Karnataka High Court
Ningegowda @ Yellavaiah vs State Of Karnataka on 9 December, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 09TH DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL NO.1653/2006
c/w
CRIMINAL REFERRED CASE NO. 01/2013
IN CRL.A.NO.1653/2006
BETWEEN:
1. Ningegowda @ Yellavaiah
S/o late Kunnaiah
Aged about 32 years
Agriculturist,
Byranayakanahalli
Kunigal taluk, Tumkur district.
2. Krishne Gowda
S/o late Kunnaiah
Aged about 27 years
Agriculturist,
Byranayakanahalli
Kunigal taluk, Tumkur district.
...APPELLANTS
(By Sri. M.J.Alva, Adv.)
AND:
State of Karnataka
Represented by Kunigal Police
Kunigal town,
Tumkur district. ...RESPONDENT
(By Sri.B.T.Venkatesh, SPP-II)
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Crl.A.No.1653/2006 is filed u/S.374(2) of Cr.P.C
praying against the judgment dated 19.07.2006 passed
by the District and Sessions Judge, FTC-1, Tumkur, in
S.C.No.116/04 - convicting the appellants-accused
Nos.2 & 3 for the offences punishable under Sections
342, 354, 376 r/w 511 and 307 r/w 34 of IPC and etc.
IN CRL.R.C.No.1/2013
BETWEEN:
The Registrar General,
High Court of Karnataka,
Bangalore-560 001. ....PETITIONER
(By Sri.B.T.Venkatesh, SPP-II for Advocate General)
AND:
Ramaiah @ Mooga
s/o late Kunnaiah, 33 years,
r/at Byranayakanahalli village,
Kunigal taluk. ...RESPONDENT
(By Sri.M.J.Alva, Adv.)
Crl.R.C. is registered as required under Section
318 Cr.P.C. as per the order of this Court dated
22.02.2013 in regard to conviction of sentence against
accused No.1 Ramaiah @ Mooga (respondent herein) as
he is dumb as contemplated under Section 318 Cr.P.C.
by the judgment and order dated 19.07.2006 passed in
S.C.No.116/2004 on the file of the Presiding Officer,
Fast Track Court-1, Tumkur.
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This Crl.A. and Crl.R.C. are coming on for final
hearing this day, the Court delivered the following:-
JUDGMENT
The appellants in Crl.A.No.1653/2006 were arrayed as accused Nos. 2 and 3 and they are tried with accused No.1 for offences punishable under Sections 342, 354, 376 r/w 511 r/w 34, 307 r/w 34 IPC.
2. The learned Sessions Judge has held accused Nos. 1 to 3 guilty of offences punishable under Sections 342, 354, 376 r/w 511 and 307 r/w 34 IPC. Accused No.1 is deaf and dumb. Therefore, the learned Sessions Judge has made a reference under Section 318 Cr.P.C. Crl.A.No.1653/2006 is filed by accused Nos.2 and 3 as against impugned judgment of conviction for the afore- stated offences.
3. I have heard Sri.M.J.Alva, learned counsel for the accused and learned SPP for the respondent-State.
4. It is seen from the impugned judgment, the learned Sessions Judge has held that accused No.1 is guilty of offences punishable under Sections 342, 354, -4- 376 r/w 511, 307 r/w 34 IPC. The learned Sessions Judge having regard to the fact that accused No.1 is a deaf and dumb person has made a reference to this Court. At this juncture, it is necessary to state that accused Nos. 1 to 3 are direct brothers. They were charged for the afore-stated offences. They were defended by a common advocate. The learned Sessions Judge has availed the services of expert from Deaf and Dumb School to explain the charges to accused No.1 so also to examine accused No.1 under Section 313 Cr.P.C. As already stated, accused Nos. 1 to 3 are direct brothers. They are charged for the same offences. They were defended by the same learned advocate. The prosecution witnesses have been cross-examined by the common learned counsel for accused Nos.1 to 3. The learned Sessions Judge on appreciation of evidence has held accused Nos. 1 to 3 guilty of the afore-stated offences. The learned Sessions Judge had felt some difficulty in hearing accused No.1 on sentence. In my considered opinion, on the question of sentence, , the learned Sessions Judge could have heard learned -5- counsel for accused No.1 instead of making a reference under Section 318 Cr.P.C., more particularly, the learned Sessions Judge has not recorded a finding that accused No.1 though not a person of unsound mind was not able to understand the proceedings before the court below.
