2020 passed in Sessions Case No.128/2012 by the Prl.
2. The parties to this appeal are referred to as per
3. That the accused was charge sheeted by the
5 p.m. that accused herein had committed criminal
Smt. Juliat Crasta's house, caught hold the complainant
towards her neck and attempted to commit her murder.
Thus, the accused has committed the aforesaid offences.
4. The investigation officer, on receipt of the
motion. After completion of investigation, filed charge
sheet against the accused for the aforesaid offences.
5. The learned trial Court, on hearing both the
6. To prove the guilt of the accused, prosecution
in all examined eight witnesses as PWs. 1 to 8 and got
No.1 Talwar and closed prosecution evidence.
7. On closure of the prosecution evidence,
appearing in the evidence of the prosecution. He denied his
8. Learned trial Court, on hearing the arguments
The accused who is found guilty and
convicted for offence punishable under section
506 Indian Penal code, is sentenced to undergo
rigorous imprisonment for two years.
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The period of detention, if any, undergone
by the accused be given set off against the
imprisonment now imposed on him, as per
section 428 of Code of Criminal Procedure.
The substantive sentences imposed for
offences punishable under sections 354, 504 and
506 of Indian Penal Code shall run concurrently."
9. Now the appellant-accused is before this Court
challenging the said judgment of conviction and order of
sentence.
10. Learned counsel for the appellant Smt.Pooja
Kattimani appearing for Sri R.B.Deshpande, counsel on
record would submits that, the conviction and sentence so
passed by the trial Court is contrary to law and evidence.
She would further submit that, there is no proper
appreciation of evidence by the trial Court. The so called
victim-complainant is not examined in this case. It is fatal
to the case of the prosecution. She would further submit
that, PWs. 1 to 3 are the interested witnesses and their
evidence is not corroborated by any independent evidence.
She would submit, even then the trial Court ventured to
rely upon their evidence when the evidence of PWs. 1 to 3
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is full of material contradictions, omissions and infirmities.
She would submit that, there is delay in filing the
complaint. Further there is no medical evidence to
corroborate the prosecution witnesses. Thus, pointing out
contradictions, omissions in the cross-examination, so also
the findings of the trial Court, she would submit that, in
view of grounds urged in the appeal memo, accused is
entitled for acquittal. She prays to allow the appeal and set
aside the impugned judgment.
11. On the contrary, learned HCGP Sri Rajath
Subramanya with all vehemence submits that, learned trial
Court, believing the evidence of PWs. 1 to 3 who were the
eye witnesses to the said incident has rightly come to the
conclusion that, it is accused who has committed aforesaid
offences. He fairly submits, being aggrieved of the
acquittal of the accused for the offence under Section 307
of IPC, no appeal is preferred by the State. He would
further submit that the evidence of PWs.1 to 3 do not
inspire any confidence in the mind of the Court and non-
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examination of victim-complainant is not fatal to the case
of the prosecution. PW.1 is the mother of the victim, PW.2
is the brother of the victim and PW.3 is an eye witness to
the incident. He would submit that, evidence of these
witnesses is sufficient to believe the story of the
prosecution. Rightly the learned trial Court believed and
convicted and sentenced the accused. He would submit
that, no interference is called for in this appeal so as to set
aside the impugned judgment.
12. I have given my anxious consideration to the
arguments of both side and perused the record. In view of
rival submission of both the side, the points that would
arise for consideration are:
"i. Whether the trial Court has
committed any legal and factual error in
convicting the accused?
ii. If so, whether judgment of
conviction and order of sentence require
interference?"
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Point Nos. 1 and 2 are discussed together:
13. It is the specific case of the prosecution that,
on 3.6.2011 at 5.00 p.m. at Shivajinagar, Meramajalu
village, within the limits of Bantwal Police Station, the
accused herein trespassed into the house of complainant's
mother with an intention to outrage the modesty of the
complainant by holding talwar in his hand and intentionally
insulted the complainant in filthy language by abusing her
in filthy language and gave a provocation to her so as to
break the public peace and tried to outrage her modesty
by brandishing the talwar MO No.1, attempted to murder
her, so also he made her to fall. In a case of present
nature, when a specific allegation is made by the
prosecution with regard to the outraging the modesty of a
women, the victim is the important witness to be examined
by the prosecution. The reason assigned by the
prosecution is that, as she is residing in Dubai therefore,
she is not summoned as she is unable to attend the Court.
In view of advancement of technology, attempts would
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have been made by the prosecution to examine her at
least through video conference. A request to that effect
would have been made by the prosecution. Thus, non-
examination of complainant-victim is fatal to the case of
the prosecution.
