Karnataka High Court
Umesh @ Omanna S/O Shivaraj vs The State Of Karanataka on 29 June, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL No.3583/2011
C/W
CRIMINAL APPEAL No.3584/2011
IN CRIMINAL APPEAL NO.3583/2011
Between:
Umesh @ Omanna S/o Shivaraj
Aged about 25 years
Occ : Barber
R/o Jeevanagi,
Tq. & Dist.Gulbarga.
.. Appellant
(By Sri. Sachin M. Mahajan, Advocate)
And:
The State of Karnataka
Through Kamalapur PS
District Gulbarga,
Represented by
SPP, Hon'ble High Court of
Karnataka, Circuit Bench,
Gulbarga.
.. Respondent
(By Sri.Maqbool Ahmed, HCGP )
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This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to call for the entire records, allow this
criminal appeal by setting aside the Judgment and Order of
conviction dated : 27.1.2011 in Special Case No.251/2008
passed by II Addl. Sessions Judge at Gulbarga, thereby
convicting the appellant/accused no.1 for the offences
punishable under Section 366, 343, 376 of IPC and also
under Section 3(2)(v) of the Scheduled Caste and Schedule
Tribe Prevention of Atrocity Act and sentencing the
appellant/accused no.1 to suffer simple imprisonment for a
period of 7-years and fine of Rs.2500/- for the offences
punishable under Section 366 of IPC, simple imprisonment
for 3-months and fine of Rs.1000/- for the offences
punishable under section 343, simple imprisonment for a
period of 7-years and fine of Rs.2500/- for the offences
punishable under section 376 of IPC and imprisonment for a
period of 10-years and fine of Rs.2500/- for the offences
punishable under Section 3(2)(v) of the Scheduled Caste and
Schedule Tribe Prevention of Atrocity Act, with default clause
and grant such other relief or relief's as this Hon'ble Court
deems fit under facts and circumstances of the case.
IN CRIMINAL APPEAL NO.3584/2011
Between:
1. Basavaraj @ Basappa s/o Siddappa
aged about 45 years, occu : coolie;
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2. Khadir s/o Babusab
Age : 20 years, Occ : Driver
3. Shankar S/o Gurusiddappa Hadpad,
Age : Major, Occ : Barber
All R/o Jeevanagi, Tq. & Dist.Gulbarga.
.. Appellants
(By Sri. Sachin M. Mahajan, Advocate)
And:
The State of Karnataka
Through Kamalapur PS
District Gulbarga,
Represented by
SPP, Hon'ble High Court of
Karnataka, Circuit Bench,
Gulbarga.
.. Respondent
(By Sri.Maqbool Ahmed, HCGP )
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to call for entire records and allow this
criminal appeal by setting aside the Judgment and Order of
conviction dated : 27.1.2011 in Special Case No.251/2008
passed by II Addl. Sessions Judge at Gulbarga, thereby
convicting the appellants/accused nos.2, 3 and 6 for the
offence punishable U/Sec.343 and sentencing the
appellant/accused nos.2, 3 and 6 to suffer simple
imprisonment for a period of one year and fine of Rs.1000/-
for the offence punishable U/Sec.343 of IPC with default
clause.
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These appeals having been heard, reserved on
7.6.2017 for judgment and coming on for
pronouncement of judgment this day, the Court
delivered the following:-
JUDGMENT
These two appeals have been preferred by accused Nos.1, 2, 3 and 6 assailing the judgment and order passed by the II Additional Sessions Judge, Gulbarga, in Special Case No.251/2008, dated 27.1.2011.