5. In a decision reported in ILR 2003 KAR 2838 (in the case of Shantaram Dattatreya and others vs. State of Karnataka), this Court has held thus:-
"47. Section 318 prescribes that if the proceedings end in a conviction where the accused thought not of an unsound mind is unable to understand the proceedings of the Court, in such event the trial court may refer the matter to the High Court and the High Court shall pass thereon such order as it deems fit".
6. The trial court has not recorded any finding that accused though not a person of unsound mind, cannot be made to understand the proceedings before the court below. As already stated, accused Nos.1 to 3 are direct brothers. They were defended by a common -6- Advocate and charges framed against them are one and the same. The evidence adduced by prosecution is also one and the same. In the circumstances, I deem it proper to hear the appeal and reference on merits and to pass appropriate orders in terms of Section 319 Cr.P.C.
7. It is the case of prosecution that accused Nos. 1 to 3 are direct brothers. They are residents of Byranayakanahalli, Kunigal taluk. PW-17 (victim) is the wife of PW-4 (Ramakrishnaiah). They are also residents of Byranayakanahalli. There was enmity between PW- 17 and the mother of accused. They had quarreled three days prior to the date of alleged incident. Therefore, accused had grudge against the victim. It is the case of prosecution that on 16.1.2004 at about 11.30 a.m., PW- 17 was going to her native place which is at a distance of 4 kms from Byranayakanahalli. On the way, she was confronted by accused Nos.1 to 3. Accused No.1 held her from behind and dragged her to a sugar cane field. They tied her limbs with some creepers. Accused Nos.1 to 3 used criminal force with intention to outrage her -7- modesty. Accused Nos. 1 to 3 attempted to commit rape on her. Accused Nos. 1 to 3 used criminal force and assaulted her with a stone and fisted her and caused grievous injuries to her. She fell unconscious. Accused Nos. 1 to 3 thought that she had died. Therefore, they left that place. After some time, PW-17 regained conscious and somehow she managed to untie creepers and reached the road. She was rescued by some of the villages. She was brought to her house. She was taken to Government Hospital at Kunigal. On the basis of her statement, a crime was registered against accused.
8. In view of the findings recorded by trial court, the following points would arise for determination:-
(i) Whether the prosecution has proved that on 16.01.2004 at about 11.30 a.m., in the land of CW-14 Krishnaiah near Byranayakanahalli, the accused wrongfully confined PW-17 (victim) and thereby committed an offence punishable under Section 342 r/w 34 IPC?
(ii) Whether the prosecution has proved that in the course of same transaction -8- mentioned in point No.1, accused Nos. 1 to 3 with a common intention to outrage the modesty of PW-17, used criminal force against her to outrage her modesty, thereby committed an offence punishable under Section 354 r/w 34 IPC?
(iii) Whether the prosecution has
proved that in the course of same
transaction as mentioned in point Nos. 1
and 2, accused Nos. 1 to 3 with a common intention, attempted to commit rape on PW-
17, thereby committed an offence punishable under Section 376 r/w 511 r/w 34 IPC?
(iv) Whether the prosecution has proved that in the course of same
transaction as mentioned in point Nos. 1 to 3, accused Nos. 1 to 3 shared common intention and assaulted PW-17 with a stone and they also kicked and fisted her with such intention and knowledge, by such acts, if they caused the death of PW-17, they would have been held guilty of an offence punishable under Section 302 IPC, thereby committed an offence punishable under Section 307 r/w 34 IPC?
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(v) Whether the learned Sessions Judge has properly appreciated the evidence on record?
(vi) To what order?
9. The prosecution has relied on the direct evidence given by victim and immediate post occurrence witnesses and the medical evidence. The evidence adduced by prosecution that there was enmity between the family members of PW-17 and family members of accused has not been seriously controverted.
10. The law is fairly well settled that motive is a double edged weapon. If the evidence adduced by the prosecution is found credible and consistent, the motive would be an additional incriminating circumstance against the accused. If the evidence adduced by prosecution is not credible, the motive could be a reason for false implication of the accused.
10. PW-1 Kalaboraiah is a post occurrence witness. He is alleged to have heard the hue and cry near the place of incident. PW-1 has not supported the
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case of prosecution. He was declared as hostile witness. Even during cross-examination by learned Public Prosecutor, PW-1 has not given any incriminating evidence against the accused. Therefore, his evidence is of no avail to the prosecution.
