STATE OF KARNATAKA Vs. SURESHBABU PUK RAJ PORRAL

JUDGEMENT

(1.) This is an appeal by the State. The respondent, who at the time of occurrence was aged 20 years, was convicted by the trial court under Sections 366 and 376, I.P.C. and sentenced to five years R. I. under each count. The sentences were directed to run concurrently. He preferred an appeal to the High Court. The High Court set aside the convictions and sentences awarded against him and accordingly allowed the appeal. Hence the present appeal.

(2.) The prosecutrix Madhubala, PW 7, who according to the prosecution was aged about 15 years at the time of occurrence, was residing with her parents PWs 1 and 5 at Devar Hippargi Village. She is the fifth daughter of PWs 1 and 5 and her four elder sisters were already married. Her elder brother was residing at Davanagere and her younger sister PW 2 was also residing along with PWs 1 and 5. PW 1 originally belonged to Rajasthan. He came to Devar Hippargi Village about 7 or 8 years ago for the purpose of his grocery business. His shop was opposite to cloth shop of the accused who was the son of cousin brother of PW 1 The accused and PW 1 were having monetary transactions with each other and the accused used to visit the house of PW 1 At the time of a fare in the Village, the accused asked PW 7 to accompany him to Bangalore to see the city. On 30-12-76 PW 1 was away and PW 2 was sitting in the grocery shop. PWs 5 and 7 were at home. At about 11 A. M. the younger sister of the accused went to the house of P.W.1 and asked P.W. 7 to go to the Bus Stand with a view to go to Bangalore along with the accused. P.W. 7 and the sister of the accused went to the Bus Stand. The accused and P.W. 7 boarded a bus and went to Bijapur and from there they went to Hubli on the same day. They purchased some articles there. Thereafter they went to Ajanta Lodge and stayed there in a double room. According to P.W. 7, on that night the accused did something to her which he ought not to have done by force. However, both of them continued to stay at Hubli for 2 or 3 days and the accused had sexual intercourse with her. From Hubli they came to Bangalore. There again they stayed in a double room for 5 or 6 day's and used to see pictures daily. From there they went to Gulbarga and there they stayed for two day's. After two days the accused left Gulbarga taking the necklace, chain, earrings etc. of P.W. 7, and saying that he would go to Bijapur and come back.

(3.) Meanwhile P.W. 5, who did not find her daughter, P.W. 7 at home, asked P.W. 2 to search for P.W. 7. In the evening P.W.1 returned and coming to know that the accused had kidnapped her, gave a complaint. Then ultimately on some information they went to Gulbarga. There P.W. 1 found P.W. 7 in a room of Mohan Lodge but the accused was not there. According to the prosecution P.W. 7 told him that the accused had gone to Bijapur taking her ornaments. P.W. 1 brought P.W. 7 to Bijapur and then took her to Devar Hipparagi. The police took some articles from her possession and sent her for medical examination. The Doctor, P.W. 20 did not notice any external injuries nor any injuries on her private parts. The Doctor found that the hymen was ruptured which only showed that page No. W. 7 had intercourse and the doctor also opined that page No. W. 7 was accustomed to intercourse since long. The accused was arrested on 29-1-77 at Bijapur. After completion of the investigation, the charge-sheet was laid. The accused in his statement stated that he was arrested on I5-1-77 at Devar Hippargi itself and the police took his watch, ring, chain and necklace etc. which belonged to him and they did not belong to P.W. 7. He also pleaded that page No. W. 1, who owed him Rs. 6,000/-, has falsely implicated him. He produced one birth extract and one transfer certificate pertaining to P.W. 7. The trial court mainly relying on the evidence of P.W. 7 convicted the accused under Section 376, I.P.C. for the offence of rape. In respect of the offence under Section 366, I.P.C., the trial Court relying on the evidence of the doctor who examined P.W. 7 regarding the age and also on a transfer certificate issued by the school, held that she was below 16 years of age and therefore taking or enticing her away attracted the provisions of Section 366, I.P.C. and accordingly convicted the accused. The trial court also held that at the time of commission of offence of rape, she was below 16 years of age and therefore the act committed by the accused amounted to rape irrespective of the fact whether there was consent or not.