Karnataka High Court
Sri Sunil Kumar Behara vs The State Of Karnataka on 10 August, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:28418
CRL.A No. 1164 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1164 OF 2011
BETWEEN:
SRI. SUNIL KUMAR BEHARA,
S/O VIJAYA SARADHI
AGE: 30 YEARS,
R/O FLAT NO. 303, "B" BLOCK
NANDISH PARK APARTMENTS
MATHIKERE, BANGALORE-560 054.
...APPELLANT
(BY SRI RAVI.B.NAIK, SENIOR COUNSEL FOR
SRI.VIJETHA.R.NAIK, ADVOCATE)
AND:
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI THE STATE OF KARNATAKA,
Location: HIGH
COURT OF (THROUGH CUBBON PARK POLICE)
KARNATAKA
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE.
...RESPONDENT
(BY SRI. RENUKARADHYA.R.D, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:3.11.11 PASSED BY THE P.O.,
FTC-V, BANGALORE IN S.C.NO.97/10 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 342 AND 354
OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO TO
PAY A FINE OF RS.1,000/- AND IN DEFAULT TO UNDERGO S.I.
FOR 10 DAYS FOR THE OFFENCE P/U/S 342 OF IPC. AND THE
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CRL.A No. 1164 of 2011
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR
SIX MONTHS AND TO PAY A FINE OF RS.5,000/- AND IN
DEFAULT TO UNDERGO S.I. FOR ONE MONTH. FOR THE
OFFENCE P/U/S 354 OF IPC.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of conviction and order of sentence dated 03.11.2011 passed in S.C. No.97/2010 by the Presiding Officer, Fast Track Court-V, Bengaluru City, convicting the appellant/accused for the offences punishable under Sections 342 and 354 of IPC, sentencing to undergo simple imprisonment for 6 months and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for 1 month for the offence punishable under Section 354 of IPC and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for 10 days for the offence punishable under Section 342 of IPC.
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NC: 2023:KHC:28418 CRL.A No. 1164 of 2011
2. The factual matrix of the case is that:-
On 20.03.2009 at about 10:45 a.m. the appellant/accused is stated to have taken PW.5(CW.1) in his car bearing Regn.No.KA-03-MH-4845 for seminar at Vasantha Nagar at Francis Alliance and from there he induced PW.5 and took her to his apartment No.303 situated at Nandish Park, Mutyalanagar and there he showed PW.5 pornographic film on his laptop and induced her for sexual intercourse and he also had an intention of having bodily contact with her and he misbehaved with her and he dragged her and tried to kiss and hug her and wrongfully restrained her. PW.5 filed a complaint on 02.04.2009 and Cubbon Park Police registered the same in Crime No.102/2009 for offences punishable under Sections 342, 354 and 366 of IPC. After investigation charge sheet came to be filed for the said offences against the appellant/accused. As one of the offence is triable by Sessions Court, the case came to be committed to the Sessions Court. The Sessions Court framed charges -4- NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 against the appellant/accused for the offences punishable under Sections 342, 354 and 366 of IPC. The prosecution examined 7 witnesses as PWs.1 to PW.7 and got marked 6 documents as Exs.P1 to P6 and one property as MO.1. The accused has examined one witness on his behalf as DW.1 and got marked 7 documents as Exs.D1 to D7. The statement of the accused has been recorded as required under Section 313 of Cr.P.C.
3. After hearing the arguments of both the sides the Trial Court framed the points for consideration and convicted the appellant/accused for offences punishable under Sections 342 and 354 of IPC and acquitted for offence punishable under Section 366 of IPC. The said judgment of conviction and order of sentence had been challenged by the appellant/accused.
4. Heard the arguments of leaned senior counsel Sri.Ravi B Naik alongwith the learned counsel on record for the appellant and learned High Court Government Pleader for the respondent - State.
