Karnataka High Court
Siddesh B @ Musiya vs The State Of Karnataka on 20 June, 2018
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 831 OF 2014
BETWEEN
SIDDESH B @ MUSIYA
S/O BASAVARAJAPPA,
AGED ABOUT 20 YEARS,
R/O KALLIHATTI VILLAGE,
CHITRADURGA TALUK AND DISTRICT - 577 501.
... APPELLANT
(BY SRI. UMESH P.B. ADVOCATE FOR SRI. R.B.
DESHPANDE, ADVOCATE.)
AND
THE STATE OF KARNATAKA
CHITRADURGA RURAL POLICE STATION - 577 501.
... RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP.)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
28/31.7.2014 PASSED BY THE ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHITRADURGA, IN SESSIONS
CASE NO. 82/2013 - CONVICTING THE APPELLANT/
ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE
UNDER SECTION 448, 323, 376 AND 504 OF IPC. AND
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THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO
SUFFER IMPRISONMENT FOR A PERIOD OF 10 YEARS
AND PAY RS. 25,000/- AS COMPENSATION TO THE
VICTIM FOR THE OFFENCES PUNISHABLE UNDER
SECTION 376 OF IPC. FURTHER THE APPELLANT/
ACCUSED NO.1 IS SENTENCED TO SUFFER
IMPRISONMENT FOR A PERIOD OF 3 MONTHS FOR
HAVING COMMITTED THE OFFENCE PUNISHABLE
UNDER SECTION 323 OF IPC. FURTHER APPELLANT/
ACCUSED NO.1 IS SENTENCED TO SUFFER
IMPRISONMENT FOR A PERIOD OF 3 MONTHS FOR
HAVING COMMITTED THE OFFENCE PUNISHABLE
UNDER SECTION 448 OF IPC. FURTHER, THE
APPELLANT/ACCUSED NO.1 IS SENTENCED TO SUFFER
IMPRISONMENT FOR A PERIOD OF 4 MONTHS FOR
HAVING COMMITTED THE OFFENCE PUNISHABLE
UNDER SECTION 504 OF IPC. ALL THE SENTENCES
SHALL RUN CONCURRENTLY. AND THE APPELLANT/
ACCUSED NO.1 PRAYS THAT HE BE ACQUITTED.
THIS CRL.A. COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by accused No.1 in S.C. No. 82/2013, challenging the judgment of conviction and order of sentence dated 28/31.07.2014, passed by the :3: Addl. District & Sessions Judge, Chitradurga, convicting the accused No.1-appellant herein for the offences punishable under Sections 448, 323, 376 and 504 IPC and sentencing him to undergo simple imprisonment for a period of ten years and to pay fine of Rs.25,000/- as compensation to the victim for the offence punishable under Section 376 IPC and he was sentenced to undergo imprisonment for 3 months for the offence punishable under Section 323 IPC and further to undergo imprisonment for a period of 3 months for the offence punishable under Section 448 IPC and to undergo imprisonment for a period of 4 months for the offence punishable under Section 504 IPC. All the sentences were to run concurrently.
2. The brief facts of the case of the prosecution is that Accused Nos.1 and 2 and the complainant P.W.1 were residents of the same village, namely Kallihatti village, Chitradurga Taluk. P.W.1 Sharanamma, aged about 60 years was maintaining a petty shop in her house.
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On 25.03.2013 at 9.30 p.m., at Kallihatti village accused Nos.1 and 2 with a common intention of committing an offence, are said to have tresspassed into the house of P.W.1 and had silently remained there by screening their presence. At 11 p.m. when the complainant woke up to consume tablets, accused No.1 is said to have abused her in filthy and indecent language and is said to have beat her with hands ultimately making her to fall down and then is said to have committed forcible rape on her. After his act, he is said to have attempted to kill her by strangulating her. During such time, the accused No.2 is said to have stood near the door/window abetting and encouraging accused No.1 to commit rape on her.
The complainant is said to have somehow escaped from the hands of the accused No.1, and had then gone near Dhumappa temple where jatra was going on, and had intimated the incident to P.W.4 - Rathnamma, P.W.2
- Basavarajappa S/o Doddasiddappa and others. Rathnamma, Basavarajappa and Lokeshappa had then :5: taken the complainant - P.W.1 to District Hospital, Chitradurga in a vehicle.
