Jenukurubara Ramesha vs The State Of Karnataka
2022 Latest Caselaw 2938 Kant

                                       Crl.A.No.501/2021

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF FEBRUARY 2022

                       BEFORE

         THE HON'BLE MRS JUSTICE K.S.MUDAGAL

           CRIMINAL APPEAL No.501/2021

BETWEEN:

JENUKURUBARA RAMESHA
S/O KARIYA
AGED ABOUT 29 YEARS
R/AT SERVANT QUARTERS OF
MUKKATIRA KUTTAPPA @ RAJAN
IKOLA VILLAGE, MADIKERI TALUK
NATIVE OF HULIKADU PAISARI
THITHIMATHI ONTIYANGADI
DEVARAPURA VILLAGE, VIRAJAPETE TALUK       ...APPELLANT
(BY SRI JAGADEESHA B N, ADVOCATE)
AND:

THE STATE OF KARNATAKA
MADIKERI RURAL POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560001                       ...RESPONDENT
(BY SMT.RASHMI JADHAV, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 27.01.2017 AND ORDER OF SENTENCE
DATED 28.01.2017 PASSED BY THE PRINCIPAL SESSIONS AND
SPECIAL JUDGE, KODAGU-MADIKERI IN SPL.C.NO.38/2013
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 376(2)(i) AND (j) AND 506 OF
IPC AND SECTION 4 OF PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT.
                                             Crl.A.No.501/2021

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     THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:

                        JUDGMENT

Aggrieved by the order of conviction and sentence

passed against him for the offences punishable under

Sections 376(2)(i),(j) and 506 of IPC and Section 4 of the

Protection of Children from Sexual Offences Act, 2012

('the Act' for short), the accused in Special Case

No.38/2013 on the file of the Principal District and

Sessions & Special Judge, Kodagu at Madikere has

preferred the above appeal.

2. The appellant was prosecuted in the said case

for the aforesaid offences on the basis of the charge sheet

filed by the respondent police in Crime No.146/2013 of

their police station.

3. The appellant was the accused before the trial

Court. For the purpose of convenience, the parties will be

referred to henceforth according to their ranks before the

trial Court.

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4. PW.2 is the mother and PW.3 is the maternal

uncle of PW.1 the victim. PWs.2, 3 and husband of PW.2

were migrant labours in the Coffee estate of PW.5

situated within the limits of Ikola Village, Madikeri Taluk.

The accused was their neighbour.

5. The case of the prosecution in brief is as

follows:

(i) That on 28.06.2013 at 3.30 p.m., when PW.1

was playing with her siblings in the veranda of their

house, the accused took her to his house, closed the door

of his house and committed aggravated sexual assault on

her. When PW.1 raised alarm, PWs.2 and 3 came to the

house of the accused and on they raising commotion, the

accused opened the door of the house and escaped. PW.1

narrated the incident to PWs.2 and 3. Thereafter PW.2

filed the complaint as per Ex.P2 before PW.11 the Sub-

Inspector of Police, Madikeri Rural Police Station as per

Ex.P2.

(ii) On the basis of such complaint, PW.11

registered the first information report as per Ex.P13. He Crl.A.No.501/2021

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conducted the spot mahazar as per Ex.P1, recorded the

statement of PW.1, got her medically examined and

handed over further investigation to PW.10. PW.10

conducted further investigation and filed the charge

sheet.

6. The accused was arrested on 30.06.2013.

Since then he is in judicial custody. The trial Court on

hearing the accused, initially framed the charges against

him for the offences punishable under Clause (6) of

Section 375 and Section 376(2)(i) of IPC and Sections 3

and 4 of the Act.

7. Later the charge was altered by order dated

19.01.2017 and altered the charges for the offence

punishable under Sections 376(2)(i),(j) and 506 of IPC

and Sections 3 and 4 of the Act were framed. The

accused denied the charges and claimed trial. Therefore

the trial was conducted.

8. In support of the case of the prosecution, the

prosecution examined in all 12 witnesses and got marked

Exs.P1 to P17 and MOs.1 to 7. After his examination Crl.A.No.501/2021

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under Section 313 of Cr.P.C, the accused did not lead any

defence evidence.

