Karnataka High Court
Jagannath S/O Maduraya Pujari Anr vs The State Of Karnataka on 16 January, 2014
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IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2014
:BEFORE:
THE HON'BLE MR. JUSTICE B V PINTO
CRIMINAL APPEAL NO.3766/2010
BETWEEN:
1. JAGANNATH,
S/O.MADURAYA PUJARI,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE.
2. MADURAYA,
S/O.NARASAPPA PUJARI,
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE.
BOTH ARE RESIDING AT:
GANAJALKHED,
TALUK AND DISTRICT GULBARGA. ...APPELLANTS
(BY SRI MAHANTESH DESAI, ADV)
AND:
THE STATE OF KARNATAKA,
THROUGH GRAMEEN P.S.
GULBARGA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT
CIRCUIT BENCH, GULBARGA. ...RESPONDENT
(BY SRI S.S.ASPALLI, HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 12.11.2010 PASSED IN
S.C.NO.127/2010 ON THE FILE OF THE III ADDL.
SESSIONS JUDGE AT GULBARGA CONVICTING THE
APPELLANTS/ACCUSED NOS.1 AND 2 FOR THE
OFFENCES P/U/S 341 AND 307 R/W SEC. 34 OF IPC
AND CONVICTING THE APPELLANTS/ACCUSED NO.1
AND 2 ARE SENTENCED TO PAY A FINE OF RS.500/-
IN DEFAULT THEY SHALL UNDERGO S.I. FOR ONE
MONTH EACH FOR THE OFFENCE P/U/S 341 OF IPC,
FURTHER THE APPELLANTS/ACCUSED NO.1 AND 2
ARE SENTENCED TO UNDERGO R.I FOR THREE
YEARS EACH, AND TO PAY FINE OF RS.30,000/-
EACH. IN DEFAULT THEY SHALL UNDERGO S.I. FOR
TWO YEARS EACH FOR THE OFFENCE P/U/S/ 307
OPF IPC. THE APPELLANTS/ACCUSED NOS.1 AND 2
PRAYS THAT THEY MAY BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR
'DICTATING OF JUDGMENT' THIS DAY THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the accused in SC No.127/2010 on the file of 3rd Additional Sessions Judge, Gulbarga challenging the Judgment dated 12.11.2010 convicting them for the offences under Section 341, 307 r/w Section 34 of IPC and sentencing each of them to pay fine of `500/- in default of payment 3 of fine to undergo simple imprisonment for the period of one month for the offence under Section 341 of IPC and further sentencing each of them to undergo rigorous imprisonment for three years and to pay fine of `30,000/- in default of payment of fine to undergo simple imprisonment for two years each with a direction that a sum of `50,000/- shall be paid as compensation to PW.1-Victim-Nagamma under Section 357 of Cr.P.C, while acquitting them of the offences under Section 504, 506 r/w Sec 34 of IPC.
2. It is the case of the prosecution that, on 02.12.2009 at about 8.00 a.m. at Ganajalkhed village within the limits of Grameen Police Station, when the victim Nagamma had been to the house of the accused in connection with the illicit relationship of accused No.1 with her, they have wrongfully restrained her from proceeding further, thereby they are alleged to have 4 committed the offences under Section 341 r/w Section 34 of IPC.
3. It is the further case of the prosecution that on the aforesaid place, date and time, when the victim insisted accused No.1 to give half share in the landed properties of accused No1 and when she insisted that she would not go back to her house without getting her share, accused No.1 brought pesticides bottle and put into the mouth of the complainant, while accused No.2 caught hold of her and they forcibly made her to consume the same with an intention to commit the murder of the said complainant-Nagamma and with such knowledge or intention that if by that act, they had caused the death of the complainant they would have been guilty of murder, thereby they are alleged to committed an offence under Section 307 r/w Section 34 of IPC.
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4. It is the further case of the prosecution that on the aforesaid place, date and time in furtherance of their common intention accused abused the complainant in filthy language with an intention to insult her and thereby gave provocation intending that such a provocation would cause breach of public peace, thereby they are alleged to have committed the offence under Section 504 r/w Section 34 of IPC.
5. It is the further case of the prosecution that, on the aforesaid place, date and time, accused have criminally intimidated the complainant by giving threat to her life, thereby they are alleged to committed the offence under Section 506 r/w Section 34 of IPC.
6. The prosecution in order to prove the case has examined in all 12 witnesses and got marked Exs.P1 to 6 and produced MOs1 to 3. The defence of the accused was one of total denial. However, by the impugned Judgment, the learned Sessions Judge has 6 acquitted the appellants/accused of the offences under Section 504 and 506 r/w Section 34 of IPC and convicted them and sentenced them as aforestated. It is this order of conviction and sentence which is under challenge by the accused in this appeal.
