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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.N. PHANEENDRA, H.B. PRABHAKARA SASTRY, JJ.
R.Siddesh S/o. Ramanna – Appellant
Versus
State of Karnataka – Respondent
Criminal Appeal No.37 of 2013 C/W Criminal Appeal No.317 of 2013
Decided on : 04-04-2019
Juvenile Justice Rules, 2007 - Rule 12 (3) - Indian Penal Code, 1860 - Sections 366, 376 - Criminal Procedure Code, 1973 - Section 164 - Rigorous imprisonment – Appeal against conviction – Acquittal of order - Whether evidence of PW12 victim girl and other materials placed before this Court would also satisfy to hold that accused No.2 also was involved in said act of kidnapping girl from her School to village and committing rape on her - Case of prosecution begins with complainant – PW10 lodging a complaint with respondent police - Summary of complaint is that complainant had left his two children victim girl and her younger brother to their school which was Convent in morning - On very same day in afternoon his son through Watchman of said school contacted complainant over phone and informed about victim girl not being found in school premises – Immediately complainant and his wife rushed to school and they also could not notice their daughter - Their son also told them that accused No.1 and accused No.2 were found moving near school in a suspicious manner in that morning - Suspecting those two accused as having taken his daughter complainant requested to take action against them - Said complaint was registered in respondent-police station Crime against both accused for offences punishable under Sections 366A, 114 read with Section 34 of IPC – Held, Even though PW12 victim girl has stated that accused took her to Gulbarga and it was both accused persons who subjected her to sexual assault but very same witness in her very cross-examination has stated that when she was taken away from the house of PW3 accused No.2 who is her senior uncle did not join them - Witness has stated that said accused No.2 asked accused No.1 to take her from said place - Said evidence of none else than victim girl at that stage goes to show that when accused No.1 proceeded to take victim girl to village at Gulbarga District accused No.2 did not accompany them - No doubt very same victim girl in her further evidence rebutted stating that even accused No.2 also subjected her to rape in house at village but in order to believe said statement that accused No.2 also subjected her to sexual assault it was very much necessary on part of prosecution to elicit from witness as to when accused No.2 came to village - As observed above it is because even according to victim girl accused No.2 asked accused No.1 to take her but she did not state that accused No.2 later joined them at any place and on any date - Therefore an important link to complete chain of alleged involvement of accused No.2 in incident of rape upon victim girl is lacking - Said evidence of PW10 the complainant-cum-father of victim girl and an evidence to the same effect by PW14 mother of victim girl who also has stated that accused No.2 was with them when they lodged complaint would clearly go to show that as on date of complaint which was at which time girl was at village in Gulbarga District accused No.2 was that too within eye sight of parents of victim girl and was with them even when they went to Police Station - This makes case of prosecution more doubtful as against accused No.2 only about his involvement in alleged commission of sexual assault upon girl – Therefore even though prosecution could able to show that evidence of victim girl about sexual assault upon her is believable but said believing of evidence of PW12 – victim girl would not be in its entirety as against both accused but it would be confined to role of accused No.1 alone - Court are of view that considering facts and circumstances of case sentence of imprisonment for three years against accused No.1 for offence punishable under Section 366 of IPC with fine though is proportionate to criminality of guilt proved against said accused but sentencing very same accused to undergo Rigorous Imprisonment for a period of ten years and to pay a fine in respect of offence punishable under Section 376 of IPC is not proportionate to criminality of guilt proved in facts and circumstances of case - As such sentence part of impugned judgment so far as Section 376 of IPC is concerned requires a slight modification - Criminal Appeal is dismissed
JUDGMENT :
Both these appeals have arisen out of a judgment of conviction dated 17.12.2012 and order on sentence dated 24.12.2012, passed by the learned Prl.District & Sessions Judge, Chitradurga (hereinafter for brevity referred to as `trial Court’), in S.C.No.76/2010, who by his impugned judgment, convicted accused No.1, who is the appellant in Criminal Appeal No.37/2013, for the offences punishable under Sections 366, 376 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’) and sentenced him to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/and in default of payment of fine, to undergo simple imprisonment for a further period of six months for the offence punishable under Section 366 of IPC and to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one year for the offence punishable under Section 376 of IPC.
The convicted accused No.1 has preferred the said appeal i.e., Criminal Appeal No.37/2013, challenging his conviction, whereas, the alleged victim in the case has challenged the very same impugned judgment which has acquitted accused No.2 for the offences punishable under Section 109 read with Sections 366, 376 of IPC in Criminal Appeal No.317/2013.
2. The case of the prosecution begins with complainant – PW10 Sri S.Mahaswamy lodging a complaint with the respondent police on 24.3.2010. The summary of the complaint is that on 22.3.2010, the complainant had left his two children, victim girl and her younger brother M.S.Ajjaiah, to their school which was St.Joseph’s Convent at Chitradurga, in the morning. On the very same day, in the afternoon, his son M.S.Ajjaiaj through the Watchman of the said school contacted the complainant over the phone and informed about victim girl not being found in the school premises. Immediately, the complainant and his wife rushed to the school and they also could not notice their daughter. Their son Ajjaiah also told them that the accused No.1 Siddesh and accused No.2 K.T.Rudramuni were found moving near the school in a suspicious manner in that morning. Suspecting those two accused as having taken his daughter, the complainant requested to take action against them. The said complaint was registered in the respondent-police station Crime No.116/2010 against both the accused for the offences punishable under Sections 366A, 114 read with Section 34 of IPC.
3. After conducting investigation, the respondent-police filed the charge sheet against both the accused for the offences punishable under Sections 366A, 114, 376 read with Section 34 of IPC.
4. Charges were framed against accused No.1 for the offences punishable under Sections 366 and 376 of IPC and against accused No.2 for the offences punishable under Section 109 read with Sections 366 and 376 of IPC. Since the accused pleaded not guilty, trial was held, wherein the prosecution got examined twenty-four witnesses as PW1 to PW24 and got marked documents from Exs.P1 to P23 and material objects from MO1 to MO14. On behalf of the accused, no witnesses were examined, however, the documents from Exs.D1 to D16 were got marked. After hearing both side, the trial Court by its impugned judgment of conviction dated 17.12.2012 and order on sentence dated 24.12.2012, convicted accused No.1 for the offences punishable under Sections 366 and 376 of IPC and sentenced him accordingly and accused No.2 was acquitted of the alleged offences. It is against the said judgment of conviction and order on sentence, the appellant/accused No.1 has preferred Criminal Appeal No.37/2013 and against acquittal of accused No.2, the victim girl has preferred Criminal Appeal No.317/2013.
5. The lower Court records were called for and the same are placed before this Court.
6. Heard the arguments from both side and perused the materials placed before this Court, including the impugned judgment and low
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