11. PW-2 Ranganatha is another post occurrence witness. He has deposed that on the date of incident at about 3.30 or 4 p.m., he was proceeding with PW-1 to Byranayakanahalli. Near a Sugarcane field, they saw PW-17 lying on the ground. She had suffered injuries. The evidence of PW-2 lends support to the case of prosecution that victim had suffered injuries at the relevant place and time. PW-2 was treated as hostile witness for not fully supporting the prosecution. During cross-examination, apart from what he has deposed in examination-in-chief, he has not given any incriminating evidence against accused. Therefore, notwithstanding the fact that PW-2 is declared as hostile witness, his evidence that he had seen the victim in an injured condition near the place and time put
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forth by prosecution, would support the case of prosecution.
12. PW-3 Puttaswamy is the immediate post occurrence witness. He has not supported the case of prosecution. He was treated as hostile witness. During cross-examination, he has not given any incriminating evidence against accused.
13. PW-4 Ramakrishnaiah is the husband of PW- 17 (victim). He has deposed that PW-17 is his wife. She was staying with her. They had a female child aged about 3 years. During the year 2004, the child was being taken care of by his parents-in-laws in Biddanagere village. About four days prior to the date of incident, there was quarrel between PW-17 and the mother of accused regarding collection of water from public tap of the village. At that time, accused had threatened that they would commit some offence against PW-17. On 16.01.2004 (date of incident) at 11.30 a.m., PW-17 left Byranayakanahalli to go to her parental house to see her child. At that time, she was
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carrying a packet of biscuit and flowers. The distance between Byranayakanahlli (place of PW-17) and Biddanagere (place of parents of PW-17) is about 3 kms. PW-17 was going to her village by walk. On the same day, at about 4 p.m., when PW-4 was in his house, his elder brother Gangaswamy, his mother Gangamma and one Ranganath (PW-2) came and told that they had seen the woman lying near a sugarcane filed in an injured condition and she was crying for help and when they went there, she looked like PW-17. On hearing the same, all of them rushed to the place of incident. PW- 17 had suffered injuries. When enquired by PW-4, PW- 17 told him that accused had waylaid her and they had dragged her to sugarcane filed. The accused kicked and fisted her and they also hit her with a stone. The accused had tied her limbs with creepers. The accused left the place under an impression that victim had died. After some time, PW-17 regained conscious and somehow, she managed to untie the creepers and reached the road.
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14. At this juncture, it is relevant to state that narration of incident by PW-17 to PW-4 within a few hours after the incident, could be treated as a statement under Section 157 of the Evidence Act to derive corroboration to the substantive evidence given before the court.
15. PW-1 shifted PW-17 (victim) to the Government Hospital at Kunigal. PW-4 lodged the first information. The police inspector inspected the place of incident and recovered incriminating articles. As advised by the doctor, PW-4 shifted PW-17 to Minto Hospital at Bangalore and she was treated for considerable period. During cross-examination, PW-4 has denied the suggestion that he had falsely implicated the accused. The evidence on record does not reveal that PW-4 had grudge against accused to implicate them. PW-17 had not told PW-4 that accused had outraged her modesty and they had attempted to commit rape on her.
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16. PW-5 Rangaswamy is the younger brother of PW-4. He has deposed that he had seen PW-17 in injured condition near the place of incident. During cross-examination, he has admitted that he came to know of the incident from PW-4. Therefore, his evidence that he had seen the victim near the place of incident and learnt incident from her cannot be accepted.
17. The evidence of PW-6 Vasanthamma is of no consequence. She has deposed, PW-17 had purchased packet of biscuit from her shop and that PW-17 had suffered injuries, she was rescued and shifted to hospital.
18. PW-7 Ramanna is the father of PW-17. He has deposed; he had seen the victim in the hospital. As already stated, the evidence adduced by prosecution that PW-17 was injured cannot be disputed.
19. PW-8 Gangamma is the mother-in-law of PW-
17. She has deposed about the incident that had taken place between PW-8 and mother of the accused about 3 or 4 days prior to the date of incident. She has deposed
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that PW-17 had suffered injuries. She had reached the place of incident along with her son PW-4 and shifted PW-17 to the Government Hospital at Kunigal. She has deposed that victim had suffered swelling on her face and both her eyes were closed and there were bleeding injuries on neck and face of PW-17. When enquired by PW-8, PW-17 told PW-8 that accused had assaulted her. At this juncture, it is relevant to state PW-17 had not told PW-8 that accused had either outraged her modesty or attempted to commit rape on her.