7. The complainant Nagamma presented a written complaint before the Sub-Inspector of Police, Grameen Police Station, Gulbarga on 02.12.2009 in which she has stated that, she has left her husband and two children in Ganajalkhed Village. Accused No.1- Jagannath has been falling behind her for the last six to seven years inspite of he knowing that she is a married woman and has got children. He was having illicit relationship with her and that he had promised to give half share in the property held by him and that he was threatening her that if she were to disclose their relationship, he would publish the same in the village. She was demanding for half share in the property of 7 accused No.1. But since he was not giving the share, about 15 days prior to the date of giving complaint, she went and remained in the house of accused No.1. Accused No.2-Maduraya Pujari is the father of accused No.1. On 02.12.2009 at about 8.00 am, both accused Nos.1 and 2 abused her and threatened her to leave the house and accused No.2-Maduraya Pujari caught hold of her and accused No.1 brought the bottle and poured pesticides from the said bottle into her mouth forcibly and while she was screaming for help, one Ambaraya Harijan and Kalavathi and also Srimantha Hirepujari came and extricated her from the clutches of accused No.1, thereafter, Kalavathi and Sanju took her to the hospital and got her admitted.
8. The Sub-Inspector of Police Rural Police Station on receipt of the above information in writing by the complainant registered a case in their crime No.377/2009 for the offences under Section 341, 307, 8 493, 504 and 506 r/w Section 34 of IPC and at about 11.00 a.m. and commenced the investigation. Accused Nos.1 and 2 were arrested and produced before the Court and after completion of investigation, charge sheet came to be filed. On 05.02.2010 as per the orders of the learned Sessions Court, both accused were released on bail.
9. During the trial, out of 12 witnesses examined before the Court, PW.1-Nagamma, PW.2- Kalavathi, PW.3-Srimanth and PW.4-Sanju have supported the case of the complainant insofar as the incident is concerned. But PW.5-Beerappa, PW.6- Ambaraya and PW.7-Devindrappa have turned hostile and PW.8-Manjunath, PW.9-Digambar, PW.10- Basavaraj and PW.12-Rajashekhar are the police officials and PW.11-Dr.Veereshkumar is the Medical Officer who has examined PW.1 victim.
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10. PW.1 has spoken regarding the incident as per her version in the complaint. PWs.2, 3 and 4 have also stated that, they had arrived at the scene of occurrence almost simultaneously and have seen the accused as well the complainant at the scene of occurrence. The evidence of PW.11-Dr. Veereshkumar indicates that, on 02.12.2009, PW.1 was examined by him when she was admitted to the hospital and smell of organo phosphorous was present in her breath while examining her. However, there were no external injuries and also affirmed that the patient had smelled organo phosphorous poison. The patient was discharged on 09.12.2009. He had issued Ex.P6-wound certificate and has affirmed that organo phosphorous poison can cause the death of person in the ordinary course, if not treated. Based on the above said evidence on record, the trial Court has convicted the accused and sentenced both of them as stated above.
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11. Heard Sri Mahantesh Desai, learned Counsel for the appellants and Sri S.S.Aspalli, learned HCGP for the State/respondent.
12. The learned Counsel for the accused submits that, there is vast discrepancy in the evidence of PW.1- victim between her statement in the complaint and the statement before the Court, while in the complaint she has stated that, accused No.2 held her and accused No.1 has poured poisonous substance in the bottle into her mouth, in her evidence before the Court she has stated that, accused No.1 held her and accused No.2 poured substance from the bottle. He also invites the attention of the Court to the evidence of PW.2 who has stated in her cross-examination that, by the time she reached the scene of occurrence the incident was already over and that many people had gathered at the scene of occurrence, while PW.3 has stated that by the time he reached the scene of occurrence, the 11 complainant had fallen down and her mouth was smelling of oil. She was vomiting, but not in a position to speak, whereas PW.4 has stated that at the time of the incident, he reached to the scene of occurrence along with his mother PW.2 and at that time, accused were pouring oil into the mouth of the complainant. PW.4 has also specifically stated that the incident has happened in connection with the demand for half share of the property of accused No.1. All the four witnesses have stated regarding the illicit intimacy that PW.1 had with accused No.1. Therefore, all of them are interested witnesses and their evidence being discrepant, may be discarded and the appeal may be allowed.
