Karnataka High Court
Basappa @ Basavaraj Yallappa ... vs The State Of Karnataka on 17 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1205, 2019 (4) AKR 846
Author: A.S Bellunke
Bench: A.S Bellunke
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRIMINAL APPEAL NO.2627/2011
BETWEEN:
BASAPPA @ BASAVARAJ
YALLAPPA KONANNAVAR
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: PADAKI ONI, SAUNDATTI,
TQ: SAUNDATTI, DIST: BELAGAVI.
...APPELLANT
(BY SRI. S B DEYANNAVAR, ADV.)
AND:
THE STATE OF KARNATAKA,
R/BY STATE P.P.,
CIRCUIT BENCH,
DHARWAD.
...RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP )
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 OF CR.P.C., SEEKING TO SET ASIDE THE
JUDGEMENT AND ORDER DATED 22.03.2011 AND
23.03.2011 PASSED BY THE HON'BLE PRL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI IN S.C.NO.191/2010 FOR
THE OFFENCES PUNISHABLE UNDER SECTION UNDER
SECTION 498, 292 OF IPC.
RESERVED FOR JUDGMENT ON :.11.07.2019
JUDGMENT PRONOUNCED ON : 17.07.2019
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THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING :
JUDGMENT
This is an appeal preferred by the accused challenging the illegality, correctness of the order of conviction and sentence passed by the learned Principal Sessions Court, Belgaum in Sessions Case No.191/2010, dated 22.03.2011 sentencing the appellant to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- for commission of offence under Section 498 of IPC. Further, the accused sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- for commission of offence under Section 292 of IPC read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. Further, the accused was sentenced to pay Rs.1,00,000/- by way of compensation under Section 3 357(3) of Cr.P.C. to PW2. In default of payment of fine, the accused shall undergo rigorous imprisonment for a further period of six months.
2. The briefly stated facts are that; On 06.04.2009, the accused is land holder and in whose land the prosecutrix, namely, P.W.2 Neelawwa was working as agricultural labourer, enticed her knowing fully well that PW2 is a married woman, took her to Hubli. At Hubli he took her to Ashraya Lodge and sexually assaulted her in a Room No.133 of the said lodge at about 3.30 p.m. on that day, after putting her in fear of death. The accused video-graphed the scene when he was having sex with PW2 by using his mobile handset. Later the accused got prepared the CDs consisting the said scenes, and played the said CDs in the presence of prosecution witnesses Gangadhar and Mahantesh and others, with a view to injure her character, and thereby the accused has committed 4 offence punishable under Sections 498, 506, 376 and 292 of IPC and Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
3. The accused was arrested and produced before JMFC, Saundatti on 04.01.2010. He was remanded to judicial custody. The accused has been in judicial custody.
4. After completing the investigation, charge sheet came to be filed for the alleged offences. The learned Sessions Judge took the cognizance of the offences and registered the case in S.C.No.191/2010 based on the charge sheet filed. The presence of the accused was secured. After hearing both the sides, the trial Court framed the charge against the accused for the offences punishable under Sections 498, 506, 376, 292 of IPC read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. After trial the learned Sessions Judge held the accused guilty 5 of the offences alleged and convicted and sentenced the accused as stated in para No.1.
5. Further, the learned Sessions Judge ordered for payment of compensation of Rs.1,00,000/- to PW2 under Section 357(3) of Cr.P.C. In default of payment of fine, the accused shall undergo rigorous imprisonment for a period of six months. The said judgment and order of conviction has been questioned by the appellant on following grounds:
1. The trial Court committed error in convicting the appellant relying on the evidence of highly interested witnesses i.e., PW2, PW3 and PW12, who are none other than the father and husband of PW2. Their evidence is not corroborated by any independent witnesses.
2. The evidence of PW2, PW3 and PW12 is not only differing from inconsistency with each other but also omission and 6 contradictions, which go to the root of the matter and falsify the entire prosecution case.
3. It is pertinent to note that though it was in the knowledge of PW2 she did not disclosed the same to anybody, and kept mum for a long time, and her say is that she came to know about the same after publishing the video-graph picture at Saundatti before PW13 and PW14 is falsify because, PW13 and PW14 have not supported to the prosecution case, in the absence of that it is very difficult to come into conclusion that the above witnesses are genuine witnesses.