2. The brief matrix of the case of the complainant is that, on 9.3.2007 at about 2.00 p.m. when the complainant and his wife were there in the house, at that time, his daughter, aged about 17 years went to bring stitched cloths from tailoring shop of Nagamurthy. Thereafter, she did not turn till 5.00 p.m. The complainant and his family members searched for her in the village and also in their relatives' houses, but she was not traced. On 17.3.2007 complainant got the information that on 9.3.2007 at about 2.00 p.m., when 5 his villagemen Vomanna @ Umesh, Nagesh, the jeep driver Khadir and other unknown two persons induced his minor daughter and eloped in a jeep bearing Regn.No.KA-38.M382. It is alleged that it was seen by one Shankar, Son of Shivadhar Jadar and Ambadas Son of Shamarao. It is further alleged in the complaint that accused No.5 Shivaraj, accused No.2 Basavaraj @ Basappa, accused No.6 Shankar @ Shankedar and accused No.7 Kalavathi together hatched a plan and encouraged accused No.1 Vomanna @ Umesh to elope the minor girl of the complainant as she belongs to the Scheduled Caste so as to spoil the reputation of the complainant.
3. It is further case of the prosecution that after eloping the minor girl-victim, they went towards Humnabad and there two more accused also boarded the jeep and thereafter in a maxi-cab they took the victim to Vittalpur and thereafter in Vittalpur accused 6 No.1 took her to the house of one Shanthakumar, where she has been sexually assaulted even in spite of her resistance. It is further case of the prosecution that, from 10.3.2007 to 17.3.2007 everyday accused No.1 used to sexually assault her and one day he took her gold ear-studs and sold them. When accused No.1 brought the victim on 17.3.2007 to his house at Jeevanagi, at that time also accused Nos.2 and 6 instigated and abetted accused No.1 to have sexual contact with the victim. On 18.3.2007 police came to the house of the accused and took the victim along with accused Nos.1 to 3 to the Police Station and there the victim narrated the acts of the accused. On the basis of the investigation, charge sheet came to be filed against the accused persons in Crime No.28/2007. After filing of the charge sheet, the Special Court took the cognizance of the said case as the said Court is the Special Court for trying the cases pertaining to Scheduled Caste and Scheduled Tribes. It took the 7 cognizance of the case, registered the same and on hearing both the sides the trial Court read over the charge and explained to the accused. Accused pleaded not guilty and wanted to be tried and as such the trial was fixed.
4. In order to prove its case, prosecution in all has examined 25 witnesses and marked documents as per Exs.P1 to P38 and MOs.1 to 5. After closer of the prosecution case, accused persons were examined under Section 313 of Cr.P.C. by putting incriminating materials against them. They denied the same and they have not led any evidence on their behalf. However, during the course of examination of PWs.1 and 21, they marked Exs.D1 to D3.
5. PW.1 is the father of the victim and he is also the complainant. He has deposed that the victim is his daughter and she went to bring the stitched cloths and thereafter she did not return for a long time. By 8 suspecting, himself and his wife went and made enquiries with the tailor Nagamurthy, who in turn informed that, she did not come there. He has deposed that he searched in the houses of relatives and friends and she was not found. He waited for two days under the impression that, she will come back. He has further deposed that, on 17.3.2007 the police apprehended accused No.1 and the victim in the house of the accused No.1. He has further deposed that, he filed the missing complaint at Ex.P1. When he met the victim she told that accused No.1 threatened that, if she is not going to give consent for sex, he is going to murder her parents. Thereafter by threatening he had sexual intercourse with her. He has further deposed that, she has been confined in a house for three days in Jahirabad by accused No.1. Accused No.1 also got her ear-studs removed and sold them. Accused No.1 got her married by exchange of garland under the threat in the presence of one Raju and Shanthu. During the course of cross- 9 examination, it has been suggested that after missing of the victim for the first time he talked with her on 17.3.2007 and he admitted that when he gave Ex.P1, he was not knowing who eloped and how they eloped his daughter. It has also been suggested that one or two months prior to the incident, accused No.1 had planned to elope the victim. After coming to know about the said fact, he went and asked the parents of the accused. The said suggestion has been denied. Except that nothing has been elicited from the mouth of this witness.
