Karnataka High Court
Ibrahim @ Dadu vs State Of Karnataka on 30 May, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 30th day of May 2018
Before
THE HON'BLE MR. JUSTICE B.A. PATIL
Criminal Appeal No.2529/2010
Between
Ibrahim @ Dadu,
S/o Sayyedsab Ghodesawar,
Aged 42 years, Occ: Taxi Driver,
R/o Gulganjikoppa,
Mehaboobnagar
Dharwad. ...Appellant
(By Sri. K. M. Shiralli, Advocate)
And
State of Karnataka,
By Mahila P.S. Hubli-Dharwad,
R/By S.P.P.,
High Court of Karnataka,
Circuit Bench, Dharwad. ...Respondent
(By Sri Raja Raghavendra Naik, HCGP)
This Criminal Appeal is filed under Section 374(2) of
the Criminal Procedure Code by the advocate for the
appellant praying that this Hon'ble Court may be pleased to
set aside the judgment and order of conviction dated
09.12.2009 passed in S.C.No.39/2006 by the Hon'ble
2
Principal District and Sessions Judge, Dharwad and acquit
the appellant/accused of the offences with which he has
been convicted and sentenced.
This Criminal Appeal having been heard, reserved for
judgment on 07.02.2018 and coming on for pronouncement
of judgment this day, the Court, delivered the following:
JUDGMENT
The present appeal has been preferred by the appellant/accused being aggrieved by the judgment of
conviction and order of sentence passed by the Principal Sessions Judge, Dharwad, in S.C. No.39/2006 dated 09.12.2009.
2. The genesis of the case of the prosecution is that the complainant, Smt. Naseerabanu was living with her husband and four children in Gulganjikoppa-Mahaboobnagar, Dharwad. Her husband was working as a betel-nut cutter, and she was attending neighbour's house as a domestic helper. It is the further case of the prosecution that complainant's elder son Asif was studying in a Kannada Medium School in Koppadakeri; her first daughter, the victim 3 girl, who was aged about 10 to 11 years, was studying in Urdu School; and the remaining two daughters were small kids. On 25.07.2003, as usual, the complainant and her husband had gone for work and her son Asif had gone to school. That day, being a Friday, was a holiday for Urdu school. The victim girl and her two siblings were in the house. It is further alleged that at about 12.00 noon, the victim girl, after washing the utensils belonging to the house came inside the house and just then, the accused trespassed into the house of the complainant, caught hold off the victim from behind and started fondling and kissing her. It is the further case of the prosecution that just then the elder brother of the victim i.e., Asif reached home and on seeing him, the accused is stated to have run away from the spot. At about 2.00 p.m., the mother of the victim girl i.e., the complainant reached home and on seeing the victim girl, she enquired as to what was the matter. On coming to know that the accused committed the act, as stated above, complainant informed the same to the elders of the Jamat, who assured to look into the matter. But the accused was not available for any discussion, and as such, 4 she was advised to lodge a complaint as against the accused. In that light, a complaint was filed. On the basis of the complaint, a case was registered in Crime No.116/2003 under Sections 451 and 354 of the Indian Penal Code. After investigation, the Investigating Officer filed charge-sheet as against the accused. After taking cognizance of the matter, the case was committed to the Court of Sessions. Thereafter, Sessions Court took the cognizance and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was framed. Accused pleaded not guilty and he claimed to be tried. As such the trial was fixed. In order to prove its case, the prosecution got examined P.Ws.1 to 20, got marked Exs.P.1 to P.18 and produced M.Os.1 to 8. After closure of the evidence, accused came to be examined under Section 313 of the Criminal Procedure Code. Accused did not lead any evidence. After hearing learned counsel for the accused and learned Public Prosecutor, the impugned judgment and order of conviction and sentence came to be passed. Assailing the same, the appellant is before this Court. 5
3. P.W.1 is the Head Constable who carried the FIR and complaint to the jurisdictional Magistrate. P.W.2 is the Head Constable who collected the sealed clothes of the accused. P.W.3 is the Police Constable who took the accused for the medical examination. P.W.4 is the Police Constable who carried the seized articles for chemical examination. P.W.5 is a panch witness to the seizure mahazar of the clothes of the accused and victim, as per Ex.P.3 and Ex.P.4. P.W.6 is the complainant and mother of the victim girl. P.W.7 is a panch witness to the spot mahazar as per Ex.P.5. P.W.8 is the victim girl in this case. P.W.9 is the brother of the victim girl, who came to the spot immediately after the incident. P.W.10 is the landlord who went to the place of the incident to receive the rent from the father of the victim and he was present at the time of alleged incident. But he has not supported the case of the prosecution and has been treated as hostile. P.W.11 is the doctor, who examined the accused and issued a medical certificate as per Ex.P.7. P.W.12 is the doctor who examined the accused and issued a certificate as per Ex.P.8. P.W.13 is the Assistant Executive Engineer who prepared the 6 sketch as Ex.P.9. P.W.14 is the Women Head Constable who took the victim to the hospital. P.W.15 is the Police Inspector who investigated the case and filed the chare-sheet against the accused. P.W.16 is the doctor who examined the victim and issued the certificate. PW.17 is the doctor who estimated the age of the victim. PW.18 is the Chairman of the Masque who called the accused to advise. As the accused did not turn up, this witness advised the complainant to lodge the complaint. PW.19 is the Women Police Inspector, who registered the case on the basis of the complaint as per Ex.P16. PW.20 is the Police Inspector who took further investigation and filed the charge sheet.
