1. The appellant (hereinafter referred to as 'accused') was tried and convicted for offences punishable under Sections 376(2)(c), 313 and 201 IPC. Therefore, accused has filed Crl.A.No. 1141/2005. The Slate MAS filed Crl.A.No. 1 781/2005 for enhancement of sentence.
2. We have heard Sri A.N.Radhakrishna, learned counsel for accused and Sri P.M.Nawaz, learned Additional State Public Prosecutor for State. We have gone through evidence and the impugned judgment.
3. In brief, the case of prosecution is as follows:-
The victim hails from a village called Nayakanahatti in Chitradurga District. The victim had lost her parents when she was young and she had been taken care of by her maternal grand mother. The victim was studying in V Standard. At the same time, the victim was working as a ma'dservant. PW17-G.Indiramma suggested that the victim (PW18) could continue her studies in Ekalavya Vimukthi Vidya Samsthe, a Non-Governmental Organisation school run by the accused, which was funded by UNICEF. The victim was admitted to V Standard in the said school. Thereafter, the victim was admitted to Kanasu School at Chitradurga. She was staying in Sharada Hostel at Chitradurga. The victim had studied VII & VIII Standard in the said High School. the victim was staying in Sharada Hostel. The victim was finding it difficult to take bath in Sharada Hostel as proper water facility was not available in the hostel. The victim was provided only with boarding and lodging. Therefore, the victim and her classmates used to go to Kanasu school to take bath where they were provided with bathroom facility, soap, soapnut powder and oil.
4. The accused was the Director of Ekalavya Vimukthi Vidya Samsthe. The accused taking advantage of helpless of victim used Lo commit rape on her whenever she used to stay in Kanasu School. In the meanwhile, one Thippeshi was also trying to exploit the helpless situation of the victim. The accused got admitted the victim to IX Standard in the Government P.U.College at Magadi and the victim was admitted to Chiguru Child Development Institute at Magadi, which again was a Non-Governmental Organisation funded by UNICEF, few days after, the victim was admitted to Chiguru Child Development Institute Hostel. PW13-K.A.Sarojamma. Secretary of said hostel found that the conduct and behaviour of the victim was not normal. Therefore. PW13 took the victim to PWlO-Dr.Mallamma M.C.. who was running a private clinic after retirement from Government service. PW10 learnt from the victim that she did not have menstruation for two months and therefore. PW10 collected urine and the same was sent to laboratory run by PW11. On receipt of urine examination report. PW11-Renukappa confirmed that the victim was pregnant. PW13 contacted the accused, who was responsible for getting victim admitted to Chiguru Child Development Institute at Magadi. It is the case of prosecution that accused came over to Magaai and took the victim to PW34 Dr.C.J.Susheeladevi, who terminated pregnancy of victim on 19.09.2002.
5. On the following day. the victim also became aware of termination of her pregnancy. It is the case of prosecution that accused by taking the victim to PW34 for getting termination of her pregnancy and committed an offence punishable under section 313 IPC. This has been done by the accused in order to destroy the evidence viz pregnancy of PW18, to screen himself from punishment for an offence punishable under section 376 IPC'. The accused left the victim in Chiguru Child Development Institute and came back to Chitradurga. The act of rape committed by accused and subsequent termination oi pregnancy carried by victim at the instance of accused were made known to PW13 by the victim. Thereafter, the victim was taken to a counselling center at Mysore. the en the counselling was videographed.
6. At this juncture, it is necessary to state that the evidence in proof of videograph was not admitted by the trial Court. The compact disk (CD) of videograph covering counselling was not admitted as evidence by the trial court.
The victim was taken to different hospitals for medical examination for confirmation of termination of pregnancy and also for determination of her age. Some of the office bearers of Campaign Against Child Labour in Karnataka (for snort, 'CACL-K') held a meeting in Cubbon Park at Bangalore to confirm from the victim whether the accused was responsible for her condition. The accused was also present in the meeting and he confessed the offences committed by him. However, the members of the meeting could not arrive at consensual decision. Therefore, they set up a committee to enquire into the matter to find out the persons responsible for miserable plight of th victim. The investigation records do not reveal as to whether the committee held an enquiry or not. However, these facts were brought to the notice of PWl-Lakshapathi, who at the relevant time was working as the Managing Director of APSA. which is also a Non Governmental Organisation. PW1 lodged first information (Ex.P 1) on 21.10.2002, on the basis of which a case was registered in Crime No.384/2002 for offences punishable under sections 376(2)(c) and 313 IPC.
The victim was subjected to medical examination for confirmation of age. The Investigating Officer after completion of investigation submitted charge sheet against the accused for ollences punishable under sections 376(2)(c), 313 & 201 IPC.
