Karnataka High Court
K.T.Bettaswamy vs State Of Karnataka By on 22 June, 2018
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.1486 OF 2016
BETWEEN:
K.T. Bettaswamy
S/o. Thimmappa,
Aged about 19 years,
Residing at Kllara Koppalu Village,
Amruturu Hobli,
Kunigal Taluk,
Tumkur District,
Pin-572130. ...APPELLANT
(By Sri. Kemparaju, Advocate)
AND:
State of Karnataka by
Nagamangala Rural
Police Station,
Mandya district,
Rep. by its
State Public Prosecutor,
High Court Complex,
Bengaluru-560001. ...RESPONDENT
(By Sri. K. Nageshwarappa, HCGP)
2
This Crl.A. is filed under Section 374(2) of Cr.P.C.
praying to set aside the judgment and order
dated:08.08.2016 and sentence dated:09.08.2016
passed by the I Addl. District and Spl. Judge, Mandya
in Spl.C.No.40/2014 - Convicting the
appellant/accused for the offence P/U/S 366(A), 376,
368 and 506 of IPC and Section 6 of POCSO Act and
etc.,
This appeal coming on for Hearing, this day, the
Court delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction and sentence passed by the I Additional District and Special Judge, Mandya in Spl.C No.40/2014 dated 08.08.2016 by holding conviction against the accused under Section 376 of IPC for a period of 7 years and sentenced to pay fine of Rs.25,000/- and he shall undergo Rigorous imprisonment for a period of 10 years and sentenced to pay fine of Rs.50,000/- for the offence under Section 6 of the POCSO Act, in default he shall undergo imprisonment for a period of 2 years. He shall further undergo rigorous imprisonment for a period of 7 years 3 and sentenced to pay fine of Rs.10,000/- for the offence under Sections 366A of IPC, in default he shall undergo imprisonment for a period of 1 year. He shall undergo further imprisonment for a period of 5 years and sentenced to pay fine of Rs.10,000/- for the offences under Section 368 of IPC, in default he shall undergo imprisonment for a period of 1 years. He shall further undergo imprisonment for a period of 1 year and sentenced to pay fine of Rs.1,000/- for the offence under Section 506 of IPC, in default he shall undergo imprisonment for a period of 3 months. The same has been challenged in this appeal by urging the various grounds.
2. The factual matrix of the appeal are as under:
CW1 - K.T.Gopal being the father of the victim Kumari Kavana has filed a complaint before the police in Crime No.236/2013 came to be registered for the 4 offence punishable under Section 363 of IPC. It is further stated that on 13.12.2013 at about 2.30 pm., in H.N.Kavalu Village at Gidada festival, the accused forcibly abducted the victim and took her to Gerupalya village at Bengaluru South Taluk by his Tata ACE Goods Vehicle bearing registration No.KA-54/3975. The victim was made to confine in a rented house at CW-10
- Rangappa, under threat by this accused saying that he would kill her, if she did not marry him and accused made her to wrongful confinement saying that if she inform the said facts to her parents and also to the public, she would have to face the dire consequence. When the victim was in the said house for a period of more than 10 days, the accused committed sexual intercourse on the victim against her will and also against her consent for several times for the period from 13.12.2013 to 24.12.2013. The case was taken up for investigation by the Investigating Officer who has investigated the case and laid charge sheet against the 5 accused for the offences punishable under Sections 363, 366A, 364, 368, 376 and 506 of IPC and also Section 6 of the POCSO Act, 2012. The charge was framed against the accused for the alleged offences.
Thereafter, in order to establish the guilt against the accused, prosecution in all examined 20 witnesses as PWs.1 to 20 and got marked the documents as Exs.P1 to P34. Subsequent to closure of the evidence, the accused was examined as required under Section 313 of Cr.P.C in which the incriminating materials appeared against him.
3. Subsequently, heard the arguments advanced by the prosecution held conviction against the accused which is incorporated in the operative portion of the impugned judgment. It is the impugned judgment which is challenged in this appeal.
