Karnataka High Court
M C Jaya vs The State Of Karnataka on 18 November, 2023
Bench: H.P.Sandeshpresided Byhpsj
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CRL.RP No. 1066 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1066 OF 2016
BETWEEN:
1. M.C. JAYA
S/O LATE CHAKARU
AGED ABOUT 40 YEARS
R/AT HOOKADU PAISARY
Digitally signed
by SHARANYA T KAGGODLU VILLAGE
Location: HIGH MADIKERI TALUK
COURT OF KODAGU DIST-571201.
KARNATAKA
...PETITIONER
(BY SRI. D.P. PRASANNA, ADV.,)
AND:
1. THE STATE OF KARNATAKA
BY MADIKERI RURAL POLICE
KODAGU DISTRICT-571201
REP. BY SPP
HIGH COURT OF KARNATKA
BENGALURU.
...RESPONDENT
(BY SRI. M. DIWAKAR MADDUR, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE PASSED BY THE PRL. CIVIL JUDGE AND JMFC,
MADIKERI, KODAGU IN C.C.NO.634/2014 DATED 22.12.2014
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AND IN CRL.A.NO.12/2015 OF I ADDL. DIST. AND S.J.,
KODAGU, MADIKERI, VIDE ITS JUDGMENT DATED 10.08.2016.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The factual matrix of the case of the prosecution is
that on 23.02.20214 at about 4.00 p.m., when the PW1
was went to borewell in order to bring water, at that time
her village person i.e., accused who is the neighbour was
standing there and with an intention to commit rape the
accused came near to her and dragged her inside the
coffee plantation and at that time, she made hue and cry,
on hearing her hue and cry her mother and Umesh who is
the neighbour of her house came there and the accused on
seeing them he ran away from the coffee plantation. The
said fact informed to the brother i.e., PW3 and he lodged a
complaint on next day. The police have investigated the
matter and filed the chargesheet against the accused for
the offences punishable under Section 354A of Indian
Penal Code. The accused was summoned and he appeared
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before the Trial Court and not pleaded guilty and claims
Trial. Hence, the prosecution examined PW1 to PW6 and
got marked Ex.P1 to Ex.P3. The Trial Court having
considered the oral and documentary evidence of PW1 to
PW6 and documentary evidence, convicted the accused for
the offence punishable under Section 354(A) of Indian
Penal Code and imposed the fine of Rs.10,000/- and
sentenced to undergo imprisonment for two years and in
default of payment of fine he shall undergo simple
imprisonment for two months.
2. Being aggrieved by the judgment of conviction
and sentence by the Trial Court, an appeal is filed before
the appellate Court. The appellate Court having considered
the grounds urged in the appeal formulated the points as
whether the judgment of conviction of the appellant and
the order of sentence imposed on him for the offence
punishable under Section 354(A) of Indian Penal Code is
legal and valid and whether the judgment of the Trial
Court calls for any interference. The First Appellate Court
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having considered both oral and documentary evidence
available on record answered both the points partly in the
affirmative and confirmed the judgment of the Trial Court
and modified the judgment by reducing the sentence for 6
months instead of 2 years and in default of payment of
fine, ordered to undergo simple imprisonment for 2
months.
3. Being aggrieved by the judgment of the Trial
Court and the Appellate Court and the present revision
petition is filed before this Court. The main contention of
the revision petitioner before this Court is that the
appellate Court gravely erred in upholding the judgment of
conviction and sentence. The counsel for revision
petitioner would vehemently contend that the Court below
utterly failed in appreciating the evidence and materials
placed on record and there is an inordinate delay of one
day in filing the complaint. The prosecution has examined
6 witnesses and all are interested witnesses and believed
the evidence of interested witnesses.
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4. The counsel also vehemently contend that the
PW1 who is the alleged victim has treated hostile in part
but only when the suggestions are made by the learned
assistant public prosecutor and the same is admitted. The
Trial Court and the appellate Court fail to take note of
place of the incident and there are 200 houses admittedly
and all the family members of 200 houses are getting
water from the said borewell and also in the cross-
examination admitted that at the distance of 10 feet there
is a shop and always the residents of the village will be
there near the said borewell and question of dragging the
PW1 does not arise. Even the PW1 has admitted that she
has not sustained any injury when she was forcibly
dragged to the coffee plantation. The witnesses are also
the interested witnesses, PW2 is the mother of the PW1
and the PW3 is the brother of the PW1 and PW5 is the
other witness who is the friend of PW3 and according to
the prosecution who was along with the PW2 and his
evidence is also not credible and he categorically admits
that when the accused dragged the PW1, he was not
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present at the spot and also he categorically admits that
he is the friend of CW4 and also categorically admits that
he came to know about the incident through CW2 and also
he did not hear the hue and cry of the PW1 and these are
the admissions which were not taken note of by the Trial
Court while appreciating the evidence available on record
and the appellate Court has also fails to take note of these
materials and all the witnesses have admitted that the
place of the incident is located within the vicinity of 200
houses and the same is a busy place and hence both the
Courts have committed an error in appreciating the
evidence available on record and the judgment of the Trial
Court and the appellate Court suffers from its legality and
correctness since both the Courts have fail to appreciate
evidence available on record.