14. PW.1 Juliat Chrasta is the mother of victim and
PW.2 is the brother of the victim. As per the evidence of
PW.1 when the so called incident took place, her daughter-
victim was in the courtyard and she was removing the
clothes which were kept for drying. It is her evidence that,
accused always used to seek sexual favour from the
victim-girl and used to force her. This fact was informed by
her daughter to her. Even a police complaint was lodged
against him and police arrested him and thereafter he was
enlarged on bail. It is her further evidence that, on the
date of incident at about 5.00 p.m. when her daughter was
in the courtyard, at that time, accused committed trespass
into the courtyard along with MO No.1 Talwar and tried to
hit the said Talwar on her neck. She escaped and the said
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Talwar dashed to the wall and the cement piece cut and
fell down. At that time, herself and her son PW.2 were in
the court yard. Herself and her son Melvin snatched the
said Talwar from the hands of accused. Accused abused
them in filthy language and gave life threat. She identified
MO No.1 as the Talwar alleged to have been brought by
the accused.
15. This PW.1 has been cross-examined by the
defence. It is elicited in the cross-examination that, she
does not know whether police have enquired or not.
According to her, when her daughter was in the village,
she used to do all household work. Bennet Feriar is running
a shop. Her daughter had told about galata made by the
accused with her. According to her, she came to the police
station to lodge a complaint along with daughter. She
states that, when the incident took place, it was raining.
Her daughter was removing the clothes. At that time, she
was quite away from her daughter. Even her son was also
there. There was a conversation in between her daughter
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and the accused. She bombarded. On hearing the same
one Padmavathi PW.3 came to rescue. When she snatched
Talawar MO No.1 from accused, she did not sustain any
injuries.
16. She denied about filing of false complaint
against accused. She is specific in her examination-in-chief
that, the cement piece fell down from the wall but, police
have not seized the cement piece. Her evidence shows
that, she was quite away from victim at that time. She
abused the accused. But, no such recital is found in the
complaint. A perusal of the evidence of PW.1, the mother
of the victim, we find that, material contradictions are
elicited in the cross-examination. If such material
contradictions are there, it requires corroboration.
17. PW.2 Melwyn Sequiera is none else than the
brother of complainant. He says accused used to go to the
house of her sister and used to take meals there. It is
further stated that, when accused forced sexual favour
from victim and started harassing the victim, it was made
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known to husband of the victim. Though there was advise
to the accused, even then, accused did not stop the same.
This fact was informed to him by the victim. But, to that
effect, a complaint was lodged against accused by the
victim and he accompanied his sister to the police station.
It is further stated by him that, about two years back prior
to filing of the complaint, one day, at 5.00 p.m. when his
sister was removing the clothes from the courtyard, at that
time, accused came there along with MO No.1 and told
that why she has lodged a complaint against him and by
saying so, accused brandished MO No.1 on victim. The
victim CW.1 escaped herself and the said MO No.1 dashed
to the wall. The cement piece fell down. He too speaks
about falling down of the cement piece. He says, accused
was holding the hands of victim. On hearing
bombardment, he came out. He states that, when the said
incident took place, his mother and himself were very
much there in the courtyard. But, PW.1's evidence is
otherwise. He came to the spot only after hearing the
galata. According to him, his mother was in the courtyard.
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He says after he coming out from the house, himself, his
daughter snatched MO No.1 from the hands of accused. At
that time, accused abused his sister and gave life threat to
her. Thereafter, he went to police station to lodge
complaint. Thus, in his examination-in-chief, he has
spoken so much improved evidence as that of PW.1.
18. In the cross-examination, he states that, when
the said incident took place, neighbour Padmavathi was
very much there. He further states when accused
brandished MO No.1 Talwar, it dashed near the window of
their house. This fact of incident was informed by him to
the husband of CW.1. According to him, on the following
day of the incident, they lodged a complaint. There is delay
in filing the complaint and there is no explanation offered
by the complainant as to why there was delay in filing the
complaint.
19. If the evidence of PW.1 is compared with the
evidence of PW.2, we find so much of improvement and it
is full of contradictions and omissions.
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20. PW.3 Padmavathi is stated to be an eye witness
to the incident. According to her, 2 years back prior to
giving of her evidence, at about 5.00 p.m, she was
standing in Anganawadi Centre as it was raining at that
time. She saw accused moving to the house of complainant
along with MO No.1 Talwar. She also went towards house
of PW.1. When CW.1 was removing the clothes from the
court yard, at that time, accused caught hold of her hands.
The said MO No.1 was about to hit on the neck of CW.1. At
that time, PW.1 and 2 came and saved CW.1, PW.2
snatched MO No.1 from accused. Thereafter, accused went
away.
21. Thus, in the examination-in-chief itself, she has
given a different version from that of the evidence of
PWs.1 and 2. PW.1 never says that, accused abused C.W1
in filthy language and gave life threat. PW.3 an eye
witness never says about abusing of CW.1 by the accused
and also giving life threat. According to the defence of
accused PW.3 has given evidence on behalf of PW.1 in
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criminal Court. She further states that, she has seen the
accused and his house was quite near to her house. She
further states, CW.1 has told her about sexual harassment
was attempted by the accused, two years back itself.. She
does not know about handing over of MO No.1 to the
police etc. Thus, if the evidence of PWs.1 to 3 is perused,
we find material contradictions, omissions, discrepancies
and full of embellishment. So also, we find exaggeration in
the evidence of PWs.1 to 3. This fact is not properly
appreciated by the trial Court.
