Karnataka High Court
Sudhakara vs The State Of Karnataka on 8 December, 2020
Bench: B.Veerappa, Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
CRIMINAL APPEAL No.382/2016
C/W
CRIMINAL APPEAL No.1255/2016,
c/w
CRIMINAL APPEAL No.1257/2016
c/w
CRIMINAL APPEAL No.841/2016
IN CRL. A No.382/2016:
BETWEEN:
SUDHAKARA
S/O KARIYAPPA,
AGED ABOUT 31 YEARS,
R/AT C/O GUNDAPPA PARK,
JOGUPALYA, HALASURU,
BENGALURU-560008
2
PERMANENT RESIDENT OF
MADALAPURA VILLAGE AND POST,
MANVI TALUK,
RAICHUR DISTRICT-584123.
...APPELLANT
(BY SRI T. A. BASAVARAJU, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HALSURU POLICE,
BANGALORE CITY,
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 10.02.2016 PASSED BY
THE HON'BLE LIV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY (CCH-55) IN SESSIONS CASE NO.110/2013, AND
TO ACQUIT THE APPELLANT - ACCUSED NO.3 OF THE CHARGE
UNDER SECTIONS 120B, 394 READ WITH SECTION 34 OF INDIAN
PENAL CODE AND TO PASS ANY OTHER ORDER OR ORDERS IN THE
CIRCUMSTANCES OF THE CASE TO MEET THE ENDS OF JUSTICE.
IN CRL. A No.1255/2016:
BETWEEN:
THE STATE OF KARNATAKA
BY HALASURU POLICE STATION
3
HALASUR,
BENGALURU CITY.
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-01.
...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
AND:
1. AYYAPPA
S/O NARAYANAPPA,
AGED ABOUT 30 YEARS,
R/AT NEAR SHIVA TEMPLE,
NAYIJOPADI KORAMANGALA,
BENGALURU-560034.
2. MALLIKARJUNA,
S/O MYLARAPPA,
AGED ABOUT 28 YEARS,
R/AT DURGA NAGAR,
NEAR TAMARIND TREE,
AMBEDKAR CHOWK,
YADAGIRI TALUK & DISTRICT-585201.
3. SUDHAKARA,
S/O KARIYAPPA,
AGED ABOUT 31 YEARS
R/AT C/O GUNDAPPA PARK,
JOGUPALYA, HALASURU,
BENGALURU-560038.
PERMANENT RESIDENT OF
MADALAPURA VILLAGE & POST,
MANVI TALUK,
RAICHUR DISTRICT.
...RESPONDENTS
4
(BY SMT.P.V. KALPANA, ADVOCATE FOR R1;
SRI MOHAN KUMAR D., ADVOCATE FOR R2;
SRI KUMARA K.G., ADVOCATE FOR R3)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING
TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 10.02.2016 PASSED BY THE LEARNED LIV
ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY IN
SESSIONS CASE NO.110/2013, INSOFAR AS ACQUITTING THE
ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTION
307 OF IPC, ACCUSED NO.2 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 376(2) (g) AND 307 OF IPC AND THE ACCUSED
NO.3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448,
397, 376(2)(g) AND 307 OF IPC.
IN CRL. A No.1257/2016:
BETWEEN:
THE STATE OF KARNATAKA
BY HALASURU POLICE STATION,
HALASUR,
BENGALURU CITY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-01.
...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
AND:
AYYAPPA
S/O. NARAYANAPPA,
AGED ABOUT 30 YEARS,
5
R/AT NEAR SHIVA TEMPLE,
NAYIJOPADI, KORAMANGALA,
BENGALURU-560034.
PERMANENT RESIDENT OF
MADALAPURA VILLAGE & POST,
MANVI TALUK, RAICHUR DISTRICT-584123.
...RESPONDENT
(BY SMT. P.V. KALPANA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO ALLOW
THIS CRIMINAL APPEAL AND MODIFY THE ORDER OF SENTENCE
IMPOSED BY THE LEARNED LIV ADDL. CITY CIVIL AND SESSIONS
JUDGE, AT BENGALURU CITY DATED 10.02.2016 IN SESSIONS
CASE No.110/2013 IN AWARDING INADEQUATE SENTENCE TO THE
ACCUSED/RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 376(2)(g) OF IPC AND TO IMPOSE MAXIMUM SENTENCE
TO THE ACCUSED FOR THE SAID OFFENCE, TO MEET THE ENDS OF
JUSTICE AND GRANT SUCH OTHER RELIEF OR RELIEFS AS THIS
HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES
OF THE CASE.
IN CRL. A No.841/2016:
BETWEEN:
MALLIKARJUNA
S/O MYLARAPPA,
AGED ABOUT 25 YEARS,
R/AT. DURGA NAGAR,
6
NEAR TAMARIND TREE,
AMBEDKAR CHOWK,
YADAGIRI TALUK,
YADAGIRI DISTRICT-585201.
(NOW IN JC, CENTRAL PRISON,
BANGALORE.)
...APPELLANT
(BY SRI MOHAN KUMAR D., ADVOCATE)
AND:
STATE OF KARNATAKA BY
HALASURU POLICE STATION,
BANGALORE CITY-560008.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 10.02.2016 PASSED IN S.C. No.110/2013 ON
THE FILE OF HON'BLE LIV ADDL. CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE, AND CONSEQUENTLY ACQUIT THE
APPELLANT -ACCUSED NO.2 FROM ALLEGED CHARGES ETC.,
THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
7
JUDGMENT
These criminal appeals are filed against the common Judgment and Order dated 10.2.2016 made in S.C. No.110/2013 on the file of the LIV Addl. City Civil & Sessions Judge, Bangalore convicting and sentencing the Accused No.1 for the offences punishable under Sections 120B, 448, 394, 397 r/w 34 of IPC and Section 376(2)(g) of IPC; Accused No.2 for the offences punishable under Sections 120B, 448, 394, 397 r/w 34 of IPC; and Accused No.3 for the offences punishable under Sections 120B, 394 r/w 34 of IPC and acquitting Accused No.1 for the offence punishable under Section 307 of IPC and Accused No.2 for the offences punishable under Sections 376(2)(g) and 307 of IPC and Accused No.3 for the offences punishable under Sections 448, 397, 376(2)(g) and 307 of IPC.
2. Criminal Appeal No.382/2016 is filed by Accused No.3 praying to set aside the impugned judgment and order passed by the trial Court in so far as convicting and sentencing him for the offences punishable under Sections 120B, 394 r/w 34 of IPC and to acquit him for the said offences.
8
3. Criminal Appeal No.841/2016 is filed by Accused No.2 praying to set aside the impugned judgment and order passed by the trial Court in so far as convicting and sentencing him for the offences punishable under Sections 120B, 448, 394, 397 r/w 34 of IPC.
4. Criminal Appeal No.1255/2016 is filed by the State praying to set aside the impugned judgment and order passed by the trial Court in so far as acquitting the Accused No.1 for the offence punishable under Section 307 of IPC; Accused No.2 for the offences punishable under Sections 376(2)(g) and 307 of IPC and Accused No.3 for the offences punishable under Sections 448, 397, 376(2)(g) and 307 of IPC and to convict and sentence the Accused Nos.1 to 3 for the aforesaid offences.