7. The learned trial Judge framed charges reading as under:-
CHARGE "That you being the Managing Director Oi Ekalavya Kanasu (Vimukth:) Education Institution which is a children's Institution between October 199G to 30.i0.2002 took advantage of your official position and induced or seduced the CW-2 Kumari K.L.Pavitra Who was studying in 9,h Standard in your Institution to have sexual intercourse with you during period of about I Vi Years and committed rape on said Kumari Payltra and thereby committed an offence punishable u/s 376(c) IPC and within my cognizance.
Further that you some time before 25.09.2002 at Magadi town voluntarily caused said K.L.Pavitra then being with child to mis¬carriage without her consent, such mis-carriage not being caused by you in good faith for the purpose of saving the life of said K.L.Pavitra and thereby committeel offence punishable u/s 313 IPC and within my cognizance. Further that you some time before 25.09.2002 at Magadi town knowing or having reason to believe that the offence of rape have been committed on Kumari K.L.Pavitra punishable u/s 376 (c) IPC punishable with imprisonment for life has been committed, caused evidence of the commission of that offence to disappear by taking K.L.Pavitra and caused her with child to mis-carriage with intention to screening yourself from legal punishment and thereby committed an offence punishable u/s 201 of IPC and within my cognizance."
8. The accused pleaded not guiity and he was tried.
9. During trial, PW1 lo PW3 7 were examined for prosecution. The documents as per Ex.P.l to Ex.P.27 were marked. On behalf of defence. DW1 to DW4 were examined and the accused was examined as DW5 and documents as per Ex.D.l to Ex.D.6 were marked.
10. Though the prosecution has examined 37 witnesses, we find evidence of several witnesses is either redundant or irrelevant. We also And some of the witnesses have turned hostile.
11. As could be seen from defence witnesses, the effort of accused was to establish that the victim was abused and sexually exploited by one Thippeshi. The Directors of CACL-K foisted a case against accused to remove him from the posi of Director of CACL-K.
12. In view of the charges framed against accused and the findings recorded by the trial court, the following points would arise for determination:-
1. Whether the prosecution has proved beyond reasonable doubt that the accused being the Director of Ekalavya Vimukthi Vidya Samsthe, which is a children institution during period between October 1996 and 30.10.2002, taking advantage of his official position, committed rape of victim, some time before 25.09.2002, who was a student oi IX Standard of the institution, thereby committed an offence punishable under section 376(2)(c) IPC?
2. Whether the prosecution has proved that some time prior to 19.09.2002. accused caused miscarriage to the victim, without her consent and not being in good faith, thereby committed an offence punishable under section 313 IPC?
Whether the prosecution has proved that accused caused termination of pregnancy on 19.09.2002 and caused disappearance of evidence to screen himself from punishment for an offence punishable under section 376(2)(c) IPC, thereby committed an offence punishable under section 201 IPC?
Whether the learned trial Judge has properly appreciated evidence on record?
5. Whether the impugned judgment calls for interference?
6. What, order?"
13. Before adverting LO the evidence of victim, it is necessary for us to find out as to whether the findings recorded by the learned trial Judge regarding the age of victim during relevant period is justified by the evidence on record.
14. As already stated, the victim was an orphan. There is no evidence on record that her maternal grand mother was taking care of her. Therefore, we can hardly expect that the prosecution should have produced birth certificate of victim to prove age of the victim at the time of alleged offences. EPIP ENM
15. The prosecution has relied on endorsement letter of Sharada Girls' Residential High school regarding date of birth of victim as per Ex.P. 12 and the evidence of PW21 m proof of contents of Ex.P. 12. The prosecution has also relied on contents of extract of admission register (Ex.P. 16) issued by the Principal of Government Pre-University College at Magadi.
16. The prosecution has rel?ed on evidence of PW25-Dr.S.Ravishankar. At the relevant time, PW25 was working as Professor of Radiology in NIMHANS at Bangalore. On 14.12.2002 as requested by the police, he examined the victim and conducted ossification test to determine her age. ExvP. 15 is the certificate issued by PW25.
17. PW25 on radiological examination of proximal radial epiphyses, capitular epiphyses, condylar epiphysis have completely fused by adopting method of Girdney and Colder method has determined approximate age of victim as more than 14 years. PW5 on radiological examination by adopting the method of Greulich and Pyle has opined that victim was aged more than 14 years but less than 18 years of age.
18. PW25 has deposed: the skeletal survey reveals that bone age of victim shows that bone age of victim is more than 14 years and less than 18 years and he has issued certificate as per Ex.P. 15.