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NC: 2023:KHC:28418 CRL.A No. 1164 of 2011
5. Learned senior counsel for the appellant would contend that, the alleged date of offence is 20.03.2009 and the complaint came to be filed on 02.04.2009 and there is a delay of more than 12 days in filing the complaint. The appellant/accused has refused to marry the complainant-PW.5 as she is addicted to alcohol and attending parties and consuming alcohol. The complainant-PW.5 has requested the appellant/accused to marry her and as appellant/accused refused, she lodged a false complaint against him. There is no material on record to show that, the laptop-MO.1 seized at the instance of the appellant/accused did contain any pornographic video and it has been played on 20.03.2009. The evidence of DW.1 clearly establishes that, the said laptop has not been opened on 20.03.2009. PW.5 sent E- mail on 21.03.2009 to PW.2 and he after enquiry sent complaint-Ex.D2 to Police on 25.03.2009, but, as per the evidence of PW.7-Investigation Officer, no such complaint has been received by them. The copy of E-mail which has -6- NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 been sent by PW.5 dated 21.03.2009 is at Ex.D1. The photos Exs.D4 to D6 reveal that the complainant-PW.5 has participated in the party where members consumed alcohol. The house of the appellant/accused is in apartment building consisting of nearly 85 flats, if any incident has taken place the neighbors ought to have come to know about the same. Even though PWs.3, 4 and 6 came to know about the incident through PW.5 on the date of incident when they met PW.5 in M.G. Road they also did not choose to file any complaint. The said aspect goes to show that, a false complaint has been registered against the appellant/accused. Even though laptop has been seized, the prosecution has not made any efforts to get it played to establish that it contained pornographic video. The Investigation Officer-PW.7 who seized the laptop under mahazar Ex.P3 did not speak about the contents of the laptop. The evidence of PW.5- complainant/victim is not reliable as she had grudge against the appellant/accused, as he refused her request to marry her. Even PW.2-Human Resource Manager in -7- NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 Altron Technologies Private Limited, where this complainant and appellant/accused were working even after receiving E-mail dated 21.03.2009 has not chosen to file a complaint. Learned senior counsel submitted that, the offence punishable under Section 354 of IPC is follow up of offence punishable under Section 366 of IPC. The appellant/accused has been acquitted for offence punishable under Section 366 of IPC and therefore, he requires to be acquitted for offence punishable under Section 354 of IPC also.
6. The learned senior counsel has placed the reliance on the decision of Apex Court in the case of Rajendra @ Raju vs. State of Maharashtra reported in (2002) 7 SCC 3721. In the said case, the Hon'ble Apex Court has held that, in order to constitute an offence of abduction a person must be carried off illegally by force or deception and these two ingredients have not been established in the case and further held that, the appellant/accused asking PW.1 to have sexual intercourse -8- NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 with her in the presence of her 11 years old child and he allowed her to easily slip out of his hands from the lodge is also doubtful.
7. Learned senior counsel further argued that, now the appellant/accused is working in a different company, his father is on dialysis, mother is heart patient, his wife is not having any siblings and this appellant has to take care of his in-laws. After lapse of 14 long years, it is harsh to punish this appellant/accused sentencing him to undergo imprisonment. He further argued that, if the Court comes to the conclusion that, the appellant has committed the offences punishable under Sections 342 and 354 of IPC, he may be sentenced to fine alone.
8. Learned High Court Government Pleader would contend that, PW.5-complaiant was working under the appellant/accused who took her to his house, misbehaved with her and wrongfully restrained her from moving out of his house. PW.5 informed through her phone when she was in the bathroom in the house of the accused to PW.4 -9- NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 seeking her help as she is under trouble in the house of the accused/appellant. PW.4 inturn intimated the same to PW.3 and PW.6. PW.5 sent an E-mail dated 21.03.2009 to PW.2 and the contents of that E-mail corroborates the averments made in the complaint - Ex.P2. The delay in filing the complaint has been properly explained by the prosecution. The appellant/accused failed to establish that due to grudge, PW.5 filed a complaint against the appellant/accused as he refused to marry her. The appellant/accused has held the victim-PW.5 and tried to kiss and hug her. The documents marked as Exs.D1 to D3 are consistent with complaint-Ex.P2 and evidence of PW.5. The victim was working under the accused and there is no question of filing any frivolous complaint against the accused. PW.5 has made a phone call immediately to PW.4 calling her to help her. Considering all the evidence on record, the Trial Court has rightly convicted the appellant/accused for offences punishable under Sections 342 and 354 of IPC.
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9. On the grounds made out and considering the arguments advanced, the following points arise for my consideration:-
i. Whether the Trail Court erred in convicting the appellant/accused for the offences punishable under Sections 342 and 354 of IPC?
ii. Whether sentence imposed on the appellant/accused for offence punishable under Section 354 of IPC requires to be modified and reduced to fine only?
10. My answer to point No.1 is in the negative and point No.2 in the affirmative for the following reasons:
11. PW.5-complainant/victim has filed complaint as per Ex.P2. The alleged incident has taken place on 20.03.2009 and the complaint-Ex.P2 came to be filed on 02.04.2009. PW.5 has deposed that, she accompanied the appellant/accused to a seminar and after the seminar was over, the accused/appellant took her to his house stating that he has to collect some documents from his house.