5. Criminal Appeal No.1257/2016 is filed by the State praying for enhancement of sentence imposed by the trial Court against Accused No.1 for the offence punishable under Section 376(2)(g) of IPC and to impose maximum sentence for the said offence.
9
I. BRIEF FACTS OF THE CASE
6. It is the case of the prosecution that the accused No.1 to 3 by observing the house of complainant (PW.1) and the members residing in the said house, having knowledge that no male person is residing in the said house, with common intention to commit robbery in the said house, having knife, long, plastic gum tape, pieces of black cloth, on 22-06-2012 at 06.30 a.m., forcibly entered the said house No.07, "A" street Elpelhop Topu, Jogupalya, Halasuru, Bangalore and accused No.3 stood outside the house in order to watch the house and to give signal to accused No.1 and 2, if anybody comes near the house. Accused No.1 and 2 assaulted PW.4, the old age woman, with knife on her right hand and voluntarily caused injury. They put PWs.1 and 4 under threat of life if they make any noise, put the plastic gum tape on their mouth and also gum tape on the eyes of PW.1, made them to sit and demanded to give gold, silver articles and amount along with valuable articles.
7. It is further case of the prosecution that the Accused Nos.1 and 2 put the knife near the necks of PWs.1,3 and 4, put them 10 under immediate fear of life. Accused No.1 took PW.1 inside the room forcibly, made her to hand over the key of cub-board and committed rape on her. Thereafter accused No.2 also attempted to commit rape on PW.1, for which she has not allowed him. Accused No.1 demanded for Rs.40 lakhs and threatened that otherwise he will kill PW.3 (the minor son of the complainant). When accused No.1 and 2 were packing the valuable articles in the house of complainant, PW.4 (mother of the complainant) escaped from the back door of the said house, came out and started to call the public for help. Accused No.1 called accused No.3 through mobile and told him to kill PW.4, who came out from the house. At that time accused No.3 started to go near PW.4 in order to commit her murder. At the relevant point of time by hearing the sound of PW.4, the public started to come near the house of PW.1. By seeing the public, accused No.3 ran away from the spot. By hearing the sound of people gathering near the said house, accused No.1 and 2 who were inside the house tried to escape from the said house, but when it was not possible, both suddenly took PW.3 (the minor son of the complainant) in their hands and hidden in the bath room by keeping knife on the neck of PW.3. Thereafter, the Police 11 along with the public entered the said house and by breaking open the doors of bath room, the Police protected PW.3 from the hands of accused No.1 and 2 and apprehended the Accused Nos.1 and 2.
8. After investigation, the jurisdictional Police filed the charge sheet against the Accused Nos.1 to 3 for the offences punishable under Sections 376, 394, 397, 398, 307 r/w 120B, 34 of IPC in Crime No.196/2012. The jurisdictional Magistrate took the cognisance of the offences alleged against the accused Nos. 1 to 3 and committed the case to the learned Sessions Judge. The learned Sessions Judge secured the presence of the accused persons before the Court, framed the charge and read over and explained to them. The accused persons have pleaded not guilty and claimed to be tried.
9. In order to prove its case, the prosecution examined PWs.1 to 16 and got marked the documents - Ex.P1 to Ex.P18 and material objects - Mos.1 to 27. After completion of evidence of the prosecution witnesses, the statement of the accused persons as contemplated under the provisions of Section 313 of the Code of Criminal Procedure was recorded. The accused persons denied all 12 the incriminating evidence adduced by the prosecution witnesses against them, but they have not chosen to lead any defence evidence.
II. FINDINGS OF THE TRIAL COURT
10. The learned Sessions Judge based on the material on record, formulated six points for consideration. After considering both the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond all reasonable doubt that on 22-06-2012 at about 06.30 p.m., in house bearing No.7, "A" Street, Elpelhop Topu, Joguplaya, Halasuru, within the jurisdiction of Halasuru Police Station, Bangalore the accused No.1 to 3 in furtherance of their common intention to commit an offence, forcibly entered into the house of PW.1, thereby committed an offence punishable under Section 120-B of IPC.
11. The learned Sessions Judge further recorded a finding that the prosecution has proved beyond all reasonable doubt that in furtherance of their common intention, Accused Nos.1 and 2 13 trespassed into the house of complainant holding deadly weapons in their hands to commit robbery and thereby committed an offence punishable under Section 448 read with Section 34 of IPC and not proved the said offence against Accused No.3.
12. The learned Sessions Judge further recorded a finding that the prosecution has proved beyond all reasonable doubt that in furtherance of their common intention, accused No.1 and 2 entered into the house of PWs.1 and 4 and accused No.3-Sudhakara was watching outside the said house and thereafter, accused No.1 and 2 voluntarily caused hurt to PW.4 by assaulting on her right hand with knife and snatched the valuable ornaments and cash from the house of PW.1, thereby committed robbery, an offence punishable under Section 394 read with Section 34 of IPC.
13. The learned Sessions Judge further recorded a finding that prosecution has proved beyond all reasonable doubt that the accused No.1 and 2 trespassed into the house of PW.1 and snatched valuable articles from the house of PW.1 and attempted to kill PWs.3 and 4, thereby committed an offence punishable under 14 Section 397 read with Section 34 of IPC and the prosecution has failed to prove the said offence against Accused No.3.
14. The learned Sessions Judge further recorded a finding that the prosecution has proved beyond all reasonable doubt that the accused No.1 and 2 trespassed into the house of PWs.1 and 4 and while accused No.3 was watching outside the house, the accused No.1 committed rape on PW.1 and accused No.2 attempted to commit rape on PW.1, thereby Accused No.1 committed an offence punishable under Section 376(2)(g) of IPC. The learned Sessions Judge held that the offence under Section 376(2)(g) is not proved against Accused Nos.2 and 3.
15. The learned Session Judge further recorded a finding that the prosecution has failed to prove beyond all reasonable doubt that accused No.1 to 3 have committed an offence punishable under Section 307 of IPC.
16. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment of conviction and order of sentence 15 against Accused Nos.1 to 3. Therefore, these appeals are filed by the Accused Nos.2 and 3 as well as the State.
17. We have heard the learned counsel for the parties. III. ARGUMENTS ADVANCED BY SRI MOHAN KUMAR D., LEARNED COUNSEL FOR ACCUSED NO.2
18. Sri Mohan Kumar D., learned counsel for the Accused No.2 has contended that the impugned judgment of conviction and order of sentence passed by the learned Session Judge in so far as convicting Accused No.2 for the offences punishable under Section 120B, 448, 394, 397 r/w 34 of IPC, is erroneous and contrary to the material on record. He further contended that as per the case of the prosecution, Accused Nos.1 to 3 entered into the house of PW.1 for the purpose of robbery and absolutely there is no evidence with regard to the gang rape alleged by the prosecution punishable under Section 376(2)(g) of IPC. He would further contend that the evidence of PW.1 (complainant), PW.3 (son of the complainant) and PW.4 (mother of the complainant) is contrary to each other. He would further contend that the medical evidence and the 16 scientific evidence do not support the case of the prosecution with regard to committing rape by Accused No.2. He also contended that the evidence of prosecutrix (PW.1) is totally improbable and unnatural in nature and the circumstances suggest that there was no such incident of taking her and subjecting her for forcible intercourse. PW.1 had lodged a false complaint with a malafide intention only to harass and humiliate the Accused No.2. Learned counsel would further contend that though the charge sheet filed by the jurisdictional Police under Section 376 of IPC, the trial Court erroneously framed the charge under Section 376(2)(g) of IPC without sufficient material on record.
