Karnataka High Court Sri Amarappa S/O Sri Yellappa vs State By Women Police Davanagere on 4 March, 2013Author: A.S.Pachhapure
1 Crl.A 2447/06
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 4TH DAY OF MARCH, 2013
THE HON’BLE MR. JUSTICE A.S.PACHHAPURE CRIMINAL APPEAL No.2447 OF 2006
Aged about 65 years,
Naika by caste,
Davanagere. … APPELLANT/S [By Sri. D. Nagaraj, Adv.]
State by Women Police,
Rep. by its learned
State Public Prosecutor. … RESPONDENT/S [By Sri. Rajesh Rai K, HCGP.]
2 Crl.A 2447/06
This Crl.A. is filed u/Section 374 Cr.P.C. against the Judgment dt.30.10.06 passed by the S.J., Davanagere, in S.C. No.32/06 – convicting the appellant/accused for the offence punishable under Section 511 of IPC for having made an attempt to commit offences U/Section 376(2)(f) and under Section 506(ii) IPC and sentencing him to undergo rigorous imprisonment for a period of three and half years and shall pay a fine of Rs.10,000/- and in default, to pay fine amount he shall undergo rigorous imprisonment for further period of six months for the offence punishable under Section 511 IPC for having made an attempt to commit rape under Section 376(2)(f) of IPC and further sentencing him to undergo rigorous imprisonment for a period of one year and shall pay a fine of Rs.4,000/- and in default, to pay fine amount he shall undergo rigorous imprisonment for further period of two months for the offence punishable under Section 506(ii) IPC. Both the sentences shall run concurrently.
This Crl.A. coming on for Final Hearing, this day the Court delivered the following: JUDGMENT
The appellant has challenged his conviction and sentence for the offence punishable under Sections 376(2)(f) r/w. 511 and under Section 506(ii) IPC., on a trial held by the Sessions Judge, Davangere.
3 Crl.A 2447/06
2. The facts relevant for the purpose of this appeal are as under:
The appellant is the resident of Sriramanagar Industrial Area, Davangere and is residing near the house of P.W.2-victim, a girl aged 11 years. On 29.12.2012 at about 3.00 p.m., the appellant called the victim to his house to clean utensils and when she entered the house, the appellant latched the door from inside, gagged her mouth, undressed himself and also the victim, fell on her and attempted to commit forcible sexual intercourse. Later, he threatened the victim not to disclose the incident to anybody. After the victim went to her home, told this incident to her parents i.e., P.Ws.1 and 3 and thereafter she was taken to the Police Station, wherein her mother P.W.1 filed a complaint-Ex.P1. This complaint came to be registered by P.W.7-M.Savithramma,PSI., and she sent the FIR along with the complaint to the Magistrate. The spot mahazar-Ex.P2 was held 4 Crl.A 2447/06
in the presence of P.W.5-K.Swamy and another. Statement of the witnesses were recorded. The victim was examined by the doctor. After arrest of the appellant/accused, he was also examined. The investigating officer-P.W.9 collected the birth certificate of the victim-Ex.P3 and after securing the FSL report- Ex.P9 and the complaint, filed a charge sheet against the appellant for the charge under Section 376 and 506 IPC.
During the trial, the prosecution examined P.Ws.1 to 9 and marked the documents Exs.P1 to 9. The statement of the appellant was recorded under Section 313 Cr.P.C. He took the defence of total denial and no defence evidence was led. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record held the appellant guilty for the charge under Sections 376(2)(f) r/w. 511 IPC and under Section 506(ii) IPC for attempt to 5 Crl.A 2447/06
commit rape and ordered imprisonment for 3½ years and to pay a fine of Rs.10,000-00 for the offence punishable under Sections 376(2)(f) r/w. 511 IPC with a default sentence and imprisonment for one year and fine of Rs.4,000-00 with default sentence for the offence punishable under Section 506(ii) IPC. Aggrieved by the conviction and sentence, the present appeal has been filed.
