State Of Karnataka vs Sakru S/O Tukku Humble
2022 Latest Caselaw 139 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 5TH DAY OF JANUARY, 2022

                       PRESENT

 THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

                         AND

       THE HON'BLE MR. JUSTICE S. RACHAIAH

          CRIMINAL APPEAL NO.100248/2020

BETWEEN

STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
YALLAPUR POLICE STATION,
DIST: UTTARA KANNADA,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                      .....APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)

AND

SAKRU S/O TUKKU HUMBLE,
AGE: 30 YEARS,
OCC: HOSALLI VILLAGE,
YALLAPUR TALUK,
DIST: UTTARA KANNADA.
                                    .....RESPONDENT
(BY SRI R.H. ANGADI, ADV.)
                                         Crl.A.No.100248/2020

                               2


     THIS CRIMINAL APPEAL IS FILED U/S 377(1)(b) OF
CR.P.C., SEEKING TO CALL FOR RECORDS IN SPECIAL CASE
NO.40/2017 DATED 09/09/2019 ON THE FILE OF SPECIAL
JUDGE, UTTARA KANNADA, KARWAR AND TO SET ASIDE THE
JUDGEMENT AND ORDER PASSED IN SPECIAL CASE
NO.40/2017 DATED 09/09/2019 ON THE FILE OF SPECIAL
JUDGE, UTTARA KANNADA, KARWAR SO FAR IT RELATES TO
IMPOSITION OF LESSER SENTENCE TO THE RESPONDENT /
ACCUSED AND MODIFY THE SENTENCE AND IMPOSE THE
MAXIMUM PUNISHMENT AS PRESCRIBED UNDER SECTION
376(2)(n) OF IPC AND UNDER SECTION 6 OF POCSO ACT.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING THIS DAY, Dr.H.B.PRABHAKARA SASTRY, J.,
DELIVERED THE FOLLOWING:

                           JUDGMENT

The present appellant as the State/complainant had

initiated a criminal proceeding against the present

respondent arraigning him as an accused for the offence

punishable under Section 376(2)(n) of Indian Penal Code

(hereinafter for brevity referred to as, 'IPC') and under

Section 5(L) and Section 6 of the Protection of Children from

Sexual Offences, 2012 Act (hereinafter for brevity referred to

as, 'POCSO Act') in Spl. Case No.40/2017, in the Court of the

learned Special Judge, Uttara Kannada, Karwar (hereinafter

for brevity referred to as 'the Special Court'). After the trial, Crl.A.No.100248/2020

the accused was convicted for the alleged offences and was

sentenced accordingly. Seeking enhancement of the

sentence, the State has preferred the present appeal under

Section 377(1)(b) of the Code of Criminal Procedure, 1973

(hereinafter for brevity referred to as 'Cr.P.C.').

2. The summary of the case of the prosecution in

the Special Court was that the victim girl was a minor in her

age, who had studied up to 7th standard in school and was

aged 16 years as on the date of the alleged offence. The

complainant before the police was the father of the said girl.

The summary of the complaint is that among his agricultural

activities, he was doing milk vending business also by maintaining

buffaloes and cows and that his second daughter who is the

alleged victim girl was vending the milk for his family. In the

said process, she was visiting the house of the present

accused for the purpose of vending milk. During the period

between August 2016 to November 2016, the accused has

committed rape and repeated sexual assault upon her which

fact was revealed to the complainant who is the father of the Crl.A.No.100248/2020

victim girl only in the month of March 2017 when he came to

know that his daughter, who is the alleged victim, had

become pregnant. The enquiry made with the victim girl

revealed that it was the accused who had subjected her to

rape repeatedly. This made him to lodge a complaint with

the police. Accordingly, the police after registering the

complaint, conducted the enquiry and filed charge sheet

against the accused for the alleged offences which after trial,

ended in conviction.

3. In response to the notice, the respondent is

being represented by his learned counsel.

4. The Special Court records were called for and the

same are placed before this Court.

5. When the matter was taken up for final hearing

on 04.01.2022, it was submitted to the Court by the learned

counsel for respondent that in view of Section 377(3) of

Cr.P.C., even in an appeal for enhancement of sentence filed

by the victim, without even filing of a separate appeal, the Crl.A.No.100248/2020

accused can address his argument for his acquittal. As such,

the matter was proceeded to hear on the merits of the

judgment of conviction including the order on quantum of

sentence.

6. Heard the argument from both sides and perused

the materials placed before the Court, including the

impugned judgment.

7. Learned Addl. S.P.P. appearing for the appellant

in his argument submitted that even though the victim girl

has turned hostile, however, the other material evidence

including the evidence given by her own father has fully and

substantially supported the case of the prosecution. Added

to the same, the elder sister of the victim girl has also

supported the case of the prosecution. He further submitted

that the case of the prosecution is further corroborated by

the medical evidence. Admittedly, there is no animosity

established between the complainant and accused. As such,

the special Court fully justified in convicting the accused.

Crl.A.No.100248/2020

Regarding the quantum of sentence, learned Addl.