19. Learned counsel would further contend that the doctor - PW.16 on local genital examination of PW.1 (the victim), has stated that evidence of signs of recent sexual intercourse absent and the victim is used to act like that of sexual intercourse. He would further contend that the doctor - PW.16 stated on oath that when she examined the victim, signs of sexual intercourse were not found. He also contended that PW.1 (complainant) has categorically stated in her evidence that Accused No.1 committed 17 rape on her and Accused No.2 made only an attempt to rape her, but she resisted and not allowed him and even PW.4 (mother of the victim) also stated that Accused No.1 raped the victim (PW.1) and Accused No.2 only made an attempt to rape PW.1 and therefore it clearly depicts that Accused No.2 has not committed any rape. Learned counsel would contend that the evidence on record at the most would attract the involvement of Accused No.2 for commission of the offence under Section 511 of IPC and admittedly no charge is framed for the offence under Section 511 of IPC.
20. Learned counsel lastly contended that based on the oral and documentary evidence on record, the prosecution failed to prove the offences under Sections 376(2)(g) and 307 of IPC against Accused No.2 and the trial Court rightly acquitted him for the said offences.
21. In the circumstances, learned counsel for the appellant sought to allow the appeal filed by Accused No.2 in Criminal Appeal No.841/2016 by setting aside the impugned Judgment and order of conviction and sentence passed against Accused No.2 and to dismiss the appeal filed by the State challenging acquittal of 18 Accused No.2 for the offences punishable under Sections Section 376(2)(g) and 307 of IPC.
22. In support of his contentions, learned counsel for the Accused No.2 relied upon the following judgment:
1. Unreported judgment of the Hon'ble Supreme Court in the case of Krishna @ Krishnappa -vs- State of Karnataka in Criminal Appeal No.162/2009 decided on 14th November 2014.
2. Santosh Prasad @ Santosh Kumar -v- State of Bihar reported in (2020)3 SCC 443 (paragraph 5.2) IV. ARGUMENTS ADVANCED BY SRI T.A. BASAVARAJU, LEARNED COUNSEL FOR ACCUSED NO.3
23. Sri T.A. Basavaraju, learned counsel for the appellant - Accused No.3 has contended that either in the complaint - Ex.P1 or in the FIR, the name of the accused No.3 is not mentioned. With regard to the conviction of Accused No.3 under Section 120B of IPC, absolutely there is no evidence against him and there was no common intention on the part of Accused No.3 along with Accused 19 No.2 and same is not established by the prosecution beyond all reasonable doubt. He would further contend that PW.4 stated about the presence of Accused NO.3 outside the house. But the prosecution has not conducted any Test Identification parade during the course of investigation. Nothing has been recovered from Accused No.3 by the Investigating Officer to link with the Accused Nos.1 and 2. He would further contend that the prosecution has not produced any material documents to prove the ingredients of Section 394 of IPC against the accused No.3. In the absence of the same, the impugned judgment and order of conviction and sentence against Accused No.3 for the offences punishable under Sections 120B and 394 of IPC cannot be sustained. He would further contend that the learned Sessions Judge has recorded a categorical finding in the impugned judgment that there is no evidence that Accused No.3 had deadly weapon in his hand. It is alleged that when Accused Nos.1 and 2 came to know that PW.4 has gone out from the house during the alleged incident, they called Accused No.3 through phone and informed to kill her, but the fact remains that Accused No.3 has not killed PW.4. Further, PW.4 has also not adduced any evidence in this regard. There is no 20 evidence that Accused No.3 had any deadly weapon in his hand. No deadly weapon is recovered by the prosecution from Accused No.3 during the course of investigation. Hence, the prosecution failed to prove that Accused No.3 has used deadly weapon in order to create terror in the mind of PW.4 or any other person during the incident. Therefore, he would contend that Accused No.3 cannot be convicted under Section 397 of IPC. He further contended that PW.4 stated that he has seen the Accused No.3 for the first time before the Court. Hence, absolutely there is no material against the Accused No.3 to establish the case of the prosecution beyond reasonable doubt.
24. Learned counsel for the appellant/accused No.3 contended that based on the material on record, the prosecution failed to prove the offences under Sections 448, 397, 307 and Section 376(2)(g) of IPC against Accused No.3 and the trial Court rightly acquitted Accused No.3 for the said offences.
25. In the circumstances, learned counsel sought to allow the appeal filed by the Accused No.3 in Criminal Appeal No.382/2016 by setting aside the impugned Judgment and order of conviction 21 and sentence passed against Accused No.3 and to dismiss the appeal filed by the State challenging acquittal of Accused No.3 for the offences punishable under Sections 448, 397, 307 and Section 376(2)(g) of IPC.
26. In support of his contentions, Sri T.A. Basavaraju, learned counsel for Accused No.3 has relied upon the following judgments:
1. Rambilas Singh and others -vs- State of Bihar reported in AIR 1989 SC 1593 (paragraph -7)
2. Shaikh Umar Ahmed Shaikh and another -vs- State of Maharashtra reported in 1998 Crl.LJ 2534 (paragraph-8)
3. P.K. Narayanan -vs- State of Kerala (1995)1 SCC 142 (paragraph-10) V. ARGUMENTS ADVANCED BY SRI VIJAYAKUMAR MAJAGE, LEARNED ADDL. SPP FOR THE STATE
27. Per contra, Sri Vijayakumar Majage, learned Addl. SPP would contend that PW.1 (victim), PW.3 (son of the victim) and PW.4 (mother of the victim) have categorically stated in their 22 evidence that Accused No.1 raped PW.1 in the room and Accused No.2 attempted to rape PW.1 and it was with the common intention. He would contend that the provisions of Explanation-1 to Section 376(2)(g) of IPC depicts that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Therefore, Accused Nos.1 and 2 are liable to be convicted under Section 376(2)(g) of IPC.
28. Learned Addl. SPP would further contend that the doctor
- PW.16 who examined PW.1 categorically stated in the examination-in-chief that even in the case of married woman having children, if sexual intercourse was done by keeping her under threat, there may not be signs of sexual intercourse and detection of spermatozoa is not a sign of sexual intercourse. In the cross-examination, it is stated by PW.16 that when the victim woman was produced before her, she was under fear and that when she examined the blood stains of said woman, blood semen not found and when she examined the said victim, the signs of sexual 23 intercourse were not found. The doctor - PW.16 also stated that she examined PW.1 within 24 hours from the alleged incident. Learned Addl. SPP would further contend that PW.1 in her evidence stated that she washed her mouth and private parts on the alleged date of incident. Therefore, learned Addl. SPP contended that the material on record clearly depicts that the prosecution proved beyond reasonable doubt that the Accused Nos.1 and 2 were involved in committing rape on PW.1 (victim).
