Umesh @ Omanna S/O Shivaraj vs The State Of Karanataka on 29 June, 2017

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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH

DATED THIS THE 29TH DAY OF JUNE, 2017

BEFORE

THE HON’BLE MR.JUSTICE B. A. PATIL

CRIMINAL APPEAL No.3583/2011
C/W
CRIMINAL APPEAL No.3584/2011

IN CRIMINAL APPEAL NO.3583/2011

Between:

Umesh @ Omanna S/o Shivaraj
Aged about 25 years
Occ : Barber
R/o Jeevanagi,
Tq. Dist.Gulbarga.
.. Appellant

(By Sri. Sachin M. Mahajan, Advocate)

And:
The State of Karnataka
Through Kamalapur PS
District Gulbarga,
Represented by
SPP, Hon’ble High Court of
Karnataka, Circuit Bench,
Gulbarga.
.. Respondent
(By Sri.Maqbool Ahmed, HCGP )
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This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to call for the entire records, allow this
criminal appeal by setting aside the Judgment and Order of
conviction dated : 27.1.2011 in Special Case No.251/2008
passed by II Addl. Sessions Judge at Gulbarga, thereby
convicting the appellant/accused no.1 for the offences
punishable under Section 366, 343, 376 of IPC and also
under Section 3(2)(v) of the Scheduled Caste and Schedule
Tribe Prevention of Atrocity Act and sentencing the
appellant/accused no.1 to suffer simple imprisonment for a
period of 7-years and fine of Rs.2500/- for the offences
punishable under Section 366 of IPC, simple imprisonment
for 3-months and fine of Rs.1000/- for the offences
punishable under section 343, simple imprisonment for a
period of 7-years and fine of Rs.2500/- for the offences
punishable under section 376 of IPC and imprisonment for a
period of 10-years and fine of Rs.2500/- for the offences
punishable under Section 3(2)(v) of the Scheduled Caste and
Schedule Tribe Prevention of Atrocity Act, with default clause
and grant such other relief or relief’s as this Hon’ble Court
deems fit under facts and circumstances of the case.

IN CRIMINAL APPEAL NO.3584/2011

Between:

1. Basavaraj @ Basappa s/o Siddappa
aged about 45 years, occu : coolie;
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2. Khadir s/o Babusab
Age : 20 years, Occ : Driver

3. Shankar S/o Gurusiddappa Hadpad,
Age : Major, Occ : Barber

All R/o Jeevanagi, Tq. Dist.Gulbarga.
.. Appellants

(By Sri. Sachin M. Mahajan, Advocate)

And:
The State of Karnataka
Through Kamalapur PS
District Gulbarga,
Represented by
SPP, Hon’ble High Court of
Karnataka, Circuit Bench,
Gulbarga.
.. Respondent
(By Sri.Maqbool Ahmed, HCGP )

This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to call for entire records and allow this
criminal appeal by setting aside the Judgment and Order of
conviction dated : 27.1.2011 in Special Case No.251/2008
passed by II Addl. Sessions Judge at Gulbarga, thereby
convicting the appellants/accused nos.2, 3 and 6 for the
offence punishable U/Sec.343 and sentencing the
appellant/accused nos.2, 3 and 6 to suffer simple
imprisonment for a period of one year and fine of Rs.1000/-
for the offence punishable U/Sec.343 of IPC with default
clause.
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These appeals having been heard, reserved on
7.6.2017 for judgment and coming on for
pronouncement of judgment this day, the Court
delivered the following:-

JUDGMENT

These two appeals have been preferred by accused

Nos.1, 2, 3 and 6 assailing the judgment and order

passed by the II Additional Sessions Judge, Gulbarga,

in Special Case No.251/2008, dated 27.1.2011.

2. The brief matrix of the case of the complainant

is that, on 9.3.2007 at about 2.00 p.m. when the

complainant and his wife were there in the house, at

that time, his daughter, aged about 17 years went to

bring stitched cloths from tailoring shop of Nagamurthy.

