Karnataka High Court
Yogesh @ Yoga vs State By Pandavapura Police Rep By Spp on 6 February, 2013
1 Crl.A.No.1516/2007
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.1516 OF 2007
BETWEEN:
1. YOGESH @ YOGA
S/O KARIYAIAH
AGED ABOUT 21 YEARS
2. KARIYAIAH
S/O NANJAIAH
AGED ABOUT 50 YEARS
3. JAYAMMA
W/O KARIYAIAH
AGED ABOUT 45 YEARS
4. BETTAIAH
S/O NANJAIAH
AGED ABOUT 40 YEARS
5. PRASANNA
S/O BETTAIAH
AGED ABOUT 20 YEARS
6. KRISHNA
S/O BORA LINGEGOWDA
AGED ABOUT 48 YEARS
ALL ARE R/AT
HONAGANAHALLY VILLAGE
PANDAVAPURA TALUK
MANDYA DISTRICT.
... APPELLANTS
(BY SRI: SRIDHAR C K, ADV)
2 Crl.A.No.1516/2007
AND:
STATE BY PANDAVAPURA POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560 009.
... RESPONDENT
(BY SRI: VIJAYAKUMAR MAJAGE, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C AGAINST THE JUDGMENT DATED 27.08.2007
PASSED BY THE P.O., FTC-I, MANDYA, IN S.C.
NO.106/06 - CONVICTING THE APPELLANTS/ACCUSED
NOS.2 TO 7 FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 143, 148, 448 READ WITH 149 OF IPC.,
324 READ WITH 149 OF IPC SENTENCING THEM TO PAY
A FINE OF RS.500/- IN DEFAULT, EACH ACCUSED
SHALL UNDERGO ONE MONTH SIMPLE IMPRISONMENT FOR
THE OFFENCE PUNISHABLE UNDER SECTION 143 OF IPC.
FURTHER SENTENCING THEM TO PAY A FINE OF
RS.500/- IN DEFAULT, THEY SHALL UNDERGO ONE
MONTH SIMPLE IMPRISONMENT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 148 OF IPC. FURTHER
SENTENCING THEM TO PAY A FINE OF RS.500/- IN
DEFAULT, THEY SHALL UNDERGO ONE MONTH SIMPLE
IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 448 READ WITH 149 OF IPC. FURTHER
SENTENCING THEM TO PAY A FINE OF RS.500/- IN
DEFAULT, THEY SHALL UNDERGO ONE MONTH SIMPLE
IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 324 READ WITH 149 OF IPC. DEFAULT
SENTENCE IN PAYMENT OF FINE BY EACH ACCUSED
SHALL RUN SEPARATELY PERTAINING TO ACCUSED NO.2
TO 7.
THIS CRL.A. COMING ON FOR FINAL HEARING,
THIS DAY THE COURT DELIVERED THE FOLLOWING:
3 Crl.A.No.1516/2007
J U D G M E N T
The appellants have challenged their conviction and sentence for the offence punishable under Sections 143, 148, 448, 324 read with Section 149 IPC on a trial held by Fast Track Court, Mandya.
2. The facts relevant for the purpose of this appeal are as under:
Appellants are accused Nos.2 to 7 in the Trial Court. It is the case of prosecution that on 07.11.2004 in the midnight, accused No.1 entered the house of PW14 - the victim from the top of roof and after gaining entry inside, allowed the other accused to enter the house and all the accused assaulted the victim and the accused lifted her to the land of one Kuntaiah, a mile away from the village and accused No.1 is said to have committed forcible sexual intercourse with the victim whereas other 4 Crl.A.No.1516/2007 accused assaulted her with clubs, stones and bet her and thereby said to have committed offences aforesaid whereas, accused No.1 said to have committed offence punishable under Section 376 IPC. On the complaint of victim, investigation was held and the victim was examined by the doctor. Statement of the witnesses were recorded and mahazar was held. After the arrest of accused No.1, he was also examined. The seized articles were sent to the opinion of expert. The weapons were recovered and after collecting the injury certificate, a chargesheet came to be laid against accused No.1 and appellants for the aforesaid offences.