4. Learned counsel for the appellant during the course of his argument has taken me through the 6 evidence of PW1 said to be the complainant and also being the father of the victim Kumari Kavana, wherein he has narrated the incident as briefed by his daughter. But, there is full of contradiction insofar as the narration of the facts at Ex.P1 - complaint. CW7 - Ramegowda said to be informed to him that he saw that his daughter PW2 - Kumari Kavana and PW3 - Darshan, had been to Gidada Fair and after that PWs.1, 7 and CW7 went to said Fair in search of his daughter PW2 - Kumari Kavana. While he was searching his daughter she could not be traced but after PW3 - Darshan was found at Bheemanahalli village and on enquiry with PW3 - Darshan, he told that accused Bettaswamy took PW2 - Kumari Kavana along with PW3- Darshan to Bheemanahalli village and offered them juice and after that accused No.4 took PW2 -
Kumari Kavana and left PW3 - Darshan at Bheemanahalli village. Whereas, the evidence of PWs.2 and 3 reveals that they went for Gidada Fair and it is 7 very clear that PW1 being the father of the victim who has not stated the auto number in the complaint and investigation Officer has not recorded the statement of PWs.3, 4, 5 and 7 on 14.12.2013 but it was created on 31.12.2013 after lapse of 18 days in order to trap the accused for the alleged heinous crimes. The police have prepared the spot mahazar as per Ex.P4 in the presence of PW2 - Kumari Kavana and also in the presence of PW9. Another spot mahazar said to be conducted by Investigating Officer in the presence of PWs.2 and 8 have been secured which scribe their signature. But the evidence relating to spot mahazar at Ex.P4 and another spot mahazar at Ex.P8 said to be contradictory to the evidence of PW1, as he being the father of the victim and also author of complaint said to be filed by him. As PW20 being the Investigating Officer recorded FIR at Ex.P34 which appears his signature. The police have prepared the spot mahazar at 25.12.2013 after lapse of 12 days and it was drawn at H.N.Kavalu village 8 Nelamangala Taluk as per PW1 wherein he has alleged that the accused has abducted his daughter PW2 - Kumari Kavana. It is further contended that in the statement of PW2 dated 25.12.2013, it is found that accused alleged to be abducted her from Gidada Fair by threatening that he would kill her and further it is clear in her evidence that PW3 - Darshan has not accompanied with them in the auto. But she has not specifically stated in her statement said to be recorded by the Investigating Officer during the course of investigation relating to the heinous offences which leveled against the accused. That the theory as projected by the prosecution is contradicting to each other and does not repose confidence. It is further contended that the trial Court has failed to appreciate the evidence of the prosecution such as evidence of PW1
- Gopala being the father of PW2 - Kumari Kavana is the victim. PW3 - Darshan is the cousin of PW2. These are vital witnesses to the prosecution. The accused has 9 abducted PW2 - Kumari Kavana and kept her in the house of Rangappa wherein the victim as well as the accused stayed there for a period of 10 days telling him as she is his sister. This contention is also taken by the learned counsel for the appellant during the course of his argument as the prosecution did not prove the guilt against the accused with beyond reasonable doubt and the alleged incident is said to be abduction of the victim by the accused and had forcible sexual intercourse on her in the room of PW8 - Rangappa, where the victim as well as accused were said to be resided on rental basis for a period of 10 days. It is further contended that the trial Court has failed to appreciate that by over all consideration of the entire evidence, it has not proved with beyond reasonable doubt that the accused has abducted the victim PW2 - Kumari Kavana and also extended life threat to her by saying not to inform the said facts to her parents and also to the public. If she discloses, she would have to face the dire consequences. 10 All these grounds are urged by the learned counsel for the appellant apart from the grounds urged by him in this appeal.
5. PW2 - Kumari Kavana said to be the victim has shown the place wherein she was abducted by the accused and also she has been made to confinement. PW18 who is said to have conducted spot mahazar as per Ex.P4 which bears her signature and another panchanama as per Ex.P8 in her presence. This mahazar is conducted by PW19 who is said to be an Investigating Officer who had charge sheeted against accused. Exs.P5 to P7 are the photos taken at the time of spot mahazar conducted by him. Wherein, the accused was alleged to have made a confinement of the victim, police drew the mahazar as per Ex.P18 and photographs as per Exs.P9 to P11. PW3 - Darshan immediately after the incident of abduction of PW2 - Kumari Kavana by the accused told the said fact to his 11 grand father. But his evidence is not in conformity with the evidence of PW2 - Kumari Kavana. PW4 - Sudha being the mother of the victim has stated in her evidence about the incident as narrated by her daughter PW2 - Kumari Kavana. That the accused was said to be abducted her from Gidada Fair. PW5 - Kempegowda who is said to be the grand father of the victim PW2 - Kumari Kavana in his evidence stated that the accused took the victim on the alleged date of incident, whereas the evidence of PW4 - Sudha being the mother of the victim are contradictory to each other. Regarding the allegation made in the complaint at Ex.P1 filed by K.T.Gopala being the father of the victim narrated that the accused has abducted his daughter from Gidada Fair, wherein she has been accompanied with PW3 - Darshan.