6. PW.2 is the victim. She has deposed that she has studied up to 7th Standard and her date of birth is 13.4.1989. She has deposed that on 9.3.2007 at about 2.00 p.m., she went to the tailoring shop of Nagamurthy Badiger to bring the stitched cloths and at that time, accused No.4, (juvenile offender) came and told that her Aunt is washing the clothes near Bhimalingeswar Temple and has asked him to bring the victim and 10 therefore she went along with him, where a jeep was standing. In the said jeep accused Nos.1 and 3 were there and they forcibly took her and started towards Humnabad. At Humnabad, one Raju and another person also boarded the jeep and there they took a maxi-cab and took her to Vittalpur. She has further deposed that they reached Vittalpur at about 9.30 or 10.00 p.m. and in the house of Shanthakumar, accused No.1 sexually assaulted her in spite of her resistance. She has also deposed that he caused burn injuries to her left hand with cigarettes and he has also had forcible sexual intercourse with her. She has further deposed that from 10.3.2007 to 16.3.2007, every day he used to have sexual intercourse with her against her will. On 15.3.2007 he took her to Bhimalingeshwar Temple and by exchanging the garland, he got her married in the presence of Raju and Shanthakumar. She has further deposed that 18.3.2007 police came to the house of accused No.1 and took them to Police 11 Station. She has also deposed that she has narrated the incident to her parents. During the course of cross- examination, some omissions are brought to the notice of the witnesses and same have been marked as Exs.R1 and R2. Though during the course of cross- examination it is suggested that, she has not resisted when she was eloped, the witness has deposed that she made resistance, as the accused persons tied her mouth with cloth, the same was not heard by anybody. It has been suggested that because of political enmity a false complaint has been lodged, the same has been denied.
7. PW.3 is the mother of victim. She has also reiterated the evidence of PW.1; PWs.4 and 5 are the panchas to seizure mahazar at Ex.P3 under which jeep- MO.No.1 was seized. They are also panch witnesses to the spot mahazar at Ex.P4; PW.6 is the tailor to whom PW.1 went and asked about PW.2 and asked about the abduction of the victim by the accused; PW.7 is a 12 witness who participated in the marriage; PW.8 is the owner of the jeep as well as father of accused No.3; PWs.9 and 10 are the witnesses who saw the accused persons eloping the victim in the jeep; PW.11 is the witness in whose house accused No.1 took the victim and had sexual assault; PW.12 is the witness who participated in the marriage. PWs.4 to 12 have not supported the case of the prosecution and they have been treated as hostile.
8. PWs.14 and 22 are the panchas to the spot mahazar at Ex.P23. They have also not supported the case of the prosecution; PW.13 is the doctor who examined the victim and issued the medical certificate as per Ex.P22; PW.15 issued the property records of Shanthakumar as per Exs.P24 and P25; PWs.16 to 18 are the Police Constables who went in search of the victim and the accused; PW.19 is the ASI who received the complaint, registered the case and issued the FIR; 13 PW.20 is the PSI who partly investigated the case. But as could be seen from the evidence, he has not been fully examined; PW.21 is the Head Master who issued the date of birth certificate of PW.2 as per Ex.P32; PW.23 is the Police Constable who carried the FIR to the jurisdictional Court; PW.24 is the Dy.SP who partly investigated the case; PW.25 is also the Dy.SP, who further investigated the case and filed the charge sheet against the accused persons.
9. I have heard Sri Sachin Mahajan, learned counsel appearing for the accused. and the learned HCGP for the State.
10. It is the contention of the learned counsel appearing for the accused that, the complaint at Ex.P1 head been filed after seven days and the said delay has not been properly explained by the complainant. He would contend that, though it is the case of the prosecution that PW.2 has been wrongfully confined in 14 a house and she has been sexually assaulted, she has not deposed the same in her evidence. He would further contend that the prosecution evidence shows that it is the accused No.1 who confined the victim in the house of one Shanthakumar, but the trial Court without proper appreciation of the evidence, has wrongly convicted accused Nos.2,3 and 6. He would further contend that though PW.2 has deposed that accused No.1 when he confined her in a room, has caused the burn injuries to her left hand with a cigarette, in the wound certificate Ex.P22 no such burn injuries or marks have been mentioned. Under these circumstances, the prosecution case clearly goes to show that because of political vengeance, a false case has been filed by implicating the accused. He would further contend that there are contradictions and omissions in the evidence of PW.2, but the same has not been appreciated by the trial Court while convicting the accused. He would further contend that the trial Court 15 has convicted the accused-appellant only on the interested testimony of relatives and it has not considered the fact that the independent witnesses have turned hostile. On these grounds he prayed for allowing the appeals by setting aside the impugned judgment.