5. Per Contra the counsel appearing for the State
would vehemently contend that PW1 though not fully
supported the case of the prosecution and she
categorically states that the incident was taken place at
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6.00 p.m., and she went to borewell to get the water, at
that time, this revision petitioner held her hand and
dragged her to the coffee plantation, she felt uneasiness
and the CW2 and CW3 came and took her and at that time
the revision petitioner was along with him and the PW1
has also identifies the signature in the mahazar-Ex.P2 and
also in Ex.P1 i.e., complaint.
6. The counsel would vehemently contend that the
PW1 was not supported the case in entirety, but during
the course of cross-examination of Assistant Public
Prosecutor admitted all the suggestions with regard to the
contents of the complaint. Hence, both the Courts have
relied upon the evidence of PW1 and also the evidence of
PW2 who heard the hue and cry of the victim-PW1 and she
also not supported, the PW3 is brother who came to know
about the incident on the very same day over the phone
and he came and lodged the compliant. Though the PW4
not supported the case of the prosecution, PW5 who was
along with PW2 categorically deposes that he went along
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with PW2 to the spot and found the CW1 was coming out
of the said coffee plantation and this petitioner was inside
the coffee plantation, though he treated as hostile to
certain extent but he admitted the suggestion made by the
Assistant Public Prosecutor in his cross-examination. The
Trial Court taking into note of the evidence of PW1 to PW3
and PW5 rightly convicted the accused and the appellate
Court has also modified the sentence having confirming
the finding of the Trial Court and hence it does not
requires any interference.
7. Having heard the revision petitioner's counsel
and the counsel appearing for the State and also
considering the material available on record i.e., the
evidence of PW1 to PW6 and documentary evidence and
also the grounds urged in the revision petition, the point
that arises for consideration of this Court are:
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1) Whether the Courts below have
committed an error in convicting the revision
petitioner for the offence punishable under
Section 354A of Indian Penal Code and the
same suffers from its legality and correctness of
the respective orders?
2) What Order?
POINT No:1
8. Having heard the respective counsels and also
considering the case of the prosecution, it is an allegation
that this petitioner dragged the PW1 on 23.02.2014 with
an intention to commit rape on her in coffee plantation,
having heard the hue and cry of the PW1, the PW2 and
PW5 rushed to the spot and saved her and hence
investigation has been conducted and charge sheet is filed.
The prosecution mainly relies upon the PW1 to PW3 and
PW5 and the PW1 is the victim and she has not supported
the case of the prosecution and only she says that at
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around 6.00 p.m., when she went to get the water from
the bore well, this petitioner held her hand and dragged to
coffee plantation and she felt uneasiness at that time. The
PW2 and PW5 came and took her, at that the
petitioner/accused was there along with her. No doubt this
witness has turned hostile and cross examined by
Assistant Public Prosecutor and she has admitted all the
suggestions in the line of the compliant averments and
also drawing of the mahazar in terms of the Ex.P2. It is
important to note that this witness was cross examined
and in the cross examination categorically admits that
surrounding the said borewell there are 200 houses and
people are residing in the said houses and the petitioner is
also her neighbour and all the residents of the said colony
draw the water from the said borewell and even
surrounding the borewell also there are houses, each
houses are located at the distance of 10 feet. The PW1
also admits that there is shop at the distance of 10 feet
from the borewell and in the said shop people will be there
after 3 'O' clock and 50 to 60 persons used to come to the
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said shop. It is suggested that there was an enmity
between the PW3 and this petitioner since earlier there
was a galata and the same was disputed by PW1. The PW3
in his cross examination he admits that earlier there were
quarrel between them but it was 5 years ago and in the
cross examination also he admits they were not in talking
terms but he volunteers that at the time of incident they
were cordial and hence it is clear that earlier there was a
quarrel between the PW3 and the petitioner.
9. It is also important to note that the PW3 says
that he has received the information at 4.00 through the
CW3 and the distance between the village and Madikeri is
about 8 Kms., for every 10 minutes there were buses but
he claims that on the date of incident itself he has given
the information to the police, but the police did not visit
the place. The other witness is PW2, who is the mother of
PW1. PW2 says herself and CW3 rushed to the spot having
heard the sound of hue and cry and she was subjected to
cross examination. She also admits that this petitioner is
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neighbourer of both of them and also he is a married
person having three children and also admits that
surrounding the borewell there are 200 houses.
10. The other witness is PW5. According to the
prosecution, he was along with PW2. In his evidence he
says that when CW2 making hue and cry, he enquired
PW2 and she revealed the same and thereafter he himself
and CW2 went to the spot and found PW1 and also the
petitioner and both of them were in the coffee plantation.