20. The evidence of PWs 9, 10 to 13 relates to the inspection of place of incident and seizure of incriminating articles.
21. PW-14 Dr.K.A.Shekaran has deposed that at the relevant time, he was working as Medical officer, Community Health Centre at Kunigal. He examined PW-17 at 7 p.m., on 16.01.2004. The injured had been brought by her parents to the hospital with the history of assault with hands and stones by accused No.1. PW- 14 examined PW-17 and found the following injuries:-
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(i) Contusion on her left eye.
(ii) Blackening of both upper and lower eye measuring about 3 to 4 cms above the eye.
(iii) Contusion of eye ball, edema of secle.
(iv) Laceration lower chin 4 x 1 x ½ cms at the right side.
(v) Contusion and abrasion of the right side of chest and breast. 8 x 8 x ½ cms.
(vi) Contusion of the tongue bitten teeth mark 2 x half x half cms.
(vii) Swelling of face over the cheek both sides.
(viii) contusion on the anterior surface of the neck 8 x 4 x half cms.
PW-14 referred PW-17 to Victoria Hospital and on receipt of certificate from Senior Specialist, Minto Hospital on 28.02.2004, PW-14 found PW-17 had suffered two injuries:-
1. Tosis, dropping and injury No.2
2. Romatic optic disc nuropathy, mascular oedema of fundes.
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PW-14 has deposed that injury Nos. 1 and 2 are grievous in nature. During cross-examination of PW- 14, nothing is elicited to discredit his evidence. He has denied the suggestion that he had not examined PW-17 and he had given false medical certificate. The suggestion put to PW-14 that he had given false certificate does not stand to reason. PW-14 had no grudge against the accused. PW-14 had not given evidence that accused had assaulted PW-17. PW-14 has given evidence relating to the injuries found on PW-
17.
22. PW-15 Dr.Krishna had treated the victim in Minto Hospital at Bangalore. PW-15 has deposed that he examined PW-17 on 17.1.2004 in Minto Hospital and found the following injuries:-
1. Right eye:
2. Vision ½, Lids edimo, conjucture with swollen, comea clear, A.C.Normal depth, pupils 3 milimeter RRR, regular react.
Lens is clear. EOM restricted on all directions. Fundus glow present. Orbit, tenderness present.
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3. Left eye:
Vision, PL, plus regarding edomo, discolourisation swelling are all found the right eye present.
PW-15 has deposed that he treated PW-17 from 17.1.2004 to 10.02.2004. The injury to her right eye was grievous in nature. During cross-examination of PW-15, nothing is elicited to discredit his evidence.
The evidence of PW-16 relates to registration of the case.
23. The crucial witness for the prosecution is the victim. She was examined as PW-17. PW-17 has deposed about the quarrel that had taken place between the family members of her mother-in-law and the mother of accused. PW-17 has deposed that on the date of incident (around 11 a.m.), she was going to her parental house to see her child. When she was walking on the road near sugarcane field of one Krishnaiah, accused No.1 all of a sudden came from her back and held her and fell her in a sugarcane field. Accused Nos.
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2 and 3 joined accused No.1. Accused No.2 outraged her modesty. Accused Nos. 1 to 3 attempted to commit rape on her one after the other. Somehow she warded off the attempt to rape by accused Nos.1 to 3. Accused No. 1 assaulted PW-17 with a stone and caused injuries to her chin and eyes. Accused No.3 had tied her limbs with a creeper. She became unconscious. Accused Nos. 1 to 3 left the place under the impression that she is dead. After some time, she regained conscious and untied the creepers and reached the road. She was crying for help. PWs 1 and 2 came near the place of incident and informed the matter to her husband and family members. Her husband and mother-in-law and other family members came to the place of incident and shifter her to Government Hospital at Kunigal.
During cross-examination, PW-17 has admitted that she knew the accused. She has denied the suggestion that there was a proposal to accused No.2 to marry her and accused No.2 turned down such proposal. The distance between her parental house and her husband's house is about 7-8 kms. She has
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reiterated it was accused No.1 who caught her from her behind. Accused No.1 had dragged her to a sugarcane field. Accused Nos. 1 to 3 committed rape on her and thereafter, left the place.
