1
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)
2
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.
3
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
4
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
5
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.
6
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
7
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
8
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
9
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
10
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
11
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.
12
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.
13
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.
14
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
15
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
16
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
17
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
18
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