Karnataka High Court
Boregowda @ Bora S/O Hombegowda vs State Of Karnataka on 18 January, 2013
1 Crl.A.No.201/2006
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.201 OF 2006
BETWEEN:
BOREGOWDA @ BORA
S/O. HOMBEGOWDA
AGED ABOUT YEARS,
R/AT HEBBAKAVADI VILLAGE,
MANDYA TALUK & DISTRICT,
KARNATAKA STATE.
... APPELLANT
(BY SRI: K A PASHA, ADV - AMICUS CURIAE)
AND:
STATE OF KARNATAKA
BY MANDYA RURAL POLICE,
MANDYA,
REPRESENTED BY
SPL. PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE.
... RESPONDENT
(BY SRI SATISH R GIRJI, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374
CR.P.C AGAINST THE JUDGEMNT DATED 29.12.2005
PASSED BY THE S.J., F.T.C-I, MANDYA IN S.C.
NO.140/2002, CONVICTING THE APPELLANT-ACCUSED
2 Crl.A.No.201/2006
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 324,
448 AND 354 OF IPC AND SENTENCING HIM TO
UNDERGO SIMPLE IMPRISONMENT FOR ONE YEAR FOR
THE OFFENCE PUNISHABLE UNDER SECTION 324 IPC
AND SENTENCING HIM TO UNDERGO IMPRISONMENT OF
ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 354 OF IPC AND ALSO TO PAY FINE OF
RS.2000/- ONLY AND IN DEFAULT, TO UNDERGO
FURTHER IMPRISONMENT FOR 3 MONTHS. FURTHER
SENTENCING HIM TO UNDERGO IMPRISONMENT FOR 6
MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION
448 OF IPC. ALL THE SUBSTANTIVE SENTENCES
SHALL RUN CONCURRENTLY.
THIS CRL.A. COMING ON FOR HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The appellant has challenged the conviction and sentence for the offence punishable under Sections 448, 354 and 324 IPC on a trial held by Fast Track Court at Mandya.
2. The facts relevant for the purpose of this appeal are as under:
PW1 - Naga is the husband of PW3 -Gowramma whereas PW2 - Sannegowda is the father of PW3. PW4 - Kempegowda is the brother-in-law of PW1 - Naga, whereas PW5 - Prakash is the brother. 3 Crl.A.No.201/2006 Approximately, 3 or 4 months prior to the complaint, appellant was teasing PW3 - Gowramma i.e., the wife of PW1 - Naga asking her to accompany him and to share the bed. PW3 had complained the act of appellant to her husband PW1. PW1 had also advised the appellant to discontinue such activities. On 06.04.2002 at about 10.00 p.m., the appellant is said to have trespassed into the house of PW1 - Naga and dragged his wife PW3 asking her to come to his house and share the bed. He also threatened that in case if she do not join him, he would kill her husband. At that time, PW2 - Sannegowda, the father of PW3 intervened and the appellant took out chopper and assaulted PW2 and when PW1 intervened, he threatened to kill him stating that he would take his wife and keep her with him. The appellant is said to have assaulted PW1 with chopper, meanwhile the neighbors after hearing the cry came and shifted 4 Crl.A.No.201/2006 the injured to the hospital for treatment. When PW1 was in the hospital under treatment, PW11 - Puttamadaiah, Head Constable after receiving information of this incident went to the hospital and recorded the statement Ex.P1 and registered the same for the offence punishable under Sections 448, 354 and 307 IPC. The complaint and the FIR were sent to the Magistrate and after visiting to the scene of occurrence, spot mahazar Ex.P3 was drawn in the presence of attesting witnesses and the clothes of injured was seized under mahazar Ex.P2. Statement of the witnesses were recorded. The appellant was arrested and he led the police and attesting witnesses to his house and produced the chopper - MO1 and it was seized under mahazar Ex.P4. The injury certificates - Exs.P5 and P6 were collected and on completion of investigation, chargesheet came to be laid against the appellant for the aforesaid charges. 5 Crl.A.No.201/2006
3. During the trial, prosecution examined PWs.1 to 11 and in their evidence, documents Exs.P1 to P11 and Mos.1 to 3 were marked. Statement of the appellant was recorded under Section 313 Cr.P.C. The appellant examined DWs.1 and 2 in his defence. The Trial Court after hearing the counsel for parties and on appreciation of the material on record held the appellant guilty for the charge under Sections 448, 354 and 324 of IPC and ordered him to undergo imprisonment for one year each for the offence under Sections 354 and 324 of IPC and also ordered to pay fine. So far as the offence under Section 448 is concerned, ordered imprisonment for six months and to pay fine. Aggrieved by the conviction and sentence, the present appeal has been filed.