On 26.03.2013 at 9.30 a.m., on the basis of the information received from the hospital, P.W.8 - Shivaprasad, PSI had gone to the District Hospital, Chitradurga and in the presence of a medical officer, got recorded the statement of the P.W.1 as noted in Ex.P.1, and then on the basis of the statement of P.W.1, had registered a case in Crime No. 104/2013 against the accused No.1 and an unknown person for having committed offences punishable under Sections 448, 323, 376, 307 r/w 34 of IPC and recorded an FIR as per Exhibit P-11. Subsequently, the case was taken up for investigation by PW-12 Investigating Officer who has investigated the case and laid a charge-sheet against the accused. The charge-sheet consisted the statement of witnesses and mahazar was said to be conducted by him in the presence of panch witnesses. The charge was framed against the accused by the Trial Court, wherein the accused did not plead guilty but claimed to be tried. :6: In order to establish the guilt of the accused, the prosecution in all had examined PW-1 to PW-12 and got marked Exhibits P1 to P25 apart from getting marked material objects namely MO-1 to MO-9. Subsequent to the closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. for incriminating statements appearing against him. The Trial Court, after hearing the arguments advanced by the prosecution and the defence counsel for the accused and on appreciating the evidence on record, had convicted the accused by its impugned judgment and had sentenced to undergo imprisonment as aforesaid. It is this judgment which is under challenge in this appeal.
3. Heard the learned counsel for the appellant - accused and the learned Government Pleader for the State.
4. Learned counsel for the appellant has taken me through the evidence of PW-1, the victim aged about 60 years who is said to have given her complaint statement :7: before PW-8, on the basis of which he got recorded an FIR and the case has proceeded.
5. The learned counsel for the appellant contends that the learned Sessions Judge ought to have acquitted the appellant on the ground that there is a long, unexplained delay in filing the complaint. It is his further contention that the Sessions Judge has committed a serious error in relying on the testimony of interested witnesses PWs 1 to 4 and 9 when their evidence is not corroborated by independent evidence and is full of material contradictions and omissions. Further, the court below had lost sight of the fact that the evidence of PW-1 is inconsistent and contrary to the complaint and the evidence of PW-5 and 9.
Further, the court below has committed a serious error in relying on Ex P-12 /wound certificate issued by PW-9/doctor, which is contrary to FSL report/Ex.P.14 in the case of the prosecution against the offence alleged. Further, the evidence of P.W.1 is not corroborated with the contents of the complaint and thus the learned trial :8: judge has committed a serious error in convicting the appellant on the sole evidence of PW1 and hence conviction ought to be set-aside.
The learned counsel for the appellant further submits that the Sessions Court ought to have appreciated the defence of appellant that he and other residents had quarrelled and objected about the complainant's illicit relationship with one Veerabhadrappa and hence a false complaint has been foisted by PW-1 with the instigation and connivance of the said Veerabhadrappa. He submits that considering the age of both the complainant and the appellant, the above said possibility of implication is very much probable and thus under these circumstances, the benefit of doubt ought to have extended to the appellant considering the probable false implication. Though the learned Sessions Judge had rightly acquitted accused No.2 of the alleged offences, has committed a grave error in convicting the appellant / accused No.1 on the same evidence.
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Hence, he submits that the court below ought to have held that the evidence of PW1 is suspicious and not corroborated with the medical evidence and contents in FSL report and thus the trial court ought to have discarded the prosecution case against the appellant and ought to have acquitted the accused for the offences leveled against him.
Moreover, the evidence of P.W. 12/Investigation officer, suffers from serious infirmities and omissions which goes to root of the case. Thus the learned Sessions Judge has committed a serious error in convicting the appellant for the offences punishable under Sections 448, 323, 504, 376 IPC when the prosecution has failed to adduce or produce any evidence in that regard. Further, that the sentence imposed on the appellant is too severe and harsh and disproportionate and hence the same has resulted in a mis-carriage of justice. Hence, the learned counsel submits that the judgment of the court below may be set aside and thereby the accused acquitted of the alleged offences.
