SYED PASHA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE appellant-accused has filed this appeal, assailing the judgment of conviction of the accused for the offence punishable under Section 376 IPC, in SC no. 91 of 1991, by the learned Sessions judge, Bidar, dated 9-9-1998, and sentencing him to undergo rigorous imprisonment for period of ten years and to pay a fine of rs 2. 000/-, in default, to undergo further rigorous imprisonment for six months.

(2.) THE nutshell of the prosecution case is as follows : the prosecutrix, daughter of PW6 Nirmala and PW7 Subhash, was a child aged about five years. The child and PWs 6 and 7 were residing in the house of Panchappa along with PW8 Manemma and PW1 Venkatesh. Their house is situated at Gandhinagar colony, Bidar. PW6 Nirmala as well as PW8 manemma are sisters. Whereas PW1 venkatesh is the son of PW8 Manemma. The accused Syed Pasha and his father syed Ameerali are running their flour mill, situated at Gandhinagar Colony, Bidar. The said flour mill is situated a few yards away from the house of Panchappa, in whose house the victim and her parents were residing. On 9-1-1990 at about 11. 00 am, PW1 venkatesh heard the screaming of the child umashri @ Munni from the side of the flour mill of the accused. He informed his aunt about the screaming of the child. Immediately, they noticed the child was coming from the side of the flour mill with bleeding from her private part. The child was taken to private clinic of PW9 Dr. S. B. Ashok Kumar. PW9, noticing the bleeding, advised to wait till the arrival of PW10 Dr. Lalithamma, who is a lady doctor. PW10 Lalithamma, on noticing the injury over the private part of the child, informed them that it is a medico-legal case and advised to approach the police. In the meanwhile, the father of the child had been to Hyderabad. PW1 waited for his arrival to file a complaint. However, on 10-1-1990, PW1 went to Gandhigunj Police Station and orally narrated the incident and his complaint was recorded in writing as per Ex. P1 by the Police sub-Inspector Shankar (PW11), and registered the case in Crime no. 5 of 1990 for the offence punishable under Section 376 IPC. The victim was sent to Government Hospital, Bidar for examination and treatment. On the same day, pw11 visited the spot and prepared a spot mahazar as per Ex. P4, in the presence of pws 2 (Ram Reddy) and PW3 (Sharnappa ). He recorded the statements of witnesses and seized the clothes of the girl MOs 1 and 2 (frock and underwear) under Mahazar as per Exp3 and on the same day he arrested the accused Syed Pasha and sent him for medical examination and seized the clothes of accused MO3 Lungi and MO4 underwear under Mahazar as per Ex P4. PW 4 Dr. Bharathi, who examined the child found that there was laceration of hymen of the victim at 2 and 5 c' clock position with reddish margin and the vagina was admitting the tip of little finger and it was painful. She also issued the medical certificate as per Ex. P5. PW 5 Dr. Sudheer kamtikar examined the accused and issued medical certificate as per Ex. P6. The PSI (PW11) Shankar handed over the further investigation to Circle Inspector of Police, bidar Circle, who filed the charge-sheet against the accused for the offence punishable under Section 376 IPC. On filing the charge-sheet, the learned sessions Judge secured the presence of the accused, framed charges for the offence punishable under Section 376 IPC and read over and explained the same to the accused. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined pws 1 to 11, marked Exs. P1 to 8 and produced MOs 1 to 4. Statement of the accused was recorded under Section 313 Cr. P. C. The defence of the accused is one of total denial, and also stated that on account of a dispute between the father of accused and the said panchappa, regarding flow of water, a false case has been foisted. However, the accused did not choose to lead any evidence, though the learned Sessions Judge provided an opportunity.

(3.) THE learned Sessions Judge, Bidar, for the reasons recorded in his judgment, convicted the accused for the offence under section 376 IPC, and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2. 000/-, in default, to undergo further rigorous imprisonment for six months. It is this judgment of conviction which is assailed in the present appeal.