29. Learned Addl. SPP would further contend that doctor - PW.15 stated with regard to the injuries sustained by PW.4 - Indira. On examination of PW.4, doctor (PW.15) found cut lacerated wound over the right hand about 1 x 1 cm on polamr aspect of little finger and 1 x 1 cm on polamr aspect of base of index finger and opined that the said injuries are simple in nature. Therefore, the provisions of Sections 307 attract against Accused Nos.1 and 2. He would further contend that PW.7 and PW.10 apprehended Accused Nos.1 and 2 on the spot and recovered certain Material Objects. Learned Addl. SPP pointed out from the complaint that Accused No.1 called Accused No.3 through his 24 mobile phone to kill PW.4, who was wearing green sari. The same was stated by PW.1 in her cross-examination. The evidence of PW.1 and PW.4 and the averments in the complaint corroborated with one another that the accused No.3 was present at the time of the incident. He also contended that PW.4 identified Accused No.3 in the open court. Lastly, learned Addl. SPP submits that the categorical evidence of PWs.1,3 and 4 atleast attracts the provisions of Section 376 and 511 of IPC, if not Explanation (1) to Section 376(2)(g) of IPC.
30. In the circumstances, learned Addl. SPP sought to dismiss the appeals filed by the accused Nos.3 and 2 in Criminal Appeal Nos.382/2016 and 841/2016 and allow the appeals filed by the State in Criminal Nos.1255/2016 and 1257/2016.
VI. POINTS FOR DETERMINATION
31. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these criminal appeals are: 25
i) Whether the Accused No.2 in Criminal Appeal No.841/2016 has made out a case to interfere with the impugned judgment and order of conviction and sentence passed against him for the offences punishable under Sections 120B, 448, 394, 397 r/w 34 of IPC, in the facts and circumstances of the case ?
ii) Whether the Accused No.3 in Criminal Appeal No.382/2016 has made out a case to interfere with the impugned judgment and order of conviction and sentence passed against him for the offences punishable under Sections 120B, 394 r/w 34 of IPC, in the facts and circumstances of the case ?
iii) Whether the prosecution has made out a case in Criminal Appeal No.1257/2016 for enhancement of sentence imposed against Accused No.1 for the offence under Section 376(2)(g) of IPC ?
iv) Whether the prosecution has made out a case in Criminal Appeal No.1255/2016 to convict Accused No.1 for the offence punishable under Section 307 of IPC and Accused No.2 for the offences under Sections 376(2)(g) and 307 of IPC and Accused No.3 for the 26 offences punishable under Sections 448, 397, 376(2)(g) and 307 of IPC ?
32. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. VI. EVIDENCE OF THE PROSECUTION WITNESSES AND THE DOCUMENTS RELIED UPON
33. Being the appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
(i) PW.1 - Kalpana, who is the complainant and the victim stated that after the death of her husband during June-2008, she is residing in the house along with her son and mother. On the date of incident, two unknown persons forcibly entered their house covering their faces with black cloth and one person assaulted on the right hand of her mother (PW.4) causing injuries. They hold her son and threatened him with knife that if he makes any noise, he will kill him. She further deposed that one of the accused 27 pushed her inside the room and asked her to give the cup-board key and after opening the cup-board, he has thrown out all the articles from the cup-board and he did not find the valuable articles which he expected in the cup-board. Thereafter, he has forcibly committed rape on her. She also deposed that another accused tried to commit rape on her, but she resisted. After some time, her mother (PW.4) escaped from the house and called the public for help. Thereafter, the Police came and arrested Accused Nos.1 and
2. She identified Mos.1 to 17. She has deposed that she has given the complaint as per Ex.P1. She supported the prosecution case.
(ii) PW.2 - Sai Prakash is the witness to the spot mahazar - Ex.P2 and he witnessed the apprehension of the accused persons in the house of the victim and identified Mos.1 to 9. He supported the prosecution case.
(iii) PW.3 - Master Sankalp V Anand, the minor boy (son of the complainant) has deposed that one person caught hold his grand- mother and another person pushed his mother inside the room. He further stated that one person tied the hands of PW.4 and caused 28 injury to her. He also deposed that accused threatened him with knife. He supported the prosecution case.
(iv) PW.4 - Smt. Indira is mother of the victim - PW.1. She has deposed that on the alleged date of incident at about 6.30 a.m., she has opened the main door of her house and then suddenly one person caught hold her neck and at that time, he has covered his body with blanket and his face was not clear. When her daughter (PW.1) tried to take her to inside of the house, another person by pushing doors entered the house. PW.4 further deposed that when she opposed, one person pushed her to the ground and she became unconscious. PW.4 also deposed that one person took her daughter (PW.1) inside the room and closed the door and after some time, her daughter (PW.1) came out from the room and she was crying. She has further deposed that when she escaped from the house and started to call the public for help, there was another person standing outside her house, talking in phone and he started to come near her to cause something to her, but by seeing people gathering, he ran away from the spot. She supported the prosecution case.
29
(v) PW.5 - Dr. K.V. Sathish examined Accused Nos.1 and 2 about their capability of sexual act and issued reports as per Ex.P5 and Ex.P6 and stated that they are capable of doing sexual act. He supported the prosecution case.
(vi) PW.6 _ Yeshavantharaj Jain is the pawn broker and he identified gold chain, gold coin and currency notes as per MOs.13, 14, 16, 17, which were seized under mahazar - Ex.P7. He supported the prosecution case.
(vii) PW.7 - Raghunath is the Head Constable and on receiving the information, he went to the house of the victim along with PW.14 and CWs.16 to 18 and helped to arrest the Accused Nos.1 and 2. He stated that the knife was found with the accused. He supported the prosecution case.
(viii) PW.8 - Kavitha is the ASI who brought PW.1 to the medical test at Bowring Hospital on 22.6.2012 and 23.6.2012 and seven sealed articles were handed over to Dr. Rajeshwari. Her report is at Ex.P9. She also identified MOs.22 to 27. She supported the prosecution case.
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(ix) PW.9 - Henneshappa is the Police Constable, who brought the MOs.18 and 19, which were collected from Accused NOs.1 and 2 and submitted report as per Ex.P10. He identified MOs.18 and 19 (underwears of Accused No.1). He supported the prosecution case.
(x) PW.10 - H.K. Mahanand is the Police Inspector who registered the FIR on the basis of the complaint - Ex.P1 given by PW.1 and drawn the spot mahazar as per Ex.P2 and recovered knife, gold ornaments, mobile phones. He identified Mos.20, 13 to 16 and 21 and the same were seized under Ex.P7. He further deposed that he sent the victim for medical test. He also stated that he recorded the voluntary statements of the accused and then remanded them to judicial custody. After investigation, he filed the charge sheet.
(xi) PW.11 - Jayaram, who is the witness to mahazar - Ex.P7 identified MOs.11, 12, 13 to 17 and 21. He partly supported the prosecution case with regard to recovery at the instance of the accused.