22. PW.4 Neelayya Poojari is pancha to Ex.P1. He
states that, at the instance of police, he signed Ex.P1. He
does not know the contents of Ex.P1. He put his signature
at the instance of the police. In all criminal cases, panchas
are authors of the panchanama. When he has singed
Ex.P1 as per the say of police, his evidence gives room to
suspect his presence at the time of preparing Ex.P1
panchanama. Thus, much value cannot be given to his
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evidence. Therefore, evidence of PW.4 becomes
inconsequence to the case of the prosecution.
23. PW.5 V.Bhaskar is the Head Constable at the
relevant time and on receipt of the complaint on
04.06.2011 at about 12 noon, he registered the crime in
Crime No.127/2011. So called incident has taken place on
03.06.2011 at 5 p.m and a complaint was lodged at 12
noon on 04.06.2011. There is delay but, there is no
explanation offered either by the complainant or by PWs.2
and 3, for this delay. This unexplained delay is fatal to the
case of the prosecution. It is the defence version that,
because of false animosity, a false complaint might have
been filed. This possibility cannot be ruled out, in view of
the evidence spoken to by PWs.1 to 3.
24. PW6, Rajesh Centring Worker a pancha to
Ex.P1 and has been turned hostile. Therefore, his
evidence would not help the case of the prosecution.
25. PW7, Rashmi Kille is the PDO of Meramajal
village. She says that she was working as PDO for the last
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21/2 years and has furnished the details of the house of
PW.1 at Meramajal, Shivajinagar and furnished Ex.P4 copy
of letter issued by PDO. To the extent of issuing Ex.P4, her
evidence is to be accepted.
26. PW8, Mohammed Raffiq, is the Investigation
Officer. According to him, on registering the crime, he
went to the scene of offence, conducted the panchanama.
He prepared the sketch as per Ex.P5 and prepared
Mahazar as per Ex.P1, seized MO No.1. As per the
evidence of PWs.1 and 3 accused took away the said MO
No.1. From where and from whom MO No.1 was seized is
not properly explained by this PW.8. The evidence of the
IO can be accepted to the extent of investigation. His
evidence is not corroborative in nature with that of the
evidence of other witnesses. The Investigation Officers are
the supervisor of the investigation. In the absence of
corroborative evidence, the evidence of IO becomes formal
in nature.
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27. In all criminal cases, where the victims are the
injured and are not examined, as stated supra, it is fatal to
the case of prosecution. Because in a case of present
nature, the evidence of the victim plays an important role.
She is the best person to speak about the incident. PWs.2
and 3 though say that, they were very much present, but,
PW.2 says that, herself and PW.3 were in the house, when
the said incident take place. PW.3 says that, he was inside
the house and on hearing galata sound, he came out.
Though the said MO No.1 dashed to the wall of the house
of PW.2, cement is fell down, but it is not seized by the
police. Prosecution has to prove that, really there was
hitting of the said MO No.1 on the wall of the PW.2's
house. It is fatal to the case of prosecution. The learned
Trial Court has not properly appreciated the evidence
placed on record. Because of so many contradictions in
the evidence about making allegations against the
accused, that he is harassing her and seeking sexual
favours etc., unless the said ingredients of offence are
proved against the accused, it cannot be said that, the
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prosecution is able to establish the guilt of the accused
beyond all reasonable doubts. Though the learned trial
Court referred to certain portions of the evidence placed on
record by the prosecution, but, contradictions pointed out
above were not appreciated. If all these factual features
are put together, none of the ingredients alleged against
the accused are fulfilled by the prosecution with legal and
acceptable evidence. Therefore, as rightly submitted by
the counsel for the appellant / accused, there arises doubt
in the case of prosecution. Therefore, accused is entitled
for acquittal by giving benefit of doubt. The impugned
judgment so passed by the trial Court needs interference
and it is liable to be set aside.
28. Resultantly, I pass the following:
ORDER
(i) Criminal Appeal is allowed.
(ii) Judgment of Conviction and Order of
Sentence dated 28.09.2013 passed in
Sessions Case No.128/2012 by the Principal
Sessions Judge, Dakshina Kannada,
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Mangaluru is hereby set aside.
Consequentially, accused is acquitted of the
charges under Sections 354, 447, 504 and
506 of IPC.
(iii) His bail bonds stand cancelled and is set at
liberty.
(iv) Fine amount if paid by the accused be
refunded to him digitally.
(v) Send the operative portion of the Judgment
to the trial Court for needful.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