During cross-examination, PW25 has admitted that there was fusion of lower sacral bodies due to incomplete fusion of apophyges of greater to chanter. The iliac crest epiphyses are not fused. the distal femoral and proximal tibial, fibular epiphyses were not yet fused and age of victim corresponds to less than 19 years. PW25 has admitted that fusion of bones may be delayed due to malnutrition. However, the evidence on record does not indicate that PW18 was net getting proper food and she had mal nutrition.
19. PW21-P.C.Rudrappanavar has given evidence in proof of the contents ol Ex.P. 12. PW21 has deposed that he was working as Head Master of Sharada Girls' High School at Chitradurga. The victim was a student of said High School. When the victim was studying in IX Standard, she had taken Transfer Certificate. When the police contacted PW21. he issued certificate relating to her date of birth as per Ex.P. 12.
20. It is seen from cross-examination of PW21 that he had brought admission register of the school wherein entry relating to admission of victim is mentioned. The trial Court on examination of admission register returned the same. PW21 has deposed that entries made in the admission register are not in his witting.
During cross-examination. PW21 has admitted that entries made in the admission register will be on the basis of entries made in the Transfer Certificate brought by the students at the time of admission. From the contents of Ex.P. 12. we find the victim was born on 03.08.1987.
21. From the contents of Ex.P.12 (endorsement letter of Sharada Girls' Residential High school regarding date of victim was bom on 03.08.1987. PW28 has given evidence in proof of the contents of Ex.P. 16.
22. During the relevant period, PW28 was working as the Principal of Government P.U.College at Magadi. The victim was admitted in IX Standard of said col.cut. On 07.12.2002 there was a request from Magadi Chiguru Chila Development Institute for grant of copy of admission register extract of the victim regarding her age. Accordingly, PW28 issued attested copy of admission register extract as per Ex.P. 16. Ex.P. 16 is the attested copy of admission registei extract of the said P.U.College. From the contents of Ex.P. 16. we find that the victim was born on 03.08.1987.
We notice from the evidence that PW28 was not cross-examined by the learned counsel for accused. The evidence given by PW28 regarding admission of victim to IX standard in Government P.U.College at Magadi and entries made by PW28 regarding date of birth of the victim in the admission register and contents of Ex.P. 16 have not been controverted. Therefore, we can safely conclude that the victim was born on 03.08.1987.
23. The learned counsel for accused referring to die evidence of PW25 and the contents of x-ray report as per Ex.P. 15 would submit that PW25-Dr.S.Ravishai;ka:. Assistant Professor of Radiology has opined that the victim was more than 14 years and less than 16 years as on 14.12.2002. PW25 has stated that there will be margin of error of two years Therefore, the learned counsel for accused would submit that it has to be held that the victim was aged about 18 years as on 14.12.2002. which we are not persuaded to accept for the following reasons:-
The law is fairly well settled that assessment of age by radiological examination is subject to margin of error of two years on either side.
24. In a decision reported in AIR 1958 SC 143 (in the case of Sid'neswar Ganguly v. State of West Bengal), the Supreme Court has held:-
"The only conclusive piece of evidence of the girl's age may be the birth certificate, but, unfortunately, in this country such a document is not ordinarily available. The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in auctions, in conjunction with such oral testimony as may be available."
25. In a decision reported in AIR 2004 SC 4404 (in the case of State of himachal Pradesh Vs. Stvree Kant Shekari). the Supreme Court placed reliance on the entries contained in the school admission register in preference of determination.
26. In a decision reported in (2006) I SCC 283 (in the case of Vishnu Alias Undrya v. State of Maharashtra), the Supreme Court has held that opinion given by the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact. The Supreme Court has further held in the case of determination of date of birth of child, the best evidence is of the father and the mother.
27. In the case on hand, the victim is an orphan and she had lost her parents during her young age. Therefore, the evidence of her parents is not available to the prosecution. We cannot also expect that prosecution should have examined the person who had got admitted the victim to the school. Therefore, we have to necessarily rely upon the certificate and admission register extract marked as Ex.P. 12 & Ex.P. 16. In fact, the evidence of PW28 in proof of contents of admission register extract as per Ex.P. 16 has not been controverted. As per the contents of Ex.P.16 & Ex.P. 12, the victim was born on 03.08.1987.
28. At this juncture, it is necessary to state that the victim was studying in IX standard during the year 2002-03. We find from the contents of Ex.P. 16. the victim was admitted to IX standard Government P. U. College at Magadi on 07.09.2002. Thus, on the date the victim was shifted from Chitradurga to Magadi and admitted to Government P.U.College, she was less than 16 years of age. The incident is alleged to have occurred since years prior to 25.09.2002. Therefore, submission of learned counsel for accused that the victim was aged about 18 years of age at the time of incident cannot be accepted.
