Karnataka High Court
Arjun S/O Shivaram Chincholi vs The State Of Karnataka on 1 April, 2025
Author: K Natarajan
Bench: K Natarajan
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CRL.A No. 200150 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR. JUSTICE K NATARAJAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.200150 OF 2019
(374(Cr.PC)/415(BNSS))
BETWEEN:
ARJUN S/O SHIVARAM CHINCHOLI,
AGE: 60 YEARS, OCC: LABOUR,
R/O: GADAWANTHI, TQ: HUMNABAD,
DIST: BIDAR-584101.
...APPELLANT
(BY SRI. RAJESH DODDAMANI, ADVOCATE AS AMICUS CURIE)
Digitally signed
by NIJAMUDDIN AND:
JAMKHANDI
Location: HIGH THE STATE OF KARNATAKA
COURT OF
KARNATAKA THROUGH HUMNABAD P.S.,
REPRESENTED BY ITS
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH,
KALABURAGI-585103.
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
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CRL.A No. 200150 of 2019
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO I) CALL FOR THE RECORDS IN
S.C.NO.271/2016 ON THE FILE OF THE II ADDL. DISTRICT AND
SESSIONS JUDGE, BIDAR, SITTING AT HUMNABAD, II) PERUSE
THE SAME, ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 27.10.2017 AND 03.11.2017 PASSED IN
S.C.NO.271/2016 ON THE FILE OF THE II ADDL. DISTRICT AND
SESSIONS JUDGE, BIDAR, SITTING AT HUMNABAD AND SET
THE APPELLANT / ACCUSED AT LIBERTY IN THE INTEREST OF
JUSTICE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
AND
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE K NATARAJAN)
This appeal is filed by the appellant - accused under
Section 374 (2) of Cr.P.C. for setting aside the judgment
of conviction dated 27.10.2017 and the order of sentence
dated 03.11.2017 passed in Sessions Case No.271/2016
by the II Addl. District and Sessions Court Bidar, sitting at
Humnabad (hereinafter referred as 'Trial Court').
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02. We have heard the arguments of Sri. Rajesh
Doddamni, the learned amicus-curie for the appellant -
accused and the learned Addl. SPP. for the respondent -
State.
03. The case of the prosecution is that CPI,
Humnabad has filed a charge-sheet against the accused
for the offences punishable under Sections 448 and 376
(2) (L) of IPC. It is alleged that PW.2 - Smt. Mapamma,
who is the mother of the victim lady has filed a complaint
before the police on 23.08.2016 stating that on
10.08.2016, when she went to clinic for medical check-up
and when she came back to her house, she saw that the
accused tress-passed to her house and committing rape
on her daughter who is physically retarded woman.
Immediately, she has screamed for help, then the PW.5 -
Laxmibai who is her sister and neighbouror, came to there
and both of them said to be took the sticks and assaulted
the accused. Thereafter, the accused ran-away from the
spot. Thereafter, she has intimated to the elders of the
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village, but they have not helped. Hence, she then
intimated to PW.6, who is her niece. Then she came from
Mumbai to the village, thereafter lodged the complaint on
23.08.2016. The police after registering the FIR, arrested
the accused and subjected to the medical examination to
the accused as well as the victim. After completion of
investigation, the police have filed the charge-sheet
against the accused for the offences as stated above.
04. After filing of the charge-sheet, the learned
Magistrate took the cognizance for the above said offences
and committed the case to the Court of Sessions for trial.
05. After receipt of the records, the Trial Court
secured the presence of the accused, who was in judicial
custody and framed the charges of the alleged offences.
The accused person denied the charges and claimed to be
trial. Accordingly, the prosecution called upon to adduce
the evidence. The prosecution in support of its case in all
examined 10 witnesses and got marked Ex.P.1 to 11
documents.
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06. After closing the evidence of the prosecution
witnesses, the learned Sessions Judge read-over the
incriminating evidence of material witnesses to the
accused as contemplated under Section 313 of Cr.P.C. The
case of the accused person is one of total denial, but not
lead any defence evidence, except cross-examining the
prosecution witnesses.
