Karnataka High Court
Sri Raju Shetty S/O Anand Shetty vs State Of Karnataka on 19 March, 2014
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.262/2009
BETWEEN:
SRI RAJU SHETTY
S/O ANAND SHETTY
AGED ABOUT 37 YEARS
R/AT: KAADUR GRAMA
UDUPI TALUK. ... APPELLANT
(BY SRI T. MOHANDAS SHETTY, ADVOCATE)
AND:
STATE OF KARNATAKA
REP. BY ASSISTANT COMMISSIONER OF POLICE
UDUPI SUB-DIVISION, UDUPI. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED 07.03.2009,
PASSED IN SPL.CASE NO.23/2006, ON THE FILE OF DISTRICT &
SESSIONS JUDGE, UDUPI DISTRICT AT UDUPI, CONVICTING
APPELLANT-ACCUSED FOR OFFENCES PUNISHABLE UNDER
SECTIONS 448, 323 & 506 IPC AND ALSO FOR AN OFFENCE
PUNISHABLE UNDER SECTION 3(1)(xi) OF THE SCHEDULED
CASTES & SCHEDULED TRIBES (PREVENTION OF ATROCITIES)
ACT, 1989.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
The appellant (hereinafter referred as 'accused') was tried and convicted for offences punishable under sections 448, 323 & 506 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, accused is before this court.
2. I have heard Sri T.Mohandas Shetty, learned counsel for accused and Sri B.Visweswaraiah, learned HCGP for State.
3. It is the case of prosecution that PW4-Poornima (the victim) belongs to Scheduled Caste. She was aged about 20 years during the year 2006. PW5-Pitte is the mother of victim and PW6-Madhava is the elder brother of victim. They are residents of Kaadur Village, Udupi Taluk. The accused belongs to the same village. The accused belongs to 'Bhants' caste. PW4 to PW6 belong to Scheduled Caste. 3
4. It is the case of prosecution that on 15.06.2006 during afternoon, PW4 was alone in her house. The accused entered her house and asked for drinking water, which was provided by PW4. Thereafter, accused has sought for sexual favour from PW4. When PW4 retorted, accused caught hold of her and threatened her not to disclose the incident to any body and he also assaulted her and left the place. PW4 after arrival of her mother (PW5) and elder brother (PW6), informed the matter to them. Thereafter, PW4 was treated in District Hospital at Udupi. The first information was lodged when PW4 was being treated in District Hospital at Udupi. After investigation, final report was filed against accused for aforestated offences.
5. The defence of accused was one of total denial. The father of accused (DW1) has deposed; he had lent a sum of Rs.20,000/- to PW5 (the mother of PW4) when her husband committed suicide about four years prior to 13.11.2008; PW4 to PW6 were attending to agricultural work of DW1; PW4 to PW6 abruptly stopped attending to the work of DW1; 4 therefore, accused was demanding them to repay the money; the family members of victim hatched a plan to foist a false case against accused to knock off the money payable to DW1 (the father of accused).
6. PW4-Poornima is the victim of offence. PW4 has deposed; accused and PW4 are from the same village namely Kaadur Village, Udupi Taluk; she knew accused before the date of incident; PW4 belongs to Scheduled Caste and accused belongs to Bhants caste; accused knew that PW4 belongs to Scheduled Caste.
7. These facts have not been controverted in cross- examination of PW4 by learned counsel for accused.
8. PW4 has deposed; on 15.06.2006 at about 12.15 p.m. (afternoon) she was alone in house; accused came to house and asked for drinking water; PW4 gave him drinking water and accused returned the vessel; when victim was proceeding, accused followed her and sought for sexual favour from her; when PW4 refused and asked him to get away from that place; accused held her breasts and outraged 5 her modesty; accused felled her and pressed her neck and threatened her not to raise voice; accused stamped on her and also threatened her not to disclose the incident to others and left the house; PW4 had suffered injuries on her neck; after arrival of her mother (PW5) and her elder brother (PW6), PW4 informed the matter to them; PW4 was taken to District Hospital at Udupi; on the following day, in early morning, police received first information.
During cross-examination, PW4 has reiterated the version given in examination-in-chief. PW4 has denied suggestion that her mother (PW5) had borrowed a sum of Rs.20,000/- from the father of accused (DW1). PW4 has denied suggestion that she had falsely implicated accused at the instance of her maternal uncle namely Shankar to knock off a sum of Rs.20,000/- lent by the father of accused (DW1). Apart from this, nothing has been elicited to discredit the evidence of PW4.
6
9. The learned counsel for accused, relying on the judgment of the Supreme Court, reported in 2005 Crl.L.J. 880 (in the case of Pandurang Sitaram Bhagwat Vs. State of Maharashtra), would submit that ordinarily a lady would not "put her character at stake" may not be wrong but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof.
10. The learned counsel for accused would submit that accused has filed written statement of defence and the father of accused (DW1) has given evidence before court below.
11. DW1 has deposed; he had lent a sum of Rs.20,000/- to the family members of victim after the death of father of victim as the family members of victim were attending to agricultural work of DW1; after some time, the family members of victim had stopped attending to agricultural work; accused was frequently going to the house of victim and he was demanding the family members of victim to repay the money which they had borrowed from DW1; the 7 family members of victim were dodging accused; at last, the family members of victim had hatched a plan to foist a false case against accused to knock off the money payable to DW1.
