Karnataka High Court
Mahesh vs State By Ramapura Police Kollegal Taluk on 1 March, 2013
1 Crl.A.No.317/2006
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 01ST DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.317 OF 2006
BETWEEN:
MAHESH
S/O GAVISIDDAIAH
AGED ABOUT 24 YEARS
AJJIPURA VILLAGE
KOLLEGAL TALUK
CHAMARAJANAGARA DIST RICT.
... APPELLANT
[BY SRI: C M JAGADEESH, ADV]
AND:
STATE BY RAMAPURA POLICE
KOLLEGAL TALUK
CHAMARAJANAGARA DISTRICT
REPRESENTED BY GOVT. PLEADER
HIGH COURT BUILDING
BANGALORE.
... RESPONDENT
[BY SRI: VIJAYAKUMAR MAJAGE, HCGP]
THIS CRL.A IS FILED UNDER SECTION 374
CR.P.C AGAINST THE JUDGMENT DATED 31.01.2006
PASSED BY THE P.O., F.T.C., KOLLEGAL IN S.C.
NO.26/2004, CONVICTING THE APPELLANT-ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 417 & 509
OF IPC AND SENTENCING HIM TO UNDERGO SIMPLE
IMPRISONMENT FOR 3 MONTHS FOR THE OFFENCES
2 Crl.A.No.317/2006
PUNISHABLE UNDER SECTIONS 417 AND 509 OF IPC AND
ALSO TO PAY FINE OF RS.500 EACH FOR THE OFFENCES
UNDER SECTIONS 417 AND 509 OF IPC AND IN
DEFAULT, SHALL UNDERGO SIMPLE IMPRISONMENT FOR
15 DAYS.
THIS CRL.A. COMING ON FOR FURTHER HEARING,
THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The appellant has challenged his conviction and sentence for the charge under Sections 417 and 509 IPC on a trial held by the Fast Track Court at Kollegal.
2. The facts relevant for the purpose of this appeal are as under:
PW9 - Mallika is the mother of Roopa (deceased). Roopa was studying in 10th Standard at JSS High School and since a month prior to the incident, the appellant who is the resident of same village was teasing her on the way to the school. PW9 - Mallika, the mother of Roopa used to advise her not to talk with the appellant whenever he meets on the road. 3 Crl.A.No.317/2006
Few days prior to the complaint there was annual day celebration in the school and Mallika came to know that her daughter Roopa had taken a photo with the appellant. She questioned her daughter as to why she has taken a joint photo with the appellant, for that Roopa told appellant did so forcibly by giving assurance that he would marry her. On the date of incident the appellant was proceeding on the road near the house of PW9 - Mallika and she questioned him about taking the photograph jointly stating that the people would think otherwise if such a photograph is taken. At that time it is alleged that the appellant said to have abused her as "loafers" and "Soolemakkalu", stating that due to their conduct the village reputation will be lost. He abused her in filthy language in the presence of people and at that time Roopa who was inside the house came out and told him that at his request photograph was 4 Crl.A.No.317/2006 taken and that he is unnecessarily abusing them. Saying so, she went inside poured kerosene and set fire to herself. Hearing the scream, Mallika went inside and found Roopa in flames. She extinguished the fire and shifted her to the hospital and during the treatment she succumbed to the injuries on 13.03.2003.
A complaint of this incident was filed by PW9 - Mallika as per Ex.P11 on 03.03.2003 and it came to be registered by PW19 -
Chandrashekaraiah, the Assistant Sub-Inspector in Crime No.22/2003 for the offence under Sections 420, 509 and 306 IPC. During the course of investigation, PW17 - David recorded the statement of witnesses and held the spot mahazar (Ex.P12). In the presence of PW10 - Mahadeva and another, Kerosene Plastic Can (MO1) was seized. On the death of Roopa, inquest was held in the presence of PW12 - Raju and others and the photographs of dead body Exs.P15 to 17 5 Crl.A.No.317/2006 were taken. The photographer produced Ex.P8 - the negatives of photographs. On completion of investigation, charge sheet came to be laid against the appellant-accused for the aforesaid offences.
