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Anjamma W/O Bhadranna … vs The State Through on 30 November, 2018

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 30TH DAY OF NOVEMBER, 2018

BEFORE

THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

CRIMINAL APPEAL NO.3624/2011

BETWEEN:

ANJAMMA
W/O BHADRANNA THEGALATIPPI,
AGE : 31 YEARS,
R/O NIDAGUNDA,
TQ. CHINCHOLI.

… APPELLANT

(BY SMT. ANURADHA M. DESAI, ADVOCATE
FOR SRI MAHANTESH DESAI, 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 UNDER SECTIONS 354 AND
109 OF IPC R/W SECTION 34 OF IPC AND ACQUIT THE
ACCUSED/APPELLANT OF THE ALLEGED OFFENCE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 22.11.2018 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

JUDGMENT

The appellant was accused No.3 before the trial

Court in Special Case No.219/2009. She and accused

Nos.1 and 2 were convicted for the offences punishable

under Sections 354 and 109 R/w 34 of IPC and were

sentenced to simple imprisonment for 2 years and fine of

Rs.10,000/- each.

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2. While the above appeal filed by the

appellant/accused No.3 was pending, this Court by order

dated 01.07.2017, in Criminal Appeal No.3614/2011 partly

allowed the appeal filed by accused Nos.1 and 2 confirming

the conviction and sentence awarded on accused No.1 and

acquitting accused No.2 of the said charges.

3. The case of the prosecution as borne on record

is that the complainant (PW.3) was working as a daily

labourer as an assistant in Morarji Residential School at

Nidagunda. She was a widow. At the relevant time,

accused No.1 was working as warden of the said

residential school and accused No.3 was appointed as a

daily wager. Accused No.2 was the Taluka Social Welfare

Officer.

4. PW.3 lodged a complaint on 12.09.2009,

alleging that accused No.1 was harassing her and insisting

her to have sexual relationship with accused No.2. On

05.09.2009 at about 1-30 p.m., when she was working in
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the kitchen, accused No.1 pulled her hand and asked her

to proceed to the room of accused No.2 saying that

accused No.2 had affection towards her and he would

regularize her employment. The further case of the

prosecution is that when PW.3 resisted, accused No.3

induced and instigated her to carry on sexual activity with

accused No.2 and when her co-workers came to her

rescue, accused Nos.1 and 3 abused her calling out her

caste.

5. Based on this complaint, a case was registered

against accused Nos.1 to 3 and after investigation, charge

sheet was laid against them under Sections 354, 109 R/w

34 of IPC and Section 3 (i), (xi) (xii) of SC/ST (PA) Act.

The accused persons denied the charges and claimed trial.

6. In order to prove its case, the prosecution

examined 12 witnesses. Complainant was examined as

PW.3. Her co-workers who were cited as eyewitnesses

were examined as PWs.6 to 9. The prosecution relied on
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10 documents, marked as Exs.P.1 to P.10. The portion of

the statement of PW.8 was marked as Ex.D.1 on behalf of

the accused. In his examination under Section 313

Cr.P.C., the accused denied all the incriminating

circumstances. Considering the above materials, by

judgment dated 18.06.2011, the trial Court found all the

accused persons guilty of the above offences and convicted

all the above persons for the offences punishable under

Sections 354 and 109 R/w 34 of IPC and accordingly,

sentenced them as stated above. The charges under the

provisions of SC/ST (PA) act were held not proved. As

already stated above, the appeal filed by accused Nos.1

and 2, has been disposed of by this Court by order dated

01.07.2017, in Criminal Appeal No.3614/2011, whereby

the sentence awarded on accused No.1 is confirmed and

accused No.2 is acquitted of the charges under Section

354 R/w 34 of IPC.

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7. Learned counsel for the appellant would submit

that the trial Court has committed serious error in

convicting the appellant for the alleged offences under

Sections 354 and 109 R/w 34 of IPC. The allegations

made against the appellant did not attract the above

offences. The trial Court has failed to take into

consideration the material contradictions and

inconsistencies in the evidence of the complainant and

PWs.6 to 9. It has failed to note that the evidence given

by PW.3 before the Court is contrary to the version

narrated by her in her complaint Ex.P.3 leading to doubt

her motive. The inordinate delay in lodging the complaint

has escaped notice of the Court. Further, she would

submit that the case of the appellant stands at par with

accused No.2 who is acquitted by this Court. The

allegations attracting Section 354 are directed only against

accused No.1. There is no evidence whatsoever to show

that the appellant herein outraged the modesty and

abetted the commission of the said offence. Therefore, the
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conviction of the appellant for the above offence under

Section 354 IPC is patently illegal and perverse. Further,

she contends that the appellant had no intention

whatsoever to commit the above offences. The trial Court

had failed to consider all these aspects of the case which

has resulted in blatant miscarriage of justice and hence

she seeks to set aside the impugned judgment and acquit

the appellant of the charges leveled against her.