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NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 When she was sitting in the living room, he gave laptop to her to pass time and subsequently, he came and sat by her side and showed some photos of foreign trip and opened a pornographic movie on his laptop. Victim switched off the same, but the accused in spite of her request did not stop it. She further deposed that, the appellant/accused tried forcibly kissing and hugging her, he dragged her to his bed and tried to physically assault, some how she managed to push him away and ran into bathroom and locked inside. While in the bathroom she made a phone call to PW.4 (CW.7) and explained her the incident and PW.4 gave the said phone to PW.3 (CW.8) and she explained the same to PW.3. After some time, accused requested to her that, he has to attend the conference call in office at 4:00 p.m. and she came out of the bathroom and tried to run away towards front door but it was locked, any how, she got the door opened and ran to the road. As she left her purse in the car of the accused, at her direction, accused brought the same and gave it to her and she went in an Auto rickshaw to M.G.
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NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 Road where she met PWs.3, 4 and 6 and told them about the incident. The above evidence of PW.5 is corroborated by the evidence of PWs.3, 4 and 6, for having received phone call of PW.5 and meeting her at M.G. Road.
12. PW.5 has also deposed that she sent an E-mail to Human Resource Manager of her company on 21.03.2009. The said Human Resource Manager (PW.2) has deposed that he has received E-mail (Ex.D1) on 21.03.2009 and after enquiry, he lodged the complaint to the Police on 25.03.2009. PW.7-Investigation Officer has stated that they have not received any complaint dated 25.03.2009 sent by PW.2.
13. PW.5 subsequently filed a complaint on 02.04.2009 as per Ex.P2. The evidence of PWs.5, 2, 3, 4 and 6 explains about the delay in lodging the complaint.
14. The defence of the appellant/accused was that the request of PW.5 victim/complainant to marry the accused has been turned down by him as she was
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NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 addicted to alcohol and she was attending the parties and consuming alcohol. The suggestions in that regard have been denied by PWs.2 to 6. Nothing has been elicited in cross examination of PWs.2 to 6 to establish the said defence. Exs.D4 to 6 are the photographs, produced to show that PW.5 has participated in the party along with other colleagues and holding alcohol glass. The said photographs do not establish the entire defence of the appellant/accused that victim proposed the accused to marry her and he refused as she was addicted to alcohol.
15. The evidence of DW.1 establishes that, the laptop-MO.1 has not been opened on 20.03.2009 even if the said allegation of the accused opening pornographic movie in the said laptop showing it to PW.5 is excluded, then also the other evidence of PW.5 establishes the ingredients of offence punishable under Sections 342 and 354 of IPC. The Trial Court considering all these aspects and rightly appreciating the evidence on record, has
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NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 rightly held that the appellant/accused has committed offences punishable under Sections 342 and 354 of IPC.
16. The appellant/accused has been sentenced to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for 10 days for offence punishable under Section 342 of IPC. Considering the facts of the case, the said sentence for offence punishable under Section 342 of IPC is adequate and proper.
17. The appellant/accused has been sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for 1 month for offence punishable under Section 354 of IPC.
18. The learned senior counsel for the appellant has submitted that, now the appellant is working in a different company, his father is on dialysis, his mother is heart patient, he is the only son-in-law and his in-laws are not having any other children and he has to look after his in-
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NC: 2023:KHC:28418 CRL.A No. 1164 of 2011 laws and it will be harsh for him to undergo simple imprisonment for the incident which has taken place 14 long years ago.
19. Section 354 of IPC prior to amendment by Act 13 of 2013 reads as under:-
Assault or criminal force to woman with intent to outrage her modesty:- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
20. The incident has taken place on 20.03.2009 i.e., prior to the amendment Act 13 of 2013. On reading of the said provisions contained in Section 354 of IPC, punishment provided for the said offence is imprisonment of either description for a term which may extend to two years, or with fine, or with both.
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21. The incident has taken place on 20.03.2009, 14 years ago. The act of the appellant/accused is that he tried to kiss and hug the complainant. Considering the said aspect and that the appellant/accused is now working in a different company, having ailing parents, to look after his in-laws, if he is sentenced to pay a fine alone will serve the ends of justice. In the result, the following:-
ORDER i. The appeal is allowed-in-part.
ii. The conviction of the
appellant/accused for offences
punishable under Sections 342 and
354 of IPC is confirmed. The
sentence imposed for offence
punishable under Section 342 of IPC
is also confirmed.
iii. The sentence imposed for offence
punishable under Section 354 of IPC
is modified.
iv. The appellant/accused is sentenced
to pay only fine of Rs.50,000/- and
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CRL.A No. 1164 of 2011
in default of payment of fine to
undergo simple imprisonment for 1
month for offence punishable under
Section 354 of IPC.
Sd/-
JUDGE
HKV
List No.: 1 Sl No.: 15