11. Per contra, it is contended by the learned HCGP that there is consistency in the evidence of PWs.1 to 3. Though PWs.1 to 3 are the related witnesses, merely because they are related, on that ground their evidence cannot be discarded. He would contend that during the course of cross-examination, nothing has been elicited so as to discard the evidence of these witnesses. He would further contend that minor contradictions and omissions will not take away the case of the prosecution. The trial Court after considering all the evidence, has rightly convicted the accused-appellants. The accused-appellants have not made out any case so as to interfere with the impugned 16 judgment. On these grounds, he supports the impugned judgment and prays for dismissal of the appeals.
12. Having heard the learned counsel for the accused and the learned HCGP, the only point which remains for my consideration is whether the impugned judgment and order requires to be interfered with by this Court? In order to establish the case of the prosecution, it has mainly relied upon the evidence of PWs.1 to 3. It is the specific case of the accused- appellants that the victim was aged about 17 years and she was having knowledge about worldly affair and has not made any resistance when she has been eloped. It is further contended that accused No.3 is only the driver of the jeep and he has not played any active role in eloping the victim. As could be seen from the evidence of PW.2-victim, she has categorically deposed that accused No.3 came to her and told her that her Aunt 17 has called her near Bhimalingeshwar Temple, where she was washing the clothes and he accompanied the victim. Accused Nos.1 and 3 were also there in a jeep and forcefully they took the victim in the said jeep towards Humnabad. At Humnabad they took a maxi- cab and took her to Vittalpur and thereafter accused No.1 took her to the house of Shanthakumar. Though during the course of cross-examination, it has been tried to bring on record that the victim has not resisted when she has been taken in the jeep, she has categorically deposed that she resisted and tried to make hue and cry, as the accused persons have tied her mouth with cloth as such she could not make a loud cry.
13. The evidence of PW.1 clearly goes to show that in the first instance, accused Nos.1 and 3 took her in the jeep by eloping her telling some lie through accused No.2 who is a juvenile. Merely because that 18 subsequently there was no resistance at a public place, it cannot be held that accused persons have not eloped the victim. Admittedly, the victim was aged about 17 years at the time of the alleged incident and it is the specific case of the victim that the accused persons also used to threaten her and under such circumstances it is very difficult for any minor girl to make a hue and cry. Be that as it may, it is not the specific case of the accused that in the jeep in which the accused persons eloped the victim, other persons were also there. When that evidence is not forthcoming, then under such circumstances, even if she resisted in the said jeep and tried to make hue and cry when only accused persons were there in the jeep, it will not come to the notice of the public in a moving vehicle.
14. Though it is contended by the learned counsel for the appellants that accused No.3 was only the driver of the jeep, when PW.2 has specifically deposed that he 19 was present when she was eloped by accused No.1, then under such circumstances, when the victim was resisting, he could have done some reasonable acts to protect her if he was not having any intention and if he has not colluded with accused No.1. In that light of the evidence, the contention of the counsel for the accused is not acceptable in law.
15. If we peruse the cross-examination of PW.1 the father of the victim, it has been suggested during the course of cross-examination at page No.5, that one or two months prior to the incident, accused No.1 hatched a plan to elope the victim and after coming to know about the same, PW.1 went to the parents of accused No.1 and informed the same. The said suggestion even though is denied, would clearly go to show that accused No.1 had hatched a plan prior to one or two months prior to the alleged incident to elope PW.2. The said suggestion is a fatal to the case of the accused. The 20 facts of the present case clearly go to show that PW.2 has been eloped from the custody of PWs.1 and 3 against their will. In that context, the contention of the learned counsel for the accused-appellants is not acceptable in law. As could be seen from the evidence of PW.2, she has categorically deposed before the Court that accused No.1 took her and confined her in the house of one Shanthakumar at Vittalpur and there he had sexual intercourse against her will and it is also specific deposition of PW.2 that on 17.3.2007, accused No.1 took her to his house and there accused Nos.2 and 6 instigated accused No.1 to have sexual intercourse with PW.2 and sent her in a room along with accused No.1 and at that time also accused No.1 sexually assaulted her. Though PW.2 has been cross-examined at length, nothing has been elicited so as to discard her evidence. Even there is no suggestion that as to why the other accused persons have been falsely implicated 21 in the crime, except denial of the case of the prosecution, nothing is there.