8. Defending the impugned conviction, the

learned High Court Government Pleader would submit that

the case of the prosecution stands at par with accused

No.1 whose conviction has been confirmed by this Court.

PW.3 as well as the other witnesses examined by the

prosecution have consistently stated that accused No.1

pulled the hands of the complainant and tried to outrage

her modesty and used force against the complainant

asking her to have sexual relationship with accused No.2.

The appellant herein induced accused No.1 to commit the
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above offences. The evidence let in by prosecution clearly

makes out the ingredients of the offences under Sections

354 and 109 R/w 34 of IPC and hence, there is no reason

to interfere with the well considered judgment rendered by

the trial Court and accordingly pleads for the dismissal of

the appeal.

9. I have considered the submissions and have

carefully examined the materials on record with reference

to the evidence of the complainant PW.3 and the evidence

of the eyewitnesses cited by the prosecution, namely,

PWs.6 to 9. On reconsideration their evidence, I am

unable to accept the submissions of the learned counsel

for the appellant that the testimony of these witnesses

suffer from material contradictions and inconsistencies as

sought to be made out by the learned counsel for the

appellant.

10. In appreciating the above contention, it is

relevant to note that in her evidence, PW.3 the
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complainant has unequivocally asserted that on the date of

the incident at about 1-30 p.m., when she was working in

the kitchen along with Devavva (PW.6), Narasamma

(PW.7), Sakkamma (PW.8) and Sridevi (PW.9), accused

No.3 came to the kitchen and told PW.3 that ‘Sir’ is calling

her and that he has fallen in love with her. Her further

evidence is that accused Nos.1 pulled her hands and when

she screamed, her co-workers rushed there and at that

time, accused Nos.1 and 3 abused her calling out her

caste.

11. The contention of the learned counsel for the

appellant is that the above statements made before the

Court by PW.3 are inconsistent to the contents of the

complaint Ex.P.3, wherein PW.3 has stated that at about

1-30 p.m., accused No.1 came to the kitchen and asked

her to proceed to the room of accused No.2, as accused

No.2 developed affection towards her and that he would

regularize her employment. No doubt, it is true that PW.3
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in her complaint she has stated so, but this versions

cannot be said to be inconsistent and contrary to the

version narrated by her in her evidence before the Court.

It is trite law that evidence has to be appreciated as a

whole and not in isolation. The evidence of a witness has

to be evaluated in the background of the deponent and the

circumstances under which she had lodged complaint and

deposed before the Court. In the instant case, undeniably,

PW.3 was a daily labourer. She was an assistant working

in the kitchen in Morarji Residential School. In her

complainant as well as in her evidence before the Court,

she has specifically stated about the presence of the

accused Nos.1 and 3 and the overt acts committed by each

of them. She has stated that accused No.1 pulled her

hand and accused Nos.1 and 3 asked her to have sexual

relationship with accused No.2. This fact has been

narrated by her in the complaint as well in her evidence

before the Court. Likewise, the inducement given by

accused No.3 is also stated in the complaint as well in her
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evidence. In the complaint she has specifically alleged

that accused No.3 who was working as night watchman

induced and forced her to carry on the sexual acts with

accused No.2. Even in the course of the cross-

examination, she has maintained this version. She being

an illiterate lady might not have reproduced the very same

expression and the sequence as stated in the complaint,

but there is absolutely no variation whatsoever in the core

allegations made by her against accused No.1 and accused

No.3. Her evidence clearly indicates that accused No.2

was not present at the spot during the occurrence.

Therefore, I do not find any contradiction or inconsistency

in the statement made by PW.3 before the Court and the

allegations made by her in the complaint with regard to

the specific acts committed by accused Nos.1 and 3. As a

result, the arguments of the learned counsel for the

appellant that the testimony of PW.3 is inconsistent with

the complaint cannot be accepted.

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12. Likewise, the contention of the appellant that

the version of PW.3 is inconsistent to the statement of

PW.6, PW.7 and PW.9 also cannot be accepted. I have

examined the evidence of PW.6, PW.7 and PW.9. Their

evidence is relevant only to the extent that these

witnesses rushed to the spot on hearing the scream of

PW.3. They have consistently stated that on hearing the

scream of PW.3, they rushed to the spot and at that time,

they found accused No.1 pulling the hands of PW.3 and

accused Nos.1 and 3 abusing PW.3 calling out her caste.

Therefore, even the evidence of PWs.6 to 9 in my view

lends full corroboration to the testimony of PW.3 with

regard to the acts committed by accused Nos.1 and 3.

Hence, the contention of the learned counsel for the

appellant that the testimonies of the prosecution witnesses

suffer from irreconcilable inconsistencies and

contradictions cannot be accepted.

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13. By the above evidence, the prosecution has

cogently established that on the date of incident, accused

No.1 pulled the hands of PW.3 and induced her to indulge

in sexual acts with accused No.2. Further, the prosecution

has established that accused No.3 also coerced PW.3 to

carry on sexual activities with accused No.2.

