Karnataka High Court
J S Rachappa S/O J R Sharnappa vs The State Of Karnataka on 5 December, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.508/2006
BETWEEN:
1. J S RACHAPPA
S/O J R SHARNAPPA
AGED 51 YEARS
AGRICULTURIST
R/O J.C.R BADAVANE
JAGALUR TOWN
2. J S MANJUNATHA
S/O J R SHARNAPPA
AGED 51 YEAS
AGRICULTURIST
R/O J.C.R BADAVANE
JAGALUR TOWN
3. J S SURESH
S/O J R SHARNAPPA
AGED ABOUT 30 YEARS
AGRICULTURIST
R/O J.C.R BADAVANE
JAGALUR TOWN. ... APPELLANTS
(BY SRI D.P.MAHESH, ADVOCATE FOR SRI REUBEN JACOB,
ADVOCATE)
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AND:
THE STATE OF KARNATAKA
BY JAGALUR POLICE
DAVANAGERE DISTRICT
REP. BY LEARNED
STATE PUBLIC PROSECUTOR ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECTION 374 CR.P.C.,
AGAINST THE JUDGMENT DATED 17.05.2005, PASSED BY THE
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II AT
DAVANAGERE IN S.C.NO.52/2004, CONVICTING
APPELLANT/ACCUSED NOS.2 TO 4 FOR OFFENCES
PUNISHABLE UNDER SECTIONS 323 AND 354 IPC AND
SENTENCING THEM TO PAY FINE OF Rs.1000/- EACH, IN
DEFAULT, TO UNDERGO S.I. FOR A PERIOD OF TWO MONTHS
FOR AN OFFENCE PUNISHABLE UNDER SECTION 323 IPC & TO
PAY FINE OF RS.10,000/- EACH, IN DEFAULT, TO UNDERGO
S.I. FOR A PERIOD OF SIX MONTHS FOR AN OFFENCE
PUNISAHBLE UNDER SECTION 354 IPC & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants (hereinafter referred to as 'accused 2 to 4') and accused No.1 (since dead) were tried for offences punishable under sections 323, 354 & 306 r/w 34 IPC. Accused 1 to 4 were acquitted of an offence punishable under section 306 IPC and they were convicted for offences 3 punishable under sections 323 & 354 IPC. Accused No.1 is dead. Therefore, accused 2 to 4 have preferred this appeal.
2. I have heard Sri D.P.Mahesh, learned counsel for Sri Reuben Jacob, learned counsel for accused 2 to 4 and Sri B.T.Venkatesh, learned SPP for State.
3. The State had filed Criminal Appeal No.1273/2005 against acquittal of accused 1 to 4 of an offence punishable under section 306 IPC. This court by judgment dated 23.02.2006 dismissed the appeal and confirmed acquittal of appellants of an offence punishable under section 306 IPC.
4. In view of judgment made by this court in Criminal Appeal No.1273/2005 dated 23.02.2006 and death of accused No.1 on 22.06.2005, the following points would arise for determination:-
(1) Whether prosecution has proved that on 25.12.2002 at about 11.30 a.m., on road in front of Krishna Medical Stores, situate in Jagalur Town, accused 2 to 4 shared common intention and assaulted PW1-Mallikarjunappa and caused 4 hurt to him and thereby committed an offence punishable under section 323 r/w 34 IPC?
(2) Whether prosecution has proved in the same course of transaction stated in point No.1, accused 2 to 4 outraged modesty of deceased Dakshayini when she came to the rescue of her father (PW1-Mallikarjunappa) and thereby committed an offence punishable under section 354 r/w 34 IPC?
(3) Whether learned trial Judge has properly appreciated evidence on record?
(4) To what order?"
5. PW1-Mallikarjunappa is the father of deceased Dakshayini. Accused 1 to 4 are direct brothers and they are sons of Vishalakshamma, who is the elder sister of PW1. The elder sister of PW1 (Vishalakshamma) was given in marriage to one Sharanappa, who is the nephew of father of PW1. Accused 1 to 4 are maternal nephews of PW1- Mallikarjunappa. PW1 and accused are closely related. There 5 were certain disputes between them and they were not cordial since 20 years prior to the date of incident.