6. PW6 - Divakara said to be the alleged eye witness to the incident and also an independent witness 12 of the prosecution. These witnesses subjected to examination by the prosecution in order to establish the guilt against the accused that the accused who alleged to have abducted PW2 - Kumari Kavana from Gidada Fair as the same has been narrated by him.
7. PW7 - Chandrashekara said to be the cousin of PW4 - Sudha being the mother of the victim said to be an hearsay witness. But the trial Court held conviction based upon the evidence of PW1 being the complainant and also being father of the victim PW2 - Kumari Kavana who has been abducted by the accused from Gidada Fair. All these witnesses have stated in the prosecution found to be contradictory to each other and also consistency relating to the narration of the incident said to have committed on the victim PW2 - Kumari Kavana.
8. PW17 - Dr.Jyothilakshmi K.N, being the Doctor who has examined the victim PW2 - Kumari 13 Kavana and issued the report as per Ex.P27. She has issued the report based on the report of FSL said to be issued for having subjected the victim to examination. The materials have been sent relating to victim PW2 - Kumari Kavana. On the basis of the FSL report the seminal stain was found on the urethral swab and cervical swab of smear of victim. But the final opinion was given as per Ex.P27(b) that the victim was subjected to sexual act. There is no specific evidence by PW17 relating to the recent sexual intercourse on the victim PW2 - Kumari Kavana said to be abducted by the accused from Gidada Fair and made her to confinement in the house of PW8 - Rangappa for a period of more than 10 days.
9. PW19 said to be Investigating Officer who has led the charge sheet against the accused. Overall FSL report forthcoming on record of the prosecution reveals that the properties which have been sent to the 14 FSL were subjected to examination. The failure on the part of the Investigating Officer to produce those properties before the Court which cannot cut the root of the prosecution as contended by the learned High Court Government Pleader for the State.
10. PW17 being the doctor who conducted examination of the victim PW2 - Kumari Kavana and issued the certificate as per Ex.P27. PW17 said to be examined the accused and issued the certificate as per Ex.P29. The victim PW2 - Kumari Kavana was confined by the accused in the house of PW8 - Rangappa at Gerupalya of Kumbalagodu by abducting her from Gidada Fair.
11. PW14 said to be the Head Constable has stated in his evidence that on 08.01.2014, PW12 - Suresh being the Police Constable while they were on beet duty, he found a Tata ACE Goods Vehicle lying burnt by the side of the road and the number was found 15 as No.KA-54/3975. Accordingly, he gave report to the Station House Officer as per Ex.P24. Subsequently PW14 went to the spot and drew the mahazar as per Ex.P19 with PW12 - Suresh being the Police Constable who accompanied with PW14 to the spot as said Tata goods vehicle was burnt lying at the spot. PW12 who identified the said burnt goods vehicle found in the photographs at Ex.P18.
12. PW16 - Chaluvegowda was the Head Constable. According to his evidence on 09.01.2014 at 9.15 a.m., PWs.12 and 14 returned from patrolling duty and gave a report. Accordingly case as per C.Mis.No.6/2014 was filed and he drew the spot mahazar at Ex.P19 and has seized the burnt chassi of the goods AC Vehicle. The trial Court has given more credentiality to the evidence of PW1 said to be the author of the complaint at Ex.P1 which says that accused abducted the victim and made confined her in 16 the house of PW8- Rangappa for a period of more than 10 days and had sexual intercourse with her. There is no specific evidence relating to the recent sexual intercourse on the victim as PW17 has subjected the victim to examination and issued the report as per Ex.P27. The same has been issued based upon the FSL report for having subjected the articles seized from the victim.
