Karnataka High Court
Prasanna S/O Basavarajappa vs State Of Karnataka on 18 February, 2014
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.283/2009
BETWEEN:
PRASANNA
S/O BASAVARAJAPPA, 24 YEARS
R/A SOMAPURA VILLAGE
TARIKERE TALUK
CHIKMAGALUR DISTRICT. ... APPELLANT
(BY SRI VISHNU MURTHY, ADV.)
AND:
STATE OF KARNATAKA
BY LAKKAVALLI POLICE. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED
11/12.03.2009, PASSED BY THE ADDITIONAL DISTRICT &
SPECIAL JUDGE AT CHIKMAGALUR IN SPECIAL CASE
NO.33/2007, CONVICTING APPELLANT-ACCUSED FOR AN
OFFENCE PUNISHABLE UNDER SECTION 354 IPC & ALSO FOR
AN OFFENCE PUNISHABLE UNDER SECTION 3(1) (xi) OF THE
SCHEDULED CASTES AND THE SCHEDULED TRIBES
(PREVENTION OF ATROCITIES) ACT, 1989 & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant (hereinafter referred as 'accused') was tried and convicted for an offence punishable under section 354 IPC and also for an offence punishable under section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act'). Therefore, he is before this court.
2. I have heard Sri Vishnu Murthy, learned counsel for accused and Sri B.Visweswaraiah, learned HCGP for State.
3. The accused was tried for the following charges:-
"CHARGE That you on 09.07.2007 at about 4.00 p.m., in the land in Sy.No.16 at Gundenahalli of Sompura village, assaulted and used criminal force to C.W.1 - Smt.Manjula intending to outrage her modesty and that you thereby committed the offence punishable under Sec.354 IPC., and within the cognizance of this court.3
Secondly, that you in the above said place, date and time, not being a member of Scheduled Caste/Tribe and with knowledge that C.W.1 belongs to Scheduled Caste used force on her with intent to outrage her modesty and that you thereby committed the offence punishable under Section 3(1)(xi) of S.C. & S.T.(P.A.) Act of 1989 and within cognizance of this court."
4. The victim of offence (PW1) has deposed; on the date of incident at about 10 a.m., she had taken her cattle to a sugarcane field of which her younger sister namely Velli was the mortgagee; PW1 was grazing her cattle; on that day, at about 2 p.m., she went home and took lunch and came back to field; at about 4 p.m., she was feeding cattle; at that time, accused who was working in adjacent land came near her and held her left hand and sought sexual favours from her; PW1 retorted by abusing accused and also reminded accused that his sister and his mother are also women like PW1; accused dragged her and tore her nighty; PW1 escaped from clutches of accused; she was abusing accused after reaching her home; neighbours came and enquired PW1; 4 PW1 narrated the incident to her neighbours; the husband of PW1 came home at about 7.30 p.m.,; PW1 informed the matter to her husband; on the following day, PW1 was taken to Mc.Gann Hospital at Shimoga; when she was being treated in Mc.Gann Hosptial at Shimoga, police recorded her statement.
During cross-examination, PW1 has reiterated the version given in examination-in-chief. PW1 has deposed; accused knew that PW1 belongs to Scheduled Caste. PW1 has denied suggestion that accused had not dragged her.
5. From the evidence of PW1, we find that there was no previous enmity between accused and PW1. The conduct of PW1 soon after the incident was spontaneous. After reaching house, PW1 was abusing accused and narrated the incident to her neighbours. The first information was lodged on the following day viz 10.07.2007 at about 03.15 p.m. The contents of first information would lend substantial corroboration to evidence of PW1.
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6. PW2-Manjunatha and PW3-Kumara Nayak have not supported the case of prosecution.
7. PW4-Shekar is the husband of PW1. PW4 has deposed; on the date of incident, at about 7 p.m., he came home and PW1 told him that when she had gone to graze cattle, accused held her and tried to outrage her modesty.