6. PW1-Mallikarjunappa has deposed; on 25.12.2002 at about 8 a.m., he had gone to a hotel of Swamy to drink tea; one Chayappa (PW4) was present in hotel; Chayappa (PW4) asked PW1 that he was not having habit of drinking tea and asked PW1 as to when he had started drinking tea; PW1 in a jocular way told Chayappa (PW4) that he had cultivated drinking tea after visiting house of his sister (mother of accused); though it was not a fact; accused No.3, who was sitting outside hotel, had overheard conversation between PW1 and said Chayappa (PW4) and got offended and felt that PW1 was insulting parents of accused no.3; accused No.3 stared at PW1 and left that place; on the same day, at about 10.45 a.m. or 11 a.m., when PW1 was tying buffaloes in front yard of his house; accused No.1 came in front yard of house of Thippeswamy (elder brother of PW1), which is situate opposite to house of PW1; accused No.1 questioned PW1 and fisted on his face; accused No.1 questioned PW1 as 6 to why he had insulted his parents; PW1 denied the same; therefore, accused No.1 took PW1 towards Krishna Medical Stores and they were followed by accused 2 to 4; accused 2 to 4 surrounded and assaulted PW1; at that time, daughter of PW1 intervened to save her father; accused 1 to 4 used criminal force and outraged her modesty; witnesses namely PW2-Basavarajappa, PW3-Shivaswamy @ Shivakumar, PW4- Chayappa, PW12-Manjunath Reddy, PW13-Somashekar, PW14-Shankaramma and PW15-Gangadharappa rescued PW1 and deceased Dakshayini from hands of accused; deceased was very much pained and insulted by the incident of outraging her modesty; therefore, deceased was weeping and ran towards her house; PW1 had gone to police station to lodge a complaint; police told PW1 to lodge a written complaint; when PW1 again visited police station to lodge a written complaint; police told PW1 that accused No.1 has already lodged a complaint against PW1; when PW1 returned home at about 12.45 p.m. (afternoon), he found deceased had committed suicide by hanging to a rafter in cattle shed 7 of their house; people gathered there; the matter was informed to police; after inquest, deadbody was subjected to post-mortem examination; deceased had left notes (suicide notes).
During cross-examination, PW1 has reiterated version given in examination-in-chief. PW1 has denied suggestion that accused did not assault his daughter and accused did not outrage modesty of his daughter. PW1 has denied suggestion that due to pre-existing enmity between family members of PW1 and family members of accused, he had falsely implicated accused.
7. The learned counsel for accused referring to evidence of PW1 would submit that evidence of PW1 is hardly sufficient to prove the incident of assault and outraging modesty of deceased, which is alleged to have taken place at about 11.30 a.m. on 25.12.2002. The first information was lodged at 8 p.m. on 25.12.2002 though jurisdictional police station is at a distance of one furlong. Therefore, delay in 8 lodging first information by PW1 would create a grave doubt in the evidence of PW1.
8. The delay in lodging first information by PW1 has to be considered with reference to incident of assault and outraging the modesty of deceased. After the incident of assault, PW1 had gone to lodge first information, however, police instructed PW1 to lodge a written first information. When PW1 visited police station for the second time, accused No.1 had already lodged first information. It appears, police were contemplating to settle the matter between parties. PW1 after returning home found that his daughter had committed suicide, which was a rude shock to him. In the circumstances, it would not be proper to expect that PW1 should have rushed to police station to lodge first information, ignoring death of his only daughter. Therefore, submission of learned counsel for accused that delay in lodging first information would create a grave doubt cannot be accepted.
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It is true that there was pre-existing enmity between family members of PW1 and family members of accused, however that cannot be a ground to discredit the evidence of PW1. The evidence of PW1 has to be carefully scrutinised. The evidence of PW1 that he was assaulted near Sri Krishna medical store by accused 2 to 4 finds corroboration from evidence of PW3 & PW14.
9. PW3-Shivaswamy @ Shivakumar is the nephew of PW1. PW3 is also related to accused. PW3 has deposed; on the date of incident, accused were assaulting PW1 near medical stores; when deceased intervened; accused also assaulted her and used criminal force with intention to outrage modesty of deceased; PW3 intervened and pacified the quarrel and told deceased to go home; PW3 had accompanied PW1 to police station.
During cross-examination, evidence of PW3 regarding incident of assault and outraging modesty of deceased has not been shaken. The cross-examination of PW3 is more 10 suggestive in nature. It has not been suggested to PW3 that he had motives to falsely implicate accused.
