Hadrasheel vs The State Of Karnataka on 26 November, 2010

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Karnataka High Court

Hadrasheel vs The State Of Karnataka on 26 November, 2010

Bench: Ravi Malimath

 

{N THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA;

em THE 25*" DAY OF NOVEMBER, 2e1:::_;;'_:"'7!..'_~  

BEFORE

THE HON'BLE MRJUSTICE r¥:;xv11-M;é;Li--M}=s;frH- 4' '
CRIMINAL APPEH. :\1_Q,47?a)/2308   
BETWEEN: L' A 'A M

Hadrashee! S/0 Poripad Sheet!  > V , - A 
Age:Ab0ut 38 years, Occ:AgricujitLrre   

R/0 R.II Camp N_o'.*?__  --  * _  V ' '
Taluk:SindhamJr,"'a;V.e.r-" ._    *  
District:Rai¢hur,_  'V  __     Appeilant.

(By Sri _A.s.hgk.a".'Ni~1;:;1_aege._refer:.' _E§asa§va raj
Kareddy, AdveCate}":_  ' 

AND:

The State oﬂfarrzafaka, 
Th rmgh Speciai' V-Pu biie Prosecutor,

    Respondent.

gag M%s:a:';1.A;é%a~e:a ;:ha Desai, Addi.SPP) >i<>§<>§< .T;h§.s'Vériminai Appea! filed under Section 374 of the Code 'ef"CrEm%nai Procedure against the Judgment dated 12¥'2f2008 in SgC,No.111/2007 on the file of the Presiding '..C;rffieer; Fast Track ':OLH"'[*1, Raichur, convicting the Vappeilant/accused for the offence puhishabie under Section

ix) 3% and 354 of indian Penai Code and senten<:«E.ng.rié.n*i' to i 4_ undergo Rigorous Imprieonrnent forgAggseven.'y'ee.r:si.anodgto "

pay a fine of Rs..5,000/~, in defauiii" Sirnpie1,IrnpriSo_nrne.nt"3 for 6 months for the offence punish'ebie_"'t:nrde'r.S~e<itio'nf3_76;r. of Indian Penai Code and further 'toiondergo "Rigoro'os"~ Imprisonment for one year and to__pay 'a fine oirvVR$j.«S.QVQ/fl in defauitg Simple Imprisonment for';i.. month fo.r_'f_»:he:V offence punishabie under Section 354 oi'___1ndia--n» Pen'ai«..Code.} This Criminai appeei:{:oyn*:.igng'ohn"'fo~»r:hearing, this day, the court delivered the foiio-wing':" * = being aggrieved by the Judgimxentwof 12~2--2008 passed by the Additional Sﬂe::eio~n.S'-- Jii'~dge& Presiding Officer, Fast Track . i°'CoLi'rt'lm~.at'i- Raichi1r""i'n'VS.C.No.111/2007 convicting him for ioffenrieiéviitxinishable under Section 376 of the Indian Pen-ai directing him to undergo Rigorous R""'.d"*1mpriéonnient for 7 years and to pay a fine of Rs.5,OOO/3 dfefauit of payment of fine to undergo Simpie .,._in1prisonment for 6 months, and further to undergo Rigorous Imprisonment for 1 year and to pay a fine of Rs.5C){);'-- and in defauit of payment of fine to undergo V3"

Simoie imprisonment for a oerioci of 1 month for the offence ouhishabie under Section 354 of Indian Pfeizai Code.

2' The case of the prosec_u4taeri«_TT 8--4--2007 at about 8.30 p,m4_'near._ti*:e ofV'th"eiV'V complainant situated at RH. iimits of Sindhanur Rurai Poiic;e._"S't'at--iohi; to the house of the com_oiainah.t..,a_ionio._'Vi*i:Vith~r,.$i" persons and questioned :ha§Ji'h.g.3i§licit reiationship with Ajitthe relationship and to be {2r{'ith__ offer. Thereafter all of them cohsu'meci"one of them, by name Batu! wehétgf home and another person Nikii, due to his excessive iidgrihiikinéifeiviidown in her house. Her son P.W.6 was in the u"hou_se."'v time the accused torcibiy iifteci her from the""hou'se=b§r ciosihg her mouth took her away outside and csmmivtted rape on her. Thereafter she came back to her

-' 'A'~ho'u'ser Later the accused came back to the house and 2?

