Ningappa S/O Gurulingappa … vs The State Through Cincholi Police … on 1 July, 2017

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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH

DATED THIS THE 1ST DAY OF JULY, 2017

BEFORE

THE HON’BLE MR.JUSTICE B. A. PATIL

CRIMINAL APPEAL No.3614/2011

Between:

1. Ningappa s/o Gurulingappa Katagigana
Age : 48 years, occu : warden
R/o Chandkavate Tq.Sindagi
Dist.Bijapur presently residing at
Chandapur, TQ.chincholi,
Dist.gulbarga.

2. Munichaluvaiah s/o Singaraiah,
Age : 38 years, occu : Taluka Social Welfare
Officer R/o Hosadurga, Kodihalli Hobali
Kanakapura Talujka, Ramnagar District
Presently residing at Chandapur
Tq.Chincholi, Dist.Gulbarga.

… Appellants
(By Sri. Baburao Mangane, Advocate)

And:

The State through Chincholi
Police Station, 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 allow the appeal and set aside the
judgment and order passed in S.C.NO.219/2009 on the file
of II Addl. Sessions Judge at Gulbarga dated 18.06.2011
convicting the appellant for the offence U/Sec.354, 109 of
IPC R/w Sec.34 of IPC and acquit the accused/appellants of
the alleged offence.

This appeal having been heard, reserved on 21.6.2017
for judgment and coming on for pronouncement of judgment
this day, the Court delivered the following:-

JUDGMENT

The present appeal has been preferred by the

appellants-accused Nos.1 and 2 by assailing the

judgment and order of conviction passed by II Addl.

Sessions Judge, Gulbarga, in Special Case

No.219/2009 by order dated 18.6.2011.

2. The brief facts of the case of the complainant

are that; complainant was working as a daily wage

labourer in Murarji Residential School, at Nadagunda

and she was a widow. It is the case of the complainant
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that the warden of the said school accused No.1

Lingappa, used to sexually harassed her. It is further

alleged that accused No.2 Munichaluvaiah also used to

insist her to have a sexual intercourse with him. When

the matter was so stood, on 5.9.2009 at about 1.30 p.m.

when the complainant was working in the kitchen of the

school for preparing food, accused No.1 Lingappa came

there and asked her to come to the room of accused

No.2 Munichaluvaiah, by saying that, he had got

affection towards her and he is ready to confirm her

employment. It is the further case of the complainant

that, accused No.1 pulled her hand, when she resisted,

accused No.3 Anjamma came and instigated accused

No.1 to have a sexual contact with accused No.2

Munichaluvaiah. When that being the case, Devamma,

Narsamma and Sakamma came there and pacified the

quarrel. On the basis of the complaint a case was

registered in Crime No.95/2009 and after investigation

charge sheet was came to be laid against the accused.
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Since the said Sessions Court is the trial Court for the

cases pertaining to Schedule Caste and Schedule Tribe

under the SC/ST (PA) Act, it took the cognizance,

registered the case and after securing the accused and

after hearing the learned prosecutor and the learned

counsel for the accused, charge was framed. Accused

persons denied the charge and as they intended to be

tried, the trial was fixed.

3. In order to prove the case of the prosecution,

prosecution got examined 12 witnesses as PWs.1 to 12

and got marked 10 documents as per Exs.P1 to P10 and

after closure of the evidence of the prosecution, the

statement of the accused was recorded under Section

313 of Cr.P.C. by putting the incriminating material as

against them. The accused persons denied the same. On

behalf of accused, they have not led any defence

evidence. But however, during the course of cross

examination they got marked Ex.D1.

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4. In order to prove the case of the prosecution,

prosecution got examined PWs.1 to 12. PWs.1 and 2 are

the eyewitnesses to whom CW1 told about the sexual

harassment by the accused person. They have not

supported the case of the prosecution. They have been

treated as hostile. PW.3 is the complainant. She has

deposed that, about ten months prior at about 1.30

p.m. when she was preparing the food in the kitchen,

along with CWs.4 to 6, accused No.3 Anjamma came

there and told that the Sir is calling, as he is intending

to have a sex favour. She has further deposed that, at

that time, accused No.1 came there and by holding her

hand pulled her and when she made a hue and cry he

assaulted and when the other persons who are there in

the kitchen, they came and at that time accused No.1

and accused No.3 by taking the name of the caste

abused her and told that, she has not been made

permanent in her job. She has also deposed that

accused No.2 is also used to sexually harassed her. She
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has further deposed that, she went to the house and

after discussing with the relatives she filed the

complaint after seven days.