S.P.P. submitted that when the law has prescribed a

minimum sentence which is mandatory to be ordered in case

the guilt is proved as against the accused, however, the

learned Special Judge without assigning any reason has

reduced the sentence lesser than the minimum prescribed for

the proven guilt of the accused. As such, the sentence

deserves to be enhanced.

8. Learned counsel for respondent/accused in his

argument submitted that the star witness to the case is none

else than the alleged victim girl who not only has denied the

alleged role of the accused in the sexual assault but has also

denied the incident itself. As such irrespective of the fact

that the other witnesses who have supported the case of the

prosecution, still the case of the prosecution falls to the

ground. He also submitted that mother of the alleged victim

also being one of the important witnesses, was not examined

by the prosecution. The prosecution has also not brought on

record as to when the girl was said to become pregnant and Crl.A.No.100248/2020

when she was alleged to have got aborted her pregnancy.

Stating the same, learned counsel submitted that prosecution

has utterly failed to prove the alleged guilt of the accused.

However, while concluding, he submitted that even if the

Court comes to the conclusion for confirming the conviction

of the accused, still considering the fact that the accused is

admittedly a specially abled (physically handicapped) person

and in the age of his youth, a lenient view be taken in the

matter.

9. In light of the above, the points that arise for our

consideration are:

1) Whether the prosecution has proved beyond reasonable doubt that from August 2016 to November 2016, accused has committed rape of the victim and subjected the victim girl to repeated sexual assault and has thereby committed the offences punishable under Section 376(2) (n) of IPC and Section 5(L) and Section 6 of POCSO Act?

Crl.A.No.100248/2020

2) Whether the judgment of conviction under appeal deserves interference at the hands of this Court?

3) Whether the order on sentence deserves any interference in the form of enhancement by this Court?

10. In order to prove its case, the prosecution got

examined fourteen witnesses from PW-1 to PW-14 and got

marked documents from Exs.P-1 to P-23(b). On behalf of

the accused, a portion of the statement of PW-1 was marked

as Ex.D-1 and neither any witness was examined on behalf of

the accused nor any documents were marked as exhibits

from his side. No material objects were marked in the case.

11. Among fourteen witnesses examined by the

prosecution, PW-2 was examined projecting her as the

alleged victim girl. The said witness in her evidence has

given a total go-by to the case of the prosecution except

stating that in the year 2016, she was aged 16 years and she

knows the accused. She has not supported the case of the

prosecution in any manner. She in her examination-in-chief Crl.A.No.100248/2020

has specifically stated that the accused had never committed

rape upon her nor any sexual assault upon her. She was not

even conceived pregnancy at the alleged act of the accused.

She further stated that she has not given any statement

before the police, however, at the pressure of the police, she

has given a statement before the learned Magistrate in the

Court at Sirsi.

Even after treating her hostile and permitting the

prosecution to cross-examine her, no supporting statement

could be elicited by the prosecution in her cross-examination.

The said witness was not cross-examined from the accused

side.

12. After the evidence of PW-2, among other

prosecution witnesses, the material witnesses would be

PW-1, PW-10 and PW-12.

PW-1 (CW-1) Khandu is the father of the victim girl and

who is also the complainant in the case has reiterated the

summary of his complaint. Even in his examination-in-chief, Crl.A.No.100248/2020

he has stated that among the three children, he has got the

victim girl as his second daughter. The other children are his

elder daughter Bhagibai. CW-6 and his son Vagu who is CW-

7. He has stated that the victim girl was born on the date

04.05.2000 and as such in the year 2017, she was aged of

17 years at the time of incident and she was doing milk

vending business by maintaining cows and buffaloes. The

second daughter who is the victim girl was visiting the house

of the accused, who is his distant relative. During the Holi

festival season in the year 2017, through his wife, he came

to know that his second daughter has become pregnant and

was carrying. When enquired with his daughter, he came to

know that it was the accused, who had subjected her to

sexual assault and subjected her to rape while she was

visiting his house for vending milk in the month of August

2016. The act of rape committed is by none else than the

accused, who apart from being raping upon her, had also

threatened her not to reveal about the incident. It was also

revealed to him by his daughter that between August 2016

and November 2016, the accused had subjected her to rape Crl.A.No.100248/2020

for about three times. It is because of the said sexual act,

she has become pregnant.

PW-1 has further stated that after coming to know from

none else than his daughter, who is the victim girl, he

approached the family of the accused in this regard. Though

the accused confessed his guilt and promised to marry the

victim girl after the Holi festival, but later he refused to

marry her after the said festival and asked the complainant

to do whatever he wants to do. This made the complainant

to go to the police to lodge a complaint. Stating so, the

complainant has identified the complaint filed by him at Ex.P-

1 and his signature therein at Ex.P-1(a).

The witness has further stated that he too had

accompanied his daughter both to Yellapur and to Karwar.

The witness stated that during the said time, since his

daughter had consumed few tablets, her pregnancy was

aborted. The said abortion was confirmed by the doctors at

Karwar Hospital. The witness further stated that after he

lodging the complaint, the police had visited the scene of Crl.A.No.100248/2020

offence and drawn a panchanama verifying the spot of the

offence as shown to them by none else than his daughter

who is the victim girl in the case. He stated that police had

also captured photographs of the spot. The panchanama was

marked at Ex.P-2 and photographs taken in the spot at Ex.P-

4 and P-5. Its compact disk at Ex.P-5(a). The witness was

subjected to a detailed cross-examination wherein he

adhered to his original version.