07. After hearing the arguments, the Trial Court
found that the accused is guilty, convicted and sentenced
to undergo imprisonment for throughout life and to pay
fine of Rs.10,000/- and in default of payment, he shall
further undergo simple imprisonment for 03 months for
the offence punishable under Section 376 (2) (L) of IPC.
However, there is no separate sentence awarded for the
offence punishable under Section 448 of IPC.
08. Being aggrieved by the same, the appellant -
accused is before this Court in this appeal.
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09. The learned counsel for the appellant has
contended that the learned Trial Court has committed an
error in giving findings and sentenced to undergo
imprisonment for life, without any proper appreciation of
evidence on record. There is no supporting medical
evidence to corroborate the evidence of PWs.2, 5 and 6
who are the related witnesses. PW.3 - Dr. Smt. Sangeetha
has not opined that there was no recent sexual intercourse
on the victim lady. The victim lady was not examined.
Such being the case, without being any proper positive
evidence on record, the learned Trial Court held that the
accused was guilty and convicted and sentenced to
undergo imprisonment for life, which is not correct. Even
on considering the evidence on record, there is no
independent witness is examined. There is no evidence of
elder of the villagers is examined by the investigating
officer as well as the prosecution side. The mother and
aunt are only interested witnesses. Their evidence cannot
be believed and they are sterling witnesses. It should be
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very care and cautious to accept their evidence. It is also
contended that though the alleged offence was committed
on 10.08.2016, whereas the FIR has been lodged only on
23.08.2016. There is a delay in filing the complaint. It is
not satisfactorily explained by the prosecution. Such being
the case, with the due deliberation the false compliant has
been filed. Since, the accused is friend of the father of the
victim girl, there is enmity between the father of the
accused and PW.2, whereby the accused has been falsely
implicated in this case. Even though, the hymen of the
victim was not intact, but for various reasons, this aspect
was not considered by the learned Sessions Judge.
Therefore, prayed for setting aside the judgment of
conviction and order of sentence by allowing this appeal.
10. Per contra, the learned Addl. SPP. supported
the judgment of conviction and order of sentence passed
by the learned Trial Court. It is contended that the victim
is a mentally retarded person, she is unable to speak and
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taking advantage of the loneliness, the accused tress-
passed into the house and committed the rape on her. The
PW.2 and PW.5 are eyewitnesses to the incident. They
have assaulted the accused and he ran-away from the
spot. The evidence of the witnesses are very clear and
cogent and nothing on record to disbelieve their evidence.
Even though, the complaint was lodged after 13 days of
the incident, but that itself is not a ground to disbelieve
the evidence of PW.2, 5 and 6. There is supporting medical
evidence is available on record. There is no proper cross-
examination and there is no denial of the incident in the
cross-examination of PW.2, 5 and 6 regarding commission
of the offence. Such being case, their evidence is sufficient
to prove the guilt of the accused and it cannot be
disbelieve for any reason. The Trial Court rightly convicted
the accused. Hence, prayed for dismissal of the appeal.
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11. Having heard the arguments and perused the
records, the points that would arise for our consideration
as under:-
i) Whether the prosecution proves its case beyond all
reasonable doubt that on 10.08.2016 the accused by
tress-pass into the house of PW.2 - Smt. Mapamma
and committed rape on the victim who was mentally
retarded person, thereby the accused committed
offences punishable under Sections 448 and 376 (2)
(L) of IPC.?
ii) Whether the judgment of conviction and order of
sentence passed by the Trial Court call for
interference.?
12. We have perused the records and meticulously
perused the evidence of the prosecution witnesses. By
appreciating the evidence on record, it is wroth to mention
the evidence adduced by the prosecution witnesses before
the Trial Court.
