Karnataka High Court
State Of Karnataka By The Sakarayapatna ... vs Krishnegowda @ Murthy on 5 September, 2012
Bench: Dilip B.Bhosale, S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JUNE 2012
PRESENT
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
CRL.A.NO. 756 OF 2007
BETWEEN:
STATE OF KARNATAKA BY
THE SAKARAYAPATNA POLICE
STATION
....APPELLANT
(BY SRI. P.M. NAWAZ, ADDL. SPP FOR STATE)
AND:
KRISHNEGOWDA @ MURTHY
S/O. GOPALAKRISHNEGOWDA
AGED ABOUT 51 YEARS
AGRICULTURIST
R/O. BILIKALLANAHALLI VILLAGE
LAKYA HOBLI, CHIKMAGALUR TALUK ...RESPONDENT
(BY SRI. ARUN SHYAM, ADV., )
THIS CRL.APPEAL FILED U/S. 378 (1) AND (3) CR.P.C. BY
THE STATE P.P. FOR THE STATE PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGMENT DT: 06.12.2006 IN S.C.NO.131/2005
2
ON THE FILE OF THE PRL. SESSIONS JUDGE, CHICKMAGALUR
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S. 366-A, 368, 376 AND 506 OF IPC R/W SEC 3 AND 25 OF
I.A. ACT 1959.
THIS CRL.APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING
(ORAL JUDGMENT) B.V.PINTO J.,
This appeal is filed by the State challenging the Judgment dated 6.12.2006 passed by the Prl. Sessions Judge, Chikmagalur, in SC No.131/2005 acquitting the respondent-accused for the offence punishable under Sections 366-A, 368, 376 and 506 IPC r/w Sections 3 and 25 of Indian Arms Act, 1959. The parties are referred as per their rank before the trial Court.
2. It is the case of the prosecution that on 31.8.2005 at about 3.00 p.m. at Gungaravalli village of Lakya Hobli, Chikmagalur Taluk, the accused abducted CW3-Jyothi-a mentally challenged girl and concealed her in a temporary hut erected in his sugarcane land situated in Sy.No.98 of Srinivasapura village with an intention of 3 subjecting her to his unnatural lust and thereby he is alleged to have committed an offence under Section 368 IPC. It is the further case of the prosecution that the accused committed rape on Jyothi in the said hut from 31.8.2005 to 5.9.2005 punishable under Section 376 IPC. It is the further case of the prosecution that on 5.9.2005 when PW1 accompanied by PW7, PW8, CW12, CW14, CW15 and CW16 came to the hut in search of CW3, the accused was found to have committed criminal intimidation by threatening them with dire consequences at gun point, thereby he is alleged to have committed offence under Section 506 IPC. It is further alleged that at the place of incident, the accused was in possession of a S.B.M.L. gun marked as MO3 without a valid licence provided under Section 25 of Indian Arms Act, 1959 and the Rules thereunder thereby he is alleged to have committed offence under Section 3 r/w section 25 of the Arms Act, 1959.
3. On securing the presence of the accused, the investigation was conducted by PW16-CPI who recorded the statement of PW2 the mother of the victim as the girl 4 did not respond to any one except her mother, and thereafter the victim was subjected to medical examination and it was found that the victim was mentally retarded. After completion of the investigation, charge sheet for the aforesaid offences was filed.
4. The accused denied the charges levelled against him. Thereafter, during the course of trial, prosecution in order to prove its case, examined in all 19 witnesses and got marked Exs.P1 to P22 and produced Mos.1 to 5.
5. The defence of the accused is one of total denial. It is his case that his brother was contesting against one Puttegowda in the panchayat elections. The complainant-PW1 being an employee of the said Puttegowda, filed a false case against him. He has not examined any defence witnesses nor produced any documents in support of his case.
6. The trial Court, after hearing the prosecution and the defence, came to the conclusion that the evidence 5 led by the prosecution is not sufficient to hold that the accused is guilty of any of the charges levelled against him. Therefore the trial Court passed an order of acquittal. Being aggrieved, the State is in appeal.
7. We have heard Sri P.M.Navaz, learned Addl. SPP and Sri Arun Shyam, learned counsel for the accused. We have perused the materials on record.
8. It is submitted by the learned Addl. SPP that the material placed on record indicates that the victim CW3 could not be examined since the doctors have opined that she was mentally retarded and dumb and hence the learned Addl. S.P.P. fairly submits that the material placed on record by the prosecution does not lead to the conclusion that the accused is guilty of offence under Section 376 IPC. However, he submits that the offence under Section 368 IPC is clearly made out from the materials on record so also an offence under the Indian Arms Act. In view of the said submission on behalf of the State, we do not enter into any discussion regarding maintainability or otherwise for an order of acquittal 6 passed by the learned Magistrate insofar as offence under Section 376 of IPC is concerned.