13. PW-10 (CW-6) Bhagibai who undisputedly is the

daughter of PW-1 has stated that victim girl is her younger

sister, who had dropped out of the school at the standard of

7th and was aged 17 years, about 2 years prior to her date of

evidence which was recorded on 04.01.2019. She has

further stated that her family comprising her parents, herself,

victim girl and brother were maintaining the cows and selling

the milk. In the process of vending milk, her sister, the

victim girl was visiting the house of accused who was their

distant relative. About 2 years prior to the date of her

evidence, she came to know from her mother that her sister, Crl.A.No.100248/2020

i.e., victim girl had become pregnant. When enquired by

these people (victim girl) revealed that when she was going

to vend milk to the house of the accused, she was subjected

to sexual assault by the accused and as such being raped by

him she had conceived pregnancy. The witness also stated

that the accused though had promised to marry her after Holi

festival, refused to marry her when enquired again. A

panchayat was also held in that regard wherein also the

accused admitted his guilt. In that connection, her father had

lodged a complaint. Denial suggestions made to her in her

cross-examination were are not admitted as true by her.

14. PW-12 (CW-16) Vittu claiming himself to be the

resident of the same village where the accused, victim girl

and their family members are residing has stated that he

knows both the parties in the matter and alleging that the

accused had done something uncommon thing to victim, a

panchayath was conducted in the village wherein he too had

attended the panchayath. In the said panchayath, it was

revealed that the accused had made PW-2 to undergo Crl.A.No.100248/2020

abortion and which guilt of making her pregnant was

admitted by the accused. The witness further stated that the

accused had also promised and given an undertaking to

marry PW-2 after the month of March of that year, however,

once again these people were called after the March, since

the accused refused to marry PW-2. This made the father of

the victim i.e., the complainant to lodge a complaint before

the police.

The denial suggestions made were not admitted as true

by this witness.

15. Apart from the above witnesses, the other

witness who was examined by the prosecution in order to

prove the alleged incident said to have been taken place was

PW-11, Navu Paddu Tate, who is admittedly the cousin

brother of PW-1. Though he has stated that he came to know

that the accused has committed the alleged act of subjecting

the victim girl to rape and practiced sexual assault upon her,

but as stated by him, it was only what he heard. Thus, he

admittedly is a hearsay witness.

Crl.A.No.100248/2020

16. The next set of witnesses of the prosecution

examined by it to prove the alleged act of the accused

against the victim are the set of doctors who were examined

in the form of medical witnesses. Among them, the first

witness is PW-4, Dr.Soumya K.V. The said witness has stated

that while she was working as Specialist in Taluk Hospital,

Yellapura, in March 2017, she had examined the victim girl on

25.03.2017 at the request of complainant police. Apart from

medically and clinically examining, she had also interacted

with the victim girl and gathered information from the victim.

The witness has further stated that during the examination of

the victim by her, the said victim had given the history that

she had undergone sexual intercourse between August 2016

to November 2016 by one Sakru Takku Humbe and that she

had not undergone menstrual course thereafter. The witness

has stated that by her examination, she noticed that the

victim girl was aged 16 years and her medical examination

including the pregnancy test and other pathological test like

HB, Urine, blood, HIV, VDRL, RBS, BT, CT indicated that the girl Crl.A.No.100248/2020

tested positive for the pregnancy. She also suspected septic

abortion, as such, referred the victim for further examination

by a specialist in Gynecology and thereafter to the District

Hospital at Karwar for ultrasound scanning by prescribing

preliminary medication. She has issued her report which is

identified by her at Ex.P-10.

In her cross-examination from the accused side, she

stated that she had followed Card method for pregnancy test

which could not be taken as conclusive confirmation of

pregnancy as such victim was required to undergo ultrasound

examination.

17. The second doctor is Dr. Deepak Bhat, who was

examined as PW-5. He has stated that while working as

Gynecologist at Taluka Hospital, Yellapura, on 25.03.2017, at

the request of PW-4, a colleague doctor, he examined the

victim in the case for further opinion. The victim was a female,

aged 16 years as revealed by her. He too subjected her to

medical and clinical examination and conducted pregnancy test

using Card method. He found that it was positive in its result

and accordingly gave his opinion to the effect that the victim Crl.A.No.100248/2020

girl was pregnant, however, the same was needed to be

confirmed by the ultrasound scanning. In that regard, he

issued report at Ex.P-11 .

The witness further stated that on the next date that is

on 26.03.2017, at the request of the police, he examined the

accused Sakru Takku Humbe and noticed that there was

nothing to suggest that he was incapable of performing

sexual intercourse. In that regard, he issued report at Ex.P-

14.

The denial suggestions made to him from the accused

side were not admitted by him, however, the witness has

stated that only on the basis of Card method, they do not

confirm the pregnancy but it may be a symptom of

pregnancy.