4. There is an abnormal delay in filing the complaint and sending the FIR. Hence, the delay creates doubts about the prosecution case. Moreover, the said CDs are created only with an intention to involve the accused in the alleged crime by the ill wishers of the appellant, and in the advance 7 technology there is every possibility of manipulation in the mobile and computer. So in the present case there is every possibility of creation and used the said method.
5. It is pertinent to note that though the appellant/accused arrested by police on 04.01.2010 but the appellant denied the same and he has stated in 313 statement that he has been arrested on 03.04.2010, but the police not submitted the PF on the same day and it was in the custody of police for long time, so the police have created the CD in the mean time, and created, concocted and manipulated the same against the appellant, colluding with the ill wishers of the appellant.
6. PW2 has not filed any compliant immediately, when she left the house. Her husband filed a missing complaint. The victim might have created the case with an intention to save her skin with an ulterior motive. The trial court 8 without appreciating the case of the prosecution in the light of human probabilities and perspective manner, has came to wrong conclusion in convicting the appellant with even without assigning proper and cogent reasons.
7. The trial Court has come to erroneous conclusion by assigning imaginary, improbable and unjust reasons.
Therefore, the order of learned sessions Judge has resulted in miscarriage of justice to the appellants.
8. The entire approach of the case by the learned Sessions judge is illegal, invalid, contrary to law and perverse.
6. On the above said grounds, the learned counsel for the appellant-accused contended that there is reasonable doubt in this case. The learned counsel for the appellant strongly submitted that ingredients of alleged offences are not at all made out. Initially 9 missing complaint was filed. Thereafter statement of PW2 was recorded. The case investigated on the statement of PW2 is not on the first complaint that was filed by the husband. Therefore, the investigation is vitiated. The CDs were got in the Police Station have produced after long laps of time as the incident took place. The other witnesses have not supported the case of prosecution. The whole story of the prosecution is concocted and full of doubt. There is no corroborative evidence on record. PW2 does not depose that there was any force or threat from the accused. This is the reason the trial Court has acquitted the accused for the offence punishable under Section 376 and 506 of IPC. Therefore, the learned counsel for the appellant prayed to allow the appeal by setting aside the judgment and order of conviction passed by the trial Court and prayed to acquit the accused from the charges leveled against him.
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7. The learned SPP submits that the evidence of complainant-PW2 who is victim proves beyond any reasonable doubt that the alleged offences committed by the accused. She has stood test of the cross examination, nothing has been elicited in her evidence to disprove the offence alleged against the accused. Therefore, solely on the evidence of PW2 alone, the conviction of the accused is to be affirmed. Hence, learned SPP prayed to dismiss the appeal.
8. On the basis of above said arguments, facts and circumstances, the following points would arise for consideration are :
1. Whether the prosecution had proved beyond any reasonable doubt before the trial Court that on 06.04.2009 the accused knowing fully well that PW2 Neelawwa is a married woman, enticed PW2 with the ulterior intention of having illicit intercourse with her and took her from Saundatti to Hubli 11 thereby has committed offence punishable under Section 498 of IPC?
2. Whether the prosecution has proved before the trial Court beyond any reasonable doubt that the accused has committed offence under Section 292 of IPC read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, by video-
graphing the scenes depicting the
performance of sexual act by the
accused on PW2 by making use of his
mobile handset containing video
camera, and subsequently making CDs out of it, and making these scenes public?
3. Whether the appellant-accused proves that the judgment and order of conviction passed by the trial Court is capricious, perverse, contrary to law?
4. What order?
9. Point No.1 : In the affirmative Point No.2 : In the affirmative Point No.3 : In the negative 12 Point No.4 : As per final order
10. Initially the husband of the complainant-PW2 had filed the complaint about missing of his wife. The said missing complaint does not disclose any cognizable offence. It is only information giving about missing person. It is a detailed statement of the complainant, at Ex.P4 discloses that commission of cognizable offence. Therefore, on the basis of Ex.P4, a crime came to be registered in C.C.No.2230/2010 for the offence punishable under Section 498, 506, 376, 292 of IPC. Based on that, investigation has been done. Therefore, it cannot be found fault with the Investigation could have continued.