Thereafter, she did not turn till 5.00 p.m. The

complainant and his family members searched for her

in the village and also in their relatives’ houses, but she

was not traced. On 17.3.2007 complainant got the

information that on 9.3.2007 at about 2.00 p.m., when
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his villagemen Vomanna @ Umesh, Nagesh, the jeep

driver Khadir and other unknown two persons induced

his minor daughter and eloped in a jeep bearing

Regn.No.KA-38.M382. It is alleged that it was seen by

one Shankar, Son of Shivadhar Jadar and Ambadas

Son of Shamarao. It is further alleged in the complaint

that accused No.5 Shivaraj, accused No.2 Basavaraj @

Basappa, accused No.6 Shankar @ Shankedar and

accused No.7 Kalavathi together hatched a plan and

encouraged accused No.1 Vomanna @ Umesh to elope

the minor girl of the complainant as she belongs to the

Scheduled Caste so as to spoil the reputation of the

complainant.

3. It is further case of the prosecution that after

eloping the minor girl-victim, they went towards

Humnabad and there two more accused also boarded

the jeep and thereafter in a maxi-cab they took the

victim to Vittalpur and thereafter in Vittalpur accused
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No.1 took her to the house of one Shanthakumar, where

she has been sexually assaulted even in spite of her

resistance. It is further case of the prosecution that,

from 10.3.2007 to 17.3.2007 everyday accused No.1

used to sexually assault her and one day he took her

gold ear-studs and sold them. When accused No.1

brought the victim on 17.3.2007 to his house at

Jeevanagi, at that time also accused Nos.2 and 6

instigated and abetted accused No.1 to have sexual

contact with the victim. On 18.3.2007 police came to

the house of the accused and took the victim along with

accused Nos.1 to 3 to the Police Station and there the

victim narrated the acts of the accused. On the basis of

the investigation, charge sheet came to be filed against

the accused persons in Crime No.28/2007. After filing

of the charge sheet, the Special Court took the

cognizance of the said case as the said Court is the

Special Court for trying the cases pertaining to

Scheduled Caste and Scheduled Tribes. It took the
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cognizance of the case, registered the same and on

hearing both the sides the trial Court read over the

charge and explained to the accused. Accused pleaded

not guilty and wanted to be tried and as such the trial

was fixed.

4. In order to prove its case, prosecution in all has

examined 25 witnesses and marked documents as per

Exs.P1 to P38 and MOs.1 to 5. After closer of the

prosecution case, accused persons were examined

under Section 313 of Cr.P.C. by putting incriminating

materials against them. They denied the same and they

have not led any evidence on their behalf. However,

during the course of examination of PWs.1 and 21, they

marked Exs.D1 to D3.

5. PW.1 is the father of the victim and he is also

the complainant. He has deposed that the victim is his

daughter and she went to bring the stitched cloths and

thereafter she did not return for a long time. By
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suspecting, himself and his wife went and made

enquiries with the tailor Nagamurthy, who in turn

informed that, she did not come there. He has deposed

that he searched in the houses of relatives and friends

and she was not found. He waited for two days under

the impression that, she will come back. He has further

deposed that, on 17.3.2007 the police apprehended

accused No.1 and the victim in the house of the accused

No.1. He has further deposed that, he filed the missing

complaint at Ex.P1. When he met the victim she told

that accused No.1 threatened that, if she is not going to

give consent for sex, he is going to murder her parents.

Thereafter by threatening he had sexual intercourse

with her. He has further deposed that, she has been

confined in a house for three days in Jahirabad by

accused No.1. Accused No.1 also got her ear-studs

removed and sold them. Accused No.1 got her married

by exchange of garland under the threat in the presence

of one Raju and Shanthu. During the course of cross-
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examination, it has been suggested that after missing of

the victim for the first time he talked with her on

17.3.2007 and he admitted that when he gave Ex.P1, he

was not knowing who eloped and how they eloped his

daughter. It has also been suggested that one or two

months prior to the incident, accused No.1 had planned

to elope the victim. After coming to know about the said

fact, he went and asked the parents of the accused. The

said suggestion has been denied. Except that nothing

has been elicited from the mouth of this witness.

6. PW.2 is the victim. She has deposed that she

has studied up to 7th Standard and her date of birth is

13.4.1989. She has deposed that on 9.3.2007 at about

2.00 p.m., she went to the tailoring shop of Nagamurthy

Badiger to bring the stitched cloths and at that time,

accused No.4, (juvenile offender) came and told that her

Aunt is washing the clothes near Bhimalingeswar

Temple and has asked him to bring the victim and
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therefore she went along with him, where a jeep was

standing. In the said jeep accused Nos.1 and 3 were

there and they forcibly took her and started towards

Humnabad. At Humnabad, one Raju and another

person also boarded the jeep and there they took a

maxi-cab and took her to Vittalpur. She has further

deposed that they reached Vittalpur at about 9.30 or

10.00 p.m. and in the house of Shanthakumar, accused

No.1 sexually assaulted her in spite of her resistance.