18. The third doctor, who was examined by the

prosecution is PW-6 Dr. Amruta Kamat. The said witness

stated that while working as Assistant Professor, OBG, at

Karwar Medical College, Karwar, she examined the victim girl

at the request of the police on 27.03.2017 and has stated Crl.A.No.100248/2020

that victim girl gave the history of amenorhoa for 6 months

followed by bleeding since five days. The witness stated that

she referred the patient to Ultrasonography and went

through the report which revealed any sign of pregnancy and

retain products which was suggestive of complete abortion.

The witness has stated that she gave certain antibiotics and

given her opinion as per Ex.P-16. This witness was not cross-

examined from the accused side.

19. The next witness which the prosecution examined

in its support is PW-8 Nilan D. More, who admittedly is a

Woman Head Constable. The witness has stated that it was

she who had taken the alleged victim girl to the Hospital for

her medical examination on 25.03.2017 and got her

medically examined by the doctor. The witness has further

stated that on the very same day, as instructed, she had also

taken the victim to the Counseling Centre at Yellapur, to

which the father of the victim girl had also accompanied

them. The witness stated that in the said counseling, the

victim had given her statement and in the presence of Crl.A.No.100248/2020

counsellors, she had reduced the statement of the victim into

writing in her own handwriting and obtained the signature of

the victim and counsellors. She had identified the said

statement of the victim which is said to have been given

before the counsellor at Ex.P-7.

She was subjected to a single of sentence cross-

examination in the form of general denying that the victim

had not given the statement as per Ex.P-7, which suggestion,

the witness has not admitted as true.

20. From the above evidence of the witnesses, the

undisputed fact remains is that the alleged victim is the

daughter of the complainant and the accused is not only a

known person to the family of the complainant but also a

distant relative of the complainant's family . It is also the

undisputed fact that as a part of eking out of his livelihood

the complainant was vending milk and it was the victim girl

as the daughter of complainant who was visiting the house of

the accused for supplying the milk. The main point of dispute

is the alleged sexual assault upon the victim by the accused.

Crl.A.No.100248/2020

In that connection normally it would be the evidence of the

prosecutrix which weighs a lot. If the evidence of prosecutrix

is supporting the case of the prosecution then the first stage

of the prosecution climbing the steps in proving the guilt of

the accused would be taken as successfully completed.

However in the instant case, the very prosecutrix herself has

discarded the case of the prosecution. However, it does not

mean that in all the cases where the prosecution could not

get the support of the alleged victim it should necessarily fail.

In those situations, if the prosecution could able to place the

other equally strong, cogent and material evidence before

the court, then also the court can hold that prosecution has

proved the alleged guilt of the accused.

The second mode of proving the guilt of the accused is

the evidence of material witnesses examined by the

prosecution which is now required to be analysed carefully.

Needless to say that in such circumstance the court must be

very careful in analysing and assessing the evidence of the

witnesses.

Crl.A.No.100248/2020

21. A careful reading of the evidence of the alleged

victim, i.e., PW-2 would go to show that the victim has not

stated that she was never pregnant or that she was not

subjected to any sexual intercourse by anyone. Her only

statement is that the accused has not made her pregnant

and he had not committed any sexual assault. A difference

can also be noticed between the words of a sexual act and

sexual assault. The witness has stated that the accused had

not assaulted her sexually and that he has not made her a

pregnant. It does not mean that she was not pregnant by the

sexual act of a person. Therefore, the question would be

that, was it the accused and accused alone who was the

cause for her pregnancy.

22. PW-1 who is admittedly the father of the victim

girl has stated that the fact of his daughter (PW-2) becoming

pregnant came to his notice and knowledge only through his

wife and it is thereafter they enquired with their daughter

(victim) and collected the details wherein she revealed that it

was the accused and accused alone who had made her Crl.A.No.100248/2020

pregnant by having sexual intercourse with her for not less

than three times in a span of August 2016 to November

2016.

PW-1 has also stated that after coming to know that it

was the accused and accused alone who has committed the

said act, he approached the accused and enquired with him,

then the accused apart from accepting his guilt has also

promised that he would marry the victim after Holi Hunnime

(a festival). Thus, he kept quiet till completion of the said

festival. Thereafter he once again approached the accused to

inquire about he marrying his daughter, for which, the

accused apart from refusing to marry her also made it clear

that the complainant can do anything whatever he wants but

he (accused) would not marry the victim.

The said narration of the events shows that as a father

who has got a duty to protect the interest of his minor

daughter and to consider the welfare of the daughter, family and

the reputation of the family in the society has not chosen to rush

to the police station the moment he came to know about the Crl.A.No.100248/2020

incident through his daughter, but first made an attempt by

approaching the accused himself and finding out an amicable

solution for the incident in the best interest of both the victim

as well the accused, which accused was his relative also. He

decided to give his daughter in marriage to the accused and

to settle the matter peacefully. Since the said attempt could

not yield the desired result due to the breach of his promise

by the accused, the complainant having no other alternative,

proceeded to lodge the complaint. Therefore, as a father in

his prevailing society where the victim and the accused were

living, has acted in its natural consequences. It also cannot

be ignored that it is the father of a girl who had approached

the police disclosing to them that his daughter was raped by

a person. No father or no parents generally would make such

kind of allegation at the stake of the chastity and character of

their daughter and falsely impute allegation against another

person of serious offense like sexual assault and rape.