29. On re-appreciation of evidence, we find that the victim was born on 03.08.1987. During the period between 05.09.2002 and 25.09.2002, the victim was aged about 15 years 1 month and 2 days. We have fixed the date as 05.09.2012 as the evidence on record shows that the victim was admitted to Chiguru Child Development Institute at was at Magadi on 05.09.2002, which has not been seriously controverter by the defence. Though there is controversy as to whether the victim was admitted to said hostel at the instance of accused or some body else, the fact remains that victim was admitted to said hostel. This controversy will be discussed in the later part of the judgment.
30. In view of the above discussion, we hold that the victim was born on 03.08.1987. As on the date of alleged incident, she was aged less than 15 years.
It is in the background of social status of the victim, we have to consider the evidence of victim to record a finding as to whether the prosecution has proved offences for which the accused was charged.
31. PW18 (victim) has deposed that she had lost her parents during her childhood and she was being taken care of by Iter maternal grand mother, whose whereabouts were not known to the victim as on 17.06.2004. PW18 has deposed, that she studied up to V standard in Nayakanahatti Village and she was working in the house of a school teacher by name Ganganna: at that time. PW17-lndiramma advised PW18 that she could continue her studies in Ekalavya Vimukthi Vidya Samsthe at Chitradurga: PW18 informed die matter to her maternal grand mother and she was admitted to Ekalavya Vimukthi Vidya Samsthe, which was being run by the accused. PW18 was admitted to VI Standard in Kabirananda School at Chitradurga and completed VII standard in the same school; after completion of VII standard. PW18 joined Kabiranand High School at Chitradurga; however, PW18 continued to stay in Sharada Hostel; she completed VIII standard and she was studying in IX standard in hie same school and continued to stay in the same hostel. writ has deposed that there was some inconvenience to take bath in Sharada Hostel. There was no proper water facility. Therefore. PW18 and her classmates decided to go to Ekalavya Vimukthi Vidya Samsthe to take bath PWI8 and some of her classmates used to stay in Ekalavya Vimukthi Vidya Samsthe during night; on a certain day, when PW18 was sleeping in computer room along with her classmates. PW18 has deposed that accused came and embraced her, however, she was not able to say what was done to her by the accused; on the following day, she came near the hostel; accused slept with PW18; accused had embraced her; however. PW18 was not aware as to what was being done to her by the accused; PW18 became disgusted and felt that accused (her master,' almost standing In the position of her father was sleeping with her and embracing her; she went to her village and informed her maternal grand mother, who told PW18 that she should not have left the hostel, therefore PW18 returned to the hostel; PW18 informed the acts committed by accused to one Thippeshi and Manjunath and they atdyiced PWI8 not to visit the Kanasu school and remain in Sharada Hostel. In the meanwhile, Thippeshi was spreading rumours that he had fallen in love with the victim. The victim informed the illegal acts committed by accused to Thippeshi. The said Thippeshi took the victim to accused, The said Thippeshi questioned the accused. Ihe victim was not aware as to what transpired between accused and Thippeshi. After few days, accused sent the victim to study at Challakere. However, she did not get admission in the school at Challakere. Thereafter, the accused sent the victim to Chiguru Child Development Institute at Magadi and she was admitted to IX standard in Government P.U.College at Magadi and she was staying in a hostel. PW13-K.A.Sarojamma was her teacher. The accused was visiting her. PW18 developed stomach pain. PW18 was getting scared. PW13 informed the same to accused who came to Chiguru Child Development Institute at Magadi and enquired the victim. The accused told the victim to continue her studies in the same place and left to Chitradurga. On the following day, PW13 took the victim to some hospital at Nelamangala, where the doctor asked about menstruation of victim. Alter examination, the said doctor took the victim to examination chamber and injected some drugs and thereafter she was shifted to some other room. PW18 noticed heavy bleeding and thought that it was due to menstruation. Thereafter, PW13 brought back the victim to Chiguru Child Development Institute. After few days, the victim was taken to a counselling centre called "Odanadi" organisation at Mysore. She was questioned as to the person responsible for her plight. PW13 and others informed that the victim had conceived and also enquired the victim as to the person responsible for such condition of victim. The victim informed PW13 and others that accused had slept with he; on two or three occasions, however she had not conceived. PW18 was frightened by one Parashuram, one Suchitra (school-teacher) and PW13 tutored her to incriminate the accused during her counselling at Mysore. Thereafter, the victim was brought to Bangalore. There was a meeting and several persons had attended the meeting. The accused was also present. The victim was questioned if the accused had committed rape on her. The victim hold that accused was sleeping with her and he was not using any force on her and she had not conceived. The persons who had gathered there told PW18 that she was too young to understand the implications and she had conceived. Thereafter, one Suchitra brought the victim and left her in the house of her maternal grand mother.