She has also deposed that he caused burn injuries to

her left hand with cigarettes and he has also had

forcible sexual intercourse with her. She has further

deposed that from 10.3.2007 to 16.3.2007, every day he

used to have sexual intercourse with her against her

will. On 15.3.2007 he took her to Bhimalingeshwar

Temple and by exchanging the garland, he got her

married in the presence of Raju and Shanthakumar.

She has further deposed that 18.3.2007 police came to

the house of accused No.1 and took them to Police
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Station. She has also deposed that she has narrated

the incident to her parents. During the course of cross-

examination, some omissions are brought to the notice

of the witnesses and same have been marked as Exs.R1

and R2. Though during the course of cross-

examination it is suggested that, she has not resisted

when she was eloped, the witness has deposed that she

made resistance, as the accused persons tied her mouth

with cloth, the same was not heard by anybody. It has

been suggested that because of political enmity a false

complaint has been lodged, the same has been denied.

7. PW.3 is the mother of victim. She has also

reiterated the evidence of PW.1; PWs.4 and 5 are the

panchas to seizure mahazar at Ex.P3 under which jeep-

MO.No.1 was seized. They are also panch witnesses to

the spot mahazar at Ex.P4; PW.6 is the tailor to whom

PW.1 went and asked about PW.2 and asked about the

abduction of the victim by the accused; PW.7 is a
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witness who participated in the marriage; PW.8 is the

owner of the jeep as well as father of accused No.3;

PWs.9 and 10 are the witnesses who saw the accused

persons eloping the victim in the jeep; PW.11 is the

witness in whose house accused No.1 took the victim

and had sexual assault; PW.12 is the witness who

participated in the marriage. PWs.4 to 12 have not

supported the case of the prosecution and they have

been treated as hostile.

8. PWs.14 and 22 are the panchas to the spot

mahazar at Ex.P23. They have also not supported the

case of the prosecution; PW.13 is the doctor who

examined the victim and issued the medical certificate

as per Ex.P22; PW.15 issued the property records of

Shanthakumar as per Exs.P24 and P25; PWs.16 to 18

are the Police Constables who went in search of the

victim and the accused; PW.19 is the ASI who received

the complaint, registered the case and issued the FIR;
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PW.20 is the PSI who partly investigated the case. But

as could be seen from the evidence, he has not been

fully examined; PW.21 is the Head Master who issued

the date of birth certificate of PW.2 as per Ex.P32;

PW.23 is the Police Constable who carried the FIR to the

jurisdictional Court; PW.24 is the Dy.SP who partly

investigated the case; PW.25 is also the Dy.SP, who

further investigated the case and filed the charge sheet

against the accused persons.

9. I have heard Sri Sachin Mahajan, learned

counsel appearing for the accused. and the learned

HCGP for the State.

10. It is the contention of the learned counsel

appearing for the accused that, the complaint at Ex.P1

head been filed after seven days and the said delay has

not been properly explained by the complainant. He

would contend that, though it is the case of the

prosecution that PW.2 has been wrongfully confined in
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a house and she has been sexually assaulted, she has

not deposed the same in her evidence. He would further

contend that the prosecution evidence shows that it is

the accused No.1 who confined the victim in the house

of one Shanthakumar, but the trial Court without

proper appreciation of the evidence, has wrongly

convicted accused Nos.2,3 and 6. He would further

contend that though PW.2 has deposed that accused

No.1 when he confined her in a room, has caused the

burn injuries to her left hand with a cigarette, in the

wound certificate Ex.P22 no such burn injuries or

marks have been mentioned. Under these

circumstances, the prosecution case clearly goes to

show that because of political vengeance, a false case

has been filed by implicating the accused. He would

further contend that there are contradictions and

omissions in the evidence of PW.2, but the same has not

been appreciated by the trial Court while convicting the

accused. He would further contend that the trial Court
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has convicted the accused-appellant only on the

interested testimony of relatives and it has not

considered the fact that the independent witnesses have

turned hostile. On these grounds he prayed for allowing

the appeals by setting aside the impugned judgment.