3. Accused were put on trial. The prosecution examined PWs.1 to 17 and got marked documents Exs.P1 to P24 and Mos.1 to 6. Statement of accused No.1 and appellants were recorded under Section 313 Cr.P.C. No defence evidence was led. The Trial Court convicted 5 Crl.A.No.1516/2007 accused No.1 for the charge under Section 376 IPC and for other offences, whereas appellants were convicted for the charge under Sections 143, 148, 448, 324 read with Section 149 IPC. They were ordered to pay fine in default to undergo simple imprisonment. Aggrieved by the conviction and sentence, the present appeal has been filed.
4. I have heard learned Counsel for the appellants as well as learned High Court Government Pleader.
5. It is the submission of learned Counsel for the appellants that they have been falsely implicated in the crime and except the evidence of PW14 - the victim, there is no other evidence on record. Hence, he submits that the conviction and sentence ordered by the Trial Court is erroneous and illegal.
6 Crl.A.No.1516/2007
6. On the other hand, learned High Court Government Pleader has supported the judgment and order of the Trial Court.
7. Though PW1 - Siddegowda, PW6 -
Mangalamma are said to be the eye witnesses to the incident, they have not supported the case of prosecution. PW7 - Vanaraju is also a witness to the galata and he has also turned hostile. PW15 - Swamygowda is the brother of PW14 - the victim and he states in his evidence that after receiving information, he came and shifted his sister to the hospital for treatment. There are no other eye witnesses to support the evidence of PW14 - the victim.
8. The scrutiny of evidence of PW14 reveals that she was residing in a house and on the date of incident in the mid night, accused No.1 gained entry into the house from the roof and thereafter opened the door from inside and he allowed the other accused (appellants) to 7 Crl.A.No.1516/2007 enter into the house. They assaulted the victim and lifted her to the land of Kuntaiah at a distance of a mile in the village, wherein at the said place, accused No.1 had committed sexual intercourse on the victim whereas other accused are said to have burnt her with the help of cigarettes, hit her with the stone and bet her. Accused No.4 - Jayamma is said to have kicked her on the breast and thereafter she was taken back and thrown in her house. Though she has been cross examined at length, nothing is elicited to disbelieve the version of this witness.
9. PW4 - Dr.S Radhamani, on reference by PW5 - Dr.T R Jayaram examined the victim and issued the injury certificate as per Ex.P23. PW5 - Dr.T R Jayarama also examined the victim and he has also issued injury certificate at Ex.P8. Perusal of Ex.P8 reveals lacerated injuries on the lateral outer aspect of left 8 Crl.A.No.1516/2007 eye-brow; blunt injuries to nose, nasal bridge and upper libs below the right side of nose; human bite mark on both breasts several places; blunt injuries to both shoulders; burnt marks at left nipple; abrated injuries to mid part of left fore arm; linear abrated marks with blunt injuries to left palm, tongue; linear injuries on horizontal upper lateral aspects of right fore arm; abrated injuries on the right elbow joint; left leg and thigh vertically abrated; skin deep wound anterior mid part reddish open area; linear diagonal wound near the knee joint and many other injuries on different parts of the body. PW4 has also noted the aforesaid injuries on the victim and issued Ex.P23 - injury certificate. So from these documents, it is clear that PW14 - the victim is an injured witness.
10. The injured generally does not implicate an innocent and does not leave the 9 Crl.A.No.1516/2007 person who has really caused harm. The evidence of injured stands at higher footing and cannot be lightly rejected. In the context of this principle, if the evidence of PW14 is looked into, there is ample material on record to establish that the victim was assaulted and the main object for unlawful assembly was to cause assault. Though in the complaint, there are no details and as the incident was in midnight and as victim has identified the persons who has entered the house and lifted her to the land, they had common object to cause assault the victim. Therefore, each of the appellants are responsible for each of the offences charged and they are rightly convicted by the Trial Court.
11. So taking into consideration these circumstances on record, no grounds are made out to warrant interference in the conviction order. So far as the fine is concerned, there is no substantive sentence of imprisonment and it is 10 Crl.A.No.1516/2007 only fine and in default to undergo simple imprisonment. Even taking into consideration the amount of fine, i.e., Rs.500/- for each of the offences is on the lower side. Hence, the appeal has no merits.
12. In the result, appeal is dismissed. Conviction and sentence of appellants for the charge under Sections 143, 148, 448, 324 read with Section 149 IPC are affirmed.
Sd/-
JUDGE *bgn/-