13. Ex.P29 is the medical certificate relating to the accused. PWs.3 to 5 and 7 said to be the material witnesses of prosecution and their evidence has been considered by the trial Court and erroneously held conviction of the accused as the accused has committed an offence under Section 6 of the POCSO Act and also under Section 376 of IPC. These offences are severe in nature as the accused is said to have committed the sexual assault on the victim PW2 - Kumari Kavana and confined her in the house of PW8 - Rangappa. But in 17 this appeal it requires to revisit the impugned judgment which has challenged wherein the trial Court did not appreciate the evidence in a proper perspective as the prosecution has not placed the cogent, corroborative and consistent evidence to probabalize that the accused has abducted the victim PW2 - Kumari Kavana, confined her and also committed sexual assault on her. But the trial Court has misread the entire evidence and erroneously come to the conclusion that the prosecution has proved the guilt against the accused and held conviction for the offences charged against him. Therefore, this appeal requires re-appreciation of the entire evidence on record insofar as the charges leveled against the accused for the heinous offence punishable under Section 376, so also Section 6 of the POCSO Act and PW2 - Kumari Kavana said to be the victim who has been abducted by the accused from Gidada Fair wherein she has been accompanied with PW.3 Darshan to that Fair. On these grounds the learned counsel is 18 seeking to allow the appeal by setting aside the impugned judgment of conviction and sentence held against the accused.
14. Per contra, learned High Court Government Pleader has taken me through the evidence of PW2 said to be the minor who has been abducted by the accused from Gidada Fair and confined her in the house of PW8
- Rangappa for more than 10 days and committed sexual assault on her and also extended life threat saying that if she did not marry him she would have to face dire consequences. PW1 - K.T.Gopala said to be the father of the victim who has filed a complaint as per Ex.P1 and based on his complaint the crime was set into motion and thereafter the case has been taken up for investigation by PW19 by conducting spot mahazar as per Ex.P4 wherein the victim has been abducted by the accused as per Ex.P8 and she has been subjected to confinement in the house of PW8 - Rangappa. The 19 mahazar has been conducted by the Investigating Officer in the presence of PWs.2, 8 and 9 respectively said to be panch witnesses. The trial Court has appreciated the entire evidence on record and rightly come to the conclusion that the prosecution has proved the guilt against the accused for the offences under Section 366A relating to abduction of the minor girl and also having sexual intercourse with her and wrongfully subjected her to confinement in the room belonging to PW8 - Rangappa and also extended life threat by saying that if she did not marry him she would have to face dire consequences. All these offences have been proved by the prosecution by placing cogent, corroborative and consistent evidence and the same has been considered by the trial Court and rightly held conviction against the accused. Therefore, the impugned judgment passed by the court below does not call for interference. On all these grounds, learned High Court Government Pleader 20 for State seeks dismissal of the appeal as devoid of merit.
15. Evidence relating to PW1 at Ex.P1 of the complaint so also evidence of PW2 - Kumari Kavana said to be the victim, PW3 and PW4 are the vital witnesses for the prosecution. Apart from that PW17 the doctor who examined PW2 - Kumari Kavana and issued the medical certificate as per Ex.P27 and also issued medical certificate as per Ex.29. PW19 said to be Investigating Officer has investigated the case and led charge sheet against accused. There is no dispute that Investigating Officer has conducted mahazar as per Exs.P4 and P8 respectively in the presence of PWs.2, 8 and 9. The victim PW2 - Kumari Kavana, minor has been abducted by the accused from Gidada Fair in a goods auto and subjected her to confinement in the house of PW8 - Rangappa for more than 10 days and alleged to have committed sexual assault on her. 21
16. But the learned counsel for the appellant has placed reliance on the judgment in the case Mukesh Vs. State reported in 2011 CRI J 377 wherein the sentence was reduced in case of rape of a minor girl having held that the prosecutrix was not forcibly taken by the accused from one place to another and considering the fact that the accused is young and first time offender and has already undergone 4 years 11 months of sentence out of 10 years imposed on the accused is modified and reduced to 6 years for the offence punishable under Section 376(2)(f).
