Laxmi Mahalingappa Hallur and Others vs Sanjay Maruti Surave and Others

S.N. Satyanarayana, J.—1. Criminal Revision Petition and Criminal Appeal are filed by the accused and victim in S.C. No. 198 of 2013 on the file of the Sessions Court, Belgaum.

The genesis of the litigation is that the proceedings in S.C. No. 138 of 2013 is initiated pursuant to the charge sheet in Crime No. 109 of 2012 registered with Camp Police, Belgaum. The said complaint in Crime No. 109 of 2012 was lodged by Smt. Laxmi Mahalingappa Hallur, a house wife who is victim of sexual abuse which has taken place on 26/11/2012. The complaint at Ex. P-1 would disclose that the victim Laxmi Mahalingappa Hallur, is a resident of a house in Camp D''silva Lane, Hanuman Temple, Belgaum, where she and her children are all put up by her husband for the sake of education of their children. The victim''s husband Mahalingappa Hallur is said to be an agriculturist and is looking after the lands belonging to the family situated at Koujalagi in Belgaum District. The material on record would also disclose that he was visiting the house once in a week and in the absence of her husband the complainant used to manage the house.

According to the complainant, on 26/11/2012 at about 5.00 pm when she was alone at her house i.e., when her children had gone to fetch milk, the accused Sanjay Maruti Surave knocked the door. When she opened the door thinking that her children had come back from the shop fetching milk, the said Sanjay Maruti Surave, who was standing outside forcibly entered the house. He started pestering her by stating that he would be doing all the work that is required to be carried out in the house in her occupation, provided she should give company either in the day or night. It is stated, even before the complainant could resist, the accused locked the door from inside and forcibly lifted her and took her to the kitchen and committed rape of the victim. The records would disclose that immediately after the incident, she telephoned to her husband and informed him that there was attempt to commit rape on her. Initially she lodged a complaint for attempt to rape as per complaint in Ex. P-1, thereafter she confessed with her husband that in fact there was forcible sexual intercourse by the accused which he has accomplished. It is stated that on the same day she has given further statement under Section 161 of the Cr.P.C. which is recorded by the police vide Ex. P-2.

Based on the complaint, spot panchanama and seizure panchanama was drawn and the clothes of the victim was seized by the police for the purpose of sending it to FSL for chemical analysis and medical report. In the meanwhile, it is also stated that the victim was taken to the hospital by the women police where the doctor conducted physical test of the victim on the relevant date. Thereafter, the police who had registered the complaint conducted investigation and filed charge sheet against the accused Sanjay Maruti Surave for the offence punishable under Sections 376 and 506 of IPC.

In the said proceedings, on behalf of the prosecution, in all 14 witnesses were examined. The first of them was the victim herself. She has given evidence to substantiate that she was sexually abused by the accused. Husband of the complaint has given evidence as PW-5 and he has supported the evidence of his wife and he has stood by it in cross-examination. In addition to that one Jagadish Siddappa Dalawa, who is a mahazar witness is examined as PW-2 and another Parameshwar Balappa Hosamani is P.W. 3 and witness to EX. P-3 and Ex. P-4 spot panchanama. P.W. 4 is Dr. Deepak D.G. who examined the victim. P.Ws. 7 and 8 are also the doctors who have given FSL report and supported the same in their evidence. P.Ws. 6, 9, 12 and 13 are the independent witnesses who are neighbours of the victim residing in the same locality. P.W. 10 is the police constable who sent the material objects for FSL report. P.W. 11 is the SHO who registered the complaint. P.W. 14 is the investigating officer, who conducted the investigation.

In this, except witnesses P.Ws. 6, 9, 12 and 13 others have stood by their evidence. Admittedly, P.Ws. 6, 9, 12 and 13 were not the eye-witnesses, they are neighbours. Their evidence is only with an intention to corroborate the evidence of the victim with reference to accused trying to touch her in inappropriate place and trying to intimidate her to have sexual intercourse with her, which is denied by them. Their acceptance or denial is of no importance, for the reason that they were not witnesses to any of the incident on that day. Except their evidence was sought to be recorded to show the conduct of the accused on earlier occasions.