Admittedly there was no animosity between the complainant

and accused or between their families. In such a situation the Crl.A.No.100248/2020

complainant imputing false allegation against the accused

cannot be simply imagined or accepted.

23. PW-10 Bhagibai, who is admittedly the elder sister

of the victim has also stated that her younger sister that is

the victim was subjected to rape from none else than the

accused. Like her father, even she too has heard the details of

the incident from the mouth of none else than the victim

herself. Being the elder sister of the victim, she too cannot

be expected to falsely publish said kind of incident in their

family before the police or anybody which attracts serious

consequences. This also makes it clear that either PW-1 or

PW-10 had no reason to make any false complaint against the

accused that too of the nature of the allegations involving

sexual assault against their own female family member. The

evidence of PW-1 and PW-10 on the lines that, what made

them to come to know about the pregnancy of the victim and

what made them to collect more details from none else than

the alleged victim and what details PW-2 revealed before

them, have all come in an uniform manner, as such, there Crl.A.No.100248/2020

also no discrepancy lies in the evidence of PW-1 and PW 10.

24. PW-12, who is admittedly a resident of the same

village and known to both the family of the complaint as well

the accused also has stated that in connection with the

accused committing some untoward act against PW 2 had

conducted a panchayath involving the elders in the village.

He too was a party to the said panchayath. He has stated

that as against the complaint of the complainant the accused

himself has admitted that he has committed the alleged act

and at the enquiry by the panchayatdars as to what he is

going to do in future the accused stated that after the month

of March, he would marry the very same girl. Thus, it is

further made clear by the prosecution that even the elders in

the panchayat also have decided that matter should not be

continued further since accused had volunteer to marry the

girl. Probably both the parents of the victim as well elders in

the village might have thought that instead of developing the

matter further and taking the matter to the police or the Crl.A.No.100248/2020

Court better if the future of the girl and welfare of the boy

both are protected by accused marrying the victim. The said

evidence of PW-12 corroborates with the evidence of PW-1,

as well as PW-8.

PW-12 has further stated that after the month of March,

the complainant had assembled them again at which point of

time those people summoned the accused, however, the

accused did not agree to marry the victim. Therefore, the

complainant proceeded to lodge the police complaint. Thus,

as an independent witness and also a resident of same

village, who knows both the family of complainant and

accused, PW-12 has given a picture of the incidents said to

have taken place and the developments that have taken

place prior to PW-1 lodging the police complaint. He being

not an interested witness nor even a related witness and

being a person known to both the family, appears to be a

trustworthy witness and his evidence cannot be easily

brushed aside. Therefore, from the evidences of the family

members who are none else than the elder sister of the Crl.A.No.100248/2020

victim, as well the evidence of independent witness i.e., PW-

12, in the first stage, it can be noticed that prima facie the

prosecution would able to place some evidence regarding the

alleged act of rape and sexual assault even though the

alleged victim has not supported the case of the prosecution.

25. The victim (PW-2) in her evidence even though

has stated that the accused has not made her pregnant but

she has given a statement before the Magistrate though she

calls it at the pressure of the police. The said statement

which is at Ex.P-6 go to show that learned Senior Civil Judge,

Sirsi has recorded the statement of the victim under Section

164 of Cr.P.C. A reading of the said statement would go to

show that in a natural form the victim has narrated the

details before the Magistrate. The victim has stated before

the Magistrate that she was vending the milk and in one such

circumstance, when she had been to the house of the

accused, he subjected her to rape and also threatened her

asking her not to reveal about the incident to her parents.

The witness has also stated that she was also taken to a Crl.A.No.100248/2020

doctor by name Gundra, who administered her some tablets. Apart

from that one Smt. Nagibai also gave her some tablets, and told

in a meeting in the village that she/victim girl had become

pregnant since the villagers said they can't do anything, the case

was made. The Magistrate as required under law has certified that

it is only after the explaining the her nature of her statement,

the victim has given her statement and she was explained about

the process and the statement in a language known to her and

it was also made clear to the victim that she was not bound to

make any confess and if she makes, it would be used as

evidence against her. In spite of the same, she has voluntarily

given such a statement. In addition to the above, evidence of

PW-8 Nilan D.More, the Woman Head Constable also carries

much weight in favour of the prosecution. As instructed to her,

she has taken the victim girl not only before the doctor but also to

the Counseling Centre and she was counseled by the people at

the Center. The witness has also stated that the statement given

by the victim before the Counselors were recorded in writing by

her (the witness) which she has identified at Ex.P-7. Her evidence

that she had taken the victim girl to the doctor and also before the Crl.A.No.100248/2020

counsellors and that the victim was counseled by the

counsellors have not been denied or disputed in her cross-

examination. It is only suggested to the witness in her cross-

examination that victim has not given her statement as per

Ex.P-7, however, such suggestion was not admitted as true

by the witness. Thus, the evidence of PW-8 also inspires

confidence to believe and go to show that the victim was also

taken before the counsellors.