17. In the instant case PW2 - Kumari Kavana said to be the minor who has alleged to be abducted by the accused from Gidada Fair wherein she was with her cousin PW3 - Darshan, accused made them to take juice and thereafter the accused abducted the victim and subjected her to confinement in the house of PW8 - Rangappa saying she is his sister and also they stayed 22 for more than 10 years. The allegation made against him is that he had committed sexual assault on her during that period. PW17 being the doctor who is said to have examined the victim and issued medical certificate as per Ex.P27, but there is no specific evidence with regard to recent sexual intercourse on the victim PW2. However, the accused is in judicial custody for 4 years 7 months since the date of his arrest. This submission is made by the learned counsel for the appellant during the course of his argument. In support of his contention he has placed reliance on the aforesaid judgment seeking reduction of the sentence. The accused is aged about 19 years and there is no bad antecedents and there is no medical evidence specifically stating that the accused forcibly had sexual intercourse with the victim PW2 - Kumari Kavana.
18. Keeping in view the aforesaid reasons and findings, this court is of the view that the impugned 23 judgment of conviction and sentence held by the trial Court against the accused requires to be revisited. However, on a cursory glance of the evidence of PW1 being the father of the PW2 - Kavana and also PW5 - Kempegowda said to be the eye witness to the judgment of the trial Court, requires to be interfered with.
The Trial Court has convicted the accused under Sections 376, 366A and 368 of the IPC. The conviction held against the accused shall be maintained, but the sentence held against the accused requires to be modified. It is stated that the accused was in judicial custody during the course of trial and since from the date of his arrest for a period of 4 years and 7 months. The imprisonment for a period of five years for the offence punishable under Section 368 IPC requires to be modified, but however, the fine of Rs.10,000/- imposed by the Trial Court shall be maintained.
24
The sentence held against the accused for the offences punishable under Section 506 IPC though requires interference, the imposition of fine in a sum of Rs.1,000/- is maintained.
Insofar as the offence under Section 366A IPC is concerned, the sentence requires to be interfered with but however the fine amount in a sum of Rs.10,000/- imposed by the Trial Court is hereby maintained.
Insofar as the sentence held against the accused under Section 6 of the POCSO Act, 2012, wherein the Trial Court has held imprisonment for a period of 10 years and to pay a fine of Rs.50,000/- are concerned, it requires to be said that though the prosecution has examined vital witnesses as PW-2, PW-3 and PW-4 to prove the guilt of the accused, but the prosecution did not place cogent, corroborative and consistent evidence to probabilise that the accused has committed penetrative sexual assault on the victim girl PW-2 Kavana. Therefore, the accused deserves to be 25 acquitted in respect of the offence under Section 6 of the POCSO Act. Insofar as the conviction under Section 376 IPC is concerned, it is held that the prosecution has proved the offence under Section 376 read with Section 511 IPC, instead of Section 376 IPC. It is seen that the accused has already undergone imprisonment for a period of four years 7 months during the course of trial and is in judicial custody till date. Hence, it is hereby held that the said period of 4 years and 7 months imprisonment undergone by him shall be treated as 'service of sentence' in respect of the aforesaid offences under Sections 376 read with Section 511 IPC, Section 366A IPC, 368 IPC and Section 506 IPC. However, the fine amount imposed in a sum of Rs.25,000/- in respect of the offence under Section 376 IPC shall be maintained.
For the aforesaid reasons, the appeal is allowed. The judgment of conviction dated 08.08.2016 and order of sentence dated 09.08.2016, passed by the I 26 Additional District and Special Judge at Mandya in Spl.C.No.40/2014 convicting and sentencing the accused / appellant herein for the offences punishable under Sections 366-A, 376 and 368 of IPC is hereby modified to the extent of sentence undergone by the accused. As the accused has served sentence for a period of 04 years and 07 months, the said period is termed as service of sentence, which would meet the ends of justice. Whereas the conviction held against the accused for the offence punishable under Section 6 of the POCSO Act, 2012 by the Trial Court, is hereby set- aside.
The accused shall be set at liberty forthwith, if he is not required in any other case.
Insofar as the compensation awarded by the Trial Court under Section 357(1) Crl.P.C., it is modified and is hereby ordered that the fine amount held in the aforesaid sentence to be payable by the accused in a 27 sum of Rs.46,000/- shall be paid as compensation to PW-2 the victim and the said amount shall be paid to the victim on proper identification.
Registry to communicate this order to the concerned Superintendent of Jail Authorities where the accused is lodged, for compliance.
Sd/-
JUDGE GH