From cross-examination of PW4, we do not find PW4 had enmity against accused.
8. PW5-Cheluvaraj is the younger brother of PW1. PW5 has deposed; on the date of incident, at about 4.30 p.m., he came to house of PW1; PW1 was weeping outside her house; when PW5 enquired her, PW1 told PW5 that accused had outraged her modesty.
9. At the relevant time, PW6-Dr.Ramesh was working as Senior Specialist in Mc.Gann Hospital at Shimoga. PW6 has deposed; he examined the victim in Mc.Gann Hospital at 6 Shimoga at 11.05 p.m., on 09.07.2007 and found following injuries:-
I. A contusion wound on left side of chest measuring 3 cms x 2 cms.
II. An abrasion wound on left forearm (back side) measuring 3 cms x 2 cms.
During cross-examination of PW6, it has been suggested to him that above injuries could be caused while working in a sugarcane field. PW6 has admitted the suggestion.
10. The mere admission of PW6 that injuries found on PW1 could be caused by other means cannot be a ground to discredit the evidence of PW1. It is not possible to hold that PW1 having suffered injuries by other means had concocted a story of molestation against accused, that too by exposing herself as a victim of molestation .
11. The evidence of PW7-N.P.Rajappa and PW10-Paul S.Verma relates to investigation of the case. 7
12. At the relevant time, PW8-Lakshmana Nayak was working as Tahsildar of Tarikere. PW8 has deposed; as requested by Deputy Superintendent of Police, he had obtained a report and issued certificate that victim belonged to Scheduled Caste.
During cross-examination, PW8 has reiterated that he had issued certificate after getting verification from Revenue Inspector.
13. The accused has not denied that PW1 does not belonged to Scheduled Caste. It is not the case of accused that he was not aware that PW1 belongs to Scheduled Caste. Therefore, I hold that prosecution has proved that PW1 belongs to Scheduled Caste and accused had outraged her modesty.
14. The learned counsel for accused would submit that an offence punishable under section 3(1)(xi) of the Act is not attracted.
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15. In a decision reported in 2004 Crl.L.J. 605 (in the case of Vidyadharan Vs. State of Kerala), the Supreme Court has held:-
"11. Intention is not the sole criteria of the offence punishable under S.354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her witness should receive same weight. In the instant case after careful consideration of the evidence, the trial Court and the High Court have found the accused guilty. As rightly observed by the Courts below Section 3 (1) (xi) of the Act which deals with assaults or use of force on any woman belonging to scheduled Caste or Scheduled Tribe with 9 intent to or dishonour or outrage her modesty is an aggravated form of the offence under S.354 IPC. The only difference between S.3 (1) (xi) and S.354 is essentially the caste or the tribe to which the victim belongs. If she belongs to Scheduled Caste or Scheduled Tribe, S.3 (1) (xi) applies. The other difference is that in S.3 (1) (xi) dishonour of such victim is also made an offence."
16. In the aforestated decision, the Supreme Court has held that an offence punishable under section 3(1)(xi) of the Act is an aggravated form of an offence punishable under section 354 IPC. In the circumstances, learned Special Judge was not justified in convicting accused for an offence punishable under section 354 IPC. Therefore, the impugned judgment requires modification.
17. The learned counsel for accused submits that a lenient view may be taken in the matter of sentence. 10
18. On over all appreciation of facts and circumstances of the case, I do not find any mitigating circumstances to reduce the sentence.
19. In the result, I pass the following:-
ORDER The appeal is accepted in part. The impugned judgment is modified. The impugned judgment as it relates to conviction of accused for an offence punishable under section 354 IPC is set aside. The accused is acquitted of an offence punishable under section 354 IPC. If the accused has deposited the fine amount in terms of the impugned judgment for an offence punishable under section 354 IPC, the same shall be refunded to him. The conviction of accused for an offence punishable under section 3(1)(xi) of the Act and sentence imposed thereon are confirmed.
Sd/-
JUDGE SNN