26. A perusal of the said alleged statement of the

victim before the counselors which is at Ex.P-7 also go to

show that she has narrated about the incident in the same

manner as to her statement before the Magistrate under

Section 164 of Cr.P.C. Thus, in both the statements, the

victim has stated that she was subjected to sexual act and

rape by none else than the accused and accused only. In

such a circumstance, when a judicial Magistrate has recorded

the statement of the victim in accordance with law after

bringing to the notice of the victim the consequences of such

a statement under Section 164 of Cr.P.C. and also when the Crl.A.No.100248/2020

evidence of PW-8 that she had taken the victim before the

counsellors and the victim had given her statement before

the counsellors having remained undenied and undisputed,

the mere single sentence statement of PW-2 that her

statement before the Magistrate was at the pressure of the

police, does not make us to believe her statement.

Therefore, the evidence of PW-2 that accused has not

subjected her to sexual assault and he is not the cause for

her pregnancy cannot be believed and acted upon.

On the other hand, the prosecution case can also gain a

further support, since it has to be observed that the act of

the girl subsequently submitting herself for repeated sexual

act by the accused after the first instance in the month of

August 2016 would also leads to an interference probable

that she was not interested in ensuring a conviction or

punishment to the accused since she had undergone sexual

act with him and also had become pregnant. May be for that

reason she did not deny that she had become pregnant but

only stated that accused is not the cause and that her

statement before the Magistrate was under pressure.

Crl.A.No.100248/2020

27. The second stage, where we have to see the

evidence in these type of offences is medical evidence. In

that regard, as we have already observed above, the

prosecution has examined three medical doctors as PW-4,

PW-5 and PW-6. It is not in dispute that all these three

doctors have medically and clinically examined the victim. All

these three doctors have stated about the pregnancy of the

victim girl. Among these three witnesses, even though PW-4

and PW-5 have stated that since their testing of the victim

for pregnancy was in a method called Card method, which is

not absolute confirmation of pregnancy, however, the

evidence of PW-6, who is a higher specialist and carrying a

profession in OBG Branch at Karwar Medical College as an

Assistant Professor shows that the victim girl was also

subjected to ultrasonography. He has stated that the report

reveals any sign of pregnancy and retained products which is

subjective of complete abortion. Even though Ex.P-16 which

is shown to be a report given by him mentions "USY does not say

any signs of pregnancy/retained products suggestive of complete

abortion....." but his oral evidence makes it clear that the Crl.A.No.100248/2020

victim was found to be a girl who had pregnancy aborted. No

doubt, learned counsel for the respondent in his arguments

submitted that the prosecution has not placed on record their

evidence, the specific date of pregnancy and the specific date

of termination of pregnancy, as such, the mere statement of

the doctors that the victim was pregnant or got her

pregnancy aborted would not be the conclusive proof of act

of rape against the victim, still the said argument of the

learned counsel for the respondent is not acceptable for the

reasons that:

The evidence of PW-1, who is none else than the father

of the victim as well the evidence of PW-8 who is none else

than the elder sister of the victim would go to show that it

was only during the time of Holi festival in the year 2017,

PW-1 came to know about the pregnancy of his daughter

(victim girl) through his wife. When enquired with the victim

girl, he came to know that accused had subjected her to

sexual intercourse between August 2016 and November 2016

for not less than three times. The very same witness has

stated further that it is thereafter he contacted the accused Crl.A.No.100248/2020

and clarified the matters with him. The witness further stated

that a panchayat was held and the daughter was also taken

to the doctor. After he filing the complaint then on 27th day

of March (2017), the specialist doctor after examining her

revealed that she had undergone abortion of the pregnancy.

These details of the event, as well the evidence of doctors

PW-4, PW-5 and PW-6 as to on which date they examined

the victim and when they noticed that she had undergone the

abortion of pregnancy, established clearly that the alleged

act of pregnancy was subsequent to August 2016 and the

abortion of the pregnancy was just prior to March 2017 to

November 2017.

The evidence of PW-6 also go to show that he had

examined the accused also and noticed that there was

nothing on evidence to state that the accused was

incompetent to have sexual intercourse. The entire

evidence of PW-6 has remained undisputed and undenied

since he was not cross-examined from the accused side.

Therefore, the medical evidence also corroborates the

evidence of PW-1 and PW-8 to the effect that the accused Crl.A.No.100248/2020

had committed the act of rape upon the victim for more than

one time between August 2016 to November 2016.

Once the act of the sexual intercourse by the accused

against the victim for more than one time is established, the

next question would be whether the victim was minor in her

age as on the date of the incident. In that regard, the very

first statement about her age is by the victim herself who as

PW-2 in her examination-in-chief has stated that at that

particular point of time, she was aged 16 years. Said

evidence of her has not been denied or disputed from the

accused side.

Secondly, the father of the victim i.e., PW-1 also in his

evidence has stated that the date of birth of the victim is

04.05.2000. PW-4, PW-5 and PW-6, the doctors have stated

that the age of the victim, as stated to them was 16 years.