14. Having come to the above conclusion, the

crucial question that remains to be considered is whether

the above evidence is sufficient to bring home the guilt of

accused No.3 for the offences punishable under Sections

354 and 109 R/w Section 34 of IPC? In other words,

whether the conviction of accused No.3 for the above

offences could be sustained?

15. The records indicate that accused No.1 was

charged for the offence punishable under Section 354 R/w

34 of IPC. Accused No.3 was charged under Section 109

R/w Section 34 of IPC. The charge under the provisions of

SC/ST (PA) Act were framed against all three accused.
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The trial Court however, has acquitted the accused of the

charges under Section 3 (1) (x), (xi) and (xii) of SC/ST

(PA) Act and has convicted all the accused persons for the

offences punishable under Sections 354 and 109 R/w

Section 34 of IPC.

16. As already stated above, this Court has

acquitted accused No.2 of all the above charges; as a

result, only the conviction of accused Nos.1 and 3 remains

for the offences punishable under Sections 354 and 109

R/w Section 34 of IPC. But as already observed, there was

no charge against accused No.3 for the offence under

Section 354 of IPC. The charge was framed against the

present appellant/accused No.3 only for the offence

punishable under Section 109 R/w Section 34 of IPC. The

substance of the accusation against the appellant was that

she induced and instigated accused No.1 to commit

offence under Section 354 of IPC, thereby abetted the

commission of the offence. But if the evidence of PWs.3
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and 6 to 9 is analyzed, it is relevant to note that none of

these witnesses have stated that the appellant namely,

accused No.3 instigated accused No.1 in outraging the

modesty of PW.3. On the other hand, the specific

evidence of PW.3 is that accused No.1 pulled her hands

and asked to proceed to room of accused No.2 to indulge

in sexual activities. No allegations are found either in the

complaint or in the evidence of PW.3, that accused No.3

either instigated or aided accused No.1 in committing this

offence.

17. The evidence of PW.3 is that when she was

working in the kitchen along with PWs.6 to 9, accused

No.3 came there and told PW.3 that “Sir is calling her and

he is in love with her.” This statement refers to accused

No.2 and not to accused No.1. Nowhere in her evidence

before the Court, PW.3 has stated that accused No.3

instigated or aided accused No.1 in outraging her modesty.

Likewise, PW.6, PW.7 and PW.9 have merely stated that
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on hearing the screams of shout of PW.3, they rushed to

the spot and found accused Nos.1 and 3 abusing PW.3

calling out her caste. These witnesses also have not

stated anywhere that accused No.3 either instigated or

aided accused No.1 in outraging her modesty. Of course,

there is no requirement under law that in order to render

an accused guilty under Section 109 of IPC, the offence

abetted should have been committed. Nonetheless, in

order to make out the offence under Section 109 of IPC,

the prosecution is essentially require to prove that the

accused either instigated to commit the offence or

indulged in conspiracy to commit the offence or

intentionally aided to commit the offence under the Act.

Such evidence is conspicuously lacking in the instant case.

18. The evidence of PW.3, 6, 7 and 9 even if

accepted as true would at the most go to show that

accused No.3 induced PW.3 to have sexual relationship

with accused No.2. But there is absolutely no material
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whatsoever to show that accused No.2 at any time

intended to have sexual intercourse with PW.3 or that he

had entered into any conspiracy with accused No.3 or had

sought her assistance to have sexual relationship with

PW.3. Therefore, analyzing the entire evidence on record,

I am of the view that the prosecution has failed to

establish the ingredients of the Section 109 of IPC so as to

render the appellant/accused No.3 guilty of the said

offence.

19. The trial Court has not adverted its mind to the

charges framed against the appellant/accused No.3. The

trial Court has failed to evaluate the evidence of the

prosecution witnesses in proper perspective. The trial

Court has recorded the conviction of the appellant for the

offences punishable under Section 354 and 109 R/w 34 of

IPC, without there being any charge for said offences

against the appellant. The evidence let in by the

prosecution does not establish any of the ingredients of the
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offences punishable under Section 109 of IPC. The finding

recorded by the trial Court is therefore, perverse and

cannot be sustained. The said finding is contrary to the

evidence let in by the prosecution and hence, the

conviction of the appellant for the offences under Sections

354 and 109 R/w Section 34 of IPC cannot be sustained.

Consequently, the appeal deserved to be allowed.

20. In view of the aforesaid discussion, the appeal

is allowed. The impugned judgment insofar as convicting

the appellant/accused No.3 for the offences punishable

under Sections 354 and 109 of IPC is hereby set aside.

The appellant/accused No.3 is acquitted of the said

charges. The bail bond executed by the appellant/accused

No.3 is cancelled. Her sureties are discharged.

Sd/-

JUDGE
RSP

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