Whereas, the evidence of P.W. 5-husband and P.W. 4-Dr. Deepak who conducted the physical test of the victim immediately after the incident and also the evidence of P.Ws. 7, 8, 12 and 14 would clearly supports the case of the complainant in establishing the commitment of sexual abuse by accused-Sanjay against the victim-Laxmi. The learned Sessions Judge after giving careful consideration to the material evidence available on record, which corroborate with the oral evidence of P.Ws. 1, 4, 5, 12 and 14 rightly accepted the intention of the accused having forcible sexual intercourse with complainant-Laxmi and accordingly proceeded to allow the complaint holding the accused Sanjay Surave as guilty of the offences punishable under Section 376 and as well as 506 of IPC and sentenced him to undergo simple imprisonment for seven years. Based on which, it is stated that accused was on bail was apprehended and sent to jail.

Being aggrieved by the judgment rendered by the Sessions Court so far as restricting the punishment to accused only for minimum period of seven years and not imposing the same as rigorous imprisonment, which is the subject matter of revision by the complainant in Crl. R.P. No. 100227/2015. Whereas the accused who is ordered to undergo simple imprisonment of seven years has come up in Crl. A. No. 100115/2015 challenging the same. Though these two matters are at the stage of admission and since the records are already received, they are taken up for final disposal.

Heard the learned counsel appearing for the revision petitioner and also the learned counsel for the appellant, perused the judgment impugned with reference to the material evidence available on record and also the material objects. On going through the same, it is seen that, finding of learned Sessions Judge in allowing the complaint and directing the accused to undergo simple imprisonment for seven years instead of rigorous imprisonment is showing benevolence in favour of the accused. In the revision petition the grievance of the victim is that, in spite of crime committed by the accused is established beyond all reasonable doubt, awarding him minimum sentence of seven years, that too simple imprisonment is opposed to the statue governing the award of punishment for the aforesaid crime. When admittedly the punishment that is required to be handed down to the accused is minimum seven years rigorous imprisonment or in the alternate, the same should be accepted for imprisonment for life. Hence, the contention of the revision petitioner is that, a serious injustice is caused to her in sentencing the accused to undergo simple imprisonment for minimum period of seven years.

Per contra, the grievance of the accused is that, though the evidence which is available on record is not foolproof and that there being several lacunas right from the seizure of M.O''s i.e., the dress worn by the victim at the time of the incident being different from the one which is seized and also the conviction which is handed down to the accused for the offence punishable under Sections 376 and 506 of IPC as preposterous, in the absence of any direct evidence attributable to the accused, he ought to have been acquitted of the offences alleged against him, which is not done by the Sessions Court.

On going through the entire material available on record, it is clearly seen that the incident is said to have taken place on 26.11.2012 between 5.00 p.m. to 5.15 p.m. The said incident is said to have taken place when the children of the complainant were away from the house to fetch milk. It is during that period, i.e., immediately after the children leaving the premises, the accused is said to have come and induced the complainant to keep him company by providing sexual favour, which is said to be denied. It is at this juncture, accused is said to have committed the rape. Immediately after the incident, she telephoned her husband and he came back to the house and gave evidence as P.W. 5 stating the place where exactly he was at the time of intimation of crime and how he managed to reach the house on the same day within one hour from the time of incident and the precaution that is taken by him and complainant going to the police station and got the victim tested and as well as appearing before the police and lodging the complainant on same day.

If all the material available on record are meticulously scrutinized, it is clearly seen that there is no lacuna in the statement given by the complainant and her family who substantiated that the accused was in the habit of harassing the complainant. The material on record would disclose that in the entire proceedings before the Sessions Court, no specific defence is taken either to deny such an incident has taken place or to set up any other defence to establish that the accused is not guilty of the offence. On the contrary, there is a lame attempt on the part of the accused to show that the complainant is in the habit of filing such complaint against several other persons and he would try to establish that one more such complaint was filed against the accused that itself will not be a ground to say that the said woman is the woman of loose character or that she has solicited his company or in other words she had given an indication to him to provide sexual favour or would support his advance in trying to have sexual favour from her.