4. As the counsel for appellant was absent, Sri.K A Pasha, Advocate is appointed as Amicus Curiae to assist the Court. Today also, 6 Crl.A.No.201/2006 counsel for the appellant is absent. Hence, I have heard Sri.K A Pasha, Amicus Curiae for the appellant and learned High Court Government Pleader for the State.
5. The point that arises for my consideration is:
"Whether the appellant has made out any grounds to warrant interference in the conviction and sentence for the charges under Sections 448, 354 and 324 IPC?
6. It is the submission of Amicus Curiae, the learned Counsel for appellant that PWs.1 to 3 are the persons interested and related to each other and therefore, unless there is corroboration of the evidence of these witnesses, conviction cannot be sustained. He also submits that the prosecution has not examined any independent witnesses and PWs.4 and 5 said to have come to the place of incident 7 Crl.A.No.201/2006 later and as there is ample material on record to prove the defence of alibi, and the conviction ordered by the Trial Court cannot be sustained. On these grounds, he has sought for setting aside of the order of conviction.
7. On the other hand, learned High Court Government Pleader supporting the judgment and order of the Trial Court contends that PWs.1 and 2 are the injured eye witnesses and their evidence does not need any corroboration. Hence, he submits that there is no error or illegality in the judgment and order of the Court below.
8. The scrutiny of material placed on record reveals that even prior to the complaint that has been lodged by PW1, PW3 - Gowramma, the wife of PW1 was teased by the appellant whenever she happened to be outside the house and in this regard, even PW1 had advised the appellant to discontinue such activity. It is on the date of 8 Crl.A.No.201/2006 incident at about 10.00 p.m. when PW1 - Naga, his wife PW3 -Gowramma and PW2 - Sannegowda, the father of PW3 were in the house, appellant has entered the house and dragged PW3 insisting her to accompany him to his house and share the bed. It is at this juncture, PW2 intervened and asked the appellant about his illegal act and entry into the house. Further, the appellant is said to have assaulted him with the chopper which he had brought from his house. When PW2 fell to the ground, PW1 questioned the appellant and at that time, appellant threatened PWs.1 and 2 that he would finish them and take PW3 to his house and keep her as kept mistress.
9. It is no doubt true that PWs.1 to 3 are the interested witnesses, but that itself is not a ground to reject the case of prosecution. As the incident has taken place in the house of PW1 that too in night hours, the possibility of persons outside the house seeing this incident 9 Crl.A.No.201/2006 is not probable. As could be seen from the evidence of witnesses, it appears that PW3 - Gowramma is an respectable woman of the family of PW1 - Naga and it can't be accepted that she would make false grievance about the act of accused outraging her modesty and teasing her on the way and even asking her to come and sleep with him.