During cross-examination by the learned counsel for accused there is positive suggestion that accused was sleeping with the victim. The accused after getting undressed used to sleep with the victim; however, he was not using force. The victim has affirmed that accused was sleeping with her. PW18 has not stated that he was using force, as the victim was not aware of the meaning of force. The victim has deposed that accused had committed sexual acts. It has been suggested to victim that she became mentally upset as the accused was sleeping with the victim and he was embracing her and the victim has admitted this suggestion. The victim has deposed that accused was sleeping and embracing her. However, she was not aware of other acts committed by accused. When it was suggested to PW18 that accused was good with other girls of the school. PW18 with deep sense of remorse has stated that though accused was properly behaving with other girls, accused had committed acts on the victim and the victim was not able to guess or understand as to what sin she had committed. The victim has denied that she was roaming with one Thippeshi. PW18 has admitted that she was not attending the school properly and she was admitted to Chiguru Child Development
Institute at Magadi. When the victim fell ill. PW13 took her to hospital. The victim has denied that she was tutored by PW13 and others to give statements implicating the accused. The victim has denied suggestion that accused has not committed forcible sexual intercourse with her. The victim has deposed: the accused committed sexual intercourse with her: however, she was not aware whether it was forcible sexual intercourse; yet the victim was aware that the acts committed by accused were wrong.
32. From the evidence given by PW18, we find accused has not seriously controverter that he had slept with PW18 and he used to embrace her, after getting himself undressed. It was suggested to PW18 that accused while sleeping with PW18 was embracing her. therefore, PW18 was mentally upset.
33. From the tenor of cross-examination of PW18, we find that accused had made an unsuccessful attempt to establish that the victim was a consenting party for the sexual intercourse which the accused had with the victim.
34. The learned counsel for accused would submit that totality of the circumstances would suggest that PW18 was a tutored witness and one Thippeshi was sexually exploiting the victim (PW18) and she was misused by Thippeshi and Directors of CACL-K had hatched a plot, to wTeck vengeance against the accused.
35. On careful consideration of the background of victim and close association of accused with the victim and also role played by the accused as a guardian of PW18 (victim) by shifting PW18 from Chitradurga to Magadi, we find that PW18 did not have any motive to falsely implicate the accused. On the other hand, positive suggestions made by the accused to contend that PW18 was a consenting party, would reveal that accused had sexual intercourse with PW18. Even if it is assumed that one Thippeshi had sexually exploiiea the victim, that cannot be a ground for the accused to justify his acts.
36. The evidence of PW13 would reveal that accused was responsible for shifting PW18 Irom Chitradurga to Magadi.
PW13 has deposed that at the instance of accused. PW13 granted admission for the victim to Chiguru Child Development Institute in Magadi. We also find from ihe evidence of PW13 that the victim had conceived and her pregnancy was terminated. Therefore from the evidence of PW18 and subsequent conduct of accused from shifting the victim from Chitradurga to Magadi would clearly establish that accused had sexual intercourse with the victim, as a result, victim had conceived.
37. In the discussion made supra, we have held that the victim was aged less than 1 8 years on the date of incident. In the circumstances, even if there was consent of PW18 for what was done to her by the accused, such consent would not be of any consequence.
38. The medical evidence relating to examination of victim is given by PW-24 Dr.G.J.Jayashree. Ex.P-14 is the medical opinion furnished by her. PW-24 had examined victim on /111 OnClOnrt,A fnnnrl tVio Fnllrmrit-lrf-
"Secondary sex character were well developed. I did not notice any scars either on her breasts or inner thighs.
On examination of her private parts I noticed pubic hairs present. Labia majora and minora were normal. Her hymen was not intact. There were several granular tags of tissue on the edges of inter-oitus. On speculum examination 1 found cervix healthy and cylindrical. External is has transverse slit. White discharge present and it was normal.
On P.V.examination I notified inter-oitus admits index finger easily. Uterus normal size and ante-verte.
For determining the age of the girl I referred her to Radiologist.
Police had requested me to clarify certain points.
Police had requested me to clarify as to whether the girl was subjected to rape and for that I had clarified that there wTere no signs of forceful intercourse. But the girl had repeated sexual inter-course."
From the contents of Ex.P-14, PW-24 has opined as per speculum examination there is a possibility of having had medical termination of pregnancy.
I Hiring cross examination of PW-2 1. evi lenci of PW 2-1 and contents of Ex.P-14 that victim had been subjected to sexual intercourse has not been controverter. From the contents of Ex.P-14, we find that there was possibility of victim having had medical termination of pregnancy.
39. We have already referred to the evidence of PW-10 Dr.M.C.Mallamma and the evidence of PW-34 Dr.C.J.Susheeladevi as to the pregnancy carried by victim and termination of such pregnancy Therefore, there is positive evidence in proof of sexual intercourse committed by accused on the victim
40. On behalf of accused, DWs. 1 to 4 were examined. The accused got himself examined as DW5. From the nature of evidence given by DWs.l to 5, we find that accused had tried to establish that he was not acquainted with victim and he did not have sexual intercourse with victim.