fr' 5:

attempted to commit rape on her once aga§n;'_f"At"lt_t}etj' she came out of the house and she made*'e'vn'ois»e"en--d 'teeter. P.W.4 came there. On the next=.':da;x~ she lodged a complaint with-t__ne police :;vhov:"re:g.l.sVter;.§;2dVthéi"

case in Crime No.103/2007Tfoir the aoffeincfespunishable under Section 3?6, Code against the accused. On framed against the accused _o:%'fence: under Section 376, 504 and Code. The Court below on the offence punishable underV'ASe_ction' Penal Code but convicted him~for1the.Vofte'nces'punishable under Section 354 and 376 . V. «of"ntne*Ilndl"la.n_ PenalHCode. He was accordingly sentenced to Vunde:'g:o~..'Rigorous Imprisonment for a period of 7 years and tov_.-pa§ki'.~'a5l fine of Rs.5,,O0O/~, in default: of payment of fine to._.C:'suffer Simple Imprisonment for a period of 6 H"?-.Arnon:i:ns and further to undergo Rigorous Imprisonment for period of 1 year and to pay a fine of Rs.500/-, and in default of payment of fine to suffer simple Imprlsonment gr for a period of 1 month far the offence punishab£e'----.t;nder Section 354 af Indian Pena} Cede; Hence;

appeai by the accused.

3. Sré Ashok B.Muiage, j'C'i'§€:: iicearnjediwnﬁedhsei appearing for the appellant 'c.Qnten'd.s' thati7,the.<t.tiai.3Co%urtV:"

committed an error in convict_i:n:g:_th.e accueedj _i?§e submits that the contents evidence as P.W.1 are cpn.trarY:.-~and::'*' not have been accepted iﬂieivvsijhmits that the very the victim is doubtfui.

He s{;i3m._it-s 'act:'ce_n1p~iained of in the compiaint and the evidence are totaiiy different.

Hecgturther that the evidence of P.W.6 runs 'eqvtntrang/. t§j'«-._the evidence of the victim P.W.1. That the ._idti'yer"'C'%§_d_§t'~h'a's misread the materiai and the evidence on re'c0rdv*-.'ir¥h'iie acquitting the accused. Hence, he pieads that V. *th_e'_ appeai be aiiowed and the accused be acquitted of the "'V.efteAnce aiieged against him, éé inn"

"mi Maibart. In the saéd orecess they aii consumed liquor' After that the accused iifted her from the house and wt"'e"<:ii< her away to a distance and committed rape on came back to the house and being afraid, d.idl"not'ii_ntoré'n the same to anybody. Gnce again,}»the»_accu'sedtegenteted' the house and attempted to' t:4__omrn'ét_"t--he sja.n.:.ev"offe'nc'ei"

again. At that point of time sheV'Vi'eah*.eVout"ot and on creating an aiarm theuwifve of the appellant's brother she lodged a compiaint. to? View that the evidence ofzy he atgceoted. It came to the conciusi_on__t.ha't'».a':othing'«:h'a'it__'beeinmeiicited in her evidence to discreditiihertestiiirneizité;~~i:_:It"'.came to the conciusion that the»r.e'i"ss.no su'gg_Ve's'tion oi any enmity with the accused in '.Ao5i*d,er' impiicate him. With regard to the minor ii'disc_ijeoen't:iesV."_'as pointed out; the triai Court toek note of thefact: that the victim did not write the complaint since she' was dnabée to write the same in Kannada. The itjiotnoiaént would disciese that the compiaint was given ,2 5% 9 for the offence punishabie under Section 376 of Irrdiar:

Pehai Code' 7?. P.W.1 in her cross~exarrrination she has not suffered any injurieis"'a-tyaiﬁ has..j'cev'enV' stated to the extent that ever: the than:

