Karnataka High Court
M C Jaya vs The State Of Karnataka on 18 November, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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NC: 2023:KHC:41428
CRL.RP No. 1066 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1066 OF 2016
BETWEEN:
1. M.C. JAYA
S/O LATE CHAKARU
AGED ABOUT 40 YEARS
R/AT HOOKADU PAISARY
Digitally signed
by SHARANYA T KAGGODLU VILLAGE
Location: HIGH MADIKERI TALUK
COURT OF KODAGU DIST-571201.
KARNATAKA
...PETITIONER
(BY SRI. D.P. PRASANNA, ADV.,)
AND:
1. THE STATE OF KARNATAKA
BY MADIKERI RURAL POLICE
KODAGU DISTRICT-571201
REP. BY SPP
HIGH COURT OF KARNATKA
BENGALURU.
...RESPONDENT
(BY SRI. M. DIWAKAR MADDUR, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE PASSED BY THE PRL. CIVIL JUDGE AND JMFC,
MADIKERI, KODAGU IN C.C.NO.634/2014 DATED 22.12.2014
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NC: 2023:KHC:41428
CRL.RP No. 1066 of 2016
AND IN CRL.A.NO.12/2015 OF I ADDL. DIST. AND S.J.,
KODAGU, MADIKERI, VIDE ITS JUDGMENT DATED 10.08.2016.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The factual matrix of the case of the prosecution is that on 23.02.20214 at about 4.00 p.m., when the PW1 was went to borewell in order to bring water, at that time her village person i.e., accused who is the neighbour was standing there and with an intention to commit rape the accused came near to her and dragged her inside the coffee plantation and at that time, she made hue and cry, on hearing her hue and cry her mother and Umesh who is the neighbour of her house came there and the accused on seeing them he ran away from the coffee plantation. The said fact informed to the brother i.e., PW3 and he lodged a complaint on next day. The police have investigated the matter and filed the chargesheet against the accused for the offences punishable under Section 354A of Indian Penal Code. The accused was summoned and he appeared -3- NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 before the Trial Court and not pleaded guilty and claims Trial. Hence, the prosecution examined PW1 to PW6 and got marked Ex.P1 to Ex.P3. The Trial Court having considered the oral and documentary evidence of PW1 to PW6 and documentary evidence, convicted the accused for the offence punishable under Section 354(A) of Indian Penal Code and imposed the fine of Rs.10,000/- and sentenced to undergo imprisonment for two years and in default of payment of fine he shall undergo simple imprisonment for two months.
2. Being aggrieved by the judgment of conviction and sentence by the Trial Court, an appeal is filed before the appellate Court. The appellate Court having considered the grounds urged in the appeal formulated the points as whether the judgment of conviction of the appellant and the order of sentence imposed on him for the offence punishable under Section 354(A) of Indian Penal Code is legal and valid and whether the judgment of the Trial Court calls for any interference. The First Appellate Court -4- NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 having considered both oral and documentary evidence available on record answered both the points partly in the affirmative and confirmed the judgment of the Trial Court and modified the judgment by reducing the sentence for 6 months instead of 2 years and in default of payment of fine, ordered to undergo simple imprisonment for 2 months.
3. Being aggrieved by the judgment of the Trial Court and the Appellate Court and the present revision petition is filed before this Court. The main contention of the revision petitioner before this Court is that the appellate Court gravely erred in upholding the judgment of conviction and sentence. The counsel for revision petitioner would vehemently contend that the Court below utterly failed in appreciating the evidence and materials placed on record and there is an inordinate delay of one day in filing the complaint. The prosecution has examined 6 witnesses and all are interested witnesses and believed the evidence of interested witnesses.
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016
4. The counsel also vehemently contend that the PW1 who is the alleged victim has treated hostile in part but only when the suggestions are made by the learned assistant public prosecutor and the same is admitted. The Trial Court and the appellate Court fail to take note of place of the incident and there are 200 houses admittedly and all the family members of 200 houses are getting water from the said borewell and also in the cross- examination admitted that at the distance of 10 feet there is a shop and always the residents of the village will be there near the said borewell and question of dragging the PW1 does not arise. Even the PW1 has admitted that she has not sustained any injury when she was forcibly dragged to the coffee plantation. The witnesses are also the interested witnesses, PW2 is the mother of the PW1 and the PW3 is the brother of the PW1 and PW5 is the other witness who is the friend of PW3 and according to the prosecution who was along with the PW2 and his evidence is also not credible and he categorically admits that when the accused dragged the PW1, he was not -6- NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 present at the spot and also he categorically admits that he is the friend of CW4 and also categorically admits that he came to know about the incident through CW2 and also he did not hear the hue and cry of the PW1 and these are the admissions which were not taken note of by the Trial Court while appreciating the evidence available on record and the appellate Court has also fails to take note of these materials and all the witnesses have admitted that the place of the incident is located within the vicinity of 200 houses and the same is a busy place and hence both the Courts have committed an error in appreciating the evidence available on record and the judgment of the Trial Court and the appellate Court suffers from its legality and correctness since both the Courts have fail to appreciate evidence available on record.