41. DW-l D.Honnappa had deposed that during the year 1999-2000, he was studying P.U.C in Chitradurga Boys Junior College and one Tippeshi had introduced victim as his friend. The said Tippeshi and victim were freely roaming.
During cross-examination, DW-l has admitied that he knew accused and he had not informed the accused that victim was clearly moving with one Thippeshi.
42. During the year 2000-01, DW-2 Lakshmidevi was studying in Madakari school. She was residing in Sharadha Hostel along with victim. DW2 has deposed that said Tippeshi was moving freely with victim and they had developed intimacy. DW2 has deposed that the said Tippeshi wanted to many victim since they found that victim was of tender age and she had to continue her education, they gave up the idea of marrying by entering into an agreement as per Ex.D.5.
43. At this functure. it is relevant to refer to the evidence of DW-4 PBoraiah. who has deposed about the contents of fixed.D-5. DW-4 during cross examination by the learned Public Prosecutor had admitted that victim was less than 14 years of age and the age of Tippeshi was about 18 or 19 years. DW-4 was convinced I hat both Tippeshi and victim were minors. They could not have entered into an agreement as per Ex.D-5. The evidence of DW-4 is clear that victim was less than 14 years of age as on 17.10.2002 (date of Ex.D-5]. In the discussion made supra, we have referred to the contents of School Admission Register, evidence of PWs. 12 and 28 and also the evidence of PW.25 to arrive at a conclusion that victim was less than 16 years of age on the date when the first information was lodged. The evidence of DW-4 would fortify the fact that victim was less than 16 years of age as on 17.10.2002. In the discussion made supra, we held that the accused had sexual intercourse with victim before 17.10.2002. Therefore, the attempt made by accused through the evidence of DWs. 1 to 4 that victim had developed intimacy witn Tippeshi and said Tippeshi was lesponsible for the wrong done to victim, cannot be accepted.
44. The accused got examined himself as DW-5. The accused had deposed that during the year 2001-2002 he was a member of CACL-K'. On 26.8.2002, the maternal grand mother of victim namely Kenchamma had brought the victim to accused. The grand mother of victim told accused that victim had developed intimacy with one Tippeshi. She has not been properly attending the school. The victim was rusticated from the hostel and therefore requested accused to rehabilitate the victim in some other school. The accused spoke to PW-13 K.Sarojamma to shift victim to Magadi and got her admitted to Chiguru Child Development Institute (hostel) and Government Pre University College at Magadi. The accused has deposed that he wrote a letter to PW-13 and sent the victim along with one Nagaraja. The victim was admitted to Chiguru Child Development Institute. The victim was admitted to IX standard in the pre University College at Magadi. ihe accused had deposed that on 27.9.2002, the Director of'CACL-K' had summoned him and questioned accused as to whether he was responsible for causing px'egnancy of victim, the accused denied the same.
The accused had examined DWs. 1 to 4 to prove the conduct of victim and her intimacy with one Tippeshi. The accused has deposed that he saw the victim for the first time on 26.8.2002. which is apparently false. The accused had not only examined DWs.l to 4 but also produced the agreement (Ex.D-5 dated 17.10.2002) said to have been entered into between the victim and Tippcshii. Therefore, from the defence evidence that it is clear that victim was less than 16 years as on the date of incident. In a way, the defence evidence has strengthened the evidence adduced by the prosecution. Therefore, we conclude that accused had committed rape on victim. As the victim was less than 16 years of age, her so-called consent is of no consequence. The medical evidence proves that accused had repeated sexual intercourse with the victim. In view of this, we hold that accused had committed an offence punishable under section 376 of IPC.
45. The next point for consideration is whether the prosecution has proved that accused had committed rape as defined under Section 376(2)(c) of IPC. Section 376(2)(c) reads thus:-
"376(2)(c): being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution"
Further, explanation 2 to Sub Section 2 of Section 376 reads thus:
"Explanation 2: "Women's or children's institution' means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.'"
46. We find from the evidence of PW-2 hatha that in the year 2002. PW-2 was working in Ekalavya Vimukthi Vidya Samsthe. PW-2 deposed that victim was admitted to Bala Karmika Vishehsa Shala by name Kanasu'. She has deposed that she knew the accused.
47. PW-3 Tippeswami had deposed that he knew the accused. He was working as a social worker in the Ekalavya Vimukthi Vidya Samsthe and he has worked in Kanasu Bala Karmika Vishehsa Shala, a child labour school. The victim was admitted in Kanasu school. The accused was a Director of Kanasu school. The evidence of PW-2 and PW-3 has not been controverted.