3. I have heard learned counsel for the parties.
4. The point that arises for my consideration is;
Whether the appellant has made out
any grounds to warrant interference in his conviction and sentence for the offence punishable under Sections 376(2)(f) r/w. 511 and under Section 506(ii) IPC?
6 Crl.A 2447/06
5. Learned counsel for the appellant contends that except the interested version of the victim-P.W.2, there is no material on record to prove the act of an attempt to commit rape and therefore, he submits that the conviction and sentence ordered by the trial Court is erroneous and illegal. He would also submits that the facts leveled do not constitute an offence of attempt to commit rape and at the most it could be an act of outraging the modesty of a woman and hence he submits to consider the age of the appellant and to award the sentence restricting it to the custodial period.
6. Item No.1 is the frock worn by the victim whereas item No.2 is nail clippings, item No.3 is vaginal swab, item No.4 is vaginal smear slides, item No.5 is underwear and item No.6 is pubic hairs. Ex.5 is the certificate issued by the doctor, which has been admitted in the evidence with consent. The doctor, who treated the victim 7 Crl.A 2447/06
is not examined. The perusal of the certificate reveals semen stains was not detected on item Nos.1, 3, 5 and 6. The presence of spermatozoa was not detected on item No.4. There were no external injuries, hymen was intact and the doctor has certified that there is no evidence of obvious sexual intercourse. Ex.P6 is the certificate issued by the doctor, who examined the appellant. On clinical examination and the FSL report, he certified that the appellant is potent. Therefore, the scrutiny of the evidence led by the prosecution does not reveal any medical evidence to support the case of the prosecution.
7. P.W.1-Mallamma, is the mother of the victim and as on the date of the incident, she along with her husband-P.W.3-Dhanappa and their son had gone for work. The victim-P.W.2 was alone in the house. At the relevant point of time, the victim was playing outside the house. The appellant called the victim and asked her to clean the 8 Crl.A 2447/06
utensils. Therefore, she went to the house of the appellant for the said purpose. The appellant was alone inside the house and at about 3.30 p.m., when she came inside for cleaning the utensils, he gagged her mouth, undressed himself and also undressed the victim and fell on her. At that point of time, she lost the consciousness. When she regained it, the appellant gave Re.1-00 and threatened her not to disclose the incident to anybody and sent her out. Thereafter, she returned to her home. There was burning and irritation on her private part and when her mother came to house, she informed the fact to her. In the cross-examination, she has denied the suggestion that there was a finance dispute between them and the accused. Except this suggestion, nothing is elicited in the cross- examination to disbelieve her version. P.Ws.1 and 3-the mother and father respectively of the victim also consistently state 9 Crl.A 2447/06
that when they returned to the house, the victim in detail complained the acts of the appellant. In the cross-examination of P.Ws.1 and 3 there was a suggestion that they had taken a loan of Rs.25,000-00 and for repayment of loan there was a scuffle. These suggestions have been denied by the witnesses. Though the appellant had taken up a defence about the hand-loan of Rs.25,000-00, except the suggestion denied in the cross- examination, there is no evidence even to raise a doubt of advancing loan to the parents of the victim.
P.W.4-Shanthamma is a maid servant and she speaks about the grievance of the victim and quarrel in this regard. The fact that immediately after the victim entered into the house, a complainant was made to her by the parents and also the persons who were present there. The version of P.W.4-Shanthamma and others in the 10 Crl.A 2447/06
evidence of the witnesses supports the version of the prosecution.
8. It is well-settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. The circumstances about complaining the act of the appellant by the victim to her parents is sufficient despite the fact that there is no medical evidence to prove the incident. It is relevant to note that the conviction is for the offence punishable under Sections 376(2)(f) r/w. 511 IPC and under Section 506(ii) IPC and therefore, the absence of medical evidence or absence of rupture of hymen have no relevance at all. The evidence of the victim to the extent of an attempt to rape could be accepted and needs no corroboration.