11. Per contra, it is contended by the learned

HCGP that there is consistency in the evidence of PWs.1

to 3. Though PWs.1 to 3 are the related witnesses,

merely because they are related, on that ground their

evidence cannot be discarded. He would contend that

during the course of cross-examination, nothing has

been elicited so as to discard the evidence of these

witnesses. He would further contend that minor

contradictions and omissions will not take away the

case of the prosecution. The trial Court after

considering all the evidence, has rightly convicted the

accused-appellants. The accused-appellants have not

made out any case so as to interfere with the impugned
16

judgment. On these grounds, he supports the

impugned judgment and prays for dismissal of the

appeals.

12. Having heard the learned counsel for the

accused and the learned HCGP, the only point which

remains for my consideration is whether the impugned

judgment and order requires to be interfered with by

this Court? In order to establish the case of the

prosecution, it has mainly relied upon the evidence of

PWs.1 to 3. It is the specific case of the accused-

appellants that the victim was aged about 17 years and

she was having knowledge about worldly affair and has

not made any resistance when she has been eloped. It

is further contended that accused No.3 is only the driver

of the jeep and he has not played any active role in

eloping the victim. As could be seen from the evidence

of PW.2-victim, she has categorically deposed that

accused No.3 came to her and told her that her Aunt
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has called her near Bhimalingeshwar Temple, where she

was washing the clothes and he accompanied the

victim. Accused Nos.1 and 3 were also there in a jeep

and forcefully they took the victim in the said jeep

towards Humnabad. At Humnabad they took a maxi-

cab and took her to Vittalpur and thereafter accused

No.1 took her to the house of Shanthakumar. Though

during the course of cross-examination, it has been

tried to bring on record that the victim has not resisted

when she has been taken in the jeep, she has

categorically deposed that she resisted and tried to

make hue and cry, as the accused persons have tied her

mouth with cloth as such she could not make a loud

cry.

13. The evidence of PW.1 clearly goes to show that

in the first instance, accused Nos.1 and 3 took her in

the jeep by eloping her telling some lie through accused

No.2 who is a juvenile. Merely because that
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subsequently there was no resistance at a public place,

it cannot be held that accused persons have not eloped

the victim. Admittedly, the victim was aged about 17

years at the time of the alleged incident and it is the

specific case of the victim that the accused persons also

used to threaten her and under such circumstances it is

very difficult for any minor girl to make a hue and cry.

Be that as it may, it is not the specific case of the

accused that in the jeep in which the accused persons

eloped the victim, other persons were also there. When

that evidence is not forthcoming, then under such

circumstances, even if she resisted in the said jeep and

tried to make hue and cry when only accused persons

were there in the jeep, it will not come to the notice of

the public in a moving vehicle.

14. Though it is contended by the learned counsel

for the appellants that accused No.3 was only the driver

of the jeep, when PW.2 has specifically deposed that he
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was present when she was eloped by accused No.1, then

under such circumstances, when the victim was

resisting, he could have done some reasonable acts to

protect her if he was not having any intention and if he

has not colluded with accused No.1. In that light of the

evidence, the contention of the counsel for the accused

is not acceptable in law.

15. If we peruse the cross-examination of PW.1 the

father of the victim, it has been suggested during the

course of cross-examination at page No.5, that one or

two months prior to the incident, accused No.1 hatched

a plan to elope the victim and after coming to know

about the same, PW.1 went to the parents of accused

No.1 and informed the same. The said suggestion even

though is denied, would clearly go to show that accused

No.1 had hatched a plan prior to one or two months

prior to the alleged incident to elope PW.2. The said

suggestion is a fatal to the case of the accused. The
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facts of the present case clearly go to show that PW.2

has been eloped from the custody of PWs.1 and 3

against their will. In that context, the contention of the

learned counsel for the accused-appellants is not

acceptable in law. As could be seen from the evidence

of PW.2, she has categorically deposed before the Court

that accused No.1 took her and confined her in the

house of one Shanthakumar at Vittalpur and there he

had sexual intercourse against her will and it is also

specific deposition of PW.2 that on 17.3.2007, accused

No.1 took her to his house and there accused Nos.2 and

6 instigated accused No.1 to have sexual intercourse

with PW.2 and sent her in a room along with accused

No.1 and at that time also accused No.1 sexually

assaulted her. Though PW.2 has been cross-examined

at length, nothing has been elicited so as to discard her

evidence. Even there is no suggestion that as to why

the other accused persons have been falsely implicated
21

in the crime, except denial of the case of the

prosecution, nothing is there.