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(xii) PW.12 - Rajegowda is the Head Constable, who arrested the Accused No.3 on 25.6.2012 at about 8.05 a.m. at Gundappa park situated at Jogupalya. He supported the prosecution case.
(xiii) PW.13 - Jubare Ahemed P Bagevadi is the Head Constable, who written Ex.P2 - mahazar on the basis of place shown by PW.1. He supported the prosecution case.
(xiv) PW.14 - Gudiyappa Gowda is the ASI, who went to the house of the victim on the date of incident along with CWs.15 and 18 and warned the accused and thereafter break open the door of the bath room and arrested Accused Nos.1 and 2 and recovered MOs.11 and 12 from the accused.
(xv) PW.15 - Dr. N.A. Shivshankar is the doctor who examined PW.4 on 22.6.2012 at 2.00 p.m. and issued certificate as per Ex.P16. He supported the prosecution case.
(xvi) PW.16 - Dr. Rajehwarai is the doctor and she examined PW.1 on 22.6.2012 at 3.00 p.m and stated that on local genital examination, evidence of signs of recent sexual intercourse absent and PW.1 is used to an act like that of sexual intercourse. She 32 issued the certificate - Ex.P16 in this regard. He supported the prosecution case.
34. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to pass the impugned judgment and order convicting and sentencing the Accused No.1 for the offences punishable under Sections 120B, 448, 394, 397 r/w 34 of IPC and Section 376(2)(g) of IPC; Accused No.2 for the offences punishable under Sections 120B, 448, 394, 397 r/w 34 of IPC; and Accused No.3 for the offences punishable under Sections 120B, 394 r/w 34 of IPC and acquitting Accused No.1 for the offence punishable under Section 307 of IPC and Accused No.2 for the offences punishable under Sections 376(2)(g) and 307 of IPC and Accused No.3 for the offences punishable under Sections 448, 397, 376(2)(g) and 307 of IPC.
VII. CONSIDERATION
35. On meticulous perusal of the entire evidence lead by the prosecution, it clearly depicts that it is the specific case of PW.1 (complainant) in the complaint that Accused Nos.1 and 2 trespassed in to their house and Accused No.3 stood outside the 33 house in order to give signal if anybody enter the house of PW.1. PW.1 stated in the complaint that Accused Nos.1 and 2 assaulted PW.4, old aged woman with knife on her right hand and voluntarily caused injury and put her and PW.4 under threat of life if they make any noise. She further stated in the complaint that the Accused No.1 forcibly raped her and demanded Rs.40,00,000/- and Accused No.2 attempted to commit rape on her, but she resisted and not allowed him. She further stated that when Accused Nos.1 and 2 were packing the valuable articles in the house, PW.4 escaped from the house and after coming out, started to call public for help. At that time, Accused No.1 called Accused No.3 through mobile and told him to kill PW.4. When public started to gather near the house, Accused No.3 ran away from the spot. By hearing the sound of people gathering near the house, Accused Nos.1 and 2 suddenly took PW.3 in their hands and hidden in the bath room by keeping knife on the neck of PW.3.
36. The averments made in the complaint are reiterated by PW.1 (complainant) in her evidence. PW.1 has stated in her evidence in the categorical terms that Accused NO.1 had robbed 34 certain gold ornaments and cash from her house. She further stated that Accused No.1 had forcible sexual intercourse with her in the room and Accused NO.2 made an attempt to commit rape on her, but she resisted and not allowed him. She also stated that Accused Nos.1 and 2 caught hold the child (PW.3) and went to bathroom and threatened with knife. The same is also stated by PW.3, who is 10 years old child as on the date of his examination. PW.4 also stated with regard to trespass, rape, forcible sexual intercourse by Accused No.1 with PW.1 and Accused No.2 making an attempt to commit rape on PW.1 and the same being resisted by PW.1 etc., It is also stated by all the victims that Accused No.3 was outside the house and when PW.4 escaped from the house, Accused No.1 called Accused NO.3 through mobile phone and asked him to kill PW.4. The categorical statements made by PWs.1,3 and 4 with regard to the sexual assault by Accused No.1 on PW.1 and Accused Nos.1 and 2 assaulting PW.4 on her right hand and causing injuries, are not in dispute. Further, Accused Nos.1 and 2 caught hold of PW.3 (child) and hidden in the bath room by keeping knife on his neck and the same is also not disputed. Nothing has been 35 elicited in the cross-examination of these prosecution witnesses to disbelieve the above aspects.
37. With regard to the assault, Dr. Shivashankar (PW.15) stated that on examination of PW.4, he found cut lacerated wound over the right hand about 1 x 1 centimeter on polarmr aspect of little finger and 1 x 1 centimeter on polamr aspect of base of index finger and opined that the said injuries are simple in nature. It is also not in dispute with regard to Accused Nos.1 and 2 assaulting PW.4 and causing injuries on her right hand.
43. PW.16 - Dr. Rajeshwari has stated in her examination-in- chief that she examined PW.1 (victim) and on local genital examination, evidence of recent sexual intercourse absent and PW.1 is used to an act like that of sexual intercourse. The doctor - PW.16 further stated in her examination-in-chief that recent sexual intercourse means it should be within 24 hours at the time of examination of the victim. The doctor further stated that in the absence of swelling, laceration, abrasion etc., on the vagina sexual intercourse may happen. Even in the case of married woman having children, if sexual intercourse was done, by keeping her 36 under threat, there may not be signs of forcible sexual intercourse and detection of spermatozoa is not sign of sexual intercourse. In the cross-examination, doctor has stated that when the victim was produced before her, she was under fear. The doctor further stated in her cross-examination that when she examined the blood stains of PW.1, semen was not found.
38. At this juncture, it has to be stated that when the victim was under the threat of deadly weapons and did not resist, it does not mean that there was no sexual intercourse at all. The medical evidence coupled with the other evidence on record clearly depicts that when the victim was in the helpless condition and could not move due to threat to her life by holding deadly weapons by accused, in those circumstances also there could not be any signs of sexual intercourse or abrasion or external injuries on the vagina.
39. Though the learned counsel for the accused tried to persuade this Court as per Ex.P8 - FSL report that the presence of seminal stain was not detected in item Nos.1,3,4,6,7,8 and 9 and presence of spermatozoa was not detected in item NOs.2 and 5, the fact remains that the evidence of PW.16 - Dr. Rajeshwari clearly 37 depicts that even in case of married woman having children, if sexual intercourse was done by keeping her under threat, there may not be any signs of sexual intercourse and the same cannot be disputed. The evidence of PW.1, who is the victim of circumstances by assault of rape on her by Accused No.1 inside the room, cannot be disbelieved and no woman would come before the Court and falsely depose that she has undergone sexual intercourse with an unknown person. The evidence given by PW.1 has to be considered as gospel truth, who is the sufferer of the sexual intercourse by Accused No.1.
