IN THE HIGH COLERT 01:' KARNATAKA AT B/A\NGAE,()I__2E
Dated this the 3"' day uf December, 2910 'T
B c fore
THE HON'BLE MR JUSTICE HUI_._U1/ADI ;
Criminal Appeals 447 / 2010 c/w 9:6'/2'_(_)1~0',
582 / 2019
Between:
1:1 CrI.A 447/20.1.0
.1. Mariappa @ Maria, 35 years
S/0 Earappu, R/fleas" Jud-i" . if V
L'mgadahal1y. 'v'i.l_l:i'gc
Thiru1nalL1g!c\i;11*;;1 G($i!as'<;1h;i£:i &
AT3.S§kG!TC_'Tl1.E_lE'i{"{:11;, .. fl '
2 Thim1na- (:3 Th§';1ii'V:~1,;1})paf --2._8"y1i<; '
S/0 Cffiiiéiiith. R,/Va 'I.il;1¢sh~ (Q3 DiV'1fi'ai-,~.2V§'%yr:s
A & VS'/(3. JEéi;IJk'::lEzap1)21 """ H
~ Mu:Ira1.z_1a"h;_1Eiy Viffagc
._TAra::.i_Iv{
I " * .R_e.5v§ S/0 Nz'm_§a1'1na (fir? I)0ddas;iddaiah A_j_junna
26 yrs, Ag1'iCLlElE]E'iSE., DEV-'i'1I.'El Adidhalli
7 C}0EEur21h21E£i, Kasah;-1 Hobli. Arzlsikerc Tq
$_.,.
Ix.)
ix)
.iay£1 @ Jziyunmi, 36 yrs
S/0 Muthappa. Agriculturisl
Emmcdoddi. (3o1lz1:'z'1ha1t£i
Kadur Taluk A13p_ej " ~ V.
(By Smi Bud:"unné5;'.1. Adv.)
In Cri.A 512/2010
Basavalinga Basav:1li:1g;1ppa, '.28 yrs'
S/0 Chikkzmna, Agricullurist " _
R/:1 Devura Adihaily, Goilzlmhatti " u .
Arasikcrc TaEui< _ " 'A].v'Jpt3Ur'/3-J.13{
(By Sri Dilraj Rohit Scqucira, L. } a
In Crl.A 582/2010
Shiva @ Shivzlnna, 5{)1'};(:js _ --
S/0 Thi1nn:Va'pf5:1;A A'g1"icL1I'i:-ui'ist ' ~.
R/a Geruni;-11'z1<i_i..Vil.i;igo._ " - .
Teri}-{ere Tahgk, ChV1}{k£1l3}.V€l'f,_I§l]'a!.if ' Appellant
(By 31-; S_Raj 131-M11,
'V '- 3}' l ' '~- . . . . . .. 'V
St;1l.e by K.a_dL:f"PQIi'e'e Respondent'
._ ' common
(By S-ii Kz1z'u.:1.ak;i.;P._ GP)
.i\p'1;-gzafl-.5' are filed under S.374(_2) of the Code OE" Criminal
P:ioCe;i1.;_rc girziying to set aside the judgment of conviction and order of
é;'c:)'1c1]ce'fpusscd on 3I.12.2()(')9 / 6. E2010 in SC E35/2007 by the Fast
2 ._ Tra.icV}< Ck)url.. C11ikn1'.1g;1EL:r.
O31-_,. .
The Appeals cc.mn.in§'_: on for Hearing this titty, Court dciivcred the
ftntovving:
JUDGMENT
These appeals have been filed by the accused i’
being aggrieved by the order of convictiori andiscntenec’ pa”ss_;ed_dbyi the
Fast Track Court, Cttiitmttgtttur on 3 I .,t 2.20{)92.
According to the pr0secution,._PW 3 –°’Raju_t’iicd’*;aeemplaitat’V
before the respondent police, a]legi1tg….c_o’m1nission 0’f~.daceity by the
accused and in the couitispe 011’_c’onn’1nis:sion the offence of dacoity, one
of the accuse._d– has’.Veoiittniitted….t'(;i’c.ible rape on his wife on the
intervenin itiaht of 18;’ E9iii)3. i’i~!._, 2007 when thev were slee in0 in the
g c 4_ V . A .. J P D
vf£’tE.’l”1″i house eat one Chandrttshekttr. The accused have gained entry into
W.thei’t1euse .ip!_.<icki«:._tg the door. Out of them, three persons entered the
l1otJ::.–'Cii'z:it_d when.__1ic3"triied to get up, at that time. two of them assauitcd
with a cJ'1u1")'–.and' another person assaulted with a siekte as such, he was
i V ifri_gi1!e:1_ed and, by that time, his son who was steeping woke up and the
._a_::e"u.sed"asked him as to which caste they betting and atso from which
–«_.VVE’E”E’2ige and his son replied to them. Accused having snatched the car
Jitter’
stud, mangalasutra, and nose ring of the wife of the complttineiit and
having dragged her outside the house, confining the comptairie’titf”ins’ide
the house, committed rape on her. At that time, f’ou.:4″”pers,on~s”vee’re ‘
standing outside and the accused, white g0irtg,..took t1weiy’e–s0rne
Later, in the m.ornit1g, the compiztinant and i»v_it”ei went _vt’o–.t.he,. “of.