9. He further submits that the evidence of PW1 the father of victim and PWs.4 to 8 clearly establishes that the victim was in the company of accused from 31.8.05 to 5.9.05 and in respect of the said period three witnesses have spoken about the presence of victim with the accused. He also further submits that PWs.1, 4 to 8 have categorically stated that when they went to the house of the accused on 5.9.05, the victim was present in the shed along with the accused. He, therefore submits that in view of the fact that the victim was a dumb girl and was mentally retarded, her presence having been established, the provisions of Section 361 IPC are attracted and therefore, the accused may be convicted for the offence under Section 368 IPC.
10. It is further submitted by him that all the witnesses namely PWs.1, 4 to 8 have categorically stated that when they went to the house of the accused on 5.9.05, the accused exhibited S.B.M.L. gun and pointed 7 the same at them and threatened them. It is the further submission that PW16-CPI has recovered the gun at the instance of the accused and produced the same before the Court.
11. Ex.P18 is the sanction order issued by the District Magistrate for prosecuting the accused for the offence under Indian Arms Act and therefore, it is submitted that the accused ought to have been convicted for the offence under Section 25 of the Indian Arms Act. He, therefore, submits that the appeal may be allowed and the accused may be convicted.
12. Learned counsel for the accused on the other hand submits that though the prosecution has examined as many as six witnesses to show that the victim was in the company of the accused, the evidence of none of the witnesses has inspired the confidence and therefore, the trial Court has rightly disbelieved the version of the witnesses. Hence, he submits that the order of acquittal passed by the learned trial Judge may be confirmed and the appeal may be dismissed. He also submits that the 8 reasoning assigned by the trial Court and the evidence on record shall have to be taken into consideration in an appeal and having regard to the established principle of law he submits that, there is nothing perverse or against the evidence on record in the judgment of the trial Court and hence he submits that the appeal may be dismissed. He further submits that, in the event of this Court finding the accused guilty of offence under Section 368 of IPC, he may be shown leniency as he is aged about 62 years and he has already undergone imprisonment during the undertrial stage to an extent of one year two months. He further submits that in view of the contradiction between evidence of the eye-witnesses and the evidence of the I.O. in recovering M.O.3-gun, the order of acquittal insofar as offence under Section 25 of the Arms Act may not be disturbed.
13. We have carefully perused the materials on record, more particularly, the evidence of PW1-the father, PWs.10 to 13 and 17 the doctors in order to arrive at the conclusion as to whether the order of trial Court is 9 perverse or against the evidence on record insofar as offence under Section 376 IPC is concerned. In view of the submissions of the learned SPP regarding the non-availability of sufficient material to convict the accused for the offence punishable under Section 376 IPC and in view of the fact that the victim could not be examined before the Court, we hold that the order of acquittal passed in favour of the accused insofar as offence under Section 376 of IPC is concerned is sound and proper and does not call for interference in this appeal.
14. So far as the offence under Section 368 of IPC is concerned, we have carefully perused the evidence of PW1-the father of the victim, PW4-the hotelier who says that he has seen the victim along with the accused on 31.8.05, PW5 who has also categorically stated that he had seen the accused and CW3 while he was returning to his house in the hut of the accused put up in his land and PW6 who has also stated that he has seen the victim along with the accused on 4.9.05 while he was returning from the garden driving his tractor at about 6.00 pm. and the 10 evidence of PWs.7 and 8 who had visited the house of the accused on 5.9.05, stating that the victim was found along with the accused and also the fact that there is virtually no effective cross-examination regarding the evidence tendered by these witnesses that the victim was found in the company of the accused, we are of the opinion that the prosecution has established that between the period 31.8.05 to 5.9.05 the victim CW3 was in the company of the accused in his hut. It is to be noted that the medical evidence as tendered by PW10 clearly indicates that the victim was mentally retarded and the said aspect has not at all been challenged by the accused in the cross-examination except putting a suggestion and therefore, the prosecution has established that the victim was a mentally challenged girl. In the circumstances, we have carefully scrutinised the material on record and we find that CW3-Jyothi was in the company of the accused and that she was mentally retarded and necessarily of unsound mind as defined under Section 361 of IPC. We have no hesitation, therefore, to hold that the accused is guilty of the offence punishable under Section 368 of IPC 11 and therefore the judgment of the trial Court insofar as the acquittal of the accused for the said offence is not based on record and deserves to be reversed. Even in the statement under Section 313 of Cr.P.C. the accused has not come out with any proper explanation, more particularly to question No.29, wherein a specific question was posed to him, he has not explained as to exactly which girl was with him on that day. If at all the victim was not present on that day, it is his responsibility under Section 313 of Cr.P.C. to explain the circumstances appearing against him, which burden has not been discharged by him in answer to the said question. The purport of Section 313 of Cr.P.C. is only to give a fair opportunity to the accused to defend himself and explain away the circumstances appearing against him. He has not explained before the Court as to who was with him during the period from 31.8.05 to 5.9.05 in respect of which aspect number of witnesses say that one girl was present with him. Therefore, on a careful preponderance of evidence record, we come to the conclusion that the prosecution has proved guilt of the accused for an offence 12 under Section 368 of IPC and the accused deserves to be convicted for the said offence.