9. The trial Court on hearing the parties, by the

impugned judgment and order convicted the appellant for

the offences as aforesaid on the ground that the charges

were proved by the evidence of the victim PW.1. The trial

Court further held that the evidence of PW.1 was

corroborated by the evidence of PWs.2 and 3 her family

members, medical evidence, the police witnesses and the

other witnesses.

10. The trial Court sentenced the accused for the

said offences as follows:

Sl.   Offences Under                     Fine       Default
                        Sentence
No.   Section                            Amount     Sentence
      376(2)(i) & (j)   RI    for   12              Imprisonment
1.                                       5,000/-
      of IPC            years                       for 5 months
      Section 4 of      RI    for   12              Imprisonment
2.                                       5,000/-
      the Act           years                       for 5 months
                        Imprisonment                Imprisonment
3.    506 of IPC                         1,000/-
                        for 7 years                 for 1 month

Submissions of Sri Jagadeesh.B.N, learned Counsel for the appellant assailing the impugned order of conviction:

11. Except the evidence of PWs.1 to 3 interested

witnesses, there was no independent evidence and the Crl.A.No.501/2021

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accused was falsely implicated due to rivalry between the

accused and the complainant party. The medical evidence

with regard to assault was negative. Therefore, the trial

Court was not justified in convicting the appellant. Having

regard to the age of the accused and his social

background, the sentence imposed is disproportionate.

Submissions of Smt.Rashmi Jadhav, learned HCGP

for the respondent supporting the impugned judgment

and order:

12. PWs.1 to 3 consistently deposed about the

overt acts of the accused. There was no reason for them

to falsely implicate the accused in the case. As per the

medical records, the victim was aged 13 to 14 years. The

medical examination report was incriminating. In the

light of the evidence on record and the presumption

under Sections 29 and 30 of the Act, the trial Court was

right in convicting the appellant for the aforesaid

offences.

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13. Having regard to the rival submissions, the

point that arises for determination is:

"Whether the impugned order of conviction and sentence is sustainable in law ?

Analysis:

14. The accused is convicted for the offence

punishable under Sections 376(2)(i), (j) and 506 of IPC

and Section 4 the Act. To sustain the conviction under

Section 376(2)(i) and (j) of IPC, the prosecution has to

prove that the accused committed rape on woman who is

aged below 16 years and incapable of giving consent. To

sustain the conviction under Section 4 of the Act, the

prosecution has to prove that the accused committed

penetrative sexual assault on the child.

15. PWs.1 to 3 in their deposition state that the

victim was aged 14 years. PW.12 is the headmistress of

the school where PW.1 studied. She issued certificate as

per Ex.P15 stating that the date of birth of the victim is

31.05.2001. PW.8 is the Senior Dental Surgeon, District

Hospital, Madikere who examined PW.1 for age Crl.A.No.501/2021

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determination and gave report as per Ex.P3. As per his

evidence, the victim was aged between 14 to 17 years.

16. PW.12 though admitted that they will enter

the date of birth in the admission register as given by the

parents, she denied the suggestion that Ex.P15 is false

certificate. The evidence of PWs.1 to 3, PW.8 and PW.12

reveal that the victim was aged at any rate between 14 to

17 years. In the cross-examination of PWs.1 to 3, they do

not dispute that PW.1 studied in Government Primary

School, Maragod, where PW.12 served as Headmistress.

Therefore, there is no reason to disbelieve the evidence of

PW.12. Therefore the finding of the trial Court that the

victim was aged 14 years does not call for any

interference by this Court.

17. Then the next question is whether penetrative

sexual assault on PW.1 was proved beyond reasonable

doubt. To prove that fact the prosecution relied on the

evidence of PW.1 the victim, PW.2 her mother, PW.3 her

maternal uncle, the medical evidence and the evidence of

PW.4 who examined the victim.

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18. PW.1 categorically stated that when she was

playing with her siblings in front of their house, the

accused dragged her into his house, closed the door and

intimidating her committed penetrative sexual assault on

her. She further states that the accused threatened her

that if she reveal the incident to others, he will kill her

mother and maternal uncle.

19. There is no dispute that PWs.1 to 3 and the

accused were neighbours and they were living in the

quarters given to them by their landlord PW.5. PWs.2 and

3 deposed that on the date of the incident at about

3.30 p.m., on hearing the commotion from the house of

the accused and crying of her daughter, herself and PW.3

rushed to his house and they tried to get the door of the

house open. They deposed that the accused did not open

the door and later he opened the door, threatened them

and escaped. Then her daughter revealed the incident to

them. She speaks about filing of the complaint as per

Ex.P2 and the medical examination of the victim.