11 Crl.A 2447/06
9. On the question as to whether it is an attempt to rape or an indecent sexual assault, the difference is rather sometime is very meager. It is well-established principle that in a case of attempt to commit rape, there should be some action on the part of the victim, towards the commission of rape. It is necessary for the prosecution to establish that the appellant has gone beyond the stage of preparation. It is greater degree of determination that makes a difference between mere penetration and actual attempt to commit an offence. On this aspect of the matter, reliance was placed on the decision of the Apex Court reported in 1998 Cri.L.J. 666 [Madan Lal Vs. State of Jammu and Kashmir]; wherein it is held that:
“The difference between preparation
and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to 12 Crl.A 2447/06
commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a
girl naked and then making her flat on the ground undresses himself and then
forcibly rubs his erected penis on the private part of the girl but fails to
penetrate the same into vagina and on
such rubbing ejaculates himself then it cannot be said that it was a case of
merely assault under Section 354 IPC.
and not an attempt to commit rape under Section 376 read with 511 IPC. In the facts and circumstances of the case the offence of an attempt to commit rape by accused has been clearly established and the accused was rightly convicted under Section 376 read with 511 IPC.”
From the above, it is clear that to prove an attempt to commit rape, the prosecution has to prove that the accused was determined to have sexual intercourse by falling on her. The facts proved on the basis of the evidence of the victim are that after cleaning the utensils the victim 13 Crl.A 2447/06
found that the accused undressed himself, gagged her mouth, undressed the victim and fell on her on the ground. By the time, she lost conscious and when she re-gained conscious, she states that it was paining in her private part. Neither the victim nor the alleged witnesses state any act on the part of the appellant of his attempt to commit sexual intercourse. Even the victim does not say an attempt to penetration. Though she states that there was pain, irritation and burning on her private part, the medical evidence produced in the form of a certificate-Ex.P5 reveals no injuries at all. The doctor is also not examined. So, in the absence of anything in the evidence of the victim about the appellant/accused’s attempt to penetrate his private organ, it cannot be said by any stretch of imagination that the act of his falling on the victim itself would be an attempt to commit rape. The appellant was aged 65 years at the time of the incident. Though he was potent, in the 14 Crl.A 2447/06
absence of any material on record that he attempted to penetrate his private organ, mere the act of undressing himself and falling on the naked victim does not tantamount to an attempt to commit rape. Therefore, the conviction and sentence ordered by the trial Court for the offence punishable under Sections 376(2)(f) r/w. 511 IPC is erroneous and illegal.
10. The act of the appellant in undressing himself and falling on the naked victim and lying on her would certainly an offence of outraging the modesty of a woman and hence, the conviction has to be altered to Section 354 IPC. So far as the offence punishable under Section 506 IPC is concerned, it is in the evidence of the victim that after she re-gained conscious, the appellant threatened her not to disclose the incident to anybody and if she did, he would finish her. This act would attract the provisions of Section 506 IPC. Therefore, the conviction of the 15 Crl.A 2447/06
appellant/accused for the offence punishable under Section 506 IPC is just and proper.
11. So far as the sentence is concerned, learned counsel for the appellant would contend that the appellant was 65 years at the time of the incident and he is now 73 years. In the cases referred to supra, the Apex Court had convicted the accused and awarded sentence of 2 years imprisonment for the said offence. Taking into consideration the fact that the appellant is an old aged person, though the age may not be a criteria for reducing the sentence, reasonable sentence will have to be imposed as a punishment. In the result, the appeal is allowed in part. The conviction of the appellant for the offence punishable under Section 376(2)(f) r/w. 511 IPC and the sentence thereon is set aside. He is acquitted of the said charge. He is convicted for the offence punishable under Section 354 IPC. His 16 Crl.A 2447/06
conviction for the offence punishable under Section 506(ii) IPC is affirmed. For the offence punishable under Section 354 IPC., he is ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs.500-00, in default to undergo simple imprisonment for one month. For the offence punishable under Section 506(ii) IPC he is ordered to undergo rigorous imprisonment for 6 [six] months and to pay a fine of Rs.500-00, in default to undergo simple imprisonment for 15 [fifteen] days. Both the sentences to run concurrently. The appellant is entitled to the set off under Section 428 Cr.P.C. The trial Court is directed to secure the presence of the appellant to undergo the remaining sentence.