However, the better evidence has come from PW-7 Sri

Gurunath who is the Head Master of Government School

where the victim was studying. He has stated in his evidence

that the victim girl was studying in their school and the Crl.A.No.100248/2020

school registers and records show that her date of birth is

recorded as 04.05.2000. in that regard as requested by the

police, he has issued a date of birth certificate which

certificate he has identified at Ex.P-18 and his signature

therein at Ex.P-18(a). He has also produced the school

admission record which is marked at Ex.P-19. The denial

suggestions made to him in couple of sentence were not

admitted as true by the witness. Therefore, the undenied

evidence of none else than the victim, PW-2, the evidence of

her father as PW-1 and the evidence of Head Master as PW-

7, makes it amply clear and establishes that the date of birth

of the victim was 04.05.2000. As such, as at the time of first

sexual intercourse in August 2016, she was a girl of the age

16 years 3 months, as such, she was a minor in her age as at

the time of the offence.

28. The spot of the incident which according to the

prosecution is the house of the accused is not seriously

denied or disputed from the accused side. In that regard,

PW-3 Mahadev in his evidence has stated that he was a Crl.A.No.100248/2020

panch witness for the scene of offence panchanama drawn by

the police on 26.03.2017 in their village. He has clearly

stated that the spot of the offence was shown to the police in

his presence by none else than PW-2. The police have

verified the said spot and a mahazar was drawn in his

presence to which he has subscribed his signature. The

witness has identified the said panchanama at Ex.P-2. The

witness has also stated that in that spot, the police had also

taken the photographs which photographs he has identified

at Exs.P-4 and P-5 and stated that in those photographs, he

is also seen. Thus, the evidence of PW-3 go to show that the

spot of the offence was the house of the accused.

29. The accused throughout has not taken any

specific defence. Even though he has not denied his

acquaintance with the family of the complainant and the fact

that the complainant's family was vending milk to him and

that it was the victim who was coming to his house for

vending milk, but about the incident, he has suggested to the

witness only the denial suggestions. Thus, the general Crl.A.No.100248/2020

denial is the defence of the accused throughout. As analysed

above, other general denial defence of the accused could not

in any manner either imbibe doubt in the case of the

prosecution shaked the evidence of credible material

witnesses, more particularly, the evidence of PW-1, PW-8,

PW-10 and PW-12.

30. In Hemudan Nanbha Gadhvi Vs. State of

Gujarat reported in (2019) 17 SCC 523, the case involved

was the alleged rape of a minor which is for the offence

under Section 376(2)(f) of IPC. In the said case also the

prosecutrix who was said to be a girl aged 9 years, turned

hostile and also failed to identify the accused in dock

subsequently while deposing during trial. The Hon'ble Apex

Court was pleased to hold that the said fact that she was

unable to identify the accused in dock itself is not sufficient

to efface an evidence including identification in Test

Identification Parade which also establishes the guilt of the

accused.

In the instant case also even though the prosecutrix

has turned hostile, however, as observed above, the Crl.A.No.100248/2020

prosecution has placed other cogent material and reliable

evidence to prove the guilt of the accused. As such, we,

apart from holding that the prosecution has proved the guilt

of the accused punishable under Section 376(2)(n) of IPC

and Sections 5(L) and 6 of POCSO Act but also we find no

reason to interfere in the said finding on the conviction of the

accused for the alleged offence. As such, the argument of

the learned counsel for the respondent that the accused

deserves an acquittal is not acceptable.

31. The Special Court by its order of sentence dated

09.09.2019 has sentenced the accused to undergo a rigorous

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

Rs.30,000/- for the offence punishable under Section

376(2)(n) of IPC, in default of payment of the fine, accused

to undergo simple imprisonment for a period of six months.

Further, the accused has also sentenced to undergo rigorous

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

Rs.30,00/- for the offence punishable under Section 5(L) and

Section 6 of the POCSO Act, in default of payment of fine, Crl.A.No.100248/2020

accused to undergo simple imprisonment for a period of six

months both sentences were held to be run concurrently.

32. Learned Addl. S.P.P. for the appellant submitted

that when the very offences prescribes a minimum sentence

of ten years imprisonment for each of the proven guilt, the

Special Court was not justified in ordering for a lesser

punishment than the minimum prescribed under law.

33. Learned counsel for respondent/accused in his

argument submitted that the Special Court after analysing

the circumstances of the case and more importantly, the age

of the accused as well the fact that he was a specially abled

(physically handicapped who had lost one of his lower limbs)

had awarded a reasonable sentence which does not warrant

any interference at the hands of this Court.

34. Section 376 of IPC so far as the punishment

portion is concerned reads as below:

376. Punishment for rape.--

(1) Whoever, except in the cases provided for by sub-section (2), commits rape, shall be punished Crl.A.No.100248/2020

with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend imprisonment for life, and shall also be liable to fine.

(2) Whoever.--

(a) being a police officer commits rape--

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or

(c) being on the member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, Crl.A.No.100248/2020

commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same women, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the Crl.A.No.100248/2020

remainder of that person's natural life, and shall also be liable to fine.

35. Section 6 of POCSO Act as on the date of alleged

offence (prior to amendment by the Act No.25 of 2019) reads

as below:

" Section 6. Punishment for aggravated penetrative sexual assault.--Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."

It is the principal of sentencing policy that the sentence

ordered for a proven guilt must be neither exorbitant nor for

the namesake and it must be proportionate to the gravity of

the proven guilt.