48. The learned Counsel for accused has not cross examined PW-3 to deny the above facts. From the evidence of PWs.2 and 3 that accused was the Director of Kanasu Bala Karmika Vishehsa Shala and said institution falls within the definition of Children's Institution as per explanation to sub Section 2(c) of Section 376 of IPC.
49. The learned Counsel for accused referring to the evidence of victim and other witnesses would submit that at the relevant time victim was staying in Sharadha Hostel. Therefore, she was not an inmate of Kanasu Bala Karmika Vishehsa Shala We find from the evidence of victim and other witnesses, though the victim was staying in Sharadha Hostel, where there was no adequate facilities for bath, victim and other girls staying in Sharadha Hostel, were visiting Kanasu Bala Karmika Vishehsa Shala once in fortnight or month. They were taking bath in Kanasu Bala Karmika Vishehsa Shala. They used to stay there for one or two days. The accused had permitted victim to stay in Kanasu Bala Karmika Vishehsa Shala to take undue advantage of her helpless situation. The accused was in the management of Kanasu Bala Karmika Vishehsa Shala. which is meant for rehabilitation of orphans arid other children who were not being taken proper care of by their parents. It is immaterial whether victim was permanently staying in Kanasu Bala Karmika Vishehsa Shala or she was staying in Kanasu Bala Karmika Vishehsa Shala once in a fortnight. The accused having permitted the victim to stay at Kanasu Bala Karmika Vishehsa Shala to exploit her helpless situation cannot be permitted to contend that victim was not the inmate of Kanasu Bala Karmika Vishehsa Shala.
50. Under Section 114-A of the Indian Evidence Act, a presumption as to the absence of consent in certain prosecutions for rape, under Clause (a) or (b) or (c) or (d) or (e) of sub Section 2 of Section 376 of IPC would arise when the sexual intercourse by accused is proved. The question 9 whether it was without the consent of woman alleged to have been raped and if he states her evidence before the Court without her consent, the Court shall presume that she had not given consent.
In the case on hand, accused had made unsuccessful attempt during the cross examination of victim and also from the evidence of DWs.l to 5 to establish that victim was a consenting party. The accused had made unsuccessful attempts to have that victim had the intimacy with one Tippeshi.
51. On appreciation of evidence of PW-18 and also the evidence of defence witnesses including the evidence of accused witnesses (DWs.l to 5). we have held that victim was not a consenting party. In fact, victim was not aware as to what was being done to her by the accused. Therefore, we hold that, the prosecution has proved that accused had committed an offence punishable under Section 376(2)(c) of IPC. The learned trial Judge has not committed any error in holding accused guilty of an offence under Section 376(2)(c).
52. The accused has been charged with an offence punishable under Section 313 of IPC and also of an offence under Section 201 of IPC. The gist of these charges is that accused with an intention to destroy evidence of rape committed by him had taken actinic to PW-34 Dr.Sushmadevi and PW-34 at the instance of accused terminated the pregnancy of victim. PW-34 has deposed that PW-13 K.Sarojamma was related to her. PW-13 had intimated PW-34 that the accused and Vactim would come to the hospital/clinic of PW-34. PW-34 has admitted that she terminated the pregnancy of victim as if she was authorised to terminate pregnancy as per The Medical Termination of Pregnancy Act.
53. On careful consideration of The Medical Termination of Pregnancy Act, in particular Section 2(d) of the Act and the place where the pregnancy may be terminated as stated under Section 4 of the Act and the registered medical practitioner, who had been authorised to terminate pregnancy and necessity as to the consent of guardian, indicates pregnancy of a woman of less than 18 years is terminated, we are of the opinion that the acts committed by PW-34 (termination of pregnancy) are against the provisions of the Act. PW-34 had caused mis-carriage of pregnancy. Even if what is alleged against the accused is true, the accused should have been charged as an abettor for causing mis-carriage. In the case on hand, PW-34, who had caused mis-carriage should have been arrayed as primary accused, instead PW-34 has been arrayed as a witness as if the termination of pregnancy by her was permitted under the provisions of The Medical Termination of Pregnancy Act. 1974.