16. It is well established principles of law that

merely because the witnesses are interested witnesses

or related witnesses their testimony cannot be

discarded. But however, when a caveat is there to the

effect, such evidence has to be scrutinized and weighed

by the Court carefully and cautiously. In that light, if

the evidence of PWs.1 to 3 is perused, there is

consistency and corroboration. Even PW.2-victim has

deposed before the Court about the sexual assault

committed by accused No.1 chronologically by confining

her in the house of one Shanthakumar. When the

victim herself has deposed about the act of accused

No.1 and when there is no material to discard the

evidence of PWs.1 to 3, then under such circumstances,

accused No.1 is liable to be convicted for the offence

punishable under Sections 366, 343, and 376 of IPC. It
22

is not in dispute that the victim girl belongs to the

Scheduled Caste community and as such the accused

No.1 is liable to be punished under Section 3(2)(v) of

SC/ST (PA)Act, 1989.

17. During the course of arguments, the learned

counsel for the appellants contended that, there is a

delay of seven days in filing the complaint and burn

injuries are not mentioned in the wound certificate

issued by PW.13. But they are all minor contradictions.

It is well established principles of law that minor

contradictions or insignificant discrepancies in the

statements of the prosecutrix should not be a ground

for throwing out an otherwise reliable prosecution case.

If any corroboration is asked to the evidence of the

victim, then under such circumstances, it amounts to

nothing, but adding a salt to the injuries. When PW.2,

a minor girl has innocently and categorically deposed

before the Court who even does not know what is rape,
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then under such circumstances, the minor

contradictions and omissions will not take away the

case of the prosecution. Even it is well established

principles of law that if the evidence of the prosecutrix

is unshaken, only on the basis of sole testimony of the

victim-prosecutrix the Court can convict the accused.

But in the instant case, even PWs.1 and 3, the parents

of the victim have also categorically supported the case

of PW.2. Though their evidence is a hear-say evidence,

for a limited purpose, it corroborates with the evidence

of PW.2, that too which has been told by PW.2

immediately after she has been secured by the police. If

we see the evidence of police officials that they have

gone in search of the victim as well as the accused

persons, the victim and accused No.1 were traced in his

house and from there they have been apprehended and

brought to the Police Station. Accused Nos.1, 2 and 6

have not made out any case as to under what

circumstances, the victim was present in the house of
24

accused No.1. Even it is not the case of the accused

that victim has voluntarily come to the house of accused

No.1. Be that as it may, when a minor girl has come to

their house, then under such circumstances, either they

could have informed her parents-PWs.1 and 3 or they

could have taken her to the Police Station or could have

informed the police. Looking from any angle, there is

nothing to discard the evidence of the prosecution case.

18. The evidence of the witnesses has to be

appreciated with the background that they are rustic

and village people, and that too they are belonging to

backward community. Even the accused have not made

out any case except suggesting that because of political

enmity they have been falsely implicated, the said

suggestions have been denied by PWs.1 and 2. Even no

corroborative evidence has also been brought on record

to believe such evidence. It is suggested to PW.1 during

the course of cross-examination that he actively
25

participated in civil and criminal cases pertaining to his

village and it has become a habit for him to go to Court

and as such a false case has been registered. No father

will go to such an extent by putting modesty and

character of his daughter to falsely implicate the

accused. Under the said circumstances, the evidence of

PWs.1 to 3 can be held that it is trustworthy and

reliable.

19. I have gone through the impugned judgment

and order. There is no erroneous or perversity while

passing the same. The learned Sessions Judge after

considering all the material on record has rightly come

to the conclusion that the prosecution has proved the

guilt of the accused beyond all reasonable doubt. The

impugned judgment does not require interference at the

hands of this Court and same is liable to be confirmed.
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Keeping in view the aforesaid discussion, both the

appeals are liable to be dismissed and accordingly, the

same are dismissed.

Sd/-

JUDGE

*ck/-

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