This petitioner was also treated as hostile in part and
admits the suggestion made by the Assistant Public
Prosecutor. But PW5 also admits that he is a auto driver
and he is also a friend of PW3. He also admits location of
borewell and categorically admits that he did not hear the
hue and cry of PW1, but after the information given by
PW2, he went to spot, but he did not hear the hue and cry
of PW1, but he admits that when PW1 was returning from
coffee plantation, no one was there along with her and
also admits the distance between his house and borewell
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is around 150 feet. He also admits that he did not witness
the incident of dragging PW1 by petitioner.
11. Having considered both oral and documentary
evidence with regard to the incident is concerned, first of
all PW1 not narrated the incident how it was happened and
only admitted when suggestion was made to PW1 by the
Assistant Public Prosecutor. It is also important to note
that, surrounding the borewell there are houses and each
house is having a distance of only 10 feet and there were
200 houses and all the residence draw water from the very
same borewell. It is also important to note that, at a
distance of 10 feet there is a shop and also there is a clear
admission that after 3 O'clock the people of the said
residential area used to visit that shop and the said shop
will be busy and 50 to 60 persons used to visit that shop
and when such admission is found at the instance of PW1
as well as PW2, PW3 and PW5, it is highly difficult to
accept the case of the prosecution and such borewell is
located in the midst of those houses and also PW1
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categorically admits that she has not suffered any injury.
When she was forcibly dragged to the coffee plantation
and there is also no medical evidence that she has
sustained any injury in the said incident. The prosecution
mainly relies upon the evidence of PW2 and PW5. Since it
is the case of the prosecution that PWs and PW5 have
rushed to the spot, but PW5 says that he did not hear the
hue and cry of PW1 and he came to know about the same
through PW2 that when PW2 making notice and also he
did not witness the incident of dragging PW1 by the
petitioner. It is also important to note that the defense of
the petitioner that there was an enmity between PW3 and
the petitioner and though PW1 denies the same, PW3
himself admitted that earlier there were quarrel and also
he admits that he was not in talking terms with the
petitioner and no doubt immediately he gives the reply
that at the time of the incident they were in good terms.
The evidence of PW5 is contrary to the evidence of PW2
and no doubt PW1 to PW3 are the interested witnesses
and they are the mother, brother and sister and
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independent witness is PW5. PW5 also treated as hostile
and his evidence is also clear that he is a friend of PW3
and the same is admitted and when he comes to know
about hue and cry through PW2 only and not heard any
hue and cry of PW1 at the spot and PW5 also says that
when PW1 was coming out from the coffee plantation, no
one was there along with her and these are the
contradictions are not considered by the Trial Court as well
as the Appellate Court. When there are inconsistencies in
the evidence of PW1, PW2 and PW5 and PW3 though he is
the brother he was not at the spot and also one day delay
in lodging the complaint and though PW3 claims that on
the very same day he has given intimation to the police
and police did not visit the spot and also no medical
evidence to prove the fact that forcibly this petitioner
dragged PW1 to coffee plantation and she categorically
admits that she has not sustained any injury when she
was forcibly dragged to the coffee plantation and hence it
is very difficult to accept the case of the prosecution when
the borewell is surrounding within the vicinity of the
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people who are residing and there were 200 houses and all
the members of the said houses were drawing the water
from the very same borewell, when there is a shop at the
distance of 10 feet and story of hue and cry is also not
consistent and PW2 says different version and PW5 also
gave different version and the evidence of PW1 is also not
specific in the chief evidence. Only in the cross
examination, accepted the suggestion and hence, the Trial
Court as well as the Appellate Court ought to have
weighed the evidence available on record in intrinsic value
and the very evidence available before the Court not
inspires the confidence of the Court to convict and
sentence the revision petitioner and hence, both the
Courts lost sight of the material available on record in
appreciating the same in a proper and perspective manner
and not a case of conviction. The evidence of the
prosecution witness must credible. The fact that there was
an ill-will between PW3 and the petitioner is also not ruled
out in view of the admission given by PW3 and though
immediately he gives a version that at the time of incident
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they were cordial, but the fact that they were not in
talking terms earlier also is not in dispute. Hence, both the
Courts ought to have given the benefit of doubt in favour
of the petitioner and the same has not been done. Hence,
it is a fit case to exercise the revisional power, since both
the Courts have ignored the material available on record
particularly the admission and also location of the borewell
within the precinct of 200 houses and also there is a
categorical admission that surrounding the borewell there
are houses and shop. Hence, the theory of the prosecution
cannot be believed and answered the points as affirmative.
POINT No.2:
In view of the discussions made above, I pass the
following
ORDER
The revision petition is allowed.
The impugned judgments of the Trial Court as well as
the Appellate Court are set aside.
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The bail bonds executed by the petitioner stands
cancelled.
The payment of fine amount made before the Trial
Court is ordered to be refunded in favour of the petitioner
on proper identification.
Sd/-
JUDGE
RHS/AP
