IN THE HIGH COURT OF KARNATAKA CRICUIT BENCH AT DHARWAD 2 DATED TI-IIS THE 41:]; DAY or ' sspomze L A} THE HON'BLE MR.JUsT1c;fieA:aA'tI CRIMINAL BETWEEN: Pralhad -~ V S/0. Tulasabai Kamble' Aged about "Z2 years ' Occ:Agric1.1lt1ire1;_V_gt ' ._ __ " R/o. JugailVi_l1'age,""-- J Talukaflthani' "*1.;.,/' Dist:I-3e1gau»n1_ . Appellant. (By Srif«JtBasava1tajV.l;or.:A" Bahubali"'Au.. iDanaWe:d'e,..iAdV.) VSt.ate 'Karnataka Respondent
H (BlS.?”’53ri;VPV.uHflotlchindi, I-ICGP)
Criminal Appeal is filed under Section
* 374(2)’=.- ” of Cr.P.C. against the judgment
V~?”»dtd’;3gO.08.O6/15.9.06 passed by the II Addl. S.J.,
_ ‘ =B’e1g.aurn, in S.C.No.l87/O5 W Convicting the
agapellant/accused for the offences punishable under
” ….secs. 376 and 306 of {PC and etc.
(‘_’§’v’\.._._-~….–
‘ \-.
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This Criminal Appeal is coming on for further
arguments this day, the Court made the fo1lowing:»,_”._V_
JUDGMEKT
The accused in Sessions case No..”i’8″.7:/’_{}5″won.V the ” ”
file of the learned II Addl. District
Belgaum, has filed the pre’s_en_t apapc-iai thsfi
Judgement and Order in the
said case convictingv ‘l’1xi}n.A for u/secs. 376
and 306 of IPC:’and R1 for 7
years and:_5~ said offences and
to payvVVfiine_A’ofi sentence of R1 for
for each of the said offences.
5-2._ the ‘arguments of Sr. J.Basavaraj,
.i””lea”fn:ed”i:co:u~n_se1 forwthe appel1ant–accused on behalf of
learned counsel for the
a}ip«e1la.;it–ai5cused and Sri. A.R.Patil, the learned Add.
J’3.P.uP, Perused the entire records obtained from the Trial
r~(Y\/’
3. Stated in brief, the case of the prosecution is
as under:
a) The deceased Smt. Nanda it
Balu Kamble, being theytfife ofthnei it
the accused herein,I_wa:s..the’;
in-law of the accgu_sed.i4″Sin.ce the.”.past’ 1V5:
years prior to the
used to have forcih1e.._se2;uaiiihtercotirse
with the idefcxeased;ttvaki:nvg:”‘advantage of
the fact of the
deceased years
1.. aboitts could not be
t db} at about 9.00 am
“1lti1¢3v the deceased to have
intercourse with him and
evt.tb.1A’1ereifioi*e’;iithe deceased, being fed up
L’wt:t1t the conduct and attitude of the
,””_”_«»g:a¢i5ldsed, committed suicide by setting
rvherself on fire in the house of the
accused.
V” “4. Based on the oral evidence of PW1 to 1=>w21,
T “documents at EXs.P1 to P27 and MO Nos. 1 to 3, the
M
Trial Court, by its impugned Judgement and V-Grder,
found the accused guilty of both the said
convicted him accordingly. The defence of”«’the
is one of total denial. Thereforcefhe’ has to
get any witness examined for hitnrior has ‘tried,’ chosefg/go”~.,
produce any documents.
5. Sri. J. counsel for the
appel1ant–accus’ed, {that PW} Smt.