12. In my considered opinion, this defence is far fetched. DW1 has not produced any document to show that he had lent a sum of Rs.20,000/- either to the mother of victim (PW5) or elder brother of victim (PW6). Even otherwise, by foisting a false case against accused, the family members of victim could not prevent DW1 from recovering money by taking recourse to law, if really DW1 had lent money to PW5 or PW6. The mother of victim (PW5) and elder brother of victim (PW6) are post-occurrence witnesses. PW5 & PW6 have deposed what they had learnt from victim (PW4).
13. The learned counsel for accused would submit that there are discrepancies in the evidence of PW4 to PW6 relating to admission of PW4 to the hospital and also regarding time at which first information was lodged. 8
14. It is true that elder brother of victim (PW6) has deposed; they had left their village to go to General Hospital at Brahmavar at about 5.30 p.m. or 6 p.m. on the date of incident and they had taken the assistance of their maternal uncle namely Shankar, who was a member of Dalitha Sangharsha Samithi.
15. It is seen from the contents of wound certificate (Ex.P.1) and evidence of PW1-Dr.Subhash that victim was treated in District Hospital at Udupi at 12.20 a.m. during intervening night of 15/16.06.2006.
16. The victim was an unmarried girl. The victim had put her character at stake to set criminal law into motion. It also involved honour of the family of victim and future of victim. In the circumstances, victim and her family members would have pondered over the matter. We cannot expect them to rush to police station to set criminal law into motion.
17. It is seen from medical evidence of PW1-Dr.Subhash, the then Medical Officer in District Hospital at Udupi and the 9 contents of wound certificate marked as Ex.P.1, PW1 had examined victim at 12.20 a.m. during intervening night of 15/16.06.2006. PW4 (victim) had given the history of attempted rape and molestation by Raju at around 12 noon on 15.06.2006 at her residence. The victim had suffered following injuries:-
I. A linear interrupted abrasion at left side of neck measuring 3½" in size bleeding present. II. Four bruises seen over right part of neck size varying from 5 mm x 1 cm, 1 cm x 2.5 cm, 1 cm x 2 cms and 0.5 cm x 1.5 cms reddish in colour.
PW1 has opined that injuries are simple in nature.
During cross-examination of PW1, an unsuccessful attempt has been made by learned counsel for accused to establish that injuries found on victim were self-inflicted injuries. PW1 has admitted the suggestion as it relates to injury No.1 and he has denied suggestion as it relates to injury No.2, wherein it is shown that victim had suffered four bruises on right side of her neck.10
18. The theory of accused that victim had inflicted aforestated injuries to set criminal law into motion to falsely implicate accused is far fetched theory. It is difficult to conceive this theory. Therefore, I do not find any reasons to suspect the credibility of evidence of victim.
19. The learned counsel for accused would submit that house of PW4 is situate in the midst of village. There are adjacent houses. The prosecution has not examined independent witnesses. The incident had taken place at 12.20 p.m., (afternoon) in a village.
20. The victim (PW4) has deposed; houses of PW2-Rama and CW2-Keshava are situate at a distance of 50 to 100 feet from their house. The incident had taken place inside the house of victim. In the circumstances, it is not possible to presume that after victim raised hue and cry, her neighbours had come near her house. Therefore, non-examination of neighbours of victim is not fatal to the case of prosecution.
21. The defence of accused that his father (DW1) had lent a sum of Rs.20,000/- to the mother and elder brother of 11 victim after death of father of victim; they were dodging to repay the money and they were not attending to agricultural work; accused was frequently visiting the house of victim to recover money from PW5 & PW6; PW5 & PW6 had hatched a plan to foist a false case against accused looks highly improbable. DW1 has not produced any documentary evidence to prove that he had lent a sum of Rs.20,000/- either to the mother or elder brother of victim. It looks improbable that DW1 would lend a sum of Rs.20,000/- either to the mother or elder brother of victim, without obtaining any document from them or without maintaining any account. It is also difficult to conceive as to how the victim (PW4), the mother of victim (PW5) and the elder brother of victim (PW6) would be in a position to knock off the money lent by DW1 by falsely implicating accused. Therefore, defence theory cannot be accepted.
22. In a decision reported in AIR 2004 SC 536 (in the case of Vidyadharan Vs. State of Kerala), the Supreme Court has held that even if there is delay in lodging first 12 information, that cannot be a ground to discredit the evidence of victim.
In the aforestated judgment, the Supreme Court has held:-
"9. .....It is seen that though there were some delay in lodging the FIR, it is but natural in a traditional bound society to avoid embarrassment which is inevitable when reputation of a woman is concerned. Delay in every case cannot be a ground to arouse suspicion."
23. In the discussion made supra, I have assigned the reasons to discredit the defence put forth by accused to substantiate false implication. The evidence of victim does not suffer from any discrepancies.
24. The evidence on record does not reveal that victim had extraneous reasons to falsely implicate accused by putting her character at stake, more particularly when she was not married. The victim had studied up to VIII standard. The victim was conscious about the facts, which would put her 13 character at stake. Therefore, it is difficult to conceive that the mother and elder brother of victim had used victim as a pawn to falsely implicate accused. It is difficult to conceive that the father of accused (DW1) had lent a sum of Rs.20,000/- either to the mother or the elder brother of victim.
25. The learned Special Judge on proper appreciation of evidence has convicted accused for aforestated offences. The learned Special Judge has sentenced accused to undergo minimum period of imprisonment provided under section 3(1)(xi) of the Act. There are no reasons to reduce the sentence.
26. In the result, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE SNN