1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED: THIS THE 18 TH DAY OF APRIL 2013 BEFORE THE HON BLE MR.JUSTICE HULUVADI G.RAMESH BETWEEN CRIMINAL APPEAL NO. 3638 OF 2009 THE STATE OF KARNATAKA THROUGH ADDL. STATE PUBLIC PROSECUTOR. (BY SRI S.S.ASPALLI, GOVT. PLEADER) AND MOHAN S/O GOVIND CHAVAN AGED 24 YEARS, OCC: AGRICULTURE, R/O SHERI BADA TANDA, TQLUK CHINCHOLI, DIST. GULBARGA. (BY SRI S.S.SAJJANSHETTY, ADVOCATE) APPELLANT RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 OF CODE OF CRIMINAL PROCEDURE PRAYING TO MODIFY THE JUDGMENT AND ORDER DATED 02.12.2008 PASSED BY THE PRL. SESSIONS JUDGE, GULBARGA IN S.C.NO.128/2007 IN SO FAR IT RELATES TO IMPOSING INADEQUATE SENTENCE ON THE RESPONDENT FOR THE
2 OFFENCE PUNISHABLE UNDER SECTION 354 OF IPC, ETC. THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is by the State challenging the finding of the Sessions Judge, Gulbarga in SC No.128/2007 in so far as it relates to imposition of inadequate sentence for the offence punishable under Section 354 of IPC. 2. The victim is said to have filed a complaint on 18.11.2005 alleging commission of the offence punishable under Section 354 of IPC and also other offences like 341, 323, 504, 506, 493, 509 of IPC against accused No.1. After 35 days of filing the complaint, the victim is said to have given a further statement alleging the offence of rape committed on her by accused No.1 and accused No.2 to 7 abetted accused No.1 for commission of the offence. As such, in pursuance of the further statement of victim, the offence
3 under Section 354 of IPC is converted into the offence under Section 376 of IPC. Accordingly, charge sheet was filed alleging the offences punishable under Sections 341, 323, 504, 506, 493, 509, 354, 376 and 109 of IPC against accused Nos.1 to 7. Since the offence under Section 376 of IPC is triable by the Court of Sessions, the matter was committed to the Sessions Court. On committal of the matter by the Magistrate to the Sessions Court, Sessions Court framed charges against accused No.1 for the offence punishable under Section 376 of IPC and other offences and against accused No.2 to 7 for the offence of abettment of commission of other offences. Since the accused denied the charges levelled against them, the Sessions Court having examined as many as 10 witnesses and during inquiry, about 9 documents were got marked and contradictions at Ex.D1 were got marked, recorded the statement of accused under Section 313 of Cr.P.C. and while acquitting the accused No.1 of the offences except
4 the offence under Section 354 of IPC holding that it is not a case of rape, it is only outraging the modesty of a woman and that accused No.1 is guilty of the offence under Section 354 of IPC, learned Sessions Judge has sentenced the accused to pay a fine of Rs.5,000/-, in default of payment of fine, ordered the accused to undergo six months rigorous imprisonment. The learned Sessions Judge has acquitted the accused No.2 to 7 of the offences alleged against them. Being not satisfied with the quantum of sentence stating that there should have been a sentence of imprisonment as is provided under Section 354 of IPC, the State is in appeal. 3. The facts of the case are that the victim is a resident of Sheri Bada Tanda, residing along with her grand-parents viz., Gopu and Chandrabai. This accused No.1 and victim Savitha were in love. It is alleged that accused No.1 used to have sexual intercourse with her by promising her that he would
5 marry her. Later victim came to know that marriage of accused No.1 is fixed with some other girl. It is alleged that on 13.10.2005 in the morning when the victim had gone to well to fetch water from the well situated in the land of one Vasu, at that time accused No.1 went there and caught hold of her hand and asked her to come along with him and started pulling her. Victim also told the accused that since his marriage is fixed with some other girl, question of she going along with him does not arise. This has been witnessed by one Umesh. Later it is alleged that accused No.1 took her forcibly and committed rape on her and also assaulted her and abused and threatened her with dire consequences not to inform the act of commission of rape on her after having committed rape on her. When victim told her grand-parents about the acts of the accused No.1, they went to his house and requested him to marry their grand-daughter and also in this regard, a panchayat was convened and in that panchayat, they were
6 threatened with dire consequences that they would finish of the victim. That on 18.11.2005 since the accused No.1 refused to marry the victim, complaint was lodged against the accused No.1 and by way of further statement, the offence under Section 376 and 109 of IPC were also added. 4. The learned Sessions Judge after having dilated the evidence on record, formed an opinion that it is not a case of rape, at the most it is outraging the modesty of a woman and convicted the accused No.1 for the offence punishable under Section 354 of IPC while acquitting the accused for other offences and sentenced the accused No.1 to pay a fine of Rs.5,000/-, in default of payment of fine directed the accused to undergo six months rigorous imprisonment. 5. The points that arise for consideration are; i) Whether the Sessions Judge was justified in sentencing the