were neither broken nor Vd'e_.§r~.;:oyeciV'. NoAttiihVi'g.T'has": been'? stated in her eyidenceih order..'ttrshow aﬁs"t-o what action she took after the ofiience on her. Except narrating th:e.fact_ and then she came 't~hVe're::i.s nomreaction displayed by her. V.Th'e oiﬁthe'"bro:secU"t'iroh"§is that at that given point of tiniﬁe riameiy, Batui went home theother-«rtvror:Vp._ersVor's«s§~7were very much present in the i\i__o effort..._t»:zas made by her either to compiain or to ' .=Vi'nfoyrr'r14liarjybody about the offence that she had suffered. 'It"is ohiy or: the second occasion when the accused attenwtgteci to commit the offence, she came out and A_cr'e_ated a noise. It wouici appear that there is no ciear Vigexridence with regard to the commission of an offence i/WWW 2 3 under §ection 376 of Endéan Penal Code. It couid come out on the second occasion and cr?eate~V.'a----.no-tee about the injuries that she had suffered; :o'r:ever:tL:ed.. her, especially under the vertf sarne c,ifcur'nsta'n,Ce»:,to complain in the same manner_ on the"firsta.ot:;asion_:;itsVeEf.°a. Under these circumstances 'ease; would be doubtful with regard:_'_te the the offence punishable under Secti_on_ Ir~;d'ia.h:VV».l§{--gnal Code. The trial Court in accepting the evidence \2vfithéo»ut' considering the follies that conduct of the victim beingVVV"clea.r frorri would not therefore justify a con\_/ictionra under 376 of Indian Penal Code. 'EvX.P--6 is the medical certificate issued by the . Dloetotéﬁeho.§a:.a's examined as P.W.5. She has not noticed any injuriesion the victim and E><,P~6 could not lead to the Acon\z"i::f:A§'on of the accused for an offence of rape having committed on the victim. The trial Court however anegated the medical report on the ground that the medical 3:

examination took mace aimost 36 heers after the incident. Therefore, the trial Court drew an adverse ihfe_renc4et..and discredited Ei><.P-6 the medécai certificate.

9. The contents of 1-<E';~s<.r§?-6 Dhetentt' corroborated by the evidence ouﬁth-he medical evidence therefore_,c4""'%s just, anot.he"g+rbi'e"ce of"

evidence that the pros.ecutio:"r uvv_o:,§Edt,.reIv«'or:-.te7§prove the offence of rape against the Wledicai evidence therefore does-whet prosecution so far as the) is Hence, I'am of the Court fell in error in conviV:Ct'ir1"<_':;'_ far as the offence of rape is concerned.., circumstances, the conviction of tttiL:e'i<a{;r;:us,ed fo"r'tvhe«offence punishable under Section 376 Penal Code requires to be se aside by of the said offence, :10.The triai Court while considering the offence ""._wVeu--n%shab}e ender Section 354 of the Indian Penal Code, Q1» came to the conclusion that m; view' jofﬂthe_'e\:ide..rjsces.ooh ' record the accused is guiftys of thesaid offea-cre,':4_B:y on the evidence of P.W.1 man"herV':ir:v':wh§ch the act was committed, the;::4trf._al accused for the said offence. The that she was physically ta'ke¢'}.t:i1'awafy t§xy':.";th'e and was gagged, that he modesty, was accepted by the accused for the offence Ipunis'h.a.tilA:§.i;i'n:d'ei%.-'Section 354 of Indian Penal Code, ._:'evid'enc-efof P.W.1 would therefore clearly implica't.e 'the accused for the said offence. Pam in atweement with the finding recorded by the trial Cotirt so_"f.ar as the commission of the offence under Section__i*3S4 of Indian Penal Code is concerned and in awa.r'ding the sentence. For the offence punishable under ___:'§5ection 3'54 of Indian Penal Code the accused was sentenced to undergo an imprisonment for a period of one year and to pay a fine of RS500/--. In view of the act committed by the accused against the victim and the 5?

jxfm Section 376 Endian Pena} Code is set aside. is convicted for the offence punishabie under Indian Penal Code' However, the-'S'errten<;'.e a_1rs/:a'r:1'_ed 'oi; the ' triai Court for the offence punishdaple-A.A_d'nder'$e*c.tiQn".%_35.;t'd'of Indian Pena} Code is modifie'd~~._pby .§enten_oi'ng""~--hiin to that period already undergone by.-hV§Vnfs-_in'--»<;dst.odyvandiiby further imposing a fine of a The fine to be deposited wivthnthe t§f:'aE'V'Co:urt period of 6 weeks from thetdate order. A week thereJaft€f"'f~hfe' the payment of a sum of Rs§:.VV_25,O{A7AVO't,?'--?¥.,tojt'he'e_om__pEaEnant F-'.W.1. The fine amount of RS!S'!fV®k?O"GA["V" been paid by the appeliant for theoffence 'puV_niehat§ie..'under Section 376 of Indian Penai directed be released in his favour in case the 'V'<.i_epos_ft,haérthveen made.

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