Madihalli Goneppa vs State Of Karnataka
2022 Latest Caselaw 2507 Kant

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE K. NATARAJAN

           CRIMINAL PETITION No.8480 OF 2021

BETWEEN:

1.     MADIHALLI GONEPPA
       S/O MADIHALLI BASAVARAJAPPA
       AGED ABOUT 30 YEARS,
       R/AT MADIHALLI VILLAGE,
       HARAPANAHALLI TALUK,
       DAVANAGERE DISTRICT.
       NOW VIJAYANAGARA DISTRICT 583125.

2.     MADIHALLI BASAVARAJAPPA
       S/O GONEPPA
       AGED ABOUT 55 YEARS,
       R/AT MADIHALLI VILLAGE,
       HARAPANAHALLI TALUK
       DAVANAGERE DISTRICT 583125.
       NOW VIJAYANAGARA DISTRICT.           ...PETITIONERS

(BY SRI.S.G.RAJENDRA REDDY, ADVOCATE)

AND:

1.     STATE OF KARNATAKA BY
       DAVANAGERE RURAL POLICE STATION
       DAVANAGERE DIST
       BY STATE PUBLIC PROSECUTOR
       HIGH COURT BUILDING,
       BENGALURU-560 001.

2.     ANJINAMMANA
       D/O SHASHAPPA,
       AGED ABOUT 22 YEARS,
       LABOURER,
                                 2


        R/OF CHIKKAVVANAG
        ATHIHALLI VILLAGE,
        DAVANAGERE 577002                         ...RESPONDENTS

(BY SRI. MAHESH SHETTY-HCGP FOR R1)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO ALLOW THIS
CRIMINAL PETITION AND QUASH THE ORDER DATED
07.11.2020 IN S.C.NO.55/2019 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE AND
DISCHARGE THEM FOR OFFENCE P/U/S.114 OF IPC.


      THIS CRIMINAL PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:


                               ORDER

This petition is filed by petitioners against accused

Nos.4 and 5 for the offences punishable under Section 482

of Cr.P.C for quashing the impugned order dated

07.11.2020 passed by the Additional Sessions Judge Civil

Judge, Davanagere on the application filed by petitioner

under Section 227 of Cr.P.C having dismissed the

application for discharge.

2. Heard the learned counsel for the petitioner

and learned HCGP for respondent - State.

3. The case of the prosecution is that on the

complaint of respondent No.2, the police registered a case

against the petitioners and other accused for the offences

punishable under Sections 376,114 and 506 read with

Section 34 of IPC for abetment of committing the offences.

After the filing of the charge sheet the matter was

committed to the Court of Sessions and the petitioner

Nos.4 and 5 filed an application under Section 227 of

Cr.P.C for discharge which came to be dismissed by

Sessions Court. Hence, the petitioners are before this

Court.

4. Learned counsel for the petitioners contended

that absolutely there are no ingredients or material placed

on record to show that these petitioners abetted the

accused No.1 in commission of offence. Accused Nos.2 and

3, his parents are already dropped from charge sheet. The

petitioners only approached to conduct panchayath which

was held by father of complainant and parents of accused.

They have not settled the dispute. Thereafter a false

complaint was lodged against them. The offences under

Section 114 of IPC has not been made out. The

complainant contends different versions in the complaint

as well as in Section 164 statement. Therefore, the

petitioners are entitled for discharge. Hence, prayed for

quashing the same. The petitioner counsel further submits

the complaint given different versions in the complaint as

well as the statements made under Section 164 of crpc

therefore, he has contended petitioners are entitled for

discharge.

5. Per contra, the learned HCGP filed objections

and objected for allowing the petition.

6. Having heard the arguments and on perusal of

the records that on the complaint of respondent No.2

especially she has made complaint against accused No.1

that on the promise of marriage he has committed rape

and he has undertaken to marry her, but refused to marry

her. Thereafter the father of the complainant approached

the parents of the accused No.1. They requested for

marriage, at that time they told they have to wait until his

daughter gets married. Inspite of lapse of so many days,

they have not been able to get marriage of their daughter.

Therefore, once again the complainant approached the

father of the accused No.1 for marriage and they convened

the meeting of the accused Nos.4 and 5 and other

villagers. In the said panchayath the accused Nos.4 and 5

said to have told that the accused no.1 will not marry the

victim and they can do whatever they want and took the

accused towards temple and thereafter they have sent the

accused No.1 to some unknown place and thereafter he

was absconded and not available for the police for legal

action by registering a case.

7. Therefore, the police registered the case for

the offences against this petitioners under Section 114 of

IPC. The learned counsel submits that the petitioners have

not instigated the accused No.1 for commission of offence

or his presence, for the commission of offence. Therefore,

the offence under Section 114 will not attract. Of course,

the petitioners are not involved in the commission of the

offence under Section 376 of IPC. Therefore, the question

of framing of charge under Section 114 of IPC does not

arise. However, the complainant has stated in her

complaint that the meeting was convened, the accused

Nos.4 and 5 also scolded her and threatened and stated

that accused No.1 will not marry her and she can do what

ever she want. Thereafter these accused Nos.4 and 5 took

the accused No.1 towards temple and thereafter they sent

him to some unknown place. Thereby they have hidden the

accused, which attracts Section 212 of IPC. For the

convenience, the provision of Section 212 of IPC reads as

under:

"212. Harbouring offender.--Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment; if a capital offence.--shall, if the offence is punishable with death, be punished with imprisonment of either description for a

term which may extend to five years, and shall also be liable to fine; if punishable with imprisonment for life, or with imprisonment.--

and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both. 2["Offence" in this section includes any act committed at any place out of 3[India], which, if committed in 3[India], would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in 3[India].]

(Exception) --This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender. Illustration A, knowing that B has committed dacoity, knowingly conceals B in order to screen him from legal punishment. Here, as B is liable to 1[imprisonment for life], A is liable to imprisonment of either description for a term not exceeding three years, and is also liable to fine."

8. On perusal of the ingredients and statement of

the complainant both under Section 154, 161 and 164 of

Cr.P.C, the complainant has categorically stated that these

accused persons concealed accused No.1. Therefore,

Section 212 clearly attracts for framing of charge and as

per the judgment of Hon'ble Supreme Court in the case of

HAZRAT DEEN VS. STATE OF UTTAR PRADESH AND

ANOTHER dated 06.01.2022. The Hon'ble Supreme Court

has held the contradiction in the FIR and the 164

statement is not a ground for quashing the FIR. It has held

as under:

"Discrepancies between the FIR and any subsequent statement under Section 164 of Cr.P.C may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial."

9. In view of the judgment of the Hon'ble

Supreme Court, the contest of the learned counsel, the

contradiction between the Statements under Sections 154,

161 and 164 of Cr.P.C are not sustainable under law.

Accordingly, the petition allowed in part.

10. Order in respect of dismissing the application

under Section 114 of IPC is to be modified with a direction

to frame charge under Section 212 of CPC against these

petitioners but not under Section 114 of IPC.

In view of the disposal of main petition,

IA No.1/2021 does not survive for consideration. Hence,

dismissed.

Sd/-

JUDGE BH