10. At the relevant time, PW14-Shankaramma was working as a cook in a hostel at Jagalur. PW14 has deposed; on 25.12.2002 (on Christmas day) PW14 was in her house; at about 11.30 a.m., she heard noise of quarrel; PW14 came out and reached place of incident (medical shop); accused 1 to 4 were assaulting PW1; deceased and Basavaraja (son of PW1) reached place of incident; accused assaulted said Basavaraja; he fell down; deceased raised her voice and asked accused as to why they were assaulting her father (PW1); accused No.4 used criminal force and outraged modesty of deceased; deceased fell down; accused No.3 also used criminal force to outrage modesty of deceased; deceased retorted by kicking accused No.3; Manjunath (accused No.3) as a result Manjunath suffered injuries to his nose; PW14 and other witnesses separated them and sent deceased to her house; within 10 to 15 minutes, PW14 learnt that deceased had committed suicide as she had become 11 disgusted on account of outrageous acts committed by accused.
During cross-examination, PW14 has reiterated her version given in examination-in-chief. Much of the cross- examination of PW14 is concentrated on location of her house; distance between house of PW14 and place of incident and also distance between her house and other landmarks.
11. In my considered opinion, distance factor and location of house of PW14 and place of incident have no bearing on evidence of PW14. It is not a case where there was obstruction to witness the incident or incident had taken place under the cover of darkness. From cross-examination of PW14, we do not find that PW14 had any grudge or animosity against accused. PW14 is not related to PW1. Therefore, there are no reasons to suspect the evidence of PW14.
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12. It is true that some of the witnesses, including medical shop owner namely Manjunath Reddy (PW12) have turned hostile, however evidence of prosecution witnesses who have supported the case of prosecution is found to be credible and consistent and it cannot be brushed aside on the ground that some of the prosecution witnesses have turned hostile. If some of the prosecution witnesses have turned hostile, their evidence will not be available to prosecution. The accused cannot contend that evidence of other witnesses, who have supported the case of prosecution is false and not trustworthy.
13. The learned counsel for accused would submit that PW1 was not examined by doctor to prove that he had suffered injuries due to assault.
14. The accused were tried for an offence punishable under section 323 IPC. The evidence adduced by prosecution is sufficient to hold that accused had used criminal force and caused bodily pain to PW1. In order to attract an 13 offence punishable under section 323 IPC, it is not necessary that victim must have suffered visible injuries. Therefore, submission of learned counsel for accused cannot be accepted.
15. The learned counsel for accused would submit that prosecution witnesses, including PW1 has given exaggerated version that accused had outraged modesty of deceased. The learned counsel for accused would submit that accused being the close relatives of PW1 would hardly outrage modesty of daughter of their maternal uncle (deceased).
16. The relationship between parties has not been disputed. At the same time, it cannot be disputed that relationship between parties was strained and there was no cordiality between family members of PW1 and family members of accused since two decades prior to date of incident. The fact that accused had used criminal force against deceased in a public place and accused had manhandled deceased would necessarily lead to an inference that intention of accused was to outrage modesty of 14 deceased. The incident has to be considered from point of view of deceased. The criminal force on the deceased, without having regard to decency would certainly lead to an inference that accused had used criminal force with intention to outrage modesty of deceased. At this juncture, it is relevant to state that deceased had committed suicide within two hours from time of incident.
17. The learned counsel for accused would submit that PW1 had not performed marriage of deceased, though she was aged about 26 years at the time of incident and deceased being disgusted in life had committed suicide.
18. The evidence on record discloses that deceased Dakshayani was working as a teacher in a primary school. The evidence on record does not disclose possibility of PW1 not performing marriage of deceased had been ruled out. The deceased was aged about 26 years at the time of incident. Therefore, it cannot be said that deceased had attained the age, which did not permit her marriage.
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19. As already stated, deceased committed suicide within two hours from time of incident. Therefore, it can safely be inferred that deceased felt insulted and became disgusted in life as her modesty was outraged in the midst of town, within public vision. Therefore, submission of learned counsel for accused that prosecution has failed to prove that accused had outraged modesty of deceased cannot be accepted. The learned trial Judge on proper appreciation of evidence has rightly convicted accused for offences punishable under sections 323 & 354 r/w 34 IPC. The learned trial Judge has imposed fine. Therefore, impugned sentence does not call for interference.
20. In the result, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE SNN.