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5. Per contra, the learned HCGP for the State justifies the order passed by the court below and submits that the learned Trial Judge, on a proper appreciation of the evidence on record has rightly come to the conclusion that the prosecution has proved the offences alleged against the accused and has convicted Accused No.1 as aforesaid and hence the impugned judgment of conviction and sentence does not call for any interference. Moreover, he submits that the accused aged about 20 years who is in the process of growing from a teenage boy to a young man, had subjected a 60 year old woman who may be equal in age to his grandmother, to sexual harassment and rape, which is against moral ethics. Hence, if such a man who has committed a heinous offence is acquitted of the offences alleged in toto, it would create a bad precedent in the society. Hence, he submits that the judgment passed by the court below does not call for any interference by this court.
6. On hearing the learned counsel for the appellant and the learned Government Pleader for the State and on : 11 : going through the material on record, I would like to address the following facts in order to arrive at a conclusion.
7. P.W.1 the victim in her evidence has stated that she is maintaining a petty shop in the front portion of her house situated at Kallihatti village and that there is only one door to enter her house and petty shop. Further, that her son is residing at Chikkajajur Village and her daughter is residing with her husband. She has stated that Accused No.1 Siddesh was in the habit of coming to her shop frequently and she knew him very well. Further, there was no toilet in her house. Prior to one week of the incident at 5.30 a.m., when she had gone out to attend natural call, she had heard some sound and on turning towards the place from where she heard the sound, she saw accused No.1 staring at her, and under fear she returned to the house, then for a period of one week she never went to that place. She felt that the accused was stalking her often but she ignored it and did not take it seriously. Further, P.W.1 stated that on the : 12 : date of the incident, without her knowledge, accused No.1 had entered her house and remained in her house. P.W.1 had painted the wall with lime and then had slept. Then at 11 p.m., when she woke up to consume tablets for B.P., the accused No.1 who was hiding had come out and assaulted on her head, abused her in filthy and indecent language, removed her cloths, caused injuries to her breasts by biting and squeezing her breasts and committed forcible intercourse, then threatened to kill her if she disclosed the incident to any person. P.W.1 has stated in her evidence that, when accused No.1 was engaged in committing rape, she had observed that a person was watching the incident from outside the window and even though she has requested that person to rescue her, the person who engaged in observing the incident, did not come to her rescue. Instead, he was summoning Accused No.1 to come back quickly after finishing the act. Threatening her and telling her that he would come again in the morning, Accused No.1 had left the place. P.W.1 has stated that, in view of the rape, she faced burning sensation in her private parts. P.W.1 stated : 13 : that, after the rape, she cleaned her private part, then went near the temple wherein jatra was going on and informed the incident to Sarojamma, Thimmaraju and Rathnamma who were present near to the temple. Then they had taken her in a tempo to the District Hospital, Chitradurga. Further that, on the next day at 8 a.m., to 9 a.m., police came to District Hospital, Chitradurga and recorded her complaint as per Ex.P.1.
In the cross-examination, P.W.1 stated that for a period of 4 to 5 years herself and her husband Kallappa resided together and denied the suggestion that, for a period of one or two years she led marital life with her husband, then she came to Kallihatti village. P.W.1 stated that, she resided in the house owned by Sanna Siddappa after deserting her husband Kallappa. P.W.1 denied the suggestion that, Veerabhadrappa purchased an old house owned by Basamma for her and she alone resided in the house purchased by Veerabhadrappa. P.W.1 stated that, except B.P., she has not suffering from any other disease and submitted availability of the prescriptions about the : 14 : treatment. Further, P.W.1 denied the suggestion that, she had physical relationship with Veerabhadrappa, resident of Thirumalapura and Veerabhadrappa maintained her family. P.W.1 denied the suggestion that, accused No.1 and the residents of Gollarahatti and Vaddarahatti objected about her relationship with Veerabhadrappa, therefore she got filed a false complaint.
P.W.2 - Basavarajappa, a relative of the P.W.1 has stated in his evidence that, prior to one year of the incident, at 12.30 night in the place where Dhomappa festival was going on, P.W.1 had come screaming alleging that accused No.1 has raped her and about facing of burning sensation. P.W.2 has stated that himself, C.W.3, C.W.6 - Sarojamma made P.W.1 to wear another saree and shifted to District Hospital, Chitradurga. P.W.2 stated that subsequently on next day, since 9 a.m., up to the evening he was present in the hospital.
