Sri Karthik Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 25.09.2012 IN SPL. CASE NO.5/2011 PASSED BY THE DISTRICT AND SESSIONS JUDGE, UDUPI - CONVICTING THE APPELLANT/ACCUSED FOR OFFENCES PUNISHABLE UNDER SECTIONS 448, 354 AND 506 R/W. SECTION 34 OF IPC AND SECTION 3(1)(xi) OF SC/ST (POA) ACT, 1989.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and the learned Additional SPP appearing for the respondent State.

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The case of the prosecution before the Trial Court is that on 20.01.2011 at 2.30 p.m. at Kudmal Ranga Rao Nagar, Puttur Village, Udupi Taluk, with a common intention to outrage the modesty of the complainant Chaitra, accused No.2 facilitated accused No.1 Karthik by standing outside the house of the complainant to enter inside the house and accused No.1 entered inside the house and by use of force hugged the complainant Chaitra and put the hand to her mouth and tried to outrage the modesty and threatened her that he would not spare her if she informed the same to others. Hence, the offences under Sections 448, 354 and 506 read with Section 34 of IPC and Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’ was short) were invoked against the accused. Based on the complaint, the police have registered the case and investigated the matter and filed the charge-sheet and the accused was secured and he was enlarged on bail and he did not plead guilty and claimed trial.

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Hence, the prosecution examined P.W.1 to P.W.6 and got marked the documents at Exs.P.1 to 12. The accused was subjected to 313 statement and he did not choose to lead any defence evidence and also not placed on record any documentary evidence.

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The Trial Court taken note of the evidence of P.W.2 and P.W.3 mainly and also the contents of the complaint Ex.P.2, which is extracted in paragraph No.4 and in paragraph No.5 extracted the admission given by the accused during the course of evidence. In paragraph No.10 material evidence of P.W.2 was extracted and she spoke about the act done by the accused. The answers elicited from the mouth of

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the witnesses was also extracted in the judgment. The Trial Court also taken note of the evidence of P.W.3 and she says

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that she immediately rushed to the spot after hearing the screaming sound and having noticed the victim was crying in the house, she consoled her. In the meanwhile, the father of

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the victim also came to the house and he also consoled the victim. P.W.4 is the mother of the victim and P.W.5 is the police officer, who has received the complaint and P.W.6 Dy.S.P. is the Investigating Officer, who conducted the investigation. The Trial Court having assessed the material on

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record, convicted the appellant for the offences punishable under Sections 448, 354 and 506 read with Section 34 of IPC and Section 3(1)(xi) of the SC/ST Act. The accused was sentenced to undergo imprisonment for a period of one year for the offence punishable under Section 354 of IPC and for

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the offences punishable under Sections 448 and 506 of IPC, fine of Rs.1,000/- and Rs.500/- respectively was imposed. For the offence punishable under Section 3(1)(xi) of SC/ST Act, one year imprisonment with fine of Rs.1,000/- was imposed.

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Being aggrieved by the judgment of conviction and sentence, the present appeal is filed before this Court.

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The main contention of the learned counsel for the

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appellant is that the very timings mentioned in the complaint is 2.30 p.m. and there is a discrepancy in the evidence and the father of the victim had come home at 2.15 p.m. itself and the question of the incident was taken at 2.30 p.m. does not arise. The learned counsel contend that the evidence of P.W.3 is very clear that when she rushed to the house of the victim, already one Leela was there in the house. The evidence of P.W.3 not inspires the confidence of the Court

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that an incident was taken place. The learned counsel contend that no such incident was taken place. The Trial Court has not properly appreciated the evidence and fails to take note of the answers elicited from the mouth of P.W.2 herself that the brother of the accused had lodged the complaint against her father and there was an enmity and hence the accused was falsely implicated in the case. Hence, it requires interference of this Court.

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The learned Additional SPP appearing for the respondent State would contend that the Court has to take note of the evidence of P.W.2 and her evidence is very clear and even gone to the extent of explaining how the incident was taken place, particularly outraging the modesty of a woman and she was aged about 17 years. The Trial Court also extracted the evidence of P.W.2 and even the admission elicited from the mouth of P.W.2. The Trial Court also extracted the evidence of P.W.3 in paragraph No.11 of the judgment. P.W.3 categorically says that when she heard the screaming sound immediately she rushed to the house of P.W.2 and her house is just opposite to the house of P.W.2. She categorically says that if P.W.2 had not screamed calling her name, she would not have gone to the house of the

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victim. P.W.4 is the mother of the victim, who came to know about the incident later on through her daughter and hence it does not require interference of this Court.

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Having heard the learned counsel for the appellant

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and the learned Additional SPP appearing for the respondent State and also considering the grounds urged in the appeal and oral submissions of the learned counsel for both the parties, the points that arise for the consideration of this Court are:

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(i) Whether the Trial Court committed an error in convicting the accused for the offences punishable under Sections 448, 354 and 506 read with Section 34 of IPC and Section 3(1)(xi) of SC/ST Act and whether it requires interference of this Court by exercising the appellate jurisdiction?