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13. PW.1 - Dr. Raghuvendra Wagole, who is the
psychiatrist gave evidence stating that he has examined
the victim lady on 09.11.2016 at 03.30 p.m. that the
victim lady was aged about 40 years. He has examined the
mental status of the victim lady, he has found that she is
suffering from schizophrenia and given report as per
Ex.P.1. In the cross-examination, the learned counsel for
the accused has suggested that with the condition of the
patient, it is difficult to say whether she could have
resisted any onslaught on her. He further stated that she
was not in a position to interact.
14. On perusal of the evidence of PWs.1, 2, 5 and 6
it is seen from the records that the victim lady though
aged about 40 years, but she is mentally retarded person.
Hence, she is not able to speak and not able to understand
the things. The accused has not denied the fact that the
victim lady is mentally disabled person. Therefore, there is
no necessity to go in deep in respect of the condition of
the victim lady as she is mentally retarded person.
Therefore, the prosecution has proved that the victim lady
is mentally disabled/retarded person.
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15. PW.2 - Smt. Mapamma, the mother of the
victim, has given evidence stating that the victim lady is
her daughter and she is not able to speak. She has
provided treatment to her, but unable to cured. Herself
and her daughter were residing in the house, since her
husband has deserted her. Her sister PW.5 - Smt.
Laxmibai is also residing in the adjacent house. The PW.6
- Smt. Kalavathi is said to be residing in Mumbai. She
further stated that the accused's house is situated in front
of her house. She further deposes that about 11 and half
months back, one day she went to Hospital in Gadwanti
for treatment, when she returned back to home at about
08.00 p.m. she saw that the accused was committing rape
on her daughter, by lifting her langa and blouse and by
closing her mouth. She has also stated that by removing
his Dhoti the accused had put his pennis into the vagina of
her daughter. At that time she loudly abused him in filthy
language stating he has spoiled the life of her daughter.
On hearing her screaming voice, her sister Smt. Laxmibai
(PW5) also came, she took a stick and assaulted the
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accused on his back by 2 - 3 times. Then the accused ran-
away from the spot. By next day morning she has
informed the fact before the Panchayat Members. They
told that they would enquire the accused, but they did not
done anything. Therefore, she has contact PW.6 - Smt.
Kalavathi and informed about the incident. After 10 - 12
days, she came to village and then they went to Police
Station and lodged complaint. The police received the
complaint. She further stated that the police have came to
the spot, she has shown the spot to the police, the police
prepared the panchanama. She has also stated that the
police took the victim lady to the Hospital at Humnabad
and Bidar. She has stated that the accused had committed
the rape on her daughter.
16. The cross-examination conducted by the
learned counsel for the accused where it was elicited that
the house of the accused in front of the house of the
victim. Her sister's house is near to the victim lady. She
was deserted woman. There is no one goes to the house of
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the victim lady. There are no talking terms with the
husband of the PW.2. It is suggested that the accused
used to visit their house oftenly and he never thought
about the misuse of the victim lady by the accused. It is
suggested that the accused is falsely implicated by the
PW.2, the same was denied by her. Except this cross-
examination nothing is elicited in the cross-examination.
There is no denial about incident narrated by the PW.2 in
her deposition that accused committed rape on her
daughter by removing her cloths. Even formal suggestions
are not made by the learned counsel for the accused. On
the other hand, the evidence of PW.2 goes to show that
when she returned from the Hospital, she has found that
the accused was lying on her daughter by removing her
cloths and sexually assaulting on her daughter. Then she
had screamed loudly and her sister - Smt. Laxmibai
(PW.5) came who is residing adjacent house and she took
the stick, assaulted the accused, thereby the accused ran-
away by adjusting his Dhoti.
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17. The evidence of this witness clearly goes to
show that the witness is not only an eyewitness, but also
she was mother of the victim lady and she was given
evidence against the accused that he was committed the
rape and she saw along with the PW.5.