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20. PW.3 brother of PW.2 also states that on that

day, on hearing the commotion from the house of the

accused, himself and his sister rushed to the house,

through insistence, the accused opened the door and

threatened them of their life and escaped. Then PW.1

revealed the incident to them.

21. The defence of the accused in the cross-

examination of these witnesses regarding false

implication is not consistent. It was suggested to PW.1

that there was quarrel between his elder brother and

PW.2 and her husband with regard to some monetary

transaction, therefore, he was falsely implicated in the

case. To PW.2 he suggested that herself and her husband

were addicted to alcohol and on several times, they had

quarreled with accused in drunken state and due to that

ill will, they have falsely implicated him. The witnesses

have denied the said suggestions.

22. The evidence of PW.4, the medical Officer of

District Hospital, Madikere shows that on 29.06.2013 at

10.55 p.m. Police brought PW.1 for medical examination Crl.A.No.501/2021

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with history of sexual assault on 28.06.2013 at 4.00 p.m.

by the accused, he examined and gave his report as per

Ex.P5. He deposed that there were no external injuries

on the body of PW.1 and her hymen was not intact. The

accused could not elicit anything in the evidence of PWs.1

to 3 to impeach their evidence about overtacts of the

accused or the evidence of PW.4 that soon after the

incident, PW.1 was taken to him with history of sexual

assault by the accused.

23. By such evidence of PWs.1 to 4, the initial

burden of proving sexual assault as required under

Sections 29 and 30 of the Act was discharged. Thereby

presumption that the accused committed the offences

arises. Then it was for the accused to rebut the said

presumption. Except the aforesaid inconsistent

suggestions to PWs.1 to 3 regarding his false implication,

nothing was elicited and no probable evidence was made

out to rebut the said presumption.

24. It was argued that there was no case of

external injury on the victim, the alleged act was Crl.A.No.501/2021

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consensual one. The trial Court has rightly rejected those

contentions on the ground that in the case of child,

consent of the child for such sexual activities is irrelevant.

Moreover no such suggestion was made by PW.1. Under

the circumstances, this Court does not find any ground to

interfere with the order of conviction passed by the trial

Court.

25. Then the only question is regarding sentence.

Learned Counsel for the accused submits that at the

time of the incident, the accused was aged 22 years and

was married, He comes from oppressed economical class,

considering that sentence imposed is on the higher side.

He relies upon the judgments of the Hon'ble Supreme

Court in case of Accused 'X' v. State of Maharashtra1 and

Swapan Kumar Jha v. State of Jharkhand2.

26. In the said judgments, the Hon'ble Supreme

Court held that in imposing sentence in the appeals

through legal aid, the Court may independently take

recourse by considering the relevant facts and

(2019) 7 SCC 1

(2019) 3 SCC 579 Crl.A.No.501/2021

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circumstances. It was also held that the young age of the

accused is mitigating factor in considering the order of

sentence.

27. At the relevant time, the minimum sentence

prescribed for the offence punishable under Section 4 of

the Act was seven years which shall extend upto

imprisonment for life and fine. The punishment prescribed

for the offence punishable under Section 376(2)(i) and (j)

of IPC was rigorous imprisonment of not less than 10

years which may extend to life imprisonment and fine.

28. The trial Court has sentenced the accused for

the major offence for rigorous imprisonment of 12 years.

The accused is in judicial custody since 30.06.2013 i.e. 8

years 8 months. The accused has already served major

period of sentence.

29. The Counsel engaged by the accused did not

turn up to defend him. Having regard to his economic and

social background, this Court provided him free legal aid.

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30. Having regard to the aforesaid facts and

circumstances, it is just and appropriate to reduce the

sentence of imprisonment from 12 years to 10 years.

Therefore the appeal is partly allowed.

The impugned order of conviction is hereby

confirmed. The impugned order of sentence dated

27.01.2017 for the offences punishable under Sections

376(2)(i) and (j) of IPC and Section 4 of the Act is

reduced from rigorous imprisonment of 12 years to

rigorous imprisonment of 10 years.

Rest of the order is maintained.

Sd/-

JUDGE

KSR