Karnataka High Court
Dinesh @ Hukrappa vs The State Of Karnataka on 10 March, 2025
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CRL.RP No. 1438 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 1438 OF 2016
BETWEEN:
DINESH @ HUKRAPPA
S/O KUNDA @ KESHAVA,
AGED ABOUT 23 YEARS,
KATTADABAILU HOUSE,
KURIYA VILLAGE,
PUTTUR TALUK-574210
...PETITIONER
(BY SRI. B.S. PRASAD, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH RURAL POLICE STATION, PUTTUR DK,
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
BANGALORE-560001
Digitally signed
by RENUKA
Location: HIGH ...RESPONDENT
COURT OF (BY SRI. K. NAGESWARAPPA, HCGP)
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
ALLOW THIS REVISION PETITION AND SET ASIDE THE JUDGMENT
AND THE ORDER DATED 15.07.2016 PASSED BY THE LEARNED V
ADDL. DISTRICT JUDGE, D.K., MANGALURU SITTING AT PUTTUR IN
CRL.A.NO.5034/2015 AND ALSO THE JUDGMENT AND ORDER DATED
4.11.2015 PASSED BY THE LEARNED ADDL. SENIOR CIVIL JUDGE
AND JMFC AT PUTTUR, DK IN C.C.NO.676/2014 AND ETC.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 05.03.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 1438 of 2016
CORAM: HON'BLE MR JUSTICE S RACHAIAH
CAV ORDER
1. This Criminal Revision Petition is filed by the petitioner,
being aggrieved by the judgment of conviction and order
on sentence dated 04.11.2015 in C.C.No.676/2014 (Old
No.776/2008) on the file of Additional Senior Civil Judge
and J.M.F.C., Puttur, D.K and its confirmation judgment
and order dated 15.07.2016 in Crl.A.No.5034/2015 on
the file of V Additional District and Sessions Judge, D.K.,
Mangaluru, Sitting at Puttur, D.K, seeking to set aside the
concurrent findings recorded by the Courts below.
2. The ranks of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case:
3. It is the case of the prosecution that the complainant is
the daughter of Modenkila, resident of Idabettu House,
Kuria Village, Puttur Taluk. It is stated that when she
was going towards the shop situated near her house, on
07.12.2007 at about 1.00 p.m., the accused restrained
her by touching her body and tried to outrage her
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modesty. When she raised hue and cry, her mother came
to the spot and rescued her. Further, he threatened them
that if the complainant would not accompany him, he
would kill her. Being afraid by the act of the accused, she
lodged a complaint on the following day after having
consulted the family members. The jurisdictional police
have registered a case in Crime No.133/2007 and
conducted investigation and submitted the charge sheet.
4. To prove the case of the prosecution, the prosecution
examined six witnesses as PWs.1 to 6 and got marked
three documents as Exs.P1 to P3. On the other hand, on
behalf of the accused only one document was marked as
per Ex.D1. The Trial Court after appreciating the oral and
documentary evidence on record, convicted the
petitioner/accused for the offence punishable under
Section 354 of Indian Penal Code (for short 'IPC') and
acquitted him for the offence punishable under Section
506 of IPC. On appeal being filed, the same was
confirmed by the Appellate Court.
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5. Heard Sri.B.S.Prasad, learned counsel for the petitioner
and Sri. K.Nageshwarappa, learned HCGP for the
respondent - State.
6. It is the submission of the learned counsel for the
petitioner that the concurrent findings of the Courts below
are contrary to the law and on evidence. Therefore, the
findings are required to be set aside.
7. It is further submitted that the Courts below have failed
to note that in the absence of independent witnesses,
reliance could not be placed on the evidence of solitary
witness when it is not in consonance with the facts of the
case. The evidence of PW.2 and the complainant ought
not to have been considered for the reason that they are
the interested witnesses.
8. It is further submitted that there is a delay in filing the
complaint. It would also indicate that they deliberately
registered a case against the petitioner in order to trouble
him. The Courts below have failed to take note of the
evidence and also failed to apply the law properly.
Consequently, the impugned judgments are passed which
are required to be set aside. Making such submissions,
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the learned counsel for the petitioner prays to allow the
petition.
9. Per contra, the learned High Court Government Pleader
for the respondent - State justified the concurrent
findings of the Courts below and he further submitted
that the evidence of PW.2 and the complainant are
reliable and acceptable for the reason that in spite of
having conducted the lengthy cross-examination, they
supported the case of the prosecution by withstanding the
said cross-examination. Therefore, the Courts below
have acted upon their evidence and recorded the
conviction, which is proper and relevant. Hence, it may
not be appropriate to interfere with the said findings.
Making such submissions, the learned HCGP prays to
dismiss the petition.
10. Having heard the learned counsel for the respective
parties and also perused the findings of the Courts below,
it can be gathered from the facts that the complainant
was a minor as on the date of the alleged incident. When
she was going to the shop which was situated near her
house, the accused restrained her and outraged her
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modesty. Immediately, after she raised the alarm, her
mother rescued her and thereafter, they lodged a
complaint.
11. Before adverting to the discussion of the evidence, it is
essential to refer the judgment of the Hon'ble Supreme
Court in the case of RAJU PANDURANG MAHALE v.
STATE OF MAHARASTHRA AND ANOTHER1, wherein
the Hon'ble Supreme Court held in paragraph Nos.11 to
13 which reads as under:
"11. Coming to the question as to
whether Section 354 of the Act has any
application, it is to be noted that the
provision makes penal the assault or use
of criminal force on a woman to outrage
her modesty. The essential ingredients of
offence under Section 354 IPC are:
(a) That the assault must be on a woman.