18. PW.3 - Dr. Sangeetha who examined the victim
lady on 23.08.2016 and the incident has been told by the
mother of the victim lady to the doctor. She was said to be
sexually assaulted by the accused 12 days prior to the
date of examination. This witness physically examined the
victim lady, she was aged 40 years and she was not
responsive to any commands giving indication that she is
mentally depressed and there are no injuries found on any
part of the body. Hymen was raptured, there was no
bleeding. She has collected the swab and slides, nails,
pubic hairs, blouse, saree and petticoat and send to the
FSL. On the clinical examination there was signs of recent
sexual intercourse. She has given the provisional report to
that effect, which is marked as Ex.P.4. However, after
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perusal of the FSL report on 01.07.2017, she has given
final opinion that there was no evidence recent sexual
assault as per Ex.P.5.
19. In the cross-examination, it was suggested that
there will be likelihood of injuries on the back, if there is
an forcible sexual assault. On the clinical observation of
the sexual intercourse can be seen up to 72 hours
notwithstanding there being any external injuries. The
rapture of hymen could be for any reason also.
20. The evidence of doctor suggests that on the
medical examination, the sperm would found only up to 72
hours, but not beyond 72 hours. There is no injury on the
private part, as the alleged incident was on 10.08.2016,
but the victim was medically examined after 13 days i.e.,
on 23.08.2016. Therefore, there is no possibility of finding
any injury on the any part of the body while medical
examination. That apart, she has categorically stated that
after looking to the hymen rapture, there was recent
sexual intercourse. However, after verifying the FSL
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report, the examination of the material objects collected
from the cloths of the accused and the victim lady, which
suggest that there is no recent sexual intercourse.
Admittedly, the complaint was filed after 13 days of the
incident. Therefore, there is every chances of non
availability of the medical corroboration is sculled out.
Even one cannot expect in the medical examination for
any injury found on the body of the victim lady, while
examination after 13 days after the incident. Therefore,
only left the evidence to the Court the evidence of PWs.2,
5 and 6 who are the eyewitnesses to the incident.
21. PW.4 - Dr. Basavanthrao, the medical officer
who examined who examined the accused on 23.08.2016.
He has examined the accused and he do not found any
injuries on the body of the accused and gave the
provisional certificate as per Ex.P.6. According to his
evidence, the accused is capable of performing sexual
inter course.
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22. PW.5 - Laxmibai who is the elder sister of the
PW.2 and aunt of the victim lady. She has also given
evidence in support of evidence of PW.2. She has stated
that about 01 year 10 days back at 08.00 p.m. she was in
the house and she heard the noise of her sister and she
went there, PW.2 assaulted the accused with stick and
accused ran-away from the spot. She was also stated that
the victim lady does not speak. Even in the cross-
examination it is elicited by the learned counsel for the
accused that her house is near to the house of the victim
lady. It is also once again elicited that there is no door to
the house and there is no talking with the PW.2 and her
husband who is also residing with some other lady in the
same village. There is no denial that the accused was
found in the house of the PW.2. The witness clearly stated
that when she heard the scream, she came out and saw
the PW.2 was assaulting the accused with stick and he
ran-away from the spot. The PW.2 narrated the sexual
assault and she also saw the incident and accused ran-
away from the spot. There is nothing to disbelieve the
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evidence of PW.5 who is the mother of PW.6 and the
evidence of PW.5 not impeached by the learned counsel
for the accused in the cross-examination to disbelieve her
evidence.
23. PW.6 - Smt. Kalavathi who is the daughter of
the PW.5. She came to know the incident and came to
Gadawanti village. Thereafter, they approached the
villagers, they are not came for helping them. Therefore,
she along with the mother of the victim went to the police
station and lodged the complaint. The evidence of this
witness is also not properly cross-examined and not
impeached by the learned counsel for the accused. This
witness speaks only after knowing the incident from the
PW.2 and PW.5 and she came to village and took them to
the police station. Her evidence corroborated the evidence
of PW.2 and PW.5.
24. PW.7 and PW.8 are the panch witnesses to the
spot. The Ex.P.9 is the spot panchanama, where the police
have visited spot, prepared the spot panchanama. The
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PW.7 and PW.8 have not supported the case of the
prosecution. The house of the PW.2 situated at their
village and there is no door to their house is not in
dispute. Therefore, even though these two witnesses were
not supported the case of the prosecution, that itself not
fatal to the prosecution case, they are only the spot panch
witnesses. The place of occurrence, the evidence of PW.2
and PW.5 who are the eyewitnesses and explained about
the incident, which was occurred in the house of the PW.2.