11. The learned counsel for the appellant-accused submitted that the Investigating Officer should have continued the investigation only on the basis of missing complaint filed by the husband of the complainant-PW2. 13
12. By going through the above facts, I don't find any merit in this case. The word 'complaint' been defined under Section 2(d) of Cr.P.C. 1973, as under:
"2. Definitions. - xxxx
(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
13. The complaint is an information given to the Police officer regarding commission of cognizable offences. The Police have got power to investigate it. The Station House Officer is duty bound under Section 154 of Cr.P.C. to record any information relating to commission of cognizable offence. Therefore, initially it was only a missing case and reasons were not known. 14 Therefore, the Investigating Officer might have not registered a crime. A crime can be registered only on disclosure of commission of cognizable offence. On that basis only the Investigating officer started investigation and thereafter a crime came to be registered. Therefore, there is no investigation in the Investigating Officer conviction of sentence imposed on accused cannot be set aside on the above said grounds.
14. On plain reading of the complaint averments and the evidence stated by PW2 before the Court I find that the evidence of PW2 alone would establish beyond any reasonable doubt that she was enticed by the accused and the complainant-PW2 well acquainted with each other as she was attending the field work in the land of accused.
15. The evidence stated by her that she was taken to a lodge and the accused had sexual intercourse 15 with her which was recorded through a mobile cannot be disbelieved.
16. PW1 the hotel owner has not fully supported the case of prosecution. His evidence that, the register maintained in the lodge and the entry No.1062 made in the register and the letter executed by him to the Police officials, which are marked at Ex.P1 and 2 proves that the accused booked the room in his name in the said lodge. PW1 deposed his evidence only on the basis of information or entries made in the office computer and register. As per the said entries made in the register of his lodge room No.133 booked in the name of the accused and also found the phone number of the accused. Said witness was treated hostile. PW1 on enquiry with his lodge Manager stated that one Mr.B.Y. Konannavar booked the room No.133. When 16 two adult persons go inside i.e., accused and PW2 went inside the room, it cannot be said that they have went inside to offer pooja. They must have gone inside only to have sexual intercourse.
17. A suggestion made PW1 that the accused came with the Police to the said lodge on 04.01.2010, but PW1 denied the said suggestion and he has also denied that PW2 came with the police. On enquiring with the lodge Manager one Mr.Raghavendra deposed that she came earlier with the accused and stayed in their lodge.
18. PW2 came to know about the said fact only after informing by some other persons. Therefore, she went missing from her husband's house. When she was questioned as to why she has left the house, then she told about the incident in detail as stated in Ex.P4. The said video clip has been exhibited, the CDs and the 17 mobile were recovered and recorded the voluntary statement given by PW2. Therefore, when this evidence on record would goes to show that, it cannot be said that it is the case instituted falsely on account of political rivalry. PW2 has been exhaustively cross examined which done to 20 pages from Page No.5. Certain damaging suggestions made by the learned counsel for the accused in the cross examination which has also made the court to believe her version.
19. On perusal of the cross examination of PW2, withstood the test on cross examination. Therefore, enticement of the lady by the accused has been proved beyond any reasonable doubt. Merely because, witness who had seen video have not supported the case of prosecution, cannot be disbelieve prosecutor PW2. The accused taken away PW2 to the lodge is also corroborated by the evidence of Manager and cashier of the lodge. His evidence based on the entries made in 18 the register. Merely because, he has not seen the victim or the accused, it could not be a ground to hold that the accused had not taken to this lady to a lodge. The room took in the name of accused, telephone number would clearly indicate that accused had taken PW2 to the prosecution.
20. Again damaging suggestion made to the witness-PW1 that on 04.01.2010 PW2 had approached the Police to a lodge Ex.P5 which searched by one Raghavendra and it was given to the Police. He denied the said suggestion and deposed that the police officials came to his lodge before he coming to there and the officials have searched the lodge register. Further fortifies the Police had come to the lodge to collect the lodge register.