(b) That the accused must have used
criminal force on her.
(c) That the criminal force must have
been used on the woman intending
thereby to outrage her modesty.
1
(2004) 4 SCC 371
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12. What constitutes an outrage to female
modesty is nowhere defined. The essence
of a woman's modesty is her sex. The
culpable intention of the accused is the
crux of the matter. The reaction of the
woman is very relevant, but its absence is
not always decisive. Modesty in this
section is an attribute associated with
female human beings as a class. It is a
virtue which attaches to a female owing to
her sex. The act of pulling a woman,
removing her saree, coupled with a
request for sexual intercourse, is such as
would be an outrage to the modesty of a
woman; and knowledge, that modesty is
likely to be outraged, is sufficient to
constitute the offence without any
deliberate intention having such outrage
alone for its object. As indicated above,
the word "modesty" is not defined in IPC.
The Shorter Oxford Dictionary (3rd Edn.)
defines the word "modesty" in relation to
a woman as follows:
"Decorous in manner and conduct; not
forward or lewd; Shamefast; Scrupulously
chaste."
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13. Modesty is defined as the quality of
being modest; and in relation to a
woman, "womanly propriety of behaviour;
scrupulous chastity of thought, speech
and conduct". It is the reserve or sense of
shame proceeding from instinctive
aversion to impure or coarse suggestions.
As observed by Justice Patteson in R. v.
James Lloyd [(1836) 7 C&P 317 : 173 ER
141] :
In order to find the accused guilty of an
assault with intent to commit a rape,
court must be satisfied that the accused,
when he laid hold of the prosecutrix, not
only desired to gratify his passions upon
her person but that he intended to do so
at all events, and notwithstanding any
resistance on her part.
The point of distinction between an
offence of attempt to commit rape and to
commit indecent assault is that there
should be some action on the part of the
accused which would show that he was
just going to have sexual connection with
her.
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14.Webster's Third New International
Dictionary of the English language defines
modesty as "freedom from coarseness,
indelicacy or indecency : a regard for
propriety in dress, speech or conduct". In
the Oxford English Dictionary (1933 Edn.),
the meaning of the word "modesty" is
given as "womanly propriety of behaviour;
scrupulous chastity of thought, speech
and conduct (in man or woman); reserve
or sense of shame proceeding from
instinctive aversion to impure or coarse
suggestions".
12. On careful reading of the above dictum of the Hon'ble
Supreme Court, no doubt, the word 'modesty' has not
been defined in the Indian Penal Code. However, the
essence of a woman's modesty is her sex. The culpable
intention of the accused is the crux of the matter.
13. Having considered the principles laid down by the Hon'ble
Supreme Court and also the ingredients referred in the
said judgment, it is appropriate to discuss the evidence of
all the witnesses in detail to arrive at a conclusion as to
whether the findings of the Courts below are appropriate
or not.
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14. PW.1 being the complainant had deposed in her evidence
that she knew the accused. When she was going to the
shop, the accused was coming in the opposite direction
had restrained her and tried to outrage her modesty.
15. PW.2 is the mother of the complainant. She deposed in
her evidence that after hearing the hue and cry of her
daughter, she went to the spot and saw that the accused
was holding her daughter.
16. PW.3 being the brother of P.W.1 and son of PW.2 is a
hearsay witness to the incident.
17. PW.4 is the friend of PW.3. He is also hearsay witness.
18. PW.5 stated to be the mahazar witness, she has turned
hostile.
19. PW.6 is the PSI. He had conducted the investigation and
submitted the charge sheet.
20. On reading of the evidence of all the witnesses, none of
the independent witnesses have been examined to
substantiate the incident.
21. On careful reading of the evidence of PWs.1 and 2, both
have admitted that PW.1 knew the accused prior to the
incident and they were going to coolie work together.
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Merely on the strength of the evidence of PW.1, it cannot
be said that the accused had committed the offence
under Section 354 of IPC for the reason that the
Investigating Officer ought to have collected the clothes
of the victim to send the clothes to FSL report in order to
prove the finger prints of the accused. If at all, if he had
touched the clothes of the victim, the finger prints could
have been there and it would be the best evidence to
prove that she had been outraged by the accused. It is
needless to say that mere making allegations that she
had been subjected to outraged the modesty, that cannot
be considered as the fact has been proved.
22. Even assuming that she had raised hue and cry in the
road for help, some one must have heard the said hue
and cry and should have come to the spot to rescue the
victim. As per the evidence of PW.1, she admitted that
there are some other houses also situated in and around
the place of occurrence and none of the independent
witnesses have been cited in the charge sheet and none
of the independent witnesses have been examined to
substantiate the incident, therefore, it creates doubt
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about the incident. The said doubt could have been given
to the accused / petitioner as a benefit of doubt. As the
Courts below have failed to extend such benefit,
interference with the findings and setting aside the
concurrent findings of rendering the conviction is justified.
23. In the light of the observation made above, I proceed to
pass the following:
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order on
sentence dated 04.11.2015 passed in
C.C.No.676/2014 (Old No.776/2008) by
the Additional Senior Civil Judge and
J.M.F.C., Puttur, D.K and the judgment
and order dated 15.07.2016 passed in
Crl.A.No.5034/2015 by the V Additional
District and Sessions Judge, D.K.,
Mangaluru, Sitting at Puttur, D.K, are set
aside.
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(iii) The petitioner is acquitted for the offence
under Section 354 of IPC.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
(S RACHAIAH)
JUDGE
UN
CT:PK