Even though these witnesses do not support the
prosecution case, but the evidence of PWs.2, 5 and 6
cannot be disbelieved because of hostile of these
witnesses.
25. PW.9 - Gurulingappa Gouda, who is the PSI,
received the complaint from PW.2 as per Ex.P.3 and he
registered the case in Crime No.189/2016 for the offences
punishable under Sections 448 and 376 (2) (L) of IPC,
issued the FIR as per Ex.P.10, then he sent the victim lady
to the Government Hospital for the medical examination
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along with the Woman Police Constable and the Police
Constable. Thereafter, he got the information and he
apprehended the accused, recorded the voluntary
statement of the accused, then he has send the accused
for the medical examination and thereafter, produced the
accused before the Court. This witness speaks only about
the setting the law into motion by registering the FIR, on
the complaint of PW.2.
26. PW.10 - Investigating Officer, who was took up
the investigation, recorded the statements of the
witnesses. He received the medical examination report and
collected the material objects and send to the FSL through
Dy.S.P. After receipt of the FSL report, he has filed the
charge-sheet.
27. We have meticulously examined the entire
evidence on record especially the evidence of PWs.2, 5
and 6 are corroborative each other that the accused came
to the house of PW.2, when PW.2 was out of the house for
medical check-up, when she was return back at 08.00
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p.m. the accused was found laying on the victim lady who
is mentally retarded by committing rape on her daughter
by removing her blouse and petticoat and by removing his
Dhoti. She was screamed by abusing him as he was
spoiling the life of her daughter and hearing the scream
the PW.5 also joined with her and PW.2 took a stick and
assaulted the accused on his back, thereby the accused
ran-away from the spot by adjusting the Dhoti. By the
next day, they had intimated the elders of the villagers,
though they were stated that they will enquire with the
accused, but they were not enquired the accused.
Therefore, PW.2 and PW.5 forced to intimate the incident
to the PW.6 who was in Mumbai. PW.6 came back after
sometime, she has also approached the elders of the
village, they did not come forward for helping the victim's
family. Therefore, they went to the police station and
lodged the complaint after 13 days of the incident. Of
course there is a delay in lodging the complaint for 13
days, whereas the prosecution witness satisfactorily
explained why there was delay occurred in lodging the
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complaint, since, the PWs.2 and 5 approached the elders
of the villagers, they are all though came forward for
enquiring with the accused, but they are actually not
supported the victim lady who is mentally retarded or
PW.2 who is mother of the victim.
28. It is not the regular case, where the victim girl
was mentally retarded to show that she was consented for
the sexual intercourse in order to say that there must be
any injury on the private part, if there is forcible sexual
intercourse took place.
29. Here in this case, the victim lady not able to
speak and she was dump and mentally retarded and not
able to understand and not able explain the same to her
mother or other person. Her mother being woman
definitely will not lie and making a false allegation against
the accused by falsely implicating that he has committed
rape on her own daughter and no woman will lie in this
regard for making false allegation against 3rd person that
she has lavished on her own daughter. Definitely, they are
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aware that it will damage the image of the woman and her
daughter. Such being the case, the evidence of PW.2 that
the accused has committed the rape on the victim, cannot
be disbelieved, there is nothing to suggest and nothing
brought on evidence to disbelieve the evidence of PW.2
and PW.5 that they are telling lie to falsely implicating the
accused. Even though PW.2's husband was residing in the
same village with some other lady, she was the deserted
woman. The accused may be the relative and known
person or friend of her husband, that cannot be a ground
for falsely implicate the accused in a rape case stating that
some 3rd person committed the rape on her own daughter.
Definitely she will aware that it will spoil the name of her
own daughter and name of the victim lady in the society.
