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Basappa @ Basavaraj Yallappa … vs The State Of Karnataka on 17 July, 2019

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

DATED THIS THE 17TH DAY OF JULY 2019

BEFORE

THE HON’BLE MR. JUSTICE BELLUNKE A.S.
CRIMINAL APPEAL NO.2627/2011

BETWEEN:

BASAPPA @ BASAVARAJ
YALLAPPA KONANNAVAR
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: PADAKI ONI, SAUNDATTI,
TQ: SAUNDATTI, DIST: BELAGAVI.
…APPELLANT
(BY SRI. S B DEYANNAVAR, ADV.)

AND:

THE STATE OF KARNATAKA,
R/BY STATE P.P.,
CIRCUIT BENCH,
DHARWAD.
…RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP )

THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 OF CR.P.C., SEEKING TO SET ASIDE THE
JUDGEMENT AND ORDER DATED 22.03.2011 AND
23.03.2011 PASSED BY THE HON’BLE PRL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI IN S.C.NO.191/2010 FOR
THE OFFENCES PUNISHABLE UNDER SECTION UNDER
SECTION 498, 292 OF SectionIPC.

RESERVED FOR JUDGMENT ON :.11.07.2019
JUDGMENT PRONOUNCED ON : 17.07.2019
2

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

JUDGMENT

This is an appeal preferred by the accused

challenging the illegality, correctness of the order of

conviction and sentence passed by the learned Principal

Sessions Court, Belgaum in Sessions Case

No.191/2010, dated 22.03.2011 sentencing the

appellant to undergo rigorous imprisonment for a period

of two years and to pay a fine of Rs.10,000/- for

commission of offence under Section 498 of IPC.

Further, the accused sentenced to undergo rigorous

imprisonment for a period of two years and to pay a fine

of Rs.1,000/- for commission of offence under Section

292 of IPC read with Section 4 of the Indecent

Representation of Women (Prohibition) Act, 1986.

Further, the accused was sentenced to pay

Rs.1,00,000/- by way of compensation under Section
3

Section357(3) of Cr.P.C. to PW2. In default of payment of fine,

the accused shall undergo rigorous imprisonment for a

further period of six months.

2. The briefly stated facts are that; On

06.04.2009, the accused is land holder and in whose

land the prosecutrix, namely, P.W.2 Neelawwa was

working as agricultural labourer, enticed her knowing

fully well that PW2 is a married woman, took her to

Hubli. At Hubli he took her to Ashraya Lodge and

sexually assaulted her in a Room No.133 of the said

lodge at about 3.30 p.m. on that day, after putting her

in fear of death. The accused video-graphed the scene

when he was having sex with PW2 by using his mobile

handset. Later the accused got prepared the CDs

consisting the said scenes, and played the said CDs in

the presence of prosecution witnesses Gangadhar and

Mahantesh and others, with a view to injure her

character, and thereby the accused has committed
4

offence punishable under Sections 498, Section506, Section376 and

Section292 of IPC and Section 4 of the Indecent Representation

of Women (Prohibition) Act, 1986.

3. The accused was arrested and produced

before JMFC, Saundatti on 04.01.2010. He was

remanded to judicial custody. The accused has been in

judicial custody.

4. After completing the investigation, charge

sheet came to be filed for the alleged offences. The

learned Sessions Judge took the cognizance of the

offences and registered the case in S.C.No.191/2010

based on the charge sheet filed. The presence of the

accused was secured. After hearing both the sides, the

trial Court framed the charge against the accused for

the offences punishable under Sections 498, Section506, Section376,

Section292 of IPC read with Section 4 of the Indecent

Representation of Women (Prohibition) Act, 1986. After

trial the learned Sessions Judge held the accused guilty
5

of the offences alleged and convicted and sentenced the

accused as stated in para No.1.

5. Further, the learned Sessions Judge ordered

for payment of compensation of Rs.1,00,000/- to PW2

under Section 357(3) of Cr.P.C. In default of payment of

fine, the accused shall undergo rigorous imprisonment

for a period of six months. The said judgment and order

of conviction has been questioned by the appellant on

following grounds:

1. The trial Court committed error in
convicting the appellant relying on the
evidence of highly interested witnesses
i.e., PW2, PW3 and PW12, who are
none other than the father and
husband of PW2. Their evidence is not
corroborated by any independent
witnesses.

2. The evidence of PW2, PW3 and PW12 is
not only differing from inconsistency
with each other but also omission and
6

contradictions, which go to the root of
the matter and falsify the entire
prosecution case.