24. At this juncture, it is relevant to state that accused Nos. 1 to 3 were not tried for committing rape on PW-17. During examination-in-chief, PW-17 has deposed that accused Nos. 1 to 3 attempted to commit rape on her one after the other. In cross-examination, she has come out with a story that accused Nos. 1 to 3 committed rape on her one after the other. At this juncture, it is relevant to recall that when PW-17 was enquired by her husband and her mother-in-law, she did not disclose that accused Nos. 1 to 3 had outraged her modesty and had committed rape on her. The first information given by PW-17 does not lend corroboration to her evidence. In the first information, PW-17 has not stated that accused Nos. 1 to 3 committed rape on her. The evidence of PW-17 that accused Nos. 1 to 3 outraged her modesty and attempted to commit rape on her, at the same time, by using criminal force, hit her
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with a stone and fisted her is self-contradictory. If the intention of the accused was to commit rape on PW-17, there was no impediment for them. The place suggested by PW-17 is a secluded place.
25. Above all, the prosecution has not adduced medical evidence to prove that there was completed or attempted rape on PW-17. The injuries suffered by PW- 17 do not reveal that accused had used criminal force to outrage her modesty. Therefore, it can be safely held that accused Nos. 1 to 3 had used criminal force to assault PW-17. PW-17 had suffered injuries due to external violence.
26. From the evidence of PW-14 Dr.K.A.Shekaran and PW-15 Dr.Krishna, the prosecution has proved that PW-17 had suffered grievous injuries. She had also suffered grievous injuries to her right eye. PW-17 has deposed that accused No.1 assaulted on her eyes with a stone. She has deposed about the acts of accused Nos. 2 and 3 when accused No.1 had assaulted her. Therefore, it can be safely inferred that accused Nos. 2
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and 3 were the persons had also used criminal force against PW-17 to cause hurt to her.
27. The grievous injury found on the right eye of PW-17 was caused by accused No.1 by hitting PW-17 with a stone. Therefore, it can be safely inferred that accused No.1 had committed an offence punishable under Section 325 IPC. As regards accused Nos. 2 and 3, the evidence of PW-17 would prove that they had wrongfully confined her and they had fisted and kicked her, thereby, accused Nos.2 and 3 committed offences punishable under Sections 342 and 323 IPC.
28. The learned Sessions Judge without noticing the discrepancies in the evidence and improvements found in the evidence of PW-17 and absence of medical evidence, has erroneously held accused Nos. 1 to 3 are guilty of offences punishable under Sections 376 r/w 511 r/w 34 IPC and also an offence punishable under Section 307 r/w 34 IPC. The learned Sessions Judge ignoring the fact that intention of the accused was to cause grievous injuries has erroneously held the
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accused are guilty of an offence punishable under Section 354 IPC.
29. The impugned judgment requires modification. The accused are acquitted of offences punishable under Sections 376 r/w 511 r/w 34 IPC, 354 and 307 r/w 34 IPC. Accused No.1 is held guilty of an offence punishable under Section 325 IPC. Accused Nos. 2 and 3 are held guilty of offences punishable under Sections 342 and 323 IPC.
30. In the result, I pass the following:-
(i) The appeal is accepted in part.
(ii) The impugned judgment is modified.
Accused Nos. 1 to 3 are acquitted of
the offences punishable under Sections 376 r/w 511 r/w 34 IPC, 354 and 307 r/w 34 IPC.
(iii) Accused No.1 is convicted for an offence punishable under Section 325 IPC. Accused Nos. 2 and 3 are convicted for offences punishable under Sections 342 and 323 IPC.
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(iv) Accused No.1 is deaf and dumb person. He does not bear the criminal antecedents and he is not a potential offender. Accused No.1 is sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for a period of three months for an offence punishable under Section 325 IPC.
(v) Accused Nos. 2 and 3 are sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs.10,000/- each, in default to undergo simple imprisonment for a period of three months for an offence punishable under Section 323 IPC.
(vi) Accused Nos. 2 and 3 are sentenced to undergo simple imprisonment for a period of six months and pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one month for an offence punishable under Section 342 IPC.
(vii) The substantive sentence of imprisonment shall run concurrently.
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(viii) If the fine amount is deposited by the accused, a sum of Rs.25,000/- shall be paid as compensation to PW-17.
(ix) The period of detention undergone by accused Nos. 1 to 3 during trial is given set off as provided under Section 428 Cr.P.C.
Crl.R.C. 1/2013 is disposed of in terms of the judgment made in Crl.A.No.1653/2006.
Sd/-
JUDGE Srl.