4. The main grounds urged by learned counsel for the appellant/accused are that the impugned judgment of conviction and order of sentence passed by the Trial Court is erroneous and not sustainable in law. It is his contention that the Trial Court has not properly considered and appreciated the improvements and omissions in the evidence of P.W.6 - mother of the victim, P.W.8 - the victim and P.W.9 - the brother of the victim. The said improvements and omissions, if 7 considered, would clearly go to show that no such incident had taken place as alleged by the complainant. He further contended that the prosecution has to prove its case on the basis of the allegations made and when a specific case has been made out and if it fails to prove the same, then the case of the prosecution ought not to be believed and the accused ought to be acquitted. In order to substantiate the said contention, he relied upon the decision of the Hon'ble Apex Court in the case of Pandurang Sitaram Bhagwat Vs. State of Maharashtra reported in 2005 Crl.L.J. 880. He further contended that the conduct of the victim and the complainant has to be seen and if the totality of the case is considered in its right perspective, the true genesis of the case would be that the prosecution's case is fabricated and concocted only to take revenge as against the accused. He further contended that the place of incident as per the evidence of P.W.8 is a narrow lane and about 30 to 40 people had gathered immediately after the incident, but no independent witnesses have been examined to substantiate the same. In that light, he contends that the evidence of the witnesses which have been produced does not 8 corroborate with each other, they are not trustworthy and not reliable. He further contended that no injuries are mentioned in the certificate issued by the doctor. If really the accused had committed any offence as alleged, definitely, there ought to have some injuries on the victim. He further contended that the evidence of P.W.9 - the brother of the victim clearly goes to show that he has not seen the incident and his evidence only discloses the fact that the accused was coming out of the house, and only on the basis of the said evidence, it cannot be inferred that the accused committed the alleged offence. He further contended that C.W.3 is a material witness who instructed the complainant to file the complaint, but the said witness has not been examined. When the material witness has been suppressed, then the case of the prosecution has to be doubted. He further contended that though P.W.6 went to the police station to file the complaint, she did not take the victim along with her to the police station; she took the victim directly to the hospital, got admitted there, and thereafter lodged a complaint. That itself clearly indicates the fact that after preparing the said complaint, the victim was got 9 admitted and thereafter the complaint was got lodged. By considering the evidence, it clearly goes to show that the prosecution has utterly failed to prove its case beyond all reasonable doubt. The Trial Court, without properly appreciating the evidence, has come to a wrong conclusion and convicted the accused. On these grounds, he prayed for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence.
5. Per contra, learned High Court Government Pleader vehemently contended that the statement of the victim and the mother corroborates with each other; the presence of the accused at the place of the incident has not been denied by the accused during the course of cross-examination. When the accused is a known person, when P.W.9 has deposed that the accused was coming out of the house and immediately thereafter, the victim alleged that the said accused had outraged her modesty and committed the alleged act, then under such circumstances, the said evidence has to be believed. The Trial Court believing such evidence has come to the right conclusion in convicting the accused. He further 10 contended that a mere defective investigation by the Investigating Officer cannot be a ground to extend the benefit of doubt to the accused, and if the overall evidence point out to the guilt of the accused, then the same can be believed and the accused can be convicted. He further contended that though C.W.3 has not been examined, it is the well established principle of law that anybody can set criminal law into motion. If the complaint is filed by the complainant and has deposed before the Court with reference to the contents of the complaint, then the same can be believed and the accused can be convicted. He further contended that though there are some minor contradictions, omissions and improvements, the same will not take away the case of the prosecution as contended by the learned counsel for the accused. The accused has not made out any good grounds so as to interfere with the judgment of conviction and order of sentence by the Trial Court and the appeal deserves to be dismissed. On these grounds, he prayed for dismissal of the appeal.