During the trial, prosecution examined PWs.1 to 19 and got marked documents Exs.P1 to P20 and MO1. Statement of the appellant was recorded under Section 313 Cr.P.C. No defence evidence was led. Ex.D1 - is the doctor letter and has got marked in the evidence of PW7. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, convicted the appellant for the charge under Sections 417 and 509 IPC and he was ordered to undergo imprisonment for three months and to pay fine of Rs.500/- for each of the offences with default sentences. Aggrieved by the conviction and sentence, the present appeal has been filed.6 Crl.A.No.317/2006
3. I have heard Sri.Jagadeesh, learned Counsel for the appellant and learned High Court Government Pleader.
4. The point that arises for my consideration is:
"Whether the appellant has made out any grounds to warrant interference in his conviction and sentence ordered by the Trial Court for the charge under Sections 417 and 509 IPC?"
5. It is the submission of learned Counsel for the appellant that except the interested version of PW9 - Mallika and close relatives, the other independent witnesses have not supported the case of prosecution. He also contends that the conviction and sentence ordered by the Trial Court is erroneous and illegal.
7 Crl.A.No.317/2006
6. On the other hand, learned High Court Government Pleader has supported the judgment and order of the Trial Court.
7. PWs.1 to 3 are the independent eye witnesses examined by the prosecution and they have turned hostile. Nothing worth is elicited in their evidence to support the case of prosecution. PWs.4 and 5 are the witnesses to prove the shifting of injured to the hospital. There is no dispute about the injured having been shifted to the hospital after she attempted to commit suicide. PWs.14 and 15 are the other eye witnesses and PW14 is closely related to Mallika whereas PW15 is a distant relative. So it is the evidence of PWs.9, 14 and 15 which is available on record for appreciation.
8. Roopa (deceased) was studying in 10th standard at JSS High School. PW9 - Mallika states that the appellant was teasing her 8 Crl.A.No.317/2006 daughter on the way and in this context, she had advised her daughter Roopa not to talk with him in the road as she is a student and that it is proper to be away from such boys during her study in the school. Her evidence also reveals that about 3 days earlier to the incident, there was a annual day celebration in the school and Roopa had worn a saree and on that day, she had taken a photograph with the appellant and PW6 - Narayan is the photographer. The fact of taking a photo on that day was made known to PW9 and therefore, she questioned her daughter Roopa and had advised her that it is not proper to take a photo with the boys as she is a student till completion of her study in the high school and Roopa had told her that she was forced by the appellant to take a photo on that day. It is in this context, that on the date of incident, when the appellant was proceeding near the house of PW9, she called and questioned him about the 9 Crl.A.No.317/2006 taking of photo with her daughter Roopa and expressed that it is not proper to do so and it would be an act of insulting them in the village. The appellant at that time abused her in filthy language as 'loafers' and 'soole makkale' and told questioning him is an act of his insult in the village. When he was abusing her mother in filthy language, Roopa who was inside the house came and questioned him about using filthy language and told that it is he who insisted her to take a photo with an assurance that he would marry her. She got insulted with the abusive words and went inside the house poured kerosene and set fire on herself. After hearing the scream, Mallika went inside and saw Roopa in flames and extinguished the fire. The injured was shifted to the hospital and later during the treatment, she succumbed to the burns on 13.03.2003. As she was not in a condition to give a statement, it was not recorded. The 10 Crl.A.No.317/2006 photo which have been produced also reveal that she has sustained burns on the face, neck and breast. This burns also give an indication that police were not in a position to record her statement.
9. The material evidence on record is consistent though PWs.9, 14 and 15 is consistent, cogent and trustworthy and it is now necessary to find out as to whether the appellant has committed the offence punishable under Sections 417 and 509 IPC.