the owner of the tand amt brought ii’1iI}%li”3’i]d latter, the icor1§’;it.’ai:iaa1it, his” V
wife and son went to the potice,t-s-ta.tion,i’*~-and filed… at./complaint.
Thereafter, the victim was subjected toViitecliceiviiiextirtitnation and so aiso
the coniplttinant WhL).hEt{i su$teii1eti~}31eed.ii1g injuries. The potice have
arrested the accused’ inithei–_V<:ourse_"of iris/esit_igation after four months and
have recovered .pro'e.ei'i.i_e;srnp1etion. of investigation, fited
charge sheet>for– the and 376, IPC. Thereafter,
charges were fria-med tigktilisfi[i1f:?”ii2iCCUS6(i since they pteaded not guitty
and ctrt:i’ri~1ec;i__,t’t) triett’; -Quring triat, prosecution examined in ail thirty
one :’tAri’inessesi’uirit,tAV;gtvt marked about forty three exhibits and MOS i to
14.” 2 iT’hereiét1’te.rj,–__accuseci were examined under S313, CLPC. Their
cIefense.__was_.teta’t}diei1i.ai.. After hearing arguments, the Presiding Officer
convictecii. the 1″ accused for the offence under 3376(1), [PC and
‘ senteiiiced him. to undergo rigorous imprisonment for seven years and to
‘Stew
pay fine of Rs.5,(}(}€)/~ and default s’entenc.e of simple itnprisotiinent for
one year and accused l to 7 were also convicted for the offei’1eej”–i1nder
8395, {PC and sentenced to undergo rigorous inlprisoiiiiiellil..l%t)ri.llS€’i*€§’i3 ‘
years and to pay fine of Rs.2,{)00/» each~an<§,in ;.o°u;:_;i¢rgo ll
simple imprisonment for one year. i~Iowe"'v.er,7._the suh's:t_:1'1;tial_ '
was ordered to run concurrently by ext.en'ding the bertei"it'-.ot'l'i::e'tof for the"
period of detention undergone. durinAg"*en.q'ttirly-.and tria'l.v–.. Some of the
gold articles recovered were oroeijed to.5e,'rettir*ried tothe victim and the
remaining articies were ordergid tobe des't~royeri; 'Ash against the order of
Heztrci the leotlnselVi1epre4eent_it1g the appellants and the government
pleader.
‘ i V “At.the’AouVt:iet, counsel for the accused have submitted that
the acteiiserivllwtere Viitrvrested after four months of’ the alleged incident in
connecti__on _wi’thV Some attempt to commit dacoity and they were fixed in
” case :l?al.sely and there is no test identification parade held. The
eooiipieitttttit himself’ has turned hostile as to the story of the prosecution
Uzgw,
h0L1St3 and although it was {.1 new moon day. the witnesses have identified
the accused and. it is; not I1CCC.’s’.’\’i1I’y that identification paradevha’s.._’tio._he
held. There is medical evidence corroborating the _\”‘t”3..l’Si()”r1′–.:.t”1f”
Complainant and other witnesses who have….sti1)po1’ted’Vti’se’f’pr’o:4ee.t,ttion
i’egai’ding the injury suffere.d by PW 3 and *et)i’1iit’.~1″1i'[te.(‘l ()iif’P.W
Apart from that, the medical eviicleitee ailso Vst,;ppo;:ts’vthei..t’::ircihi.e’i.’
inte1’coui1~;e on PW 7. The ree_0vei’y att.i;.l1eA”‘in_st’anee ofioi-1.e_e1’_.t:11e accused
and also the evidence of police? vvcitiie’s_sei:; go x[‘()V:S3.1(‘)’v’-.f, that these accused
are involved in tlie4.eoi.nmi:;:;s.éioii’til’ the_’vof1’enee. Vaitd is sttfficie.nt to
establish the iae;:us;e;l.._to=.lioE’ti thetngttilty of” the offence. The
trial e0urt?__hzts_ ta.l§eh,taleiiieiitzview -in the matter in sentencing the
accused. Thefeléisttno axe t'(.>A’g;in’d»i.ag21inst the accused to falsely implicate
_. V them. ,Ai§ICv()l”dil1gly;ht) has sought for dismissal of the appeals.