P.W.2 submitted ignorance to the question that Veerabhadrappa, resident of Thirumalapura used to visit the house of the P.W.1 and P.W.1 had physical : 15 : relationship with Veerabhadrappa. P.W.2 admitted that, Kallappa migrated to Maddinakere Village. P.W.2 submitted ignorance to the question that, prior to 2 days of filing of the complaint, accused No.1 went to the house of P.W.1 and informed that maintaining of the relationship with Veerabhadrappa is not proper and quarreled with P.W.1.
P.W.3 - Sarojamma in her evidence stated that, prior to one year as on the date of her evidence, when herself and others engaging in preparing food for Kalavvanahabba at 1 hour, P.W.1 came and informed that accused No.1 raped her, P.W.3 stated that, when P.W.1 informed about the incident, saree and blouse worn by the P.W.1 were torn, P.W.3 stated that, she made P.W.1 to drink water and wear cloths and shifted her to District Hospital, Chitradurga. However, in cross-examination P.W.3 has been treated hostile. Inspite of lengthy cross-examination, prosecution has failed to elicit about the documents marked at Ex.P.7 and 8.
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In the cross-examination made on behalf of the accused No.1, P.W.3 had deposed that, she never observed the presence of any person behind P.W.1, when P.W.1 came near to temple. P.W.3 submitted ignorance to the suggestion that, residents of Gollarahatti and Vaddarahatti quarrelled with P.W.1 about the relationship between P.W.1 and Veerabhadrappa. P.W.3 stated that, her house is situated in front of the house of P.W.1.
P.W.4 has stated in her evidence that prior to one year of the date of her evidence in the early morning P.W.1 became serious, then herself, P.W.2 and P.W.3 shifted the injured P.W.1 to District Hospital, Chitradurga. P.W.4 has further deposed that, P.W.1 was screaming stating that she was facing burning sensation in the private parts since accused No.1 raped her in her house.
In this case, prosecution has cross-examined the P.W.4 considering her as hostile witness. In the cross- examination made on behalf of prosecution, P.W.4 admitted that, she gave statement before police to the effect that when accused No.1 raped her, another person : 17 : was standing near to the door, she made effort to escape from the hands of the accused No.1 and after the incident, accused No.1 left the place along with the person who stood near to the door and subsequently she came to know that the person who stood near to door was accused No.2.
In the cross-examination made on behalf of the accused No.1, P.W.4 submitted that, herself and P.W.2 are cousins. P.W.4 submitted that, in view of the increase of B.P. to P.W.1, herself, C.W.3 together shifted P.W.1 to the District Hospital, Chitradurga. Next day morning at 9 a.m., Dr. Chaithra had examined P.W.1. She had further stated that there were 5 to 6 houses between Dhomappa temple and the house of the P.W.1. P.W.4 stated that, on hearing the quarrel from the house of P.W.1, herself and others came to the house of the P.W.1. P.W.4 submitted that, when she reached the house of the P.W.1, 70 - 80 persons were present near to the house of the P.W.1. She further stated that Sri. Umesh Advocate came to Hospital and : 18 : advised the method how to give evidence and further she came to know that at about 9 a.m., police have collected the complaint from P.W.1. P.W.4 further stated that, till the discharge of the P.W.1 from the hospital, she was present with P.W.1.
P.W.5 a resident of Kallihatti village is a mahazar witness who has stated about recording of the spot mahazar marked at Ex.P.2 by the police with respect to the allegation of rape in the house of the P.W.1 and he had identified his signature on the mahazar marked at Ex.P.2. In the cross-examination, P.W.5 stated that, in the house of the P.W.1 the police have wrote the mahazar, then got his signature.
P.W.6, son of P.W.1 has deposed to the effect that he arrived to the District Hospital, Chitradurga immediately after receiving the news of the incident and saw that his mother was not in a position to speak. Later, his mother P.W.1 had informed him : 19 : about the rape committed by accused No.1. In the cross-examination P.W.6 submitted that, at about 4.30 to 5 a.m., he reached District Hospital, Chitradurga wherein P.W.2 to 4 and C.W.3 were present. In the cross-examination P.W.6 denied the suggestion that, accused No.1 and neighbours complained to him about the relationship between Veerabhadrappa and P.W.1.