5. During the course of cross-examination it has

been brought on record that, on the date of the incident

accused No.2 was attending the meeting in Sadipur

village in Janaspandana programme. The said

suggestion has been denied. She has admitted that

accused No.1 has filed a criminal case against person

by name one Devendrappa on 12.9.2009. she has

further admitted that, one Kottappa is a relative of her

and he is a active participant in D.S.S. She has also

further deposed that, before filing the complaint she has

not told about the incident to the Head Master. She has

further deposed that accused No.1 has not behaved

indecently with her. Except that nothing has been

elicited from the mouth of this witness. PWs.4 and 5 are

spot mahazar pancha to Ex.P4. They have not
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supported the case of the prosecution. They have been

treated as hostile. Even during the course of cross-

examination, the prosecution has not elicited anything

to substantiate the case of the prosecution. PWs.6 to 9

are the eyewitnesses to the alleged incident. They have

deposed about 10 months back at about 1.00 p.m.

when they were in the kitchen they heard the screaming

voice of PW3 Suvarna and they went there, there

accused Nos.1 and 3 by holding her, were dragging to

take her and also used to abuse her by taking the name

of her caste. Except that, they have not supported any

other evidence. They have been treated as partly hostile.

Even during the course of cross-examination by the

learned Public Prosecutor, nothing has been elicited so

as to substantiate the case of the prosecution. PW.7

has further deposed that when the quarrel was going on

accused Nos.1 and 3 abused the complainant by taking

the name of the caste and they were dragging her by

saying that her employment will be made permanent
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and accused No.2 is calling her as he wants to confirm

her employment. So also the evidence of PWs.8 and 9.

PW.10 is the PSI who registered the complaint and

issued the FIR and thereafter he handed over further

investigation to PW.11. PW.11 took further investigation

and thereafter he filed the charge sheet. PW.12 is the

Junior Engineer who prepared the sketch of the place of

incident as per Ex.P9.

6. I have heard the learned counsel Sri Babu Rao

Mangani and the learned High Court Government

Pleader.

7. The learned counsel for the appellants would

contend that, there is a delay in filing the complaint.

Further he contends that, PW.11 the Investigating

Officer who also attended the Janaspandana meeting

has admitted in his evidence that on 5.9.2009 accused

No.2 Munichaluvaiah participated in the said meeting

and as such the trial Court ought to have acquitted
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accused No.2. Even though the complainant has

admitted that, there was no harassment by accused

No.1 earlier to the incident, the trial Court convicted the

accused persons without proper appreciation of the

evidence. It is the further contention of the learned

counsel for the appellants that, because of the

adulteration in the food by the complainant, a

complaint was filed and the amount has been recovered

and as such a false complaint has been registered

against the accused appellants. He would further

contend that, where exactly the offence took place has

also been properly brought on record. He would further

contend that, the material witnesses have not supported

the case of the complainant and without there being any

corroboration the accused appellants have been

convicted by the trial Court. On these grounds he

prayed for allowing the appeal by setting aside the

impugned order.

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8. Per contra, on behalf of the respondent State

the learned High Court Government Pleader vehemently

argued and contended that mere presence of accused

No.2 in the meeting of Janaspanda, does not

prabobalize that, he has not harassed the complainant.

He would further contend that, there is no material to

show that, whole day the accused was present in the

meeting. He would further contend that the place of the

meeting and the place of incident are very short and

there is every possibility of accused No.2 coming at the

place of incident.