_,.I.nout[Vié:.j,igEi’tAic.t)lf,the argtimetits advanced, the points’ that arise for
C()1lSiA<.l»t',"41'i1l'i()VIt.'.
V2-‘ihethet’ the }?;1″t)s;eeLtti(.ni has proved the ease agains;t the aeeus’-ed for the
< a¥_E'e}getE" offence under S376 and 395, I.§3'C beyond reasonable doubt;
9
Whether the trial court is justified in convicting and sentencing the
accuse.d:
Whether the trial court. has committed any error t’)it§’_.ilic’gavi:ty
convicting and sentencing the accused;
What order, if any.
PWs 3. 7 and 8 are the C)/C_.Wlii1CSi\’€S”£1.l1(i also.T;th:e”victi’ms*of’r.
dacoity well as rape. PW 7 wasfesitliirg é1’it)lrtig’ett-iitlt 3 her
husband and PW 2; her son. on the a.i:ei?§}¢”iti§iig of left 9f4.2()07 i.e.,
around 1.00 am, the allegecl ii1ci’denti..i’_slsaid–“toha_vei.it2tken place. PWs
3, 7 and 8 ltave spoin}js~ outside the
house and of course, he has pleaded his ig1i’oiiztii’cc to,what’the ae__cut:;1e_d
have done to his wife, either out ‘ot_'”hesit:tti(‘>t1 or due ‘E0:*§;.t’)}]1€..;()l§’1{3£’ ‘
reason. PW 7 the victim as well as ~s()n_t_)l’ PW *3 _havevvspeci£’ically
stated that this accused 1, 6 stat! .ha€ie ?V»l. outside the house
and they have comm.i’tted rapeorr her.” ..1ft»_i_s alsdseeii, although in the
cross €XaI}’lEf1ttEl__(.)t1,'”‘ Pwwzts’ little w-avejiy as to his version. but in the
CFOSSwCX£1El”-liIl£l[lOl.l itiyvtheVspuhclic…_;)rosecutor what is noticed while
identifyi.ug the em he”«-hasiiistated that he removed three sheep
from the house ‘c:1.l’t{E_’dl’OV’1C th-emvout. He has also stated that Mariappa,
” ‘Jityttll3ft:tl:’iE’Et\[Al. anti Bttsii’iia..g.a,.pp;t were there. it is also the statement given
hby hin»”ywhich_tteltzts admitted. He. also has identified another accused
who_ ias_s;1ulte{‘l..oii».ihis” head as one Dinesh. Dinesh is the 7″‘ accused.
This w_it’t1ess_ was-V.;1hle to identify some of the accused and their presence
at the time ol7.e()t11missit)ti of the ollence. Further, according to him, out
thesis pet’s()ns who were shown to him in the police. station, none of
WV
$4
In the cross~exz1nn’nation on hehaii’ of the 1″ accused. it is
speeifieaiiy stated by-‘ this victim that there was eiectric !ight_4insid_e~t_he
house and around E i.{‘}O p.m., the accused have broke ()p*-en ‘l’!”1u-(:”V..}v:’t”‘J~€’2.E\’
the house but. outside the house there was iiojight. H-owe”veir’; she denied
the suggestion that she was not examined by the’doct’orno.r iwas’ Sift-‘._t”1tVt;?I’,i_.’
She has admitted. its it was dark she’«::ould not C’.\(z1C’i3._y’AiU’C«¥],Ei:f}i~i who.’ i
dragged her outside the house. V.
PW 1 is the owner t)fth’0..f£13’tTt hous-e_’ wh”o_h.:1s spoken about the
incident said to have taken piece in hisVfnrinshoiusie. as informed by the
coinplainant__a11d hisVt’éi11″ri.i_y”rneémheirs. ‘ Ora Corning to know of this fact on
the morning o’f’=19.4 V2007′. gt; a..m.. he told the complainant and
his fangiiyv m_einhei’s~.._to go and file the complaint to the police.
*Acco’rd.ing to his .CV’t~f;fCl1CC. the farm house is situate at a distance of 6.00
k.1ns;.t’i*o.r:.1ji{ai’3_ur_c§ii;”}3 H Road. lnaii, about 6.00 acres ofiand is there
where the c()”:np!’:iiiaaz1t and his famiiy members were residing.