40. Though the prosecution made an attempt to contend that the act of Accused Nos.1 and 2 attracts Section 376(2)(g) of IPC stating that where a woman was raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of the provisions of Explanation (1) of the said section, the same cannot be accepted in the peculiar facts and circumstances of this case. In the present case, the main complaint of PW.1 in the complaint - Ex.P1 is that on the unfortunate day i.e., 38 on 22.6.2012 the Accused Nos.1 to 3 by observing the house of complainant and the members residing in the said house, having knowledge that no male person is residing in the said house, Accused Nos.1 and 2 forcibly entered the house and Accused No.3 stood outside the house in order to watch the house and to give signal to accused No.1 and 2, if anybody came near the house and Accused Nos.1 and 2 assaulted PW.4, old age woman with knife on her right hand, voluntarily caused injury and put PWs.1 and 4 under threat of life if they made any noise and demanded to give gold, silver articles and amount along with the valuable articles. They also threatened PWs.1,3 and 4 with knife of dire consequences. Thereafter Accused No.1 took the PW.1 inside the room forcibly and made her to hand over the key of cupboard and thereafter he committed rape on her. Accused No.2 made an attempt to commit rape on PW.1, but the same was resisted by her and the same was not allowed. It is not the case of the prosecution that PW.1 was raped by Accused Nos.1 and 2 in a group one by one, in furtherance of their common intention.
39
41. Admittedly in the present case, the Accused Nos.1 and 2 along with Accused NO.3 went to the house of PW.1 only with the common intention of committing robbery and not with the common intention of gang rape as alleged by the prosecution. While doing robbery, it is unfortunate that Accused No.1 pushed PW.1 inside the room and raped her against her will and consent and therefore only attracts the provisions of Section 376 of IPC. The prosecution has not adduced any evidence to indicate that accused persons acted in a concert to commit rape on PW.1. In the circumstances, on any stretch of imagination, the case of the prosecution cannot be accepted that the act of Accused Nos.1 and 2 attracts Explanation-1 of Sections 376(2)(g) of IPC, but the material on record attracts the provisions of Section 376 of IPC only against Accused No.1. Therefore, the Accused No.1 is liable to be convicted for the offence punishable under Section 376 of IPC.
42. As per the unamended provisions of Section 376 of IPC, whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but 40 which may be for life or for a term which may extend to ten years and shall also be liable to fine etc.,
43. In the circumstances, though Accused No.1 has not filed any appeal against his conviction, in the interest of justice, the impugned judgment & order in so far as convicting Accused No.1 for the offence under Section 376(2)(g) of IPC and sentencing him to undergo rigorous imprisonment for a period of eleven years with fine of Rs.1,00,000/- has to be modified and he has to be convicted for the offence under Section 376 of IPC and sentenced to undergo Rigorous Imprisonment for TEN YEARS with fine of Rs.2,00,000/- (Rupees two lakhs only), in default to undergo Simple Imprisonment for two years.
44. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Ashok Kumar v. State of Haryana reported in AIR 2003 SC 777, wherein the Hon'ble Supreme Court held at paragraphs 5 to 9 as under:
5. Both the trial court and the High Court placed strong reliance upon the statements made by Ranbir (PW 4) and Rajbir (PW 6) that Sudesh had told them, 41 when she came back to the house at midnight after consuming poison, that both the accused had raped her.
6. When we have the direct evidence of PW 6, the brother of the deceased, the bald statement attributed to the deceased in an apparent bid to rope in the appellant in addition to the other accused cannot be given much weight. The evidence of PW 6 (Rajbir) is to the effect that his sister was at a distance of about 300 yards having started from the house one or two minutes earlier to his departure, that she was picked up from the street and that he noticed her being taken inside the baithak of Ram Karan and as he came near the baithak, he found that the doors were closed. PW 6 then says that he jumped the wall and went inside the baithak. Then he noticed the accused Anil Kumar and the deceased in a compromising position. The appellant herein came there soon after his arrival at the spot and left from there immediately. From this sequence of events, it is not possible to draw a reasonable conclusion that the appellant had raped the deceased person. The time gap between PW 6 noticing the victim being taken inside the baithak and his entry into the baithak was so short that it is not possible to infer that the appellant would have committed rape in the first instance. Soon after PW 6 entered the baithak and 42 witnessed what was happening, the appellant withdrew from there. In the face of this version in the cross-
examination, it is difficult to believe that both had committed rape. However, we have to examine whether the appellant could be convicted with reference to Section 376(2)(g) IPC even if he had not actually raped the victim.
7. Charge against the appellant is under Section 376(2)(g) IPC. In order to establish an offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offenders. In such cases, there must be 43 criminal sharing marking out a certain measure of jointness in the commission of offence.
8. Now what is to be seen is whether there are any circumstances to indicate concert between the appellant and Anil Kumar in committing rape on Sudesh. Learned advocate appearing for the respondent contended that the appellant had facilitated Anil Kumar to commit rape on the deceased Sudesh and, therefore, it must be inferred that he was in concert with him. Facilitation of rape by Anil Kumar by the appellant, if at all, has to be inferred from the circumstances. Apart from the fact that he was present in his house at about 3.30 p.m. in hot summer month at the crucial time, nothing more is established. By that factum alone, the inference that the appellant being in concert with Anil Kumar cannot be established. We cannot presume that by his mere presence in his house, he was aware of the illicit affair going on between Anil Kumar and the victim, or that he was acting in concert with Anil Kumar. The evidence of Ranbir (PW 4) and Rajbir (PW 6) before the court that they found Anil Kumar to be in a compromising position with Sudesh when the appellant walked in with a pistol and threatened to shoot them is not believed by the trial court. In fact, no pistol was recovered from him. He has been acquitted of that charge under Section 506 IPC and that part of the order 44 has now become final since no appeal has been preferred against such acquittal.
9. No case is put forth or established that the appellant committed an offence under Section 376 IPC as such, but he is charged with an offence arising under Section 376(2)(g) IPC by which he is deemed to have committed such an offence. In the absence of any evidence of concert between Anil Kumar and the appellant, the conviction recorded by the trial court as affirmed by the High Court cannot be sustained.
45. Based on the oral and documentary evidence on record and considering the totality of the facts and circumstances of the case, the trial Court has recorded a finding that the prosecution has proved beyond reasonable doubt that Accused Nos.1 and 2 are involved in the offences punishable under Sections 120B, 448, 394 and 397 r/w 34 of IPC and rightly convicted them for the said offences and sentenced them to undergo Rigorous Imprisonment for a period of 5 years with fine of Rs.10,000/- for the offence under Section 120B r/w 34 of IPC; Rigorous Imprisonment for a period of one year with fine of Rs.1,000/- for the offence under section 448 r/w 34 of IPC; Rigorous Imprisonment for a period of 45 ten years with fine of Rs.50,000/- for the offence under Section 394 r/w 34 of IPC; and Rigorous Imprisonment for a period of seven years with fine of Rs.50,000/- for the offence under Section 397 r/w 34 of IPC with default sentences. The prosecution has not made out any ground to interfere with the impugned judgment and order passed by the trial Court in so far as convicting and sentencing the accused Nos.1 and 2 for the offences punishable under Sections 120B, 448, 394, 397 r/w 34 of IPC.