21. Police officials asked him to find out the entry made in respect of accused and PW2 stayed in their lodge. PW1 also denied that Ex.P5 was searched 19 by him and was given to the Police. He stated that on enquiry of his Lodge Manager - Mr.Raghavendra he came to know that on said date i.e., 06.04.2009 the accused and PW2 came and stayed in their lodge at room No.133.
22. PW9 is the Medical Officer of Saundatti who had examined the victim on 04.01.2010 at 6.15 p.m., and also examined the accused. The accused found to be competent man to perform the act of intercourse. Further, he did not find any material of recent intercourse of both of them. Admittedly, examination has been done which long after the incident. Therefore, the medical evidence cannot be accepted.
23. The other panch witnesses PW4 to 8, 10, 11, 13 and 14 have turned hostile; have not supported the case of prosecution.
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24. PW12 is the husband of PW2. He speaks about missing of his wife, rest of the evidence stated what he has hear from his wife.
25. PW15 is carrier of FIR. PW17 is the Investigating Officer who had registered the missing complaint as per Ex.P15. On search, he secured PW2 and recorded her statement.
26. PW18 is the constable, who along with the lady constable searched and secured PW2 as per direction of Investigating Officer and produced before PSI. Who gave report as per Ex.P27.
27. The main investigating officer is PW16 who had conducted further investigation. He speaks about recovery material objects Nos.1 to 3, CDs and mobile and voluntary statement as per Ex.P21. The CDs were played and video in the mobile was also played and found about indecent naked pictures of male and female and also in the CDs also video of naked pictures of male 21 and female were found. CDs and mobile were also witnessed by him in the presence of panchas, where he found video of the act of sexual intercourse, but the face of the person who was doing the act was not visible only the hands were visible.
28. In the cross-examination, it is suggested that on seeing the CD which shows that the complainant PW2 was talking with the person who was recording the scene, but the witness did not agree for the same. Possibility of copy and cut and paste of the scene of video, has been suggested, but the witness denied for the same. He has not sent the CDs to the FSL to find out whether they are original CDs or mixed one. It is important to note that person who was found i.e., PW2 admits her scenes in the video. Even assuming for the sake of argument that the CDs were mixed and face of the victim was inserted by mixing method and if CDs are played by the accused then that also would attract 22 the ingredients of the offence alleged. Based on the evidence on record and facts and circumstances of the case, the trial court properly found the guilt of the accused for the offence punishable under Sections 498 and 292 of IPC.
29. The evidence on record proves that the accused enticed a married woman with the ulterior intention of having sexual intercourse with PW2 has clearly violated the culture of conduct of gentleman. Therefore, the trial Court has imposed adequate sentence of imprisonment and fine.
30. So far as compensation is concerned, however, it is submitted that the amount of compensation awarded by the trial Court is excessive in nature having regard to the value of the money existing as on the date of incident. It is also found that the trial Court has not assigned any reasons as to why that much compensation has been awarded. Award of 23 compensation is in addition, to award the compensation under Section 357 is not ancillary to other sentence, but it is an addition thereto; (Arjunan V.State of Tamil Nadu, 1997, 2 Crimes 447 (Mad.)
31. The quantum of compensation may be determined by taking in account the nature of the crime, the manner in which it has been committed the justness of claim by the victim and the ability of the accused to pay; Having regard to the facts and circumstances of the case and the nature of the offence that are proved against the accused, considering the fact that there was same on the part of the victim to have intercourse with the accused though it was an enticement. I find that the quantum of compensation awarded by the trial Court can be reduced to Rs.50,000/-. Hence, for all the aforesaid reasons the point Nos.1 and 2 are answered in the affirmative and 24 point No.3 answered in the negative. Accordingly, following order is passed.
ORDER Appeal is dismissed. The impugned judgment and order of conviction and sentence passed by the trial court in S.C.No.191/2010, dated 22.03.2011 is confirmed. However, the amount of compensation awarded by the trial Court is modified by reducing it to Rs.50,000/- from Rs.1,00,000/- .
Sd/-
JUDGE MNS/