16. It is well established principles of law that merely because the witnesses are interested witnesses or related witnesses their testimony cannot be discarded. But however, when a caveat is there to the effect, such evidence has to be scrutinized and weighed by the Court carefully and cautiously. In that light, if the evidence of PWs.1 to 3 is perused, there is consistency and corroboration. Even PW.2-victim has deposed before the Court about the sexual assault committed by accused No.1 chronologically by confining her in the house of one Shanthakumar. When the victim herself has deposed about the act of accused No.1 and when there is no material to discard the evidence of PWs.1 to 3, then under such circumstances, accused No.1 is liable to be convicted for the offence punishable under Sections 366, 343, and 376 of IPC. It 22 is not in dispute that the victim girl belongs to the Scheduled Caste community and as such the accused No.1 is liable to be punished under Section 3(2)(v) of SC/ST (PA)Act, 1989.
17. During the course of arguments, the learned counsel for the appellants contended that, there is a delay of seven days in filing the complaint and burn injuries are not mentioned in the wound certificate issued by PW.13. But they are all minor contradictions. It is well established principles of law that minor contradictions or insignificant discrepancies in the statements of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. If any corroboration is asked to the evidence of the victim, then under such circumstances, it amounts to nothing, but adding a salt to the injuries. When PW.2, a minor girl has innocently and categorically deposed before the Court who even does not know what is rape, 23 then under such circumstances, the minor contradictions and omissions will not take away the case of the prosecution. Even it is well established principles of law that if the evidence of the prosecutrix is unshaken, only on the basis of sole testimony of the victim-prosecutrix the Court can convict the accused. But in the instant case, even PWs.1 and 3, the parents of the victim have also categorically supported the case of PW.2. Though their evidence is a hear-say evidence, for a limited purpose, it corroborates with the evidence of PW.2, that too which has been told by PW.2 immediately after she has been secured by the police. If we see the evidence of police officials that they have gone in search of the victim as well as the accused persons, the victim and accused No.1 were traced in his house and from there they have been apprehended and brought to the Police Station. Accused Nos.1, 2 and 6 have not made out any case as to under what circumstances, the victim was present in the house of 24 accused No.1. Even it is not the case of the accused that victim has voluntarily come to the house of accused No.1. Be that as it may, when a minor girl has come to their house, then under such circumstances, either they could have informed her parents-PWs.1 and 3 or they could have taken her to the Police Station or could have informed the police. Looking from any angle, there is nothing to discard the evidence of the prosecution case.
18. The evidence of the witnesses has to be appreciated with the background that they are rustic and village people, and that too they are belonging to backward community. Even the accused have not made out any case except suggesting that because of political enmity they have been falsely implicated, the said suggestions have been denied by PWs.1 and 2. Even no corroborative evidence has also been brought on record to believe such evidence. It is suggested to PW.1 during the course of cross-examination that he actively 25 participated in civil and criminal cases pertaining to his village and it has become a habit for him to go to Court and as such a false case has been registered. No father will go to such an extent by putting modesty and character of his daughter to falsely implicate the accused. Under the said circumstances, the evidence of PWs.1 to 3 can be held that it is trustworthy and reliable.
19. I have gone through the impugned judgment and order. There is no erroneous or perversity while passing the same. The learned Sessions Judge after considering all the material on record has rightly come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. The impugned judgment does not require interference at the hands of this Court and same is liable to be confirmed. 26
Keeping in view the aforesaid discussion, both the appeals are liable to be dismissed and accordingly, the same are dismissed.
Sd/-
JUDGE *ck/-