46. In so far as the impugned judgment convicting the Accused No.3 for the offence punishable sunder section 120B r/w 34 of IPC, the categorical evidence of PWs.1,3 and 4 and the evidence of the doctor clearly depicts that Accused Nos.1 to 3 conspire together and entered the house of PW.1 with a common intention to commit robbery. Therefore, the trial Court is justified in convicting Accused No.3 for the offence under Section 120B r/w 34 of IPC and sentencing him to undergo Rigorous Imprisonment for five years with fine of Rs.10,000/- with default sentence. In so far as the impugned judgment convicting Accused No.3 for the offence under Section 394 r/w 34 of IPC, Accused No.3 has not 46 voluntarily caused hurt to PW.1 or PW.3 or PW.4 and the assault was made by only Accused Nos.1 and 2 and not by Accused No.3. The material on record depicts that Accused No.3 has already underwent punishment for a period of 5 years 4 months. Therefore, in the interest of justice, we are of the considered opinion that the punishment imposed on Accused No.3 for the offence under Section 394 r/w 34 of IPC has to be reduced to the period of sentence already undergone by him (i.e.,5 years 4 months). Both the sentences shall run concurrently. Accordingly, the impugned judgment of conviction and order of sentence is liable to be modified.
VII. REGARDING APPEALS FILED BY THE STATE
47. Criminal Appeal No.1255/2016 is filed by the State praying to set aside the impugned judgment and order passed by the trial Court in so far as acquitting the Accused No.1 for the offence punishable under Section 307 of IPC; Accused No.2 for the offences punishable under Section 376(2)(g) and 307 of IPC and Accused No.3 for the offences punishable under Sections 448, 397, 47 376(2)(g) and 307 of IPC and to convict and sentence the accused persons for the aforesaid offences. Criminal Appeal No.1257/2016 is filed by the State praying for enhancement of sentence imposed by the trial Court against Accused No.1 for the offence punishable under Section 376(2)(g) of IPC.
48. As already stated supra, the impugned judgment of conviction and order of sentence in so far as convicting Accused No.1 for the offence under Section 376(2)(g) of IPC and sentencing him to undergo rigorous imprisonment for a period of eleven years with fine of Rs.1,00,000/-, is modified and he is convicted for the offence under Section 376 of IPC and sentenced to undergo Rigorous Imprisonment for TEN YEARS with fine of Rs.2,00,000/- (Rupees two lakhs only), in default to undergo Simple Imprisonment for two years. Therefore, Criminal Appeal No.1257/2016 filed by the State is liable to be dismissed.
49. Based on the oral and documentary evidence on record, the trial Court rightly acquitted the Accused Nos.2 and 3 for the offence punishable under Section 376(2)(g) of IPC. Absolutely, there is no material on record to implicate Accused Nos.2 and 3 in 48 the commission of the offence punishable under Section 376(2)(g) of IPC. The prosecution has failed to prove beyond reasonable doubt that the Accused Nos.2 and 3 has committed the offence under Section 376(2)(g) of IPC. Therefore, the trial Court is justified in acquitting the Accused Nos.2 and 3 for the offence under Section 376(2)(g) of IPC.
50. In so far as the offence under Section 307 of IPC, it is alleged by the prosecution that at the time of committing robbery, the accused Nos.1 to 3 have attempted to cause the death of PW.1, PW.3 and PW.4 having deadly weapons in their hands and that they have also caused injuries on the right hand of PW.4 and therefore, they have committed the offence punishable under section 307 of IPC. The trial Court considering the material on record, has recorded a finding that to punish under Section 307 of IPC, the accused must have requisite intention to commit the murder and done an act towards his commission in pursuance of the common intention which requires that the act must be done with such an intention or knowledge or done under such circumstances that if the 49 death is caused by that act, the offence of murder will emerge and therefore, the intent coupled with some overt act must be present.
51. In the present case though Accused Nos.1 and 2 had deadly weapons in their hands and created terror in the minds of PWs.1, 3 and 4, they in fact trespassed into the house of PW.1 only for robbery and not to commit murder or attempt to murder. Thus, there is no intention on the part of Accused Nos.1 to 3 to cause death of PWs.1,3 and 4. It is also not in dispute that though the accused caused injuries on the right hand of PW.4, the said injuries are simple in nature as per the evidence of the doctor. In the circumstances, we are of the considered opinion that the prosecution has failed to prove that Accused Nos.1 to 3 have committed the offence punishable under Section 307 of IPC and the trial Court rightly acquitted them for the offence under Section 307 of IPC.
52. In so far as the offences under Section 448 and 397 of IPC against Accused No.3, the trial Court based on the material on record, rightly held that the prosecution failed to prove beyond reasonable doubt that the accused No.3 has committed the offences 50 under Sections 448 and 397 of IPC. Admittedly PW.3 has not trespassed into the house nor robbed any valuable material nor assaulted anybody and he was not at all in picture inside the house and he was only watching outside the house. Therefore, the trial Court is justified in acquitting Accused No.3 for the offences under Sections 448 and 397 of IPC.
53. In view of the above, Criminal Appeal No.1255/2016 filed by the State praying to set aside the impugned judgment and order passed by the trial Court in so far as acquitting the Accused No.1 for the offence punishable under Section 307 of IPC; Accused No.2 for the offences punishable under Section 376(2)(g) and 307 of IPC and Accused No.3 for the offences punishable under Sections 448, 397, 376(2)(g) and 307 of IPC and to convict and sentence the accused persons for the aforesaid offences, is liable to be dismissed.
VIII. REGARDING JUDGMENTS RELIED UPON
54. In so far as the unreported judgment of the Hon'ble Supreme Court in the case of Krishna -vs- State of Karnataka in 51 Criminal Appeal No.162/2009 dated 14th November 2014 relied upon by learned counsel for the Accused No.2, the said judgment has no relevance to the facts and circumstances of the present case as we have taken the view that Section 376(2)(g) of IPC not proved by the prosecution beyond reasonable doubt against Accused No.2.
55. In so far as another judgment relied upon by the learned counsel for the Accused No.2 in the case of Santosh Prasad -vs- State of Bihar reported in (2020)3 SCC 443 (paragraph 5.2), it was a case where the prosecution alleged rape of married lady after house trespass and the High Court convicted the accused solely relying upon the deposition of the prosecutrix and the Hon'ble Supreme Court acquitted the accused of the charges leveled against him. In the present case, taking into consideration the entire oral and documentary evidence on record, the trial Court acquitted Accused No.2 for the offence punishable under Section 376(2)(g) of IPC and we confirmed the findings of facts recorded by the trial Court by dismissing the appeal filed by the State against acquittal of Accused No.2 under Section 376(2)(g) of IPC. 52 Therefore, the said judgment is also not applicable to the facts and circumstances of the case.