36. A careful reading of the order of sentence passed

by the Special Court would go to show that the Special Court

without attributing any reasons for confining the sentence

only for 7 years of rigorous imprisonment for each of the

proven guilt has not only reduced the sentence than Crl.A.No.100248/2020

prescribed in the Statute but also has not attributed any

reasons for doing so for which it had no authority. It has

only stated that the Court was of the opinion that if the

accused is sentenced to undergo rigorous imprisonment for a

period of seven years, for each of the alleged offence, it

would serve the purpose of justice. We do not find any

convincing aspect in the said observation of the Special Court

for imposing reduced sentence.

37. Our Hon'ble Apex Court in State of Madhya

Pradesh Vs. Vikram Das reported in (2019) 4 SCC 125

had an occasion to analyse the principal of sentencing, more

particularly, awarding lesser sentence than the minimum

prescribed in the Statute. In the case before the Hon'ble

Apex Court, the trial Court had convicted the respondent for

the offence under Section 3(1)(11) of Schedule Caste and

Schedule Tribe (Prevention of Atrocities) Act, 1989 Act and

sentenced him to undergo rigorous imprisonment for a period

of six months with fine of `500/-. The High Court reduced

the sentence of respondent to the sentence already Crl.A.No.100248/2020

undergone which was of eleven days, but enhanced the fine

from `500/- to `3,000/-. The conviction was not disputed by

the respondent before the High Court. It was only a quantum

of punishment that was disputed. The Hon'ble Apex Court

after noticing that Section 3(1) of the SC ST Act provides for

punishment for a term which shall not be less than six

months and which may extend to five years and with fine

was pleased to hold that where minimum sentence is

provided for, the Court cannot impose less than the minimum

sentence. The provisions of Article 142 of the Constitution

of India also cannot be resorted to impose sentence less than

the minimum sentence. With this, the Apex Court held that

the High Court could not have awarded the sentence less

than the contemplated by the Statute. Thus, the order

passed by the High Court was set aside and the respondent

was directed to undergo remaining sentence imposed by the

trial Court.

In the instant case, since both the sentence under IPC

for the offence punishable under Section 376(2)(n) as well

the POCSO Act for the offence punishable under Section 6 of Crl.A.No.100248/2020

POCSO Act prescribes a minimum sentence of ten years

imprisonment for the proven offence, we find no justification

in the Special Court further reducing it and prescribing only

seven years rigorous imprisonment for each of the proven

guilt of the accused.

38. A reading of the order of the sentence passed by

the Special Court further go to show that even after

specifically noticing that the victim in the case had turned

totally hostile to the case of the prosecution, it has

proceeded to award compensation for the victim girl under

Section 357 of Cr.P.C. Thus, out of `60,000/-, a total amount

of the fine imposed upon the accused, a sum of `50,000/-

was ordered to be payable to the victim girl as

compensation.

A Coordinate Bench of this Court in xxx Petitioner Vs.

Member Secretary reported in 2019 SCC online

Karnataka 1738 while analysing Clause 6(3) of the

Karnataka Victim Compensation Scheme Act, 2007, was

pleased to observe that, even though the victim had to Crl.A.No.100248/2020

cooperate with the prosecution during the trial and the

complaint filed by her should not be fabricated, in the case

before the Court, during the course of the investigation and

the trial, the petitioner as well her father were declared as

hostile, thus, they have violated Clause 6(3) of the Karnataka

Victim Compensation Scheme and thus they were not entitled

to seek compensation. As such, the State Legal Services

Authority had rightly held that the petitioner was not entitled

for payment of compensation.

39. We try to draw a similar analogy in the facts and

circumstances of the present case and confine it to the facts

and circumstances of the case on hand and of the opinion

that the victim girl who has turned hostile to the case of the

prosecution is not entitled for the compensation. At the same

time, the quantum of fine imposed upon the accused is being

on the higher side is to be modified by fixing it to a

reasonable amount, however, this order regarding the

refixation of the fine amount and denial of the compensation

to the victim girl cannot be considered as a precedent.

Crl.A.No.100248/2020

40. Accordingly, we proceed to pass the following

order:

ORDER

The Criminal Appeal filed by the State is allowed in-

part.

The argument for acquittal by the accused side is also

considered and accepted regarding the quantum of the fine

imposed upon the accused. The order of sentence dated

09.09.2019 passed by the Special Judge, Uttara Kannada,

Karwar in Spl. Case No.40/2017 is modified and it is held

that the accused is sentenced to undergo rigorous

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

`10,000/- for the offence punishable under Section 376(2)(n)

of IPC and in default of payment of fine, accused to undergo

simple imprisonment for a period of six months.

Further, the accused is sentenced to undergo rigorous

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

`10,000/- for the offence under Section 5(L) and Section 6 of Crl.A.No.100248/2020

the POCSO Act in default of payment of fine amount, the

accused shall undergo simple imprisonment for a period of

six months.

Both the sentences to run concurrently.

The payment of `50,000/- as compensation to the

minor victim girl is set aside. The rest of the operative

portion of the judgment and order of sentence stands

confirmed.

Registry to transmit a copy of the judgment along with

the Special Court records to the concerned Court

immediately.

The accused is also entitled for a free copy of this

judgment without any delay.

Sd/-

JUDGE

Sd/-

JUDGE

Naa