10. Furthermore, the prosecution has examined PW9 - Dr.G M Puttamadaiah and his evidence reveals that Pws.1 and 2 were treated by him on 06.04.2002 in 12.00 midnight and on examination of PW1- Naga, he found a) Contusion wound on the right side on the neck measuring 2 x 10 cms, b) Lacerated wound on the right clavicular region ½ x ½ cms and c) Abrasions two in number on the right knee each measuring 1 x 1 cms. The wounds were fresh at the time of examination. Ex.P6 is the injury certificate of PW2 - Sannegowda and it reveals that he has 10 Crl.A.No.201/2006 sustained lacerated wound on the forehead above the right eyebrow 5 x 1 cms bone deep and there was bleeding. The doctor has certified that both these injuries sustained by PWs.1 and 2 are simple in nature. He opines that such injuries can be caused by assault with an chopper. Both PWs.1 and 2 were examined in the midnight and the incident has taken place at about 10.00 p.m. and immediately they were shifted to hospital for the purpose of treatment. In the injury certificate PW9 - Dr.G M Puttamadaiah has made a mention that history of assault was by Boregowda i.e., the appellant. Apart from treating the injured, the immediate information which was recorded by PW9 is in relation to the assault by the appellant assumes more importance. Therefore, the evidence of PW9 has more weight and the fact that the appellant's name was recorded by PW9 strengthens the evidence of PWs.1 and 2.
11 Crl.A.No.201/2006
11. It is well established principle of law that generally, the injured does not implicate an innocent and does not leave the person who has really caused harm. In the context of this principle if the evidence of injured is scrutinized, it is consistent, cogent and trustworthy. There is no necessity that PWs.1 and 2 have falsely implicated the appellant in this crime. Their evidence does not reveal any enmity between them and the accused, except stating the act of teasing PW3, therefore, the evidence of these witnesses is acceptable as trustworthy.
12. PW4 - Kempegowda and PW5 - Prakash were staying in the neighboring house and only after hearing about this incident, they came to the house of PW1 - Naga and saw the injured Pws.1 and 2 and also the appellant (accused) who was present at that time. Though these two witnesses are also interested witnesses to some 12 Crl.A.No.201/2006 extent, their evidence corroborates with the evidence of Pws.1 to 3. So, the material placed on record is sufficient to conclude that the incident of assault and outraging the modesty of PW3 did occur in the house of PW1.
13. As could be seen from the defence that has been set up by the appellant, he has examined DWs.1 and 2. DW1 - Hanumantha states in his evidence that at the time when the incident took place, there was a drama in the village and both DW1 and the appellant were in the drama till morning hours of the said night. This evidence of DW1 appears to be false solely for the reason that material placed on record by the prosecution proves the incident beyond reasonable doubt. DW2 - Krishnegowda has stated in his evidence that PW1 was insisting for money under the guise of case which was registered. Anyhow, the scrutiny of defence evidence on record does not inspire confidence of the Court. 13 Crl.A.No.201/2006
14. Taking into consideration of all these circumstances, I am of the opinion that there is ample material on record to prove the act of appellant i.e., the criminal trespass into the house of PW1 and outraging the modesty of PW3 the wife of PW1 and causing assault on Pws.1 and 2. Therefore, I am of the opinion that the appellant has not made out any grounds to warrant interference in the order of conviction.
15. Learned Amicus Curiae for the appellant requests the Court for a lenient view so far as the sentence is concerned.
16. Perusal of material goes to establish the act of atrocity on PW3 - Gowramma, the wife of PW1 - Naga. Apart from teasing PW3 outside the house, the appellant was dare enough to enter the house of PW1 and assaulted on PWs.1 and 2 and dragged PW3, the wife of PW1 asking her to accompany him and share the bed. So this 14 Crl.A.No.201/2006 material placed on record does not persuade the mind of this Court to reduce the sentence that has been ordered by the Trial Court for each of the offences. In that view of the matter, I do not find any merit in this appeal.
In the result, the appeal is dismissed. Conviction and sentence ordered by the Trial Court is confirmed. The Trial Court is directed to secure the presence of appellant to undergo the sentence. But anyhow, the appellant is entitled to set off under Section 428 Cr.P.C.
The fee of Amicus Curiae is fixed at Rs.5,000/- and the State shall pay the same.
Sd/-
JUDGE *bgn/-