56. In the judgment relied upon by the learned counsel for Accused No.3 in the case of Rambilas Singh and others -vs- State of Bihar reported in AIR 1989 SC 1593 (paragraph 7), the Hon'ble Supreme Court while considering the provisions of Sections 34 and 149 of IPC, held that there must be a material to show that the overt acts were done in furtherance of common intention of all accused or in prosecution of common object of members of unlawful assembly. Admittedly in the present case, there was common intention for all the Accused Nos.1 to 3 for conspiracy and to do dacoity. The trial Court convicted Accused No.3 under Sections 120B and 394 r/w 34 of IPC and sentenced him to undergo imprisonment of 5 years with fine of Rs.10,000/- for the offence under Section 120B of IPC and imprisonment for 10 years with fine of Rs.50,000/- for the offence under Section 394 of IPC. On the appeal filed by the State against acquittal of Accused No.3 for the offences under Sections 448, 397, 376(2)(g) and 307 of IPC, we have dismissed the appeal filed by the State against Accused No.3. 53 The Accused No.3 has also filed appeal challenging his conviction for the offences under Sections 120B and 394 r/w 34 of IPC. This Court considering the entire material on record, reduced the sentence imposed by the trial Court to the sentence already undergone by Accused No.3. Therefore, the said case is applicable to the facts and circumstances of the case.
57. The judgment relied upon by the learned counsel for the accused No.3 in the case of P.K. Narayanan -vs- State of Kerala reported in (1995)1 SCC 142 (paragraph-10) is not applicable to the facts and circumstances of the case. In the present case, the trial Court considering the entire oral and documentary evidence on record, has come to the conclusion that the offences against Accused NO.3 under Sections 120B and 394 r/w 34 of IPC is proved and accordingly, imposed sentence for a period of 5 years and 10 years with fine for the aforesaid offences. On re-appreciation, this Court modified the sentence and reduced the sentence to the period of 5 years 4 months, which is already undergone by him. The said judgment no way assist the Accused NO.3.
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58. In the another judgment relied upon by the learned counsel for Accused No.3 in the case of Shaikh Umar Ahmed Shaikh and another -vs- State of Maharashtra reported in 1998 Crl.LJ 2534, the Hon'ble Supreme Court held that the statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused. We agree with the law laid down by the Hon'ble Supreme Court in the said case. Admittedly in the present case, the trial Court convicted the Accused No.3 for the offence under Section 120B and 394 r/w 34 of IPC. As already stated above, we have modified the sentence and reduced the sentence to the period of sentence already undergone i.e, 5 years 4 months and the appeal filed by the State against acquittal of Accused No.3 for the offences punishable under Sections 448, 397, 376(2)(g) and 307 of IPC, has been dismissed. Therefore, the said judgment is not applicable to the facts and circumstances of the present case.
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VIII. CONCLUSION
59. For the reasons stated above, we answer the point raised in these criminal appeals as under:
(i) The 1st point raised in these appeals is answered in the negative holding that the Accused No.2 in Criminal Appeal No.841/2016 has not made out a case to interfere with the impugned judgment and order of conviction and sentence passed against him for the offences punishable under Sections 120B, 448, 394, 397 r/w 34 of IPC, in the facts and circumstances of the case.
(ii) The 2nd point raised in these appeals is answered holding that the impugned judgment in so far as convicting Accused No.3 for the offences punishable under Sections 120B, 394 r/w 34 of IPC and sentencing him to undergo Rigorous Imprisonment for five years with fine of Rs.10,000/- for the offence under Sections 120B of IPC is confirmed. In so far as punishment for the offence under Section 394 of IPC is reduced to the 56 period of sentence already undergone (i.e. 5 years 4 months) by him with fine of Rs.50,000/-. Both the sentences shall run concurrently. Accordingly, the 2nd point is answered partly in the affirmative.
(iii) The 3rd point raised in these appeals is answered in the negative holding that the offence committed by the Accused NO.1 does not attract Section 376(2)(g) of IPC, instead it attracts only Section 376 of IPC and the impugned judgment and order convicting Accused No.1 for the offence under Section 376(2)(g) and sentencing him to undergo RI for a period of 11 years with fine of Rs.1,00,000/- is modified and he is convicted for the offence under Section 376 of IPC and sentenced to undergo RI for a period of ten years with fine of Rs.2,00,000/- with default sentence.
(iv) The 4th point raised in these appeals is answered in the negative holding that the prosecution in Criminal Appeal No.1255/2016 has not made out any case to convict Accused No.1 for the offence under 57 Section 307 of IPC and Accused No.2 for the offences under Sections 376(2)(g) and 307 of IPC and Accused No.3 for the offences punishable under Sections 448, 397, 376(2)(g) and 307 of IPC.
60. In view of the above, we pass the following order:
IX. R E S U L T
1. The appeal filed by appellant - Accused No.3 in Criminal Appeal No.382/2016 is allowed in part.
2. The impugned Judgment & Order of conviction and sentence passed by the trial Court in so far as convicting Accused No.3 for the offences punishable under Sections 120B, 394 r/w 34 of IPC and sentencing him to undergo Rigorous Imprisonment for five years and to pay fine of Rs.10,000/-, in default to undergo Simple Imprisonment for one year for the offence under Section 120B r/w 34 of IPC, is hereby confirmed. In so far as the impugned order of sentence against Accused No.3 for the offence 58 punishable under Section 394 r/w 34 of IPC, is hereby modified and reduced to the sentence already undergone (i.e., 5 years 4 months) by him and he shall pay fine of Rs.50,000/-, in default to undergo Simple Imprisonment for one year. Since the punishment imposed already undergone by Accused No.3, on deposit of the fine amount, he shall be released, if he is not required in any other case.
3. The appeal filed by the appellant - Accused No.2 in Criminal Appeal No.841/2016 is dismissed as devoid of merits.
4. The impugned Judgment & Order of conviction and sentence passed by the trial Court in S.C. No.110/2013 on the file of the LIV Addl. City Civil & Sessions Judge, Bengaluru against Accused No.2, is hereby confirmed.
5. The appeal filed by the State in Criminal Appeal No.1255/2016 is dismissed as devoid of merits. 59
6. The appeal filed by the State in Criminal Appeal No.1257/2016 is disposed off with an observation that the offence committed by the Accused No.1 does not attract Section 376(2)(g) of IPC, instead it attracts Section 376 of IPC Accordingly, the impugned judgment & order in so far as convicting Accused No.1 for the offence under Section 376(2)(g) of IPC and sentencing him to undergo rigorous imprisonment for a period of eleven years and to pay fine of Rs.1,00,000/-, is hereby modified and he is convicted for the offence under Section 376 of IPC and sentenced to undergo Rigorous Imprisonment for TEN YEARS and to pay fine of Rs.2,00,000/- (Rupees two lakhs only), in default to undergo Simple Imprisonment for two years.
7. All the sentences shall run concurrently.
8. The accused are entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure.60
9. In exercise of the powers under Section 357(3) of the Code of Criminal Procedure, we direct that if the fine amount of Rs.4,82,000/- is recovered, Rs.1,00,000/-
(Rupees one lakh only) shall be deposited in the name of PW.3 - Master Sankalp V. Arun and shall be released in his favour after he attains majority; Rs.2,00,000/- (Rupees two lakhs only) shall be paid to the victim - PW.1 (Kalpana); and Rs.1,00,000/- (Rupees one lakh only) shall be paid to PW.4 - Smt. Indira as compensation and the balance amount of Rs.82,000/- shall vest with the Government.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE Gss/-