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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
BUDIHAL R.B., J.
Shakeer S/o Ahmadsab – Appellant
Versus
The State Through CPI Grameen Police Station Sindhanur – Respondent
CRIMINAL APPEAL No.3536 of 2011
Decided On : 22-08-2016
Indian Penal Code,1860 - Sections 452,511,376 - Criminal Procedure Code,1973 - Section 221(2) - Rape Case - Appeal Against Conviction - Victim girl who is daughter of one aged about -years lodged complaint before Sindhanoor Police station alleging that she is residing along with her parents at Salagunda village studying standard in Government Girls High School at Sindhanoor - Every day she used to go to Sindhanoor through bus and coming back - On Wednesday previous date of complaint night at she went to court yard of another house which is nearby to house of complainant to answer call of nature - After completing same when she was about to return back appellant/accused under pretext that he came there to answer first call of nature came there and asked complainant when she is going to school for that complainant told that tomorrow next day she is going to school - When accused person was talking with complainant all of a sudden embraced her and her tightly by closing her mouth and lifted her to one portion of said hittala and made her to lay on ground and he also fell on her removed her salwar paijama and also inner garment so also removed his lungi and his inner garment and committed sexual intercourse on her - Though she protested asking him to leave and she made cry even then she was not able to get relieved from appellant/accused - Whether findings recorded by Trial Court convicting accused person for said offence are in accordance with materials placed on record or it requires interference by this Court in this appeal - Whether clothes of his sister were blood stained or not - Whether rupture of hymen was old or new - Whether oral evidence of this prosecutrix is cogent and worth believable so far as alleged offence punishable under Section 376 of IPC? - Whether this Court can convict accused-appellant for said offence of attempt to commit rape - Held, Injuries on chest portion of victim girl - She has also deposed that it is accused who came and caught hold her tightly and he asked her when she is going to school and she told that she is going to school on following day - So her evidence to that extent goes to show that accused was present at spot - He made an attempt to commit rape on her - To that extent prosecution placed material about the attempt made by the present accused person on victim girl and even with regard to injuries on chest portion of victim girl defence was not able to establish during course of trial that they were self inflicted injuries only with an intention to book false case against present appellant - Therefore to that extent case of prosecution is acceptable regarding attempt by accused for committing sexual intercourse on victim girl - Trial Court for offence punishable under Section 376 of IPC is hereby set aside and same is modified holding that appellant-accused is liable for punishment of attempting to commit rape punishable under Section 376 read with Section 511 of IPC and he is sentenced to undergo imprisonment for a period of three years two months which he has already undergone and he has also to pay a fine of offences of attempting to commit rape and in default of payment of said amount he has to further undergo imprisonment for two years for said offences - Appeal Allowed
The Judgment and Order of conviction dated : 14.2.2011 passed by the Prl. Sessions Judge, Raichur, in S.C.No.54/2009 is called in question in this appeal by the accused/appellant.
2. By the said Judgment and Order of conviction, the learned Session’s Judge has convicted the accused for the offence punishable U/Sec.452 & 376 of IPC and imposed 7-years of rigorous imprisonment and to pay fine of Rs.25,000/- and if he fails to pay the fine amount, he has to further undergo rigorous imprisonment for a period of six months for the offence punishable U/Sec.376 of IPC and he has also been imposed 2-years of rigorous imprisonment and to pay fine of Rs.1,000/- and if he fails to pay the fine amount, he has to further undergo rigorous imprisonment for a period of one month for the offence punishable U/Sec.452 IPC.
3. The appellant/accused being aggrieved by the judgment and order of conviction for the said offences and also challenging the legality and correctness of the judgment and order of conviction of the trial court, preferred the present appeal on the grounds as mentioned in the appeal memorandum.
4. Brief facts of the prosecution case as per the complaint averments Ex.P-1 are that the victim girl who is the daughter of one Khajavali, aged about 16-years lodged the complaint dated 26.2.2009 before the Sindhanoor Police station alleging that she is residing along with her parents at Salagunda village, studying 10th standard in Government Girls High School at Sindhanoor. Every day she used to go to Sindhanoor through bus and coming back. On Wednesday, i.e. previous date of the complaint, on 25.2.2009 night at 10-00 p.m., she went to the court yard of the another house which is nearby to the house of the complainant to answer 2nd call of nature. After completing the same, when she was about to return back, the appellant/accused under the pretext that he came there to answer first call of the nature came there and asked the complainant when she is going to the school for that complainant told that tomorrow i.e. the next day she is going to the school. When the accused person was talking with the complainant, all of a sudden embraced her and held her tightly by closing her mouth and lifted her to one portion of the said hittala (courtyard) and made her to lay on the ground and he also fell on her, removed her salwar paijama and also inner garment so also removed his lungi and his inner garment and committed sexual intercourse on her. Though she protested asking him to leave and she made cry even then she was not able to get relieved from the appellant/accused. The appellant/accused held her tightly and he has committed forcible intercourse with her. When she made hue and cry, which was heard by her uncle’s son Alam Basha s/o Shaik Moulasab and Khajasab s/o Shaikh Moulasab and so also her own brother Maheboob s/o Khajavali, they all came there, she narrated what has happened before them. As it was night, there was no arrangement for the buses she was not able to come to the police station and also as the matter was involving the dignity and honour of their family, there is a delay in lodging the complaint. Now she came to the police station along with her brother and gave the complaint by narrating the same. Legal action may be taken against the accused person who committed forcibly sexual intercourse on her. On the basis of the said complaint, case came to be registered in Sindhanoor Police Station Crime No.44/2009 for the offence punishable U/Sec.376 IPC and FIR was issued as per Ex.P-3.
5. After completing the investigation, Investigation Officer has filed the charge sheet against the accused for the offence punishable U/Sec.376 of IPC.
6. After hearing both sides, learned Session’s Judge framed the charges against the appellant/accused for the offence punishable U/Sec.452 IPC and also U/Sec.376 of IPC. When it was read over to the appellant/accused, appellant/accused denied the charges and claimed to be tried.
7. In order to pr
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