5. Per Contra the counsel appearing for the State would vehemently contend that PW1 though not fully supported the case of the prosecution and she categorically states that the incident was taken place at -7- NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 6.00 p.m., and she went to borewell to get the water, at that time, this revision petitioner held her hand and dragged her to the coffee plantation, she felt uneasiness and the CW2 and CW3 came and took her and at that time the revision petitioner was along with him and the PW1 has also identifies the signature in the mahazar-Ex.P2 and also in Ex.P1 i.e., complaint.
6. The counsel would vehemently contend that the PW1 was not supported the case in entirety, but during the course of cross-examination of Assistant Public Prosecutor admitted all the suggestions with regard to the contents of the complaint. Hence, both the Courts have relied upon the evidence of PW1 and also the evidence of PW2 who heard the hue and cry of the victim-PW1 and she also not supported, the PW3 is brother who came to know about the incident on the very same day over the phone and he came and lodged the compliant. Though the PW4 not supported the case of the prosecution, PW5 who was along with PW2 categorically deposes that he went along -8- NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 with PW2 to the spot and found the CW1 was coming out of the said coffee plantation and this petitioner was inside the coffee plantation, though he treated as hostile to certain extent but he admitted the suggestion made by the Assistant Public Prosecutor in his cross-examination. The Trial Court taking into note of the evidence of PW1 to PW3 and PW5 rightly convicted the accused and the appellate Court has also modified the sentence having confirming the finding of the Trial Court and hence it does not requires any interference.
7. Having heard the revision petitioner's counsel and the counsel appearing for the State and also considering the material available on record i.e., the evidence of PW1 to PW6 and documentary evidence and also the grounds urged in the revision petition, the point that arises for consideration of this Court are: -9-
NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016
1) Whether the Courts below have committed an error in convicting the revision petitioner for the offence punishable under Section 354A of Indian Penal Code and the same suffers from its legality and correctness of the respective orders?
2) What Order?
POINT No:1
8. Having heard the respective counsels and also considering the case of the prosecution, it is an allegation that this petitioner dragged the PW1 on 23.02.2014 with an intention to commit rape on her in coffee plantation, having heard the hue and cry of the PW1, the PW2 and PW5 rushed to the spot and saved her and hence investigation has been conducted and charge sheet is filed. The prosecution mainly relies upon the PW1 to PW3 and PW5 and the PW1 is the victim and she has not supported the case of the prosecution and only she says that at
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 around 6.00 p.m., when she went to get the water from the bore well, this petitioner held her hand and dragged to coffee plantation and she felt uneasiness at that time. The PW2 and PW5 came and took her, at that the petitioner/accused was there along with her. No doubt this witness has turned hostile and cross examined by Assistant Public Prosecutor and she has admitted all the suggestions in the line of the compliant averments and also drawing of the mahazar in terms of the Ex.P2. It is important to note that this witness was cross examined and in the cross examination categorically admits that surrounding the said borewell there are 200 houses and people are residing in the said houses and the petitioner is also her neighbour and all the residents of the said colony draw the water from the said borewell and even surrounding the borewell also there are houses, each houses are located at the distance of 10 feet. The PW1 also admits that there is shop at the distance of 10 feet from the borewell and in the said shop people will be there after 3 'O' clock and 50 to 60 persons used to come to the
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 said shop. It is suggested that there was an enmity between the PW3 and this petitioner since earlier there was a galata and the same was disputed by PW1. The PW3 in his cross examination he admits that earlier there were quarrel between them but it was 5 years ago and in the cross examination also he admits they were not in talking terms but he volunteers that at the time of incident they were cordial and hence it is clear that earlier there was a quarrel between the PW3 and the petitioner.
9. It is also important to note that the PW3 says that he has received the information at 4.00 through the CW3 and the distance between the village and Madikeri is about 8 Kms., for every 10 minutes there were buses but he claims that on the date of incident itself he has given the information to the police, but the police did not visit the place. The other witness is PW2, who is the mother of PW1. PW2 says herself and CW3 rushed to the spot having heard the sound of hue and cry and she was subjected to cross examination. She also admits that this petitioner is
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 neighbourer of both of them and also he is a married person having three children and also admits that surrounding the borewell there are 200 houses.