9. As could be seen from the evidence it is not in

dispute that PW3 complainant was working in Murarji

Model Residential School at Nidagunda Village and so

also PWs.6 to 9 were also working along with her on

daily wages. It is also not in dispute that accused Nos.1

to 3 are working as a Warden in the said school. As

could be seen from the evidence of PW3, she has

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deposed that, about ten months’ back when she was

working at about 1.30 p.m. in the kitchen of the school

and at that time accused No.3 came and told her as the

Sir is desirous of her and calling her and at that time

accused No.1 came there and by holding her hand

pulled her and when she tried to resist and made a hue

and cry, at that time accused Nos.1 and 3 abused by

taking the name of her caste. She has further deposed

that accused Nos.1 and 3 used to ill-treat her. This

evidence of PW.3 has also been corroborated with the

evidence of PWs.6 to 9, so far as the accused No.1

coming there and by holding her hand pulled her and

abused her by taking the name of the caste. When there

is a clear cut evidence of PW.3 that accused No.1 pulled

her by holding her hand, that itself clearly goes to show

that accused No.1 has used the criminal force against a

woman with an intention to outrage her modesty and

admittedly she is working in a public place along with

the other witnesses who were present and at that time if

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accused No.1 pulled her hand and told that accused

No.2 is calling and he is interested to have a sex with

her. Then, under such circumstances the provisions of

Section 354 of IPC are attracted.

10. As could be seen from the order of the trial

Court, the order of the trial Court indicates that the

accused persons have been convicted under Sections

354 and 109 r/w Section 34 of IPC. Section 109 of the

IPC is meant for abetment and to abet a particular

person to commit an offence. But, if an act or offence is

committed in consequence of the abetment or at the

instigation or in pursuance of the conspiracy, then

under such circumstances it constitute abetment. But

as could be seen from the evidence of PW3, even though

she has deposed that the accused No.1 came there and

by holding her hand pulled her by saying that accused

No.2 is having affection towards her and he is ready to

confirm her employment and at that time accused No.3

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instigated accused No.1 to have a sexual contact with

accused No.2 and told PW.3 to go along with accused

No.1. By going through the said evidence nowhere either

directly or indirectly the evidence has been placed to

show that accused No.2 abetted or instigated the

accused Nos.1 and 3 by telling to commit any such

offence or asking her about the sexual harassment.

Prosecution has not placed any material to show that

accused no.2 instructed or asked to get P.W.3 or any

other direction. In the absence of such evidence the

conclusion of the trial Court and convicting the accused

No.2 for the offence under Section 354 of IPC is not

sustainable in law.

11. Be that as it may. If we peruse the evidence

of PW.11 he has admitted that on 5.9.2009 accused

No.2 also participated in the Janaspandhana

programme. When he was not present at the place of

incident and there is no evidence to show that at the

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instigation and abetment accused Nos.1 and 3 came

there at the place where PW.3 was working in the

kitchen and pulled her hands and abused by taking the

name of the her caste. In the absence of evidence the

conviction of the accused No.2 appears to be not

justified and the same is liable to be set aside.

12. Insofar as the accused Nos.1 and 3 are

concerned, there is a corroboration in the evidence of

PWs.3, 6 to 9 and as such the conviction of accused

No.1 is sustainable. So far as accused No.2 is

concerned, there is no credible and trustworthy and

reliable evidence so as to convict accused No.2, either

under Section 354 or under Section 109 of IPC. In that

light, accused No.2 is entitled to be acquitted. Though

the learned counsel for the accused has brought to my

notice some contradiction and omissions in the evidence

of prosecution, but in the case of State of Punjab and

Gurmith Singh and Others reported in (1996)3 SCC

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(Criminal) 316, it has been held that, minor

contradiction or insignificant discrepancies in the

statement of the prosecutrix should not be a ground for

throwing out, if the evidence is otherwise reliable.

13. Keeping in view the ratio laid down in the

above decision the evidence of PWs.3, 6 to 9 repose the

confidence of this Court for having committed the

offence by accused Nos.1 and 3 and as such the same is

liable to be confirmed and so far as accused No.2 is

concerned, the evidence creates a doubt about the

presence of accused No.2 and also that calling the

victim PW3 for sexual favour. Under such

circumstances the said benefit go to accused No.2 and

as such he is liable to be acquitted.

14. Keeping in view the above said facts and

circumstances, I pass the following

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ORDER

The appeal is partly allowed.

The judgment of conviction passed against

accused No.1 has been confirmed and appeal is

dismissed as against him and insofar as accused No.2 is

concerned appeal is allowed and he is acquitted from

the offences punishable under Section 354 r/w Section

34 of IPC.

Sd/-

JUDGE

*ap/-

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