15. So far as the offence under Section 25 of the Arms Act is concerned, it is the evidence of eye witnesses that the accused took a gun and ran away from the house when PW1 and other villagers went to his house and the victim was found in the house. The evidence of the I.O. is to the effect that the gun was recovered in the hut itself under the cot of the accused. The learned trial Judge has disbelieved the version of the I.O. so far as recovery is concerned holding that the accused would not have returned back to the house and kept the same under the cot. We are of the opinion that the finding of the trial Judge insofar as this aspect is concerned is possible and therefore, acquittal of the accused for the said offence, in our considered opinion also does not call for any interference.
16. Insofar as punishment under Section 368 of IPC is concerned, we have heard learned counsel for the accused. Insofar as the sentence of imprisonment to be 13 imposed on the accused is concerned, it is submitted by him that the accused is aged about 62 years and that he has already undergone sentence of one year two months as an undertrial prisoner. Though we find that the said sentence is inadequate for the gravity of the offence committed by him, having regard to the fact that the incident occurred in the year 2005 and as many as seven years have lapsed from the date of the incident, we are of the opinion that the sentence for the period already undergone alongwith fine would be sufficient punishment that could be imposed for the offence under Section 368 of IPC committed by the accused.
In view of the above, we pass the following order:
i. The appeal filed by the State is hereby partly allowed.
ii. The order of acquittal passed by the trial Court for offences under Sections 376 IPC, 506 IPC and Section 25 of the Arms Act is hereby confirmed.
iii. The judgment of acquittal passed against the accused for the offence under Section 368 IPC 14 is hereby set aside and he is convicted for the said offence and he is sentenced to undergo imprisonment for the period already undergone and to pay fine of `5,000/- in default of payment of fine, he shall undergo simple imprisonment for three months.
iv. The accused is given four weeks time to deposit the fine amount.
v. The entire fine amount of `5,000/- shall be paid as compensation under Section 357 Cr.P.C. to the victim through PW1 or PW2 (father or mother).
vi. The trial Court is directed to enforce the above order in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE TL 15 DBBJ & SNSJ:
5.9.2012 I.A.1/12 IN CRL.A.756/2007 This application is filed by the respondent-accused seeking correction in the judgment and order passed by the Division Bench dated 4.6.2012 (Justice Dilip B. Bhosale and Justice B.V.Pinto).
He placed certified copy of the judgment before us and invited our attention to the operative portion of the order and submitted that certain words are missing in the copy of the order issued to the accused.
We perused the original judgment. We do not find the errors in the original judgment signed by us, as are seen in the certified copy. In order to notice the difference in the operative portion of the order in the original judgment and the certified copy, we reproduce the operative portions in both, which read thus:
Operative portion in the original judgment reads thus:
i. The appeal filed by the State is hereby partly allowed.16
ii. The order of acquittal passed by the trial Court for offences under Sections 376 IPC, 506 IPC and Section 25 of the Arms Act is hereby confirmed.
iii. The judgment of acquittal passed against the accused for the offence under Section 368 IPC is hereby set aside and he is convicted for the said offence and he is sentenced to undergo imprisonment for the period already undergone and to pay fine of `5,000/- in default of payment of fine he shall undergo simple imprisonment for three months.
iv. The accused is given four weeks time to deposit the fine amount.
v. The entire fine amount of `5,000/- shall be paid as compensation under Section 357 Cr.P.C. to the victim through PW1 or PW2 (father or mother).
vi. The trial Court is directed to enforce the above order in accordance with law.
Operative portion in the certified copy reads thus:
i. The appeal filed by the State is hereby partly allowed.17
ii. The order of acquittal passed by the trial Court for offence under 376 IPC, 506 IPC and Section 25 of the Arms Act is hereby confirmed.
iii. The judgment and acquittal passed against the accused-accused for the offence under Section 368 IPC is hereby set aside and he is convicted for the offence under Section.... For the said offence and sentenced to undergo imprisonment for the period already undergone and to pay fine of `5,000/- and to undergo further imprisonment for three months.
iv. The accused is given four weeks time to deposit the fine amount of `5,000/- awarded by the trial Court.
v. The entire amount of `5,000/- shall be paid as compensation under Section 357 Cr.P.C. to the victim and to PW1 and PW2 (father and mother).
vi. The trial Court is directed to enforce the above order in accordance with law.
In view thereof, we have perused the body of the judgment in the certified copy also and we find some errors therein. It appears that through inadvertence, draft judgment was saved and uploaded to the server as 18 final judgment. We do not find any such mistake/error in the final/original judgment. In the circumstances, we issue the following directions:
i. The Court officer is directed to take the certified copy placed by learned counsel for the accused in custody.
ii. The copying section as well as the scanning section, with the assistance of the concerned judgment writer, are directed to delete the draft judgment that was uploaded to the server and in its place, original judgment be scanned and uploaded forthwith.
iii. In the operative portion of the judgment, we had given four weeks time to the accused to deposit the fine amount of Rs.5,000/- awarded by the trial Court. The time to deposit is extended by four weeks from today.
iv. After the original judgment is uploaded to the server, fresh certified copy of the judgment be issued to the accused and the certified copy taken in custody today shall be destroyed.
Sd/-
JUDGE Sd/-
JUDGE TL