Puspha eehdciliithe deceased and
younger._.si’s’tefr Srnt. Geeta, the
Junior, PW3 Sangeetha, the
daughter§icnflavvxlo.f the 1, PW4 Sampath Kumar, the
neprdevy-_pi”c{g the ” accused, PW5 Srnt. Hirabai, the wife of
the’ ..ac-c_use’d,°o_n whose evidence the prosecution has
placed tV*eiia_r1e’eV in proving the factum of forcible sexual
‘.,_pintercotirse on the deceased alleged to have been
A ‘~:if”cornrnitted by the accused, have not supported the
prosecution case and therefore, the Trial Court
c”‘~{w\””_’\–*’
committed serious error in recording its findings that
the prosecution proved its case beyond reasonabie
doubts for both the said offences, reiying
document Ex.P.’7, the dying declaration of ‘Vd.eceased’;;
He further contends that even
declaration is accepted and “C-ontevntsph$gre:”heVid’Hproved, V
it contents do not make’ outa cajseV’vg’again’st’Vtheyéaccused
for the offence u/ s 376 conviction of
the accused; offe’n’CeV…’b§§Sed on the said
documentii law. He further
acceptable evidence placed on
recordvzibyithe to show that accused did any
act or ornitted~V’vto anything, amounting to the
. V.°’~a’oaternetnt’t’ suicide committed by the deceased and
1 e—.therefor’ew,.vtheconviction of accused for the offence u/s
sodipct em not be sustained.
x T Per contra, Sri. A.R.PatiI, learned Addi.S.P.P.
A -strongly contends that the contents of the Ex.P.7 dying
c..r’~–~/c
declaration of the deceased clearly go to show th-at the
deceased was subjected to forcible sexual
the accused for a period of more than
therefore, she, being fed up with’ the
accused, committed the suicide by setting herself o:-i’fire’«..L
on the said date and time in:’th.e houis_e”of_” accused
and hence, the iziipugneidm Order
convicting appe11ant–accused”‘for said offences
does not ca11§~fo’rA(:vai.1y interference’-i’i’1V appeal.
‘7, “”” Hth§’at the evidence of PW1
to reiiedupon’ibvtpiro-secution does not support the
prosecution “craswe thattfie accused committed forcible
sexual intercourse ____ on the deceased over a period of
»more years prior to her death and therefore,
with the said conduct of the accused,
comrnitvtedvsuicide. Therefore, the only evidence against
“.,:if’»thei”4-accused is Ex.P7 the dying declaration of the
i deceased.
r_f\r\a–
8. It is not in dispute that the deceaseidygot
herself set on fire on the said date and _
residence of the accused and immediate_.Ey–thereafter shew it
was taken to the hospitai.
Kanchnal, the Head Constable of VS-arigli, HSi..i1a.svVVs.tated-.t”
in his evidence that on 22/ on duty
in his P.S at Sangii Vhe.V:i*ece:ived:Vi’.téfiéyviijntimation from the
Civil Hospital sangu mar admitted in
the said injuries and
therefo_reV,v 3ii;te’rV_V::ireceipt of the said
intimation; said hospital, met duty
doctor, it as to condition of the
deceased for uigivin_g_’her statement, and doctor in duty
»toici.hi.1fr1A.ythatv the deceased was in fit condition to give
He has further deposed that he recorded
theuustaternent of the deceased Nanda between 1.10 pm
‘A “Cfanid<–..y1.40 pm in the presence of the duty doctor and
EXP'? is the said statement and it bears the
<""£\r\""""
endorsement of the doctor at Ex.P.7(a). He has further
deposed that the said statement bears
deceased at Exs.P.7(b), Ex.P.7(c) and hisepei.gee:’;i’re
Ex.P.7(d), another endorsement .o»f~th4e thejfocit ll
of the said statement EXP.”/(e).
that after he recorded statemenptl ‘he”..fead”loverl” V
its contents to the deceasedi-and:’she_adInit’ted«the same
as corrected and then _1’0nl’iy ihe her thumb
impressions on the said ‘ V
9. 1 e..Pwa;_pobi-.’pptil1§:etee;;ey tuiiip Vaze, is the junior
resident the said hospital who was on
duty /7 stated in his evidence that
he pp4eXa1nined”‘theV deceased in casualty Ward at about
prn-.the_deceased had sustained external burns.