P.W.9 Dr. Chaithra in her evidence, stated that, on 26.03.2013 at 3 p.m., she examined P.W.1 who was stable and conscious. P.W.9 submitted that, during examination she found multiple small abrasions over breasts of the P.W.1 and issued the wound certificate marked at Ex.P.12. However, P.W.9 in her cross-examination opined that there might have been chances of self inflicted injuries to the breast. Further she had opined that when there is forceful sexual intercourse, there are chances of occurrence of bruises, and abrasions and contusions on the thigh and private parts. Moreover, she had stated further in her cross-examination that after sexual : 20 : intercourse, spermatozoa remains in the vagina for 48-72 hours and if the breasts are bitten then there may be chances of appearance of bite marks on the breasts. She further submitted that on 10.06.2013 she gave final opinion stating that seminal stains and spermatozoa were not detected in item Nos.1 to 6.
In the evidence, P.W.11 Dr. B.S.Thipperudraswamy stated that, on 26.03.2013 at the instance of police, he has examined accused No.1 Siddesh and after examination he opined that there was no reason to disprove his ability to perform sexual intercourse. P.W.11 in his cross-examination stated that, in FSL report nothing has been stated that spermatozoa is equivalent to seminal stains and has admitted that if a man dreams when sleeping, there is likelihood of ejaculation of semen.
P.W.1 in her evidence has stated how the accused No.1 entered her house, remained in her house up to 11 p.m., when she wake up to consume tablets, made assault, abused in filthy and indecent language, raped her, then left the place. However, the oral evidence of the : 21 : P.W.1 about attempt made by the accused to kill her by showing his fist or attempting to strangulate her, are contrary to the complaint. In the complaint it is noted that, before police P.W.1 had stated that accused No.1 had told that if P.W.1 survived she will disclose the incident and therefore it was better to kill her and made attempt to kill her by strangulating P.W.1. However, in the evidence of P.W.9 Dr. Chaithra, there is nothing about the presence of strangulation marks on the neck or body of the P.W.1 during examination. The alleged attempt made by the accused No.1 to kill P.W.1 after commission of rape is contrary to the oral evidence of the P.W.1 or contents of the complaint. Therefore, it is not possible to believe the allegation made in the complaint that, the accused No.1 made an attempt to kill P.W.1 by either strangulating or otherwise.
The Doctor PW-11 who had examined the accused had already opined that there was a possibility of ejaculating while dreaming during sleep. Hence, it cannot be conclusively said that the presence of semen stains in : 22 : the underwear of the accused was due to the fact that he committed rape on PW-1.
In the totality of circumstances, it is seen that the victim PW-1 aged about 60 years though had a son and daughter, was residing alone in her house. She was having an intimate relationship with one Veerabhadrappa of the same village, who was frequently visiting her house. Therefore, there was an altercation between the neighbours including Accused No.1 resisting the activities of PW-1, which is clearly evidence from the evidence of the prosecution witnesses. Further, there are many material contradictions in the evidence of the witnesses which also creates a doubt in the case of the prosecution. Therefore, I find that the impugned judgment of conviction and sentence requires intervention in this appeal.
It is hereby held that the prosecution has established the guilt of the accused for the offences under Section 376 read with Section 511 IPC, instead of Section 376 IPC. But the other offences established by the prosecution under Sections 323, 448 and 504 IPC against : 23 : this accused Siddesh B is unaltered and the conviction in respect of the same shall be maintained. The accused Siddesh is in judicial custody for a period of 5 years 3 months since the date of his arrest and conviction. Therefore, if the period during which he has undergone imprisonment is treated as service of sentence, it would meet the ends of justice.
Hence, the appeal is allowed in part. The judgment of conviction and order of sentence dated 28/31.07.2014 passed by the Addl. District & Sessions Judge, Chitradurga in Sessions Case No.82/2013 convicting and sentencing the accused / appellant herein is hereby modified. The order of conviction and sentence under Sections 323, 448 and 504 IPC remains unaltered. The offence committed by the accused under Section 376 IPC is hereby treated as under Section 376 read with Section 511 IPC. The accused is in judicial custody since the date of his arrest. The period that he has undergone judicial custody is 5 years 3 months. The said period of 5 years 3 months during which he was under judicial custody, shall be termed as service of sentence and also held sufficient. : 24 :
Accordingly, the sentence held against the accused under Section 376 IPC is hereby modified. Therefore, the accused shall be set at liberty forthwith, if he is not required in any other case.
The Registry shall forthwith communicate this order to the concerned Superintendent of Jail Authorities where the accused is lodged, for compliance.
Sd/-
JUDGE KS