On the contrary, as rightly submitted by the learned counsel appearing for the complainant, time and again the Apex Court has stated in its judgments that in the instances where a married woman gives statement regarding sexual assault on her, the same cannot be taken lightly and further there must be an attempt to look for corroboration of her statement as observed in the matter of Aslam v. State of U.P., which is disposed of by the Apex Court by judgment dated 13.02.2013, which is subsequently reported in 2014(3) SCC 350. It is seen that similar view is also taken by another Bench of the Apex Court in the matter of Deepak v. State of Haryana reported in , (2015) 4 Supreme Court Cases 762, wherein at paragraphs 26 to 31 where they have discussed at length on the facts and also the justification on the part of both the Courts below, i.e., Court of Sessions and High Court in accepting the testimony of victim and subjecting the accused to undergo punishment for the said offence. In the said judgment, there is also reference to the observation that in such heinous crime like 376, once the crime is established beyond all reasonable doubt, it is not necessary that the Court should not restrict imposition of punishment to the extent of minimum period which is permissible under law, it is open to the Court to extend the same till the full extent of punishment that can be handed down to the accused.

In the instant case, when the entire judgment of the Sessions Court is reassessed in the background of these two judgments of the Apex Court and also the material available on record, this Court find no justifiable grounds are made out nor there is any material to disbelieve the finding of the Sessions Court to hold that the accused Sanjay has not committed the said offence and that the benefit of doubt should be extended to him and that he should be acquitted of the offences alleged against him. On the contrary, the material on record would support the judgment rendered by the Sessions Court in holding him guilty of the offence, for which he was charge sheeted and also sentencing him to undergo imprisonment. However, when it comes to the period of imprisonment, the said sentence is erroneous for the reason that the statue itself provides that minimum punishment that can be handed down to the accused is seven years rigorous imprisonment. Whereas in the instant case, the Sessions Court has committed a grave error in awarding the imprisonment for seven years, but instead of handing down the rigorous imprisonment, it is stated that the accused has to undergo simple imprisonment, which is erroneous.

In the instant case, it is also seen that besides the victim establishing that the accused has committed such crime, the husband also by contesting the same has support his wife. It is further seen that though he is aware of his wife is victim of sexual crime by the accused herein he has not disowned his wife. On the contrary has stood by her and trying to see that the accused is brought to the book and he is subjected to the punishment. Considering the nature of offence and considering the manner in which the husband has stood by his wife accepting that she is victim of circumstances, this Court feel that the sentence that is imposed on the accused should not only nr converted from simple imprisonment to rigorous imprisonment, but this Court feel that there is absolutely no reason to keep the same at the minimum level of seven years, the same could have been much more. However, considering that the accused is also a married man having a wife and two children for himself, this Court feel, in the instant case punishment which is handed down to him for imprisonment should be increased to ten years and instead of simple imprisonment, it should be ordered that he shall undergo rigorous imprisonment for a period of ten years. With such observation, the revision petition filed by the victim Smt. Laxmi is allowed enhancing the sentence from seven years simple imprisonment to ten years rigorous imprisonment and by rejecting the appeal filed by the accused seeking to set aside the judgment rendered by the Sessions Court in holding him guilty of the offence punishable under Sections 376 and 506 of IPC and to acquit him of the said offences. Therefore, the said appeal filed by him is accordingly dismissed.

The prosecution shall immediately take the accused Sanjay M. Surave to custody and he shall be sent to prison to complete the sentence, which is revised in this revision petition. So far as the punishment which is awarded for the offence punishable under Section 506 of IPC is concerned, the same shall remain intact without there being any alteration to that.