P.30

being the examination report of accused No.3-

Suresh indicates that there were no scratches on

his body.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

48. Taking these examination reports in conjunction

with the evidence of PW.1/CW.1, where she has

stated that she has scratched accused No.1-

Sattepa Bhimappa and accused No.2-Yamanur

would establish the allegations made by

PW.1/CW.1. The scratches being recent and having

occurred during the course of the incident as

deposed by PW.1/CW.1 and there being no

explanation offered by accused No.1-Sattepa

Bhimappa and accused No.2-Yamanur as regards

how those scratches have been caused leads to an

irresistible conclusion that the said injuries have

been caused during the sexual assault committed

by them on PW.1/CW.1.

49. CW.13/PW.9 who is wife of CW.12 has deposed

that, when she enquired with CW.12, he had

informed her that the accused had raped

PW.1/CW.1. On CW.13/PW.9 being treated as a Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

hostile witness, she has retracted this statement

during the cross examination by the Accused. The

fact however remains that in her examination-in-

chief she has stated of CW.12 having informed her

of Accused having raped CW.1/PW.1.

50. CW.17/PW.14 has also deposed that he came to

know of three people having raped a girl, thus it is

clear that people in the vicinity knew of a rape

having been committed. Though several of the

witnesses have turned hostile, they have adverted

to the above knowledge which establishes by

corroboration the deposition of CW.1/PW.1.

51. CW.2/PW.2 and CW.3/PW.3, the mahazar and spot

witness, have turned hostile and not supported the

case of the prosecution.

52. CW.8/PW.5 and CW.9/PW.6 who are witnesses to

the seizure have also denied that any particular Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

item had been seized in their presence and they

did not support the case of the prosecution.

53. CW.6/PW.13 being another seizure witness as

regards the clothes of PW.1/CW.1 at Mos.1 to 5

has supported the case of the prosecution. It is

these clothes when sent to RFSL, the RFSL has on

examination opined that the where seminal stains

on the Churidhar. If not for the occurrence of the

above event there was no reason for seminal

stains to be found on the clothes of CW.1/PW.1.

54. CW.4/PW.17, being a mahazar witness, has

identified the sketch of the well, bicycle as MO.7,

the writing board as MO.8. The evidence of

mahazar/seizure witnesses who have supported

the case of the prosecution establishes the seizure

of bicycle and the examination pad which supports

the statement of PW.1/CW.1 that she was going on Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

her bicycle to attend her exams for which purpose

she was carrying her examination pad.

55. The wounds and the injuries which have been

caused, as certified by CW.24/PW.16, who is a

doctor at a private nursing home, clearly indicates

the injuries caused to the front side of the body of

PW.1/CW.1 as also on the backside. PW.1/CW.1

had been hospitalized for several days, underwent

surgery and is only thereafter she recovered. The

injuries which have been caused can be stated to

have been so caused when PW.1/CW.1 was thrown

into the well which was dry.

56. Much is sought to be made out by Sri.Vitthal S Teli,

learned counsel for the accused contending that

PW.1/CW.1 fell down on her own into the well due

to the dense fog. However, this aspect has not

been established, in fact the evidence on record is Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

in support of the case of PW.1/CW.1 where all the

spots have been identified by PW.1/CW.1 and a

mahazar conducted of those spots.

57. PW.17/CW.4 the mahazar witness has stated that

when he was called to do the mahazar, the bicycle

was fallen near the well. This aspect is of

significance. A perusal of the photographs at

Ex.P.9 indicates that the well in question is an

open well without any protection/embankment or

wall around it. If at all the case of the defence is

to be believed, both the bicycle and PW.1/CW.1

had to have fallen into the well. The fact remains

that it is only PW.1/CW.1 who fall into the well and

the bicycle did not fall into the well.

58. This in our considered opinion would establish that

PW.1/CW.1 was thrown into the well and her

bicycle was left there as if to create an impression Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

that she had, in the fog, ridden into the well and

fallen into it.

59. The bicycle being on the top of the well would

establish otherwise and that PW.1/CW.1 did not fall

into the well while cycling.