30. Such being the case, we are of the opinion that
the evidence of PWs.2, 5 and 6 inspires the confidence of
the Court that they are deposing truth and in support of
the prosecution case and there is nothing to disbelieve
their evidence is false. Therefore, the judgment relied
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upon by the learned counsel for the appellant in the case
of Raj Sandeep Alias Deepu vs. State of NCT of Delhi,
reported in AIR 2012 S.C. 3157, wherein the Hon'ble
Supreme Court has held that while accepting the evidence
of the sterling witness, the Court should always very
careful and cautious. We are aware of the principles laid
down by the Hon'ble Supreme Court in the catena of
decisions that while accepting the evidence of the family
members, the Court always very cautious in accepting the
evidence of the relative of victim girl or the mother of the
victim girl.
31. Here in this case, though the victim lady was 40
years, but she is mentally retarded woman, not able to
speak and not able to understand as per the evidence of
PW.1 and PW.3. Such being the case, the evidence of the
PW.2, 5 and 6 coupled with evidence of PW.3, we are of
the opinion that the prosecution successfully proved the
guilt of the accused that on 10.08.2016 the accused tress-
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passed into the house of the PW.2 and committed sexual
assault on the victim lady. As we already stated above,
there is no denial of the incident by the accused. Of course
even the accused can keep silence and the prosecution
required proves the case, as per Section 101 of Indian
Evidence Act.
32. Here in this case, from the evidence of PW.2, 5
and 6 and evidence of the PWs.9 and 10, the prosecution
successfully is proving the guilt of the accused for the
offences punishable under Sections 448 and 376 (2) (L) of
IPC. As per the provision under Section 375 of IPC, 5th
description clearly falls under the category of 375 of IPC
which is punishable under Section 376 of IPC. The Trial
Court after considering the evidence and documents on
record, rightly given the findings holding that the accused
is guilty for the offences punishable under Sections 448
and 376 (2) (L) of IPC.
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33. However, while sentencing the accused person,
the Trial Court imposed the punishment up to the full term
of life of the accused. It is the settled principle that while
imposing the punishment for the sentence, it should be
followed by the Court, the principles of sentencing policy.
The Court can impose sentence either minimum sentence
of 10 years for the offence punishable under Section 376
(2) (L) or extended up to life. However, the sentence
cannot be full term of life or till the death of the accused,
the Court cannot take away the power of the State under
Sections 432 and 433 of Cr.P.C. Such being the case, the
Trial Court though rightly held that the accused is guilty.
However, looking to the facts and circumstances of the
case, we are of the opinion that the sentence passed by
the Trial Court that full term of the life is required to be
modified and the minimum sentence of 10 years awarded
to the accused, that will meets the ends of justice.
34. For the reasons stated above, we proceed to
pass the following;
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ORDER
The appeal is allowed in part.
The judgment of conviction dated 27.10.2017 and
order of sentence dated 03.11.2017 passed in Sessions
Case No.271/2016 by the II Addl. District and Sessions
Court Bidar, sitting at Humnabad, in respect of the
offences punishable under Sections 376 (2) (L) and 448 of
IPC, is hereby upheld. However, the sentence is modified
as under:-
i) The appellant is sentenced to undergo rigorous
imprisonment for 10 years and pay fine of
Rs.10,000/-, in default to pay the fine amount, he
shall further undergo simple imprisonment for 03
months.
ii) However, there is no separate sentence imposed for
the offence punishable under Section 448 of IPC.
iii) The appellant is said to be in judicial custody from
23.08.2016 till date. Hence, the appellant is entitled
for the set-off under Section 428 of Cr.P.C.
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iv) If the appellant is already served the sentence, the
concerned jail authorities are directed to release the
appellant forthwith, if he is not required in any other
cases.
The office shall communicate the operative portion of
the judgment to the concerned Jail Authority forthwith.
Send back the Trial Court records with copy of the
judgment to the Court concerned forthwith.
The submission of the amicus curie is placed on
record. He is entitled for Rs.20,000/- as Honorarium and
shall receive the same from the High Court Legal Services
Committee, Kalaburagi Bench.
Sd/-
(K NATARAJAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
KJJ
CT:SI