7 accused to pay fine only instead of sentencing him to undergo imprisonment? ii) What order? 6. PW-2 is the victim. PW-1 is the eyewitness to the incident who speaks about forcing the victim to accompany him by pulling her hand and to co-operate for sexual intercourse. He has totally turned hostile to the case of prosecution. According to the version of prosecution, this accused No.1 had promised the victim to marry her and having made her to believe that he will marry her, had sexual intercourse with her. That version is not supported by PW-1. The sole evidence of PW-2-victim is that she has no parents and her grandparents are looking after her. It is stated by her that accused No.1 s marriage is fixed with some other girl and on the date of incident, when she went near the well of one Vasu, accused No.1 held her and pulled her, at that time she told accused No.1 that his marriage has
8 been fixed with some other girl, despite that he has forcibly committed rape on her. After commission of rape on her by the accused, one Umesh came there and she went and complained the same to her grandparents. In the cross-examination, of course she has stated that the place where the incident taken place is a smooth surface, as such, she did not suffer any injuries. She has tried to get released from the clutches of the accused, but she could not escape from him, as he held her hands forcibly. To the suggestion of the defense that the grand-parents of the victim have forced accused No.1 to marry the victim, for which he has refused, as such, out of ire a false case has been filed against this accused No.1, the victim has denied the suggestion. Apart from that, the medical evidence i.e., evidence of PW-8 who has examined the victim on 18.11.2005 is that the victim was aged about 19 years. She found no external injuries. Hymen was absent and also stated that there is no evidence of recent sexual
9 intercourse. But she is used to the act similar to sexual intercourse. Accordingly, she has issued certificate at Ex.P.7. Looking into the medical evidence and also having noted that there is a delay in filing the complaint, Sessions Judge has opined that it is not a case of forcibly committing rape on the victim and at the most, it is outraging the modesty of a woman. The trial Court having taken note of the fact that the delay itself is not fatal to the case of prosecution, however, relied on the medical evidence and also Ex.P.4 which depicted that accused went on promising the victim to marry her and under false promise, he had sexual intercourse with her. But this Ex.P.4 has not been relied upon by the trial court on the ground that she has not whispered in her chief examination regarding committing rape on her by the accused. Ex.P.4 is the complaint lodged by the victim and noting that nothing is stated by the victim regarding commission of rape and that it is an improvement made by her in her further statement
10 stating that on 13.10.2005, the accused had forcibly took her and committed rape on her against her will and consent, the same has not been mentioned in the complaint, the version of the victim is disbelieved. It has also opined that if really she has been raped by accused No.1, the victim could have narrated the said fact in the complaint given to the police on 18.11.2005. The evidence of grand-parents i.e., PWs.5 and 6 is disbelieved by the Sessions Court on the ground that there is inordinate delay in complaining of committing rape on the victim. 7. Thus, the Sessions Court having opined that prosecution is able to establish the guilt of the accused No.1 beyond reasonable doubt for the offence punishable under Section 354 of IPC, has sentenced the accused No.1 to pay a fine of Rs.5,000/- and also default sentence of six months.
11 8. However, the State is aggrieved by the quantum of sentence imposed. Section 354 of IPC provides for punishment by way of imprisonment up to two years or with fine or with both. The trial Court of course, on appreciation having come to the conclusion that it is not a case of rape as per the evidence and also complaint and medical evidence, opined that it is outraging the modesty of a woman. Of course, the sentence part is imposing of only fine instead of sentencing the accused to undergo imprisonment. However, as per the theory of punishment, normally imprisonment or fine would be in the alternative or imposing fine as well as imprisonment normally go together. But, however, the Sessions Judge exercised the discretion and sentenced the accused to pay fine only, as the other accused have been acquitted for the alleged offence of abetment to commit rape. The respondent/accused is said to be an agricultural coolie, sentencing him to pay a fine and default sentence is
12 substantial, as there is alternative sentence provided for the above offence. The imposition of fine in the circumstances, and the default sentence of six months in default to pay the fine amount, itself would meet the ends of justice. In that view of the matter, appeal filed by the State is dismissed. Send back the records. nsp Sd/- JUDGE