10. Cheating is defined under Section 417 IPC and it reads thus:
"Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
Section 417 IPC is penal provision in respect of the act of cheating. As could be 11 Crl.A.No.317/2006 seen from the aforesaid provisions, there has to be an act of deceiving, fraudulent or dishonest act which induces a person or omit to do anything and in case if such omission caused or is likely to cause damage or harm to that person in body, mind or reputation, the aforesaid provision is attracted.
11. It is relevant to note that when the appellant was passing in front of the house of PW9 - Mallika, she questioned him about the photo taken and the appellant abused her in filthy language aforesaid. This act on the part of appellant cannot be called as the act which is deceiving or fraudulent act or dishonest act. What actually happened between the appellant and Roopa is not borne out from the evidence that has been led by the prosecution. PW6 - Narayan states in his evidence that both Roopa and the appellant came to his studio and he snapped the photo (Ex.P8). What had transcribed at that 12 Crl.A.No.317/2006 place is not forthcoming in the evidence of prosecution. Therefore, from this material placed on record, it cannot be said that appellant caused the act of deceit, fraudulent or dishonest act. At whose instance, the photo was taken at that time is not at all available in the evidence of prosecution. Therefore, the act of appellant does not fall within the purview of Section 417 IPC, therefore, conviction for the offence under Section 417 IPC has to be set aside.
12. Section 509 IPC relates to an act intending to insult the modesty of any woman or the act which intrudes upon the privacy of an woman and in such circumstances, it is punishable with imprisonment for one year for the offence under Section 509 IPC. In the absence of any evidence as to whether Roopa and the appellant took photo jointly or it was an forceful act by the appellant or otherwise and 13 Crl.A.No.317/2006 the appellant abused in filthy language at the time when PW9 questioned him would not amount to an act of insult the modesty of a woman. What was stated by the appellant was an insulting words i.e., filthy language uttered by the appellant as 'loafers' and 'soole makkale' etc.,
13. Perusal of complaint and the evidence of PW9 if read with the evidence of PW14, though it is an insulting language addressed to PW9 and after hearing the same her daughter Roopa felt insulted and went inside the house and committed suicide by setting fire on herself, in my opinion, the provisions of Section 509 IPC is also not attracted. But anyhow, it is relevant to note that abusive words uttered by the appellant at Mallika and deceased Roopa therein is with an intention to insult them and it is such insulting words uttered caused provocation to Roopa and she attempted to commit suicide on hearing of such insulting words. So under 14 Crl.A.No.317/2006 Section 504 IPC it is stated that "Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". So the fact that the appellant insulted PW9 by using filthy language on the day shows his intention to insult her. It is because of these words, Roopa is provoked and attempted to commit suicide. Therefore, the act of appellant squarely falls within the provisions of Section 504 IPC. Hence, conviction of appellant for the offence under Sections 417 and 509 IPC will have to be set aside.
14. Though PWs.9, 14 and 15 are the witnesses related to each other, that itself is 15 Crl.A.No.317/2006 not an ground to reject the version of prosecution. It is not the law that evidence of relatives is to be excluded. What is necessary is to scrutinize the evidence carefully and as there was no ill-will between the parties prior to the incident except about the teasing of deceased Roopa by the appellant and an incident having been taken place when the appellant was passing by the side of the house of Mallika and the consequent act of committing suicide and the circumstances stated above would clearly go to establish that appellant has committed offence punishable under Section 504 IPC.
15. The appellant was in custody for a period of 49 days. I think the interest of justice would be met if the sentence of imprisonment is confined to the custodial period by enhancing fine so as to compensate PW9. 16 Crl.A.No.317/2006
16. In the result, the appeal is allowed in part. Conviction of the appellant for the charge under Sections 417 and 509 IPC and sentence thereon is set aside. He is acquitted of the said charges.
Appellant is convicted for the offence under Section 504 IPC. The sentence of imprisonment is confined to the custodial period and he is ordered to pay fine of Rs.50,000/- in default to undergo simple imprisonment for three months.
On deposit of fine amount, a sum of Rs.45,000/- shall be paid to PW9 - Mallika and remaining amount of R.5,000/- shall be paid to the State.
Sd/-
JUDGE *bgn/-