3. It is pertinent to note that though it
was in the knowledge of PW2 she did
not disclosed the same to anybody, and
kept mum for a long time, and her say
is that she came to know about the
same after publishing the video-graph
picture at Saundatti before PW13 and
PW14 is falsify because, PW13 and
PW14 have not supported to the
prosecution case, in the absence of
that it is very difficult to come into
conclusion that the above witnesses
are genuine witnesses.

4. There is an abnormal delay in filing the
complaint and sending the FIR. Hence,
the delay creates doubts about the
prosecution case. Moreover, the said
CDs are created only with an intention
to involve the accused in the alleged
crime by the ill wishers of the
appellant, and in the advance
7

technology there is every possibility of
manipulation in the mobile and
computer. So in the present case
there is every possibility of creation
and used the said method.

5. It is pertinent to note that though the
appellant/accused arrested by police
on 04.01.2010 but the appellant
denied the same and he has stated in
313 statement that he has been
arrested on 03.04.2010, but the police
not submitted the PF on the same day
and it was in the custody of police for
long time, so the police have created
the CD in the mean time, and created,
concocted and manipulated the same
against the appellant, colluding with
the ill wishers of the appellant.

6. PW2 has not filed any compliant
immediately, when she left the house.
Her husband filed a missing complaint.
The victim might have created the case
with an intention to save her skin with
an ulterior motive. The trial court
8

without appreciating the case of the
prosecution in the light of human
probabilities and perspective manner,
has came to wrong conclusion in
convicting the appellant with even
without assigning proper and cogent
reasons.

7. The trial Court has come to erroneous
conclusion by assigning imaginary,
improbable and unjust reasons.

Therefore, the order of learned sessions
Judge has resulted in miscarriage of
justice to the appellants.

8. The entire approach of the case by the
learned Sessions judge is illegal,
invalid, contrary to law and perverse.

6. On the above said grounds, the learned

counsel for the appellant-accused contended that there

is reasonable doubt in this case. The learned counsel

for the appellant strongly submitted that ingredients of

alleged offences are not at all made out. Initially
9

missing complaint was filed. Thereafter statement of

PW2 was recorded. The case investigated on the

statement of PW2 is not on the first complaint that was

filed by the husband. Therefore, the investigation is

vitiated. The CDs were got in the Police Station have

produced after long laps of time as the incident took

place. The other witnesses have not supported the case

of prosecution. The whole story of the prosecution is

concocted and full of doubt. There is no corroborative

evidence on record. PW2 does not depose that there

was any force or threat from the accused. This is the

reason the trial Court has acquitted the accused for the

offence punishable under Section 376 and Section506 of IPC.

Therefore, the learned counsel for the appellant prayed

to allow the appeal by setting aside the judgment and

order of conviction passed by the trial Court and prayed

to acquit the accused from the charges leveled against

him.

10

7. The learned SPP submits that the evidence of

complainant-PW2 who is victim proves beyond any

reasonable doubt that the alleged offences committed by

the accused. She has stood test of the cross

examination, nothing has been elicited in her evidence

to disprove the offence alleged against the accused.

Therefore, solely on the evidence of PW2 alone, the

conviction of the accused is to be affirmed. Hence,

learned SPP prayed to dismiss the appeal.

8. On the basis of above said arguments, facts

and circumstances, the following points would arise for

consideration are :

1. Whether the prosecution had proved
beyond any reasonable doubt before
the trial Court that on 06.04.2009 the
accused knowing fully well that PW2
Neelawwa is a married woman, enticed
PW2 with the ulterior intention of
having illicit intercourse with her and
took her from Saundatti to Hubli
11

thereby has committed offence
punishable under Section 498 of IPC?

2. Whether the prosecution has proved
before the trial Court beyond any
reasonable doubt that the accused has
committed offence under Section 292
of IPC read with Section 4 of the
Indecent Representation of Women
(Prohibition) Act, 1986, by video-

graphing the scenes depicting the
performance of sexual act by the
accused on PW2 by making use of his
mobile handset containing video

camera, and subsequently making CDs
out of it, and making these scenes
public?

3. Whether the appellant-accused proves
that the judgment and order of
conviction passed by the trial Court is
capricious, perverse, contrary to law?

4. What order?

9. Point No.1 : In the affirmative
Point No.2 : In the affirmative
Point No.3 : In the negative
12

Point No.4 : As per final order

10. Initially the husband of the complainant-PW2

had filed the complaint about missing of his wife. The

said missing complaint does not disclose any cognizable

offence. It is only information giving about missing

person. It is a detailed statement of the complainant, at

Ex.P4 discloses that commission of cognizable offence.