The victim has categorically deposed that on a certain day, PW-13 K.Sarojamma took her to Nagamangala Government Hospital. The victim had missed her menstrual period about 8 days prior to that day. The Medical Prachtiontr of that hospital examined victim and took her to the examination room and injected a drug to victim. Thereafter, she was shifted to another room and the victim became unconscious. After she regained consciousness she found that there was heavy bleeding and victim thought that bleeding may be due to menstruation. In view of the positive evidence given by PW-18. the case of the prosecution that accused had taken the victim to PW-34 and he was responsible for causing mis-carriage cannot be accepted. The learned trial Judge has ignored the positive evidence of PW18 by holding evidence of PW18 that PW13 had taken the victim to PW34 and PW34 had injected some drug, due to which victim had bleeding, was due to loss of memory of PW18. 54. On appreciation of evidence of victim, we find that her evidence relating to this aspect is positive. There was no confusion in her mind as to who had taken her to the Government hospital at Nelamangala and also of the Doctor who bad caused termination of her pregnancy. At this juncture, it is relevant to submit that neither accused nor victim was known to PW-34. On the other hand. PW-34 had admitted that PW-13 is related to her and in fact PW-13 had contacted PW-34. Therefore, we hold that the evidence adduced by the prosecution in particular evidence of PW-18 is not sufficient to hold the accused guilty of an offence under Section 313 of IPC. In view of this finding, the case of the prosecution that accused had caused mis-carriage of victim with a view to cause disappearance of evidence with the intention of screening himself from legal punishment for an offence under Section 376(2)(c) cannot be accented. Therefore, we hold that the learned trial Judge has committed an error in convicting accused for offences punishable under Section 313 and 201 of IPC.
55. In view of the above discussion, we confirm the conviction of accused for an offence under Section 376(2)(c) and set aside the conviction of accused for offences under Sections 313 and 201 of IPC.
56. The State has filed Crl.A.No. 1781/2005 interlaid contending that die learned Sessions Judge having held the accused guilty of an defence under Section 376(2)(c) of IPC has passed the sentence for an offence punishable under Section 376(C) of IPC. The learned trial Judge sentenced accused to undergo rigorous imprisonment for a period of 5 years.
57. The learned Government Advocate appearing for the State would submit that an offence under Section 376(2)(c) of IPC is punishable with rigorous imprisonment of not less than 10 years which may extend to life and the accused shall also be liable to fine. Therefore, the learned trial Judge committed an error in sentencing accused for an offence under Section 376(C) of IPC.
58. We have gone through the impugned judgment and find that the learned Sessions Judge, having held the accused guilty of an offence punishable under Section 376(2)(c), has sentenced accused for an offence under Section 376(C). This error is manifest on the face of the record. Therefore, we hold that accused has to be sentenced for an offence punishable under Section 376(2)(c).
59. The learned Government Advocate would submit that accused being in charge of an educational institution meant for rehabilitation of orphans, children engaged in child labour, had sexually exploited victim and there are no special reasons to reduce the sentence from the minimum sentence of rigorous imprisonment for a period of 10 years.
60. The learned Counsel for accused submits that accused was aged about 44 years, when he faced trial. He has wife and children to care for. The accused appears to have committed the offence in a spur of a moment and later regretted for illegal acts committed by him and thereto] c, shifted the victim from Chitradurga to Magadi. This act shows a sense of repentance. The accused had faced the trauma of trial from the years 2003 to 2005. Thereafter, he had suffered anxiety of the result of this appeal, since 2005.
It is true that the acts committed by accused cannot be justified by his age of due to delay in conclusion of trial and hearing of this appeal. Yet, the fact remains that accused was aged about 44 years at the time of incident and by now. accused would be aged about 50 years. He has wife and children to care for. If the accused is sentenced to undergo imprisonment for a period of 10 years, his children would become destitute. In all the probabilities, they have to be taken care of by some rehabilitation institution. The accused had suffered trauma of trial for a period of 2 years and this appeal is pending from the year 2005. In this view, we record these special reasons, we maintain the sentence of imprisonment passed by the trial Court wherein the accused has to undergo rigorous imprisonment for a period of 5 years. However, in order to compensate victim, we direct the accused to pay a fine of Rs.50,000/-.
61. In the result, we pass the following order. Criminal Appeal No. 1141/2005 is accepted in part. The conviction of accused for an offence punishable under Section 376(2)(c) is confirmed. The conviction of accused for offences punishable under sections 313 and 201 of IPC is set aside. The accused is acquitted of offences punishable under sections 313 and 201 of IPC.
The appeal filed by the State in Crl.A No. 1781/2005 is accepted in part. The sentence imposed by the trial Court in terms of the impugned judgment is modified. The accused is sentenced to undergo rigorous imprisonment for a period of 5 years and pay fine of Rs.50,000/- in default, to undergo simple imprisonment for a period of one year for an offence under Section 376(2)(c) of IPC. Out of the fine amount to be deposited by accused, a sum of Rs.45.000/- shall be paid as compensation lo victim (PW-18). The period of detention undergone by accused during the course 1 trial and during the pendency of this appeal is given set off as provided under section 428 Cr.P.C. Office is directed to send back the records to the trial Court to secure accused to implement the sentence in terms of this judgment.