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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
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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
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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
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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
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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
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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/-