llI~I(§…_ha{s:l’_furth’e.r deposed that about 1.00pm police
constable carne to be hospital enquired with him as to
it .,the-health condition of the patient, he informed the said
— constable that the patient was in fit condition to give
(_’_r\’*L_,,_..-.._–
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Therefore, I do not find any reason to interfere with the
NF’
findings recorded by the Trial Court as
recording of Ex.P.7, the statement of the
PW’? in the presence of PW8 theurnedicagl
to the contents of Ex.P.7
11. Referring to ‘the said
statement of the deceased, the learned
counsel for the contends
that the statement that
her left the house about
15 years till the said date of incident
the accuse.d; beiingkher.:father—-in–law, had illicit relation
, Q’ Withigher and he*us_e(:1vf::ee her to have sexual intercourse
r~/IT”
–._she was yielding to the samekand she
‘_–._g-‘Wu
tolerated ‘.the..e1’same and therefore, this statement does
not in any way prove that the accused used to have
A f”‘forcit_>le sexuai intercourse with her without her consent
and against her will and therefore, conviction of the
r”‘r”\’\*-“‘”7
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accused for offence 11/3 376 based on this statement
can not be sustained in law.
12. Kannada version of the said
insofar it relates to sexual intercourse
been committed by the accused,Aon:_the
as under: V
.. ax; ms was seas aaa 15
a’$a=’.$s’m?oz3a 553$ as
and 351°’-7€2.F5 eggs ziozaoqi
mm 1-sasari zsezé
_:i:5e§§5ai_i.:£;asggcd$§;aaSs’§asafi as; mom: :3o2.,5Jaer€
maeaggsa. “;§g§aa:szi sass: asaaaaozsa uoazsgda. ”
i On careful reading of the above statement
it in Ex.P.7 is dying the declaration,
irelation’ izvith the deceased during the said period,(\in the
“abseince of her husband and he used to force her to
thdughjiteriould be held that the accused had illicit
r’~/:'”
“”have sex with him and she was yielding to the said
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offence u/s 306 EPC and can not be accepted. On the
other hand the contents of Ex.P7 dying declaration,
c’–F:’:”
which are proyed by the prosecution clearl’y__:–gojV’toVf’
em willful conduct of the accused in having Vsexuai.
intercourse with her over _a periodiof abo_ut”1″5 years-..p
taking advantage of the fac’t:th.at the V
deceased, who was “‘r1.one_«”ioither;. theiison of the
accused, had left the norne _§5.«year_S __ago’aazd o§%y
goes to show that the decease:d,i7be.inig fed up with the
said cond5t1Vct.::_i§i_ithe of putting an end
to ‘life’ she committed suicide
settinghhperself ..abl:a;te4d-lr”«”Therefore, I do not find any
reason to interfere iiwith the findings recorded by the
Trial the prosecution proved beyond
reasonable doubt its case against accused for the
offe«nce__”1i / E PC.
A As to the sentence of RI for a period of 5
years imposed by the Trial Court for the offence u/s 306
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Sessions Judge, Belgaurn, insofar it relates to conviction
and sentencing of appellant-accused for the offenVoe44’_:3?’6
IPC, is hereby set aside. However, his convi_ction’C .
offence u/s 305 1130 is hereby.” ;;onfi_ri&r1’e.:i;_v: .B’utf,thte *
sentence of R1 for 5 years imposed1’oI1’iVhiini
offence is hereby reduced _v4~..years’ the
period of imprisonment .’hirr1_aV$:§ on this
date. Consequently shall be set
at liberty forthwith if tobe detained in
connection of Rs.2,000 / —
s 376 IPC, if has been
paid by ht1;:i,s
A of o’pe1~’ative portion of this order shall be
f_orth,withV”‘t’o ——– the Trial Court and also to the
Central Prison, Belgaum for
compliance.
sd/..
JUDGE