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
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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
6contradictions, 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
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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
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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.
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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
11thereby 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
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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.
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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
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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
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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.
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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
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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
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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/