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(ii) What order?

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Point No.(i):

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It is the case of the prosecution that on 20.01.2011 at about 2.30 p.m., accused No.2 facilitated accused No.1 to commit the offence. The Trial Court taken

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note of the contents of Ex.P.2 complaint and the victim was aged about 16 years as on the date of the incident and when

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she was examined before the Court, she was aged about 17 years. The prosecution relied upon the evidence of P.W.1 to P.W.6. P.W.1 is the mahazar witness and his evidence is not

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material. The material witnesses are P.W.2 and P.W.3. It is the case of the victim girl that at the first instance accused No.2 came and asked for fruit and she said to come after the arrival of her mother. After some time, accused No.1 knocked the door and when she opened the door, he rushed inside the house and outraged her modesty, held her mouth and tried to close her mouth and an attempt was made to commit rape on her, but she resisted the same. The victim P.W.2 in her evidence even explained how the incident was taken place and the same is extracted in paragraph No.10 of the judgment of the Trial Court. In paragraph No.11, the answers elicited from the mouth of P.W.3 is extracted by the Trial Court and her evidence is clear that when the victim P.W.2 screamed, immediately she rushed to the house of the victim and she explained about the incident and P.W.3 consoled her.

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P.W.3 in her cross-examination categorically admitted that she has not seen anybody going outside or inside the house of P.W.2. She categorically says that at the time of the incident, she was watching TV and having heard the sound calling her,

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she immediately went to the house of P.W.2 and if P.W.2 had

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not screamed, she would not have gone to the house of P.W.2.

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Having perused the cross-examination of P.W.2, except eliciting answer with regard to that earlier a case was filed by the brother of the accused against her father, nothing is elicited. She also categorically says that if any incident was taken place in her house, it will come to the knowledge of her neighbour Kamalakka and Rajitha. She categorically says that normally her father will come to home to take lunch at around 1.30 p.m., but on that day he came at around 2.15 p.m. Except eliciting the answer with regard to the love marriage between Karthik brother and his wife was visiting her house, nothing is elicited with regard to the incident is concerned. P.W.2 also speaks about the accused was also making proposal to her friend Shilpa and also he made proposal to her and even though she has refused, he came and committed the said offence. In the cross-examination she explained how the incident was taken place and she categorically says that when the accused escaped from the house, then only the neighbours came to her house.

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10. It is important to note that the incident was taken

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place at 2.30 p.m. according to the complainant and the case was registered on the very same day at 14.30 and there was no any delay and hence the question of any discussion or preplan or any deliberate action is warranted in the case on hand. The contents of Ex.P.2 complaint are very clear and spot mahazar was conducted on the next day in terms of Ex.P.1 and the accused was arrested in terms of mahazar of arrest Ex.P.4. The evidence of P.W.2 and P.W.3 is consistent with regard to the incident. P.W.3 deposed that having heard the screaming sound, she went to the house of the victim and on enquiry, she revealed about the incident. No doubt, P.W.3 admits in her cross-examination that P.W.2 is her relative and

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she categorically says that her house is in opposite direction and on hearing the screaming sound, she rushed to the house of the victim P.W.1 and all these evidence also taken note of by the Trial Court. P.W.4 is the mother of the victim P.W.2, who came later and comes to know about the incident. The other witness P.W.5 is the PSI, who registered the case on the very same day and issued the FIR and P.W.6 is the Dy.S.P., who conducted the investigation.

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I have already pointed out that the material

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witnesses are P.W.2 and P.W.3 and having taken note of the consistent evidence of P.W.2 and P.W.3, the very contention

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of the learned counsel for the appellant that no such incident was taken place cannot be accepted. Nothing is elicited from

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the mouth of P.W.2 that she is falsely deposing against the accused and no enmity is suggested to P.W.2 that she is having any enmity against the appellant. When such being the case, I do not find any error committed by the Trial Court in appreciating both oral and documentary evidence placed on record, especially the evidence of P.W.2 victim as well as neighbour P.W.3. The evidence of P.W.3 is very clear that on hearing the screaming sound, she rushed to the house of the victim and the victim revealed about the incident and she was crying at the time when P.W.3 visited her house. Both herself and father consoled the victim. When such material is available on record, I do not find any error committed by the Trial Court in convicting the accused.

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With regard to sentence is concerned, only one year sentence is imposed by the Trial Court and with regard to other offences is concerned, only fine is imposed. The sentence imposed by the Trial Court also commensurate with

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the ingredients of the offence under Section 354 of IPC and Section 3(1)(xi) of the SC/ST Act and on the ground of sentence also, it does not require interference of this Court.

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Hence, I answer the point in the negative.

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Point No.(ii):

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