Therefore, on the basis of Ex.P4, a crime came to be

registered in C.C.No.2230/2010 for the offence

punishable under Section 498, Section506, Section376, Section292 of IPC.

Based on that, investigation has been done. Therefore,

it cannot be found fault with the Investigation could

have continued.

11. The learned counsel for the appellant-accused

submitted that the Investigating Officer should have

continued the investigation only on the basis of missing

complaint filed by the husband of the complainant-PW2.
13

12. By going through the above facts, I don’t find

any merit in this case. The word ‘complaint’ been

defined under Section 2(d) of Cr.P.C. 1973, as under:

“2. Definitions. – xxxx

(d) “complaint” means any allegation
made orally or in writing to a
Magistrate, with a view to his taking
action under this Code, that some
person, whether known or
unknown, has committed an
offence, but does not include a
police report.”

13. The complaint is an information given to the

Police officer regarding commission of cognizable

offences. The Police have got power to investigate it.

The Station House Officer is duty bound under Section

154 of Cr.P.C. to record any information relating to

commission of cognizable offence. Therefore, initially it

was only a missing case and reasons were not known.
14

Therefore, the Investigating Officer might have not

registered a crime. A crime can be registered only on

disclosure of commission of cognizable offence. On that

basis only the Investigating officer started investigation

and thereafter a crime came to be registered. Therefore,

there is no investigation in the Investigating Officer

conviction of sentence imposed on accused cannot be

set aside on the above said grounds.

14. On plain reading of the complaint averments

and the evidence stated by PW2 before the Court I find

that the evidence of PW2 alone would establish beyond

any reasonable doubt that she was enticed by the

accused and the complainant-PW2 well acquainted with

each other as she was attending the field work in the

land of accused.

15. The evidence stated by her that she was

taken to a lodge and the accused had sexual intercourse
15

with her which was recorded through a mobile cannot

be disbelieved.

16. PW1 the hotel owner has not fully

supported the case of prosecution. His evidence

that, the register maintained in the lodge and

the entry No.1062 made in the register and the

letter executed by him to the Police officials,

which are marked at Ex.P1 and 2 proves that

the accused booked the room in his name in the

said lodge. PW1 deposed his evidence only on the

basis of information or entries made in the office

computer and register. As per the said entries

made in the register of his lodge room No.133

booked in the name of the accused and also

found the phone number of the accused. Said

witness was treated hostile. PW1 on enquiry

with his lodge Manager stated that one Mr.B.Y.

Konannavar booked the room No.133. When
16

two adult persons go inside i.e., accused and

PW2 went inside the room, it cannot be said that

they have went inside to offer pooja. They must

have gone inside only to have sexual

intercourse.

17. A suggestion made PW1 that the accused

came with the Police to the said lodge on 04.01.2010,

but PW1 denied the said suggestion and he has also

denied that PW2 came with the police. On enquiring

with the lodge Manager one Mr.Raghavendra deposed

that she came earlier with the accused and stayed in

their lodge.

18. PW2 came to know about the said fact only

after informing by some other persons. Therefore, she

went missing from her husband’s house. When she was

questioned as to why she has left the house, then she

told about the incident in detail as stated in Ex.P4. The

said video clip has been exhibited, the CDs and the
17

mobile were recovered and recorded the voluntary

statement given by PW2. Therefore, when this evidence

on record would goes to show that, it cannot be said

that it is the case instituted falsely on account of

political rivalry. PW2 has been exhaustively cross

examined which done to 20 pages from Page No.5.

Certain damaging suggestions made by the learned

counsel for the accused in the cross examination which

has also made the court to believe her version.

19. On perusal of the cross examination of PW2,

withstood the test on cross examination. Therefore,

enticement of the lady by the accused has been proved

beyond any reasonable doubt. Merely because, witness

who had seen video have not supported the case of

prosecution, cannot be disbelieve prosecutor PW2. The

accused taken away PW2 to the lodge is also

corroborated by the evidence of Manager and cashier of

the lodge. His evidence based on the entries made in
18

the register. Merely because, he has not seen the victim

or the accused, it could not be a ground to hold that the

accused had not taken to this lady to a lodge. The room

took in the name of accused, telephone number would

clearly indicate that accused had taken PW2 to the

prosecution.