PW 21 neigliboi’ing land owner. He has also spoken to the
“cet’icct’t.h:.,1t’ seven persons came near his house and have opened the tap
I?»
and having drank wate.r. went away from there. His evidence is to the
cffeeé that those very persons mighi he the accused and that_;it.
they went near the house of the complainant. Acctiiftiing iifvzgi.
prosecution versioii, when seven pers()ns__e.a.ine iie;ir,”‘hef_diree€¢&E til”
torch light towards them and those persons “wei1t3_”z-iwizlyftHoxyever;’it’;ir;.i’ii1:is
not supported the version of the pii:ise;;utioni’exeept seen;
some seven persons coming near his hQLE%¢’;vf_]I”Z1-.l.].k W£1[£’3E’~.?:1}fA1A(1H\£\i’§CE1l away.
PW 4 is a pancha i’oi:._t:he_ }7′:£1Y1(;i:’i’1E3tlTiciII_;1”.¥r heglr the house of the
complainant and recovery of one. _S’it«3kV[€’,A 4_owe’i., i’:i’ta3:’ri”‘z1iid blood stained
shirt and he sttppoijtvedthe sctid”ivTei’vsi()’:1..-
PW SL1 i’esi_dVe~i1ioi’-.H’ad’ihaH.i. viiiuge, Cioitarahatti and fix:
ChEliI’iTl8;i’i.* Aith{.)ri.gE.i”1’1e has staéed that accused 3 & 4 are from his
vitiag1e”‘::iid’tfi:1Ethe police have taken his signatu1’e on some white sheet,
1io’we’vei’,iAt’1ve ttiriied’-Eiostike as to the version of eoiidueting detaii !’E11clhaZ/iii’
_except”<«st:it'iVi_i'g thfiit accused 3 & 4 are from his viilage. According to the
it'–pLrosecuti()r1;this accused 4 has produced the nose stud in his presence
_' –.L'!i1'L'§ [i'1{:~{S:£1!'1}C was recovered under pzmchanarria ~»Ex.P7.
'Bi?'
l6
According to the prosecution, PW 6 is the pancha for the seizure
panchanarna at EXPS and for recovery of thali at the instanceof
accused and he has supported the recovery at M 0__–f3:
according to the defence version, since the.,.6’_h acc–i;1sed* “igoing to
cooiie work under this witness but since helabstaiiievd fio_ni~
suggested that he had been falsely iinnlitated, which sug°’aes$:i.oi”…hiasibeen 2 L
denied.
Apart from thaigthere is”th”e of ‘.otheIr witnesses who are
doctors M PW .–1″)r44SiiaVn*i:hav v_.>’ho’ exarnined the complainant has found
two injuries, one onivathe’fore’li_e«ari._ and another on the inter scapular
region, and she’ at Eix.P9. PW 10 Dr Jagdish has
._€5XEllT1l!1§’Li£ PW 7 the victim and after examination, he has answered ali
‘the. _Vquestionsi’*sent by the poiiee, stating that there is forcible
iiitercoinise on her. Although there are no injuries on the
private p’arts’,~but he found some injuries ~«~ abrasion on the ieft breast and
‘left’ thigh and, issued the certificate ai EXP} I1 and also opined, to the
suggestjion made in the eross–exa.inination, that such injury could be
~ while passing through the fence. The evidence of the doctor
Al”
18
the same viihige. i1£1V'”t3 committed dacoity and also this 1″ accused as
weii as the 73′ accused i12l\=’t3 committed rape on the victim M PW7_7′.iVBui._
the trial court oniy with i”eicrence to the I” accused iiats; [tii;t_t_i: he. is
guilty of the offence under $376, IPC :.tpa.t’t from 01
oiiencc under S395, IPC. ;’\/light he the tflal c:0I.1irt}wL1,sj i>.ft=hei ‘view th:J.t
there was specific identification as [()7¢t£)CL1SCdi”i_i)il3I. iiotyiii’ ‘ijesgpect of the
7″‘ accused.
While tooking into tlie,r:..v,ide11c’e., it i;§i”>;eei’1,1._’:1ii three witnesses;
who are the ViC[i1]]§§ t)t’i;1?;i’i1;:a:i.ty”are ru.s’ti_c =vii’iaige’1′;s’i and might be on the
day of the E’i1cit:E_e.-at, ii£’*i\5.’*L~t,s:i£’l’rt]c’W_ ii;:’;_t::ii tiay and therefore, dark. But stiil
as to the pUI’pI’)St3′ ofi”:’cc0§;:t:.-Esii’:g and identifying the accused, it is
$peciI’ic;14E;jtiyi’stated that there was electric light and in that light,
‘they could identi.i’y’~t:_hc accused. Apart from that, what is being noted is,
it i8ii17l_()xi’ .213: if”‘s£5’_1*.1c uthc1’ persons have been falsely implicated to see that
crime is”detc–cteciv ‘imd there is cvicience on record which is sufficient to
i V’ ‘ Aht.>E_ti the _.;1ccus*c.(i guilty of’ the uficncc.
-Y