6. The first and foremost contention taken up by the learned counsel for the appellant/accused is that the evidence 11 of PW-8 the victim does not repose any confidence so as to prove the guilt of the accused beyond all reasonable doubt. In view of so many improvements, omissions and contradictions in the evidence of PW-8, the same has not been corroborated with any other evidence. As could be seen from the evidence of PW-8 victim, she has deposed that on the date of alleged incident, as it was a holiday to her school, at about 12.00 clock, she was washing the utensils in front of her house and thereafter took them inside, just then accused came her behind, held her tightly, closed her mouth with his hand and thereafter, the accused pulled her, removed her skirt and slept over her. She screamed and on hearing her scream, neighbours came running to the spot and her elder brother Asif also reached home just then. During the course of the cross-examination, the improvement in respect of the accused pulled her and removed the skirt and thereafter slept over her, is the only omission and improvement. But in so far as the accused going behind the victim, holding her tightly and closing her mouth with his hand is concerned, all these things are also contained in the complaint. Since she may not have 12 received the injuries due to the act of the accused, it may not be an offence under Section 376 of I.P.C., but it will attract the ingredients of the offence under Section 351 and 354 of I.P.C. In order to constitute an offence under Section 354 of I.P.C., the person assaulted must be a woman; the accused must have used criminal force on her; and the criminal force must have been used on the woman intending thereby to outrage her modesty. The accused had entered the house of the victim when she was alone and he also held her tightly and closed her mouth, which by itself indicates the intention of the accused that he was intending to outrage the modesty of the victim. Though the learned counsel for the accused vehemently argued by contending that the evidence of PW-8 does not repose any confidence so as to hold that the prosecution has proved the guilt of the accused beyond all reasonable doubt, when the accused trespassed into her house from behind, held her tightly, fondled and kissed her, that act of the accused attracts the provisions of the Sections 351 and 354 of I.P.C.
13
7. It is the contention of the learned counsel for the appellant that the evidence of PW-8 is an interested testimony and only with an intention to take revenge against the accused a false complaint was lodged. It is the case of the accused that he had paid an amount of Rs.12,000/- to Riaz Ahamed, the father of the victim, as a hand loan; he did not repay the said amount and in that context there was a quarrel between the accused and the father of the victim and the son of PW-5 Ramzansab had molested one Mereamma daughter of his cousin sister and in that context there was a ill-will and animosity and in that context a false case has been filed. But in order to substantiate the said contentions, nothing has been produced in this behalf. The same is liable to be rejected.
8. Be that as it may. Though the evidence of PW-8 the prosecutrix contain some improvements and contradictions, in respect of accused entering the house, held her tightly and trying to molest her. Even the evidence of PW-9 the brother of the victim corroborates with the evidence of PW-
8. In his evidence, P.W.9 has specifically deposed that, at 14 about 12 noon, they had break in the school and, at that time, he came home for lunch and saw the accused going out of their house. During the course of cross-examination, nothing has been elicited. Even during the course of cross- examination it has been elicited that when he saw the accused for the first time on that day the accused was on the road in front of their house and he was walking on the road. This evidence corroborates the evidence of PW-8 to the extent that the accused had been to the house of the victim and he was also there. When the accused presence has been proved in this behalf, then under such circumstances, the accused must give the explanation as to in what context he had been there in the house of the victim. Without there being any explanation the case of the prosecutrix is acceptable.
9. It is well established principle of law that while assessing the evidence by the prosecutrix, the Court should not brush aside the evidence only because she is the only witness. The position of law is that the evidence of the prosecutrix is like that of an injured witness and when the prosecutrix has specifically stated that the accused came 15 behind, held her and tried to molest, then under such circumstances, the said evidence has to be believed. It is not in dispute that the accused was known to the members of the family and even the evidence of this witness has not been falsified in her cross-examination. Though there are some improvements and contradictions, but it is an admitted fact that the victim is not a complainant and the complaint has been lodged by mother of the victim on the basis of the information divulged by the prosecutrix. Under such circumstances, there may be some discrepancies and variation in the testimony of the prosecution and the complaint. Only on that basis the Court cannot come to the conclusion that no such incident has taken place as alleged. Even it is well established principle of law that it is the duty of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest of the evidence. This preposition of law has been laid down by the Hon'ble Apex Court in the case State of U.P., v. Shanker reported in AIR 1981 SC 897 at paragraph No.32, has observed as under:
" 32. Regarding No. (vii). It is true that Chhottu (P. W. 7) expressed ignorance as to his 16 relationship with the sister of the mother of the deceased. It is further true that the witness stated that he did not know whether Shiv Dayal was the maternal uncle of Shankar accused. So far as his being related to the deceased is concerned, the witness evidently did not disclose the truth, but the same could not be said about his ignorance of the fact of Shiv Dayal being a relation of the accused. But the mere fact that the witness had not told the truth in regard to a peripheral matter would not justify a wholesale rejection of his evidence. Time and again, this Court has pointed out that in this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is fainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in toto."