20. Again damaging suggestion made to the

witness-PW1 that on 04.01.2010 PW2 had approached

the Police to a lodge Ex.P5 which searched by one

Raghavendra and it was given to the Police. He denied

the said suggestion and deposed that the police officials

came to his lodge before he coming to there and the

officials have searched the lodge register. Further

fortifies the Police had come to the lodge to collect the

lodge register.

21. Police officials asked him to find out the

entry made in respect of accused and PW2 stayed in

their lodge. PW1 also denied that Ex.P5 was searched
19

by him and was given to the Police. He stated that on

enquiry of his Lodge Manager – Mr.Raghavendra he

came to know that on said date i.e., 06.04.2009 the

accused and PW2 came and stayed in their lodge at

room No.133.

22. PW9 is the Medical Officer of Saundatti who

had examined the victim on 04.01.2010 at 6.15 p.m.,

and also examined the accused. The accused found to

be competent man to perform the act of intercourse.

Further, he did not find any material of recent

intercourse of both of them. Admittedly, examination

has been done which long after the incident. Therefore,

the medical evidence cannot be accepted.

23. The other panch witnesses PW4 to 8, 10, 11,

13 and 14 have turned hostile; have not supported the

case of prosecution.

20

24. PW12 is the husband of PW2. He speaks

about missing of his wife, rest of the evidence stated

what he has hear from his wife.

25. PW15 is carrier of FIR. PW17 is the

Investigating Officer who had registered the missing

complaint as per Ex.P15. On search, he secured PW2

and recorded her statement.

26. PW18 is the constable, who along with the

lady constable searched and secured PW2 as per

direction of Investigating Officer and produced before

PSI. Who gave report as per Ex.P27.

27. The main investigating officer is PW16 who

had conducted further investigation. He speaks about

recovery material objects Nos.1 to 3, CDs and mobile

and voluntary statement as per Ex.P21. The CDs were

played and video in the mobile was also played and

found about indecent naked pictures of male and female

and also in the CDs also video of naked pictures of male
21

and female were found. CDs and mobile were also

witnessed by him in the presence of panchas, where he

found video of the act of sexual intercourse, but the face

of the person who was doing the act was not visible only

the hands were visible.

28. In the cross-examination, it is suggested that

on seeing the CD which shows that the complainant

PW2 was talking with the person who was recording the

scene, but the witness did not agree for the same.

Possibility of copy and cut and paste of the scene of

video, has been suggested, but the witness denied for

the same. He has not sent the CDs to the FSL to find

out whether they are original CDs or mixed one. It is

important to note that person who was found i.e., PW2

admits her scenes in the video. Even assuming for the

sake of argument that the CDs were mixed and face of

the victim was inserted by mixing method and if CDs

are played by the accused then that also would attract
22

the ingredients of the offence alleged. Based on the

evidence on record and facts and circumstances of the

case, the trial court properly found the guilt of the

accused for the offence punishable under Sections 498

and Section292 of IPC.

29. The evidence on record proves that the

accused enticed a married woman with the ulterior

intention of having sexual intercourse with PW2 has

clearly violated the culture of conduct of gentleman.

Therefore, the trial Court has imposed adequate

sentence of imprisonment and fine.

30. So far as compensation is concerned,

however, it is submitted that the amount of

compensation awarded by the trial Court is excessive in

nature having regard to the value of the money existing

as on the date of incident. It is also found that the trial

Court has not assigned any reasons as to why that

much compensation has been awarded. Award of
23

compensation is in addition, to award the

compensation under Section 357 is not ancillary to

other sentence, but it is an addition thereto; (SectionArjunan

V.State of Tamil Nadu, 1997, 2 Crimes 447 (Mad.)

31. The quantum of compensation may be

determined by taking in account the nature of the

crime, the manner in which it has been committed the

justness of claim by the victim and the ability of the

accused to pay; Having regard to the facts and

circumstances of the case and the nature of the offence

that are proved against the accused, considering the

fact that there was same on the part of the victim to

have intercourse with the accused though it was an

enticement. I find that the quantum of compensation

awarded by the trial Court can be reduced to

Rs.50,000/-. Hence, for all the aforesaid reasons the

point Nos.1 and 2 are answered in the affirmative and
24

point No.3 answered in the negative. Accordingly,

following order is passed.

ORDER

Appeal is dismissed. The impugned judgment

and order of conviction and sentence passed by the trial

court in S.C.No.191/2010, dated 22.03.2011 is

confirmed. However, the amount of compensation

awarded by the trial Court is modified by reducing it to

Rs.50,000/- from Rs.1,00,000/- .

Sd/-

JUDGE

MNS/

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