60. It is sought to be alleged that PW.1/CW.1 and

accused No.1-Satyapa were in love with each other

and the complaint has been filed only to spite

accused No.1-Satyappa. The allegation in the

present case is that PW.1/CW.1 had been engaged

to be married to one of her relatives. It therefore

in our considered opinion, this argument of the

defence has no credence or credibility, since no

woman who has been engaged and who is about to

be married would plead that she was gang raped

only to spite her former alleged lover.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

61. During the course of hearing of the above appeal,

Sri.Vitthal S Teli had filed an application under

Section 391 of Cr.P.C. for marking of MLC report of

the private nursing home which came to be

allowed and the said document came to be marked

as Ex.D1 Along with the said document the case

history of PW.1/CW.1 was marked as Ex.C.1.

62. The contention of Sri.Vitthal S Teli by relying on

Ex.P.1 is that the MLC report indicated that the

victim had fallen down the well due to which the

injures had occurred. He states that when the MLC

is for that reason, there is no allegation against the

accused of sexual assault or otherwise.

63. Though we had marked Ex.C.1, he has objected for

the same, hence we are not considering Ex.C.1,

since irrespective of Ex.C.1 the evidence on record

would establish the guilt of the accused.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

64. Coming to Ex.P.1 it was issued by a private nursing

home on the basis of the information which had

been received that CW.1/PW.1 had fallen down the

well. At that time PW.1/CW.1 being unconscious,

no one was aware of the sexual assault which had

taken place on her. Thus, the contents of Ex.P.1

will not support the defense.

65. Furthermore, mere marking of the said document

will not help the accused without the examination

of the author of the said document. There being no

examination of the author of the said document on

these facts, no inference can be drawn on the basis

of the said document.

66. Much is also sought to be made out as regards the

alleged Dying Declaration of the CW.1/PW.1,

contending that there is no reference in the said

dying declaration to any sexual assault or rape. A Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

Dying Declaration would have been a piece of

evidence if the declarant had died, since here the

declarant has survived, it can only be treated as a

statement of CW.1/PW.1 under Section 161 of the

Cr.P.C. CW.1/PW.1 who when examined has

deposed as regards the events as they happened

and she has stood the test of cross examination,

thus the interpretation and meaning attributed to

her Dying Declaration is misconceived. The said

statement under Section 161 of the Cr.P.C. could

have been only used to bring about any

contradictions thereto while cross-examining

CW.1/PW.1. The same not having been done, the

deposition of CW.1/PW.1 would not help the case

of the defence. Apart from the above, a perusal of

the evidence of the Tahasildar/Taluka Executive

Magistrate who has recorded the dying declaration

indicates that CW.1/PW.1, the declarant was not in Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

a completely fit state of mind inasmuch as she was

drowsy and she has not answered all the questions

properly. On this ground also, the said declaration

would not have been considered by this Court even

if CW.1/PW.1 had expired.

67. In view of the above on an analysis of all the facts

on record would indicate that:

68. Accused No.1-Sattepa Bhimappa was in love with

PW.1/CW.1, they used to have several telephonic

conversation, there was opposition to their

relationship, she was engaged to a relative and

was to be married, it is at that stage that accused

No.1-Sattepa Bhimappa wanted to sleep with

Cw.1/PW.1, when she refused, he wanted to have

his way with her, with or without her consent. He

along with accused No.2-Yamanur and accused

No.3-Suresh waylaid PW.1/CW.1 when she was on Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

her bicycle on the way to the village to take a bus

to her college, and stopped her from going further,

accused No.3-Suresh held her hair and closed her

mouth, accused No.2-Yamanur held her legs, both

of them lifted her and took her to the sugarcane

field of PW.11/CW.15. When accused No.1-Sattepa

Bhimappa, with an intention to have sexual

intercourse with her and thereby committing the

offence of rape, removed her chudidar and

undergarments and had forcible sexual intercourse

with her by committing penetrative sexual assault.

Thereafter accused No.2-Yamanur also had forcible

sexual intercourse with her by committing

penetrative sexual assault. Thereafter with an

intention to destroy the evidence they wanted to

get rid of PW.1/CW.1, hence threw her into the

well in order to cause her death. During this Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

assault they were scratched by CW.1/PW.1, which

is borne out from their medical examination.

69. Thereafter, CW.13/PW.9 along with CW.12 her

husband and the local people had lifted PW.1/CW.1

out of the well by which time her mother

CW.10/PW.7 came there and she along with

CW.11/PW.8 took her to the private hospital where

they had informed the doctor that she had fallen in

the well since at that time PW.1/CW.1 was

unconscious, noticing the various injuries which

had been caused, surgery was immediately carried

out. It is only after PW.1/CW.1 regained

consciousness on 27th that she was able to speak.