10. When fair, clinching and direct evidence is there before the Court, then under such circumstances, no corroboration is required. When the accused is having a 17 knowledge that the modesty of a women is likely to be outraged, without any deliberate intention, that itself is sufficient to attract the offence alleged. What constitutes the modesty of a women has been elaborately discussed and decided by the Hon'ble Apex Court in the case of Rupan Deol Bajaj (MRS) AND another v/s Kanwar Pal Singh Gill and another reported in 1995 SCC (Crl) 1059.
11. By going through the evidence of the prosecutrix the test laid down in the above said decision that the act of the accused being outrageous and shocking the sense of decency and is directly related to the sex of the victim girl. In that light the accused is liable to be convicted.
12. On perusal of the records, though the accused is charge sheeted under Section 376 and 511 of I.P.C. In that light, the Trial Court has rightly acquitted the accused for those charges. But insofar as the offences under Section 351 and 354 are concerned, there is evidence to connect the accused to the alleged crime.
18
13. The next contention taken up by the learned counsel for the accused/appellant is that the prosecution has to prove its case as alleged. In order to substantiate the said fact, he has relied upon the decision of the Hon'ble Apex Court in the case of Pandurang Sitaram Bhagwat v. State of Maharashtra reported in 2005 Crl. L.J. 880.
14. I have given my conscious attention to the said decision. In the said decision the statement of witness as to the exact place and manner of occurrence was materially differing and in that light the accused was given the benefit of doubt and was acquitted. But in the case on hand though the victim and the complainant PW-6 have stated that the accused pulled her and removed her skirt then thereafter he slept on her and there is material contradiction in this behalf, the Trial Court has rightly acquitted for the said offence. But it is the specific case of the prosecution that the accused entered the house of the victim and thereafter he held her tightly, fondled and kissed her, and tried to molest her. That evidence is sufficient to come to the conclusion that the accused committed the alleged offence, in this behalf there is no 19 improvement or contradictions. Though the learned counsel for the accused would contend that the nature and conduct has to be seen and the totality of the case has to be considered to assess the true genesis. But as discussed above it is the duty of the Court to separate the grain from chaff and in that light if any other offence is found to have been committed by the accused then the accused can be convicted for the alleged offence. When there is a direct evidence of PW-8 then the evidence of PW-6 becomes immaterial. Though, the learned counsel for the appellant argued by contending that CW-3 who instructed to file the complaint has not been examined by the prosecution and it is fatal to the case of the prosecution, but when the victim's evidence is there then the non-examination of CW-3 is also not going to affect the case of the prosecution. It is the further contention of the learned counsel for the appellant that the victim was not taken to the police station and there were no injuries found on the body of the victim. When the prosecution has not made out any case under Section 376 of I.P.C. and no injuries were found on the private part of the victim then under such circumstances, it is 20 going to be affecting the case of the prosecution. When the accused has held her tightly and fondled her and tried to kiss her, then under such circumstances, she will not receive any injuries in this behalf and it is not necessary that the victim should be taken to the police station. When the victim has been taken to the hospital and PW-6 went to the police station and filed the complaint, that itself is sufficient in this behalf.
15. In the light of the above said facts and circumstances the contentions raised by the learned counsel for the appellant in this behalf is not acceptable so as to come to the conclusion that the accused has not committed any offence.
16. I have gone through the entire material produced in this behalf by the prosecution and the contentions raised by the learned counsel for the accused. The impugned judgment and order is neither perverse nor capricious and there is no irregularity or illegality in convicting the accused for the alleged offence and there are no good grounds made out by the accused/appellant so as to interfere with the order 21 of the Trial Court. The order of the Trial Court deserves to be confirmed. Keeping in view the above said facts and circumstances, the appeal is dismissed as devoid of merits.
Sd/-
JUDGE Kms/Rhr