10. The other witness is PW5. According to the prosecution, he was along with PW2. In his evidence he says that when CW2 making hue and cry, he enquired PW2 and she revealed the same and thereafter he himself and CW2 went to the spot and found PW1 and also the petitioner and both of them were in the coffee plantation. This petitioner was also treated as hostile in part and admits the suggestion made by the Assistant Public Prosecutor. But PW5 also admits that he is a auto driver and he is also a friend of PW3. He also admits location of borewell and categorically admits that he did not hear the hue and cry of PW1, but after the information given by PW2, he went to spot, but he did not hear the hue and cry of PW1, but he admits that when PW1 was returning from coffee plantation, no one was there along with her and also admits the distance between his house and borewell
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 is around 150 feet. He also admits that he did not witness the incident of dragging PW1 by petitioner.
11. Having considered both oral and documentary evidence with regard to the incident is concerned, first of all PW1 not narrated the incident how it was happened and only admitted when suggestion was made to PW1 by the Assistant Public Prosecutor. It is also important to note that, surrounding the borewell there are houses and each house is having a distance of only 10 feet and there were 200 houses and all the residence draw water from the very same borewell. It is also important to note that, at a distance of 10 feet there is a shop and also there is a clear admission that after 3 O'clock the people of the said residential area used to visit that shop and the said shop will be busy and 50 to 60 persons used to visit that shop and when such admission is found at the instance of PW1 as well as PW2, PW3 and PW5, it is highly difficult to accept the case of the prosecution and such borewell is located in the midst of those houses and also PW1
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 categorically admits that she has not suffered any injury. When she was forcibly dragged to the coffee plantation and there is also no medical evidence that she has sustained any injury in the said incident. The prosecution mainly relies upon the evidence of PW2 and PW5. Since it is the case of the prosecution that PWs and PW5 have rushed to the spot, but PW5 says that he did not hear the hue and cry of PW1 and he came to know about the same through PW2 that when PW2 making notice and also he did not witness the incident of dragging PW1 by the petitioner. It is also important to note that the defense of the petitioner that there was an enmity between PW3 and the petitioner and though PW1 denies the same, PW3 himself admitted that earlier there were quarrel and also he admits that he was not in talking terms with the petitioner and no doubt immediately he gives the reply that at the time of the incident they were in good terms. The evidence of PW5 is contrary to the evidence of PW2 and no doubt PW1 to PW3 are the interested witnesses and they are the mother, brother and sister and
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 independent witness is PW5. PW5 also treated as hostile and his evidence is also clear that he is a friend of PW3 and the same is admitted and when he comes to know about hue and cry through PW2 only and not heard any hue and cry of PW1 at the spot and PW5 also says that when PW1 was coming out from the coffee plantation, no one was there along with her and these are the contradictions are not considered by the Trial Court as well as the Appellate Court. When there are inconsistencies in the evidence of PW1, PW2 and PW5 and PW3 though he is the brother he was not at the spot and also one day delay in lodging the complaint and though PW3 claims that on the very same day he has given intimation to the police and police did not visit the spot and also no medical evidence to prove the fact that forcibly this petitioner dragged PW1 to coffee plantation and she categorically admits that she has not sustained any injury when she was forcibly dragged to the coffee plantation and hence it is very difficult to accept the case of the prosecution when the borewell is surrounding within the vicinity of the
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 people who are residing and there were 200 houses and all the members of the said houses were drawing the water from the very same borewell, when there is a shop at the distance of 10 feet and story of hue and cry is also not consistent and PW2 says different version and PW5 also gave different version and the evidence of PW1 is also not specific in the chief evidence. Only in the cross examination, accepted the suggestion and hence, the Trial Court as well as the Appellate Court ought to have weighed the evidence available on record in intrinsic value and the very evidence available before the Court not inspires the confidence of the Court to convict and sentence the revision petitioner and hence, both the Courts lost sight of the material available on record in appreciating the same in a proper and perspective manner and not a case of conviction. The evidence of the prosecution witness must credible. The fact that there was an ill-will between PW3 and the petitioner is also not ruled out in view of the admission given by PW3 and though immediately he gives a version that at the time of incident
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 they were cordial, but the fact that they were not in talking terms earlier also is not in dispute. Hence, both the Courts ought to have given the benefit of doubt in favour of the petitioner and the same has not been done. Hence, it is a fit case to exercise the revisional power, since both the Courts have ignored the material available on record particularly the admission and also location of the borewell within the precinct of 200 houses and also there is a categorical admission that surrounding the borewell there are houses and shop. Hence, the theory of the prosecution cannot be believed and answered the points as affirmative. POINT No.2:
In view of the discussions made above, I pass the following ORDER The revision petition is allowed.
The impugned judgments of the Trial Court as well as the Appellate Court are set aside.
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NC: 2023:KHC:41428 CRL.RP No. 1066 of 2016 The bail bonds executed by the petitioner stands cancelled.
The payment of fine amount made before the Trial Court is ordered to be refunded in favour of the petitioner on proper identification.
Sd/-
JUDGE RHS/AP List No.: 1 Sl No.: 23