13. Sri S.S.Aspalli, learned HCGP for the State on the other hand submits that, the evidence of PWs.1 to 4 clearly indicates that poison was administered on PW.1 on the date of the incident and that the discrepancy insofar as the person who has administered 12 poison is a minor discrepancy, since PW.1 is obviously an illiterate lady. It is also submitted by him that the total effect of evidence of PWs.1 to 3 clearly indicate that the incident of the nature as explained by PW.1 has happened on the date of the incident which is completely corroborated by the evidence of PW.11-Dr. Veereshkumar who has categorically stated that on the same day, when he has examined PW.1, smell of organo phosphorous was present in the mouth of PW.1. The history given to PW.11 also further corroborates the case of the prosecution. Hence, he submits that the trial Court has rightly convicted the accused and no interference is called for in this appeal.
14. I have carefully gone through the entire materials on record. There is of-course small discrepancy in the evidence of PW.1 regarding who poured the poisonous substance and who held her. However, it is seen from the cross-examination of PW.1 13 or PW.2 for that matter, that the accused has not disputed the incident as such nor the presence of PW.1 on the date of the incident and the place of incident as propounded by the prosecution. The evidence of PWs.2, 3 and 4 clearly corroborates the fact that the victim- PW.1 was present in the house of accused Nos.1 and 2 on the date and the time of the incident. The motive to the said crime is also established from the complaint of PW.1 marked as Ex.P1 and the same is corroborated from the evidence of PWs.1 to 4. Therefore, this Court has no hesitation to hold that the prosecution has proved that the incident of the nature as described in the complaint has infact happened and some foreign substance has been put thrust into the mouth of PW.1 on the background of PW.1 demanding share in the property, since accused No.1 had forcibly kept her and was having illicit connection with her. However, this Court cannot lose sight of the fact that the medical certificate issued by PW.11 does not indicate that the 14 substance recovered from the mouth of PW.1 was subjected to chemical examination nor FSL report is brought forward by the prosecution to hold that the poisonous substance was infact thrust into the mouth of PW.1. Under the circumstances, it cannot be held that accused had intended to cause harm to PW.1 or cause such injury as is likely to cause the death of PW.1. In the absence of any clear finding that the substance was poisonous, an offence under Section 307 of IPC is not clearly attracted in this case. However, since accused have exercised force on PW.1 and have attempted to cause harm to her body by pouring some substance into her mouth, they have criminally assaulted her. The said aspect is further corroborated by the evidence of PW.11- Dr.Veereshkumar who has stated that when he examined PW.1, he has found smell of some organo phosphorous substance. In that view of the matter, I am of the opinion that the accused/appellants are liable to be found guilty of an 15 offence of causing assault or criminal force with an intention to dishonour PW.1 which is punishable under Section 355 of IPC.
15. So far as the offence under Section 341 of IPC is concerned, the evidence of PW.4 clearly supports the evidence of PW.1- the victim herself and therefore, the trial Court has rightly convicted the accused for the offence under Section 341 of IPC.
16. However, so far as the sentence for the offence under Section 355 of IPC is concerned, it is seen that the offence under Section 355 of IPC is punishable with imprisonment which may extend to two years or fine. It is seen that accused/appellants were in custody from 03.12.2009 upto 05.02.2010 for a period of two months. The victim needs to be compensated for the illegal act committed by the accused. Hence, compensation amount which has been ordered by the trial Court cannot be disturbed while adequate sentence 16 need to be imposed for the act committed by the accused. Accordingly, the following order is passed:
ORDER
i) The appeal is allowed in part.
ii) The order of conviction for the offence
under Section 341 r/w Section 34 of IPC
and sentence there for is hereby
confirmed.
iii) The order of conviction for the offence under Section 307 r/w Section 34 of IPC is hereby set aside and in its place, accused are convicted for the offence under Section 355 of IPC.
iv) The accused are sentenced to undergo rigorous imprisonment for two months and to pay fine of `25,000/- each for the offence under Section 355 of IPC.
v) The accused are given set off under Section 428 of Cr.P.C. for the period already undergone by them as under trial prisoners.17
vi) An amount of `50,000/- shall be paid to PW.1 as compensation under Section 357 of Cr.P.C.
Sri Mahantesh Desai learned Counsel for the appellants submits that, the accused have deposited a total sum of `61,000/- before the trial Court. The trial Court is directed to disburse an amount of `50,000/- to PW.1 and refund balance amount of `9,000/- to both accused Nos.1 and 2 in equal proportion and a sum of `2,000/- shall be appropriated to the State as fine.
Sd/-
JUDGE KSR