At the time when her dying declaration was

recorded, she had not spoken to her mother,

probably it is for this reason that she could not

give complete details of what had happened. But

thereafter she gave the full story.

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

70. Be that as it may, dying declaration cannot be

looked into now since PW.1/CW.1 recovered and is

alive. These aspects were not put to PW.1/CW.1

during her cross-examination. At the relevant point

of time before the incident CW.17/PW.14 who is an

independent witness saw the accused near the

place of incident at 6.00 a.m. After the incident

Cw.18/PW.15 saw the accused at 7.30 a.m. near

the bus stand. The accused had planned the entire

assault since they knew about PW.1/CW.1 would

be going to her college by her bicycle, they waited,

stopped PW.1/CW.1, committed the assault threw

CW.1/PW.1 into the well and thinking that she had

died or would die, went away on their motorcycle

which was seen by CW.18/PW.15.

71. In view of the evidence which has been led by the

prosecution, the presumption under Sections 29

and 30 of the POCSO Act would kick in. The Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

prosecution therefore having discharged the initial

burden placed on them it was for the accused to

have rebutted the said presumption and to

establish that they are innocent. The accused have

not led any evidence to rebut the said presumption

nor has the same has been rebutted during the

course of the cross-examination conducted of

various witnesses.

72. Mere suggestions having been put forward to the

prosecutrix and other witnesses that the complaint

was filed at the instance of an advocate who was

inimical to the father of accused No.1-Sattepa

Bhimappa the same would not have the effect of

rebutting nor rebut the presumption when no

evidence of that allegation has been produced.

73. The above chain of events would categorically

establish beyond any reasonable doubt of the Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

offences having been committed by the accused.

Hence, the finding of the trial Court being the same

finding that we have arrived at after re-

appreciation of the evidence does not require any

interference.

74. The State has filed an appeal in

Crl.A.No.100114/2019 contending that the

sentence awarded for the offence under Section

376-D of IPC is not in accordance with that

prescribed under the Act, inasmuch as the

minimum sentence has not been awarded. Section

376-D of IPC reads as under:

Section 365D-Gang Rape: Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

Provided further that any fine imposed under this section shall be paid to the victim.

75. The above provision had been substituted by Act of

2013 with effect from 03.02.2013. In the present

case, the incident complained of occurred on

26.02.2013 i.e. after the amendment came into

effect. Thus, it is this amended Section 376-D of

IPC which would have to be considered as

extracted above.

76. The amended provision makes it mandatory that

each of the accused shall be punished with

rigorous imprisonment for a term which shall not

be less than 20 years, but which may extend to life

which shall mean imprisonment for the remainder

of that person's natural life, and with fine.

77. The trial Court having convicted the accused of the

offence under Section 376-D of IPC had no option Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

to avoid the minimum sentence as prescribed

under Section 376-D of IPC since there is minimum

sentence which has been prescribed.

78. We are of the considered opinion that there is no

requirement of further hearing of the accused in

the matter, since the minimum sentence has to be

awarded. Hence, the sentence awarded to accused

insofar as offence under Section 376-D of IPC is

concerned, is enhanced to rigorous imprisonment

for 20 years. Taking into consideration that the

trial Court had only ordered for simple

imprisonment, the simple imprisonment undergone

by the accused from their arrest till now will be

treated as rigorous imprisonment, going forward

the imprisonment of the accused would be rigorous

in nature.

79. In view of the above, we pass the following:

Crl.A.No.100352/2018 C/w. Crl.A.No.100114/2019

ORDER

i. The appeal filed by the accused in Crl.A.No.100352/2018 stands dismissed.

ii. The appeal filed by the State in Crl.A.No.100114/2019 is allowed.

iii. The sentence of accused No.1 to 3 for the offence under Section 376-D of IPC is enhanced to rigorous imprisonment for 20 years. The period of sentence already undergone though being simple imprisonment in nature, would be regarded as rigorous imprisonment in relation to the above sentence. Going forward the Accused would undergo rigorous imprisonment.

Sd/-

JUDGE

Sd/-

JUDGE

sh