IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
THE HON’BLE MR.JUSTICE RAJENDRA BADAMIKAR
DATED THIS THE 8 TH DAY OF JULY, 2021
CRIMINAL APPEAL NO. 200012/2018
State of Karnataka
Appellants By Sri.Ganesh Naik, Advocate; Respondent By Sri. Gururaj V. Hasilkar, HCGP
J U D G M E N T
The appellants/accused Nos.1, 2, 3 and 4 have filed this appeal under Section 374(2) of Cr.P.C challenging the judgment of conviction and order of sentence dated 11.01.2018 and 16.01.2018 respectively passed by the V Additional Sessions Judge at Kalaburagi in S.C.No.112/2015 and sought for allowing the appeal by acquitting the appellants for the charges alleged against them.
2. For the sake of convenience, parties here in are referred with the original ranks occupied by them before the trial Court/Sessions Court.
3. The brief facts of the case are that deceased Surekha was the daughter of the Complainant Pentappa. She was studying in Padma Colleage at Chincholi and she had come to Ontichinta Village during the Deepavali festival. It is alleged that on 23.10.2014 at about 5.00 p.m., the accused approached the complainant and insisted to have sex with her and threatened her that they would rape her when she attends call of nature. Then she went to Heroo Hotel wherein her father was there and informed him. Then her father along with others advised and warned the accused in this regard. It is further the case of the prosecution on 27.10.2014 at about 10.00 a.m., the appellants again went to the house of the Pentappa and when the complainant was absent they threatened victim Surekha by saying that nobody will question them if they commit any act of rape on her and further they used to assert that whenever she used to attend nature’s call then they would rape her. Because of this persistent humiliation and threat the victim Surekha was depressed and on the same day at about 3.00 p.m., she became mentally depressed due to the continuous harassment by the accused, consumed the pesticide and committed suicide. Then the complainant after noticing the fact, he lodged a complaint before the police and the investigating officer undertook the investigation. The investigating officer visited the scene of offence. He has drawn scene of offence mahazar and also drawn inquest mahazar on the dead body and he has also recorded the statement of witnesses. After securing the material documents and other documents, he found that the appellants have abetted the deceased in committing suicide and thereby charge sheeted them for the offences punishable under Sections 306 and 506 read with Section 34 of IPC. After the submission of the charge sheet the learned Magistrate has taken cognizance and accused were produced before the learned Magistrate and initially they were remanded to judicial custody. Later on they were enlarged on bail. Subsequently the learned Magistrate has committed the matter to Principal District and Sessions Court Kalaburagi and matter came to be placed before the learned V Additional District and Sessions Court at Kalaburagi. Then the learned sessions judge secured the presence of the accused and they have appeared through their counsel. The prosecution papers were also furnished to the learned counsel appearing for them as contemplated under Section 207 of Cr.P.C. After hearing the learned Public Prosecutor and learned defence counsel the learned sessions judge has framed charge under Section 306 and 506 read with Section 34 of IPC against the accused. The same was read over and explanation to accused and he pleaded not guilty and claimed to be tried. Then the prosecution in order to prove the guilt of the accused has examined in all 15 witnesses and also got marked as many as 14 documents as Ex.P1 to P14. After the conclusion of the evidence of the prosecution the statement of accused under Section 313 of Cr.P.C. was recorded by the learned sessions judge. The case of the accused was of total denial and they did not lead any defence evidence. However during the course of examination of PW.11, Ex.D1 was got marked.
4. Thereafter the learned Magistrate after hearing the learned PP and defence counsel has framed the following points for consideration.
1. Whether the prosecution proves beyond all reasonable doubt that accused Nos.1 to 4 in furtherance of their common intention, on 27.08.2014 at 10.00 a.m., at Vantichinta Village gave life threat to the daughter of complainant namely Kum.Surekha and asked her to co-operate with them for forcible sexual intercourse otherwise thy would be kill and rape, and thereby committed an offence punishable under Section 506 read with Section 34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date at 3.00 p.m., the daughter of complainant namely Kum.Surekha consumed the poiseon and committed suicide and thus abetted her in the commission of the offence and thereby committed an offence punishable under Section 306 read with Section 34 of IPC?
3. What order?
5. Then the learned sessions judge vide his judgment has answered both the points in the affirmative and convicted all the accused/appellants for the offences punishable under Sections 306 and 506 read with 34 of IPC. Then after hearing on sentence, he sentenced the accused by rigorous imprisonment of 7 years with fine of Rs.10,000/- for the offence punishable under Section 306 of IPC with a default clause and also imposed rigorous imprisonment for a period of 1 year with fine of Rs.2,000/- with a default clause for the offence punishable under section 506 of IPC and directed that both the sentences shall run concurrently and also passed an order for set off the custody period vide order dated 16.01.2018.
6. Being aggrieved by this judgment of conviction and order of sentence the appellants have filed this appeal under Section 374(2) of Cr.P.C.
7. Heard the arguments advanced by the learned counsel for the appellants and the learned HCGP and perused the entire trial Court records.
8. Learned counsel for the appellants would submit that the judgment of conviction and order of sentence passed by the trial Court is contrary to the facts of the case and the entire case of the prosecution is improbable, unnatural and unbelievable. He further submits that all the witnesses are relatives of the deceased and interested persons. He would further submit that the trial Court has not appreciated the defence that the accused No.2/appellant No.2 has filed the complaint against the elder sister of the victim i.e., elder daughter of the complainant in respect of commission of theft of food grains from the Government School and the matter was compromised but the complainant was having grudge against the appellants in this regard. That the delay in filing the complaint is also not properly explained that the alleged death note is not proved by proving hand writing of the deceased and the evidence lead by the prosecution is inconsistent and the evidence is self-contradictory. That the ingredients of the offence under Section 306 of IPC are not attracted and the learned sessions judge has failed to consider that there is no positive act to abate or instigate or aid the deceased in committing suicide. Alternatively he further contended that the appellants are in custody for almost 4 years and the same period may be set off by restricting the sentence to the imprisonment period already undergone by the appellants, sought for releasing them.
9. Per contra the learned HCGP has seriously opposed the appeal contending that all the witnesses have supported the case of the prosecution and there is no rule that the evidence of relatives requires to be rejected. He further contended that evidence clearly establishes that victim was mentally tortured by the appellants/accused regularly and inspite of advise given by the complainant and others to the accused and their family members they did not mend their attitude and continued the said act which instigated the deceased to commit suicide. Hence, he contended that the trial Court is justified in convicting and sentencing the accused/appellants and it has also imposed reasonable sentence and as such sought for rejection of the bail.
10. Having heard the arguments and perusing the records the following point would arise for my consideration:
Whether the judgment of conviction and order of sentence passed by the learned V Additional Sessions Judge, Kalaburagi in S.C.No.112/2015 calls for any interference?
11. It is an undisputed fact that the daughter of the complainant Surekha was studying graduation in Chincholi and she had visited the village during the Deepavali festival. It is also the undisputed fact that she committed suicide by consuming pesticide on 27.10.2014 around 3.00 p.m., This fact is again certified by the FSL report and Post Mortem report. Hence, there is no issue regarding the suicide committed by deceased Surekha and the dispute is regarding the sucide committed by the deceased on account of threat given to the victim. To prove the guilt of the accused, prosecution has examined in all 15 witnesses PW.1 – Pentappa is the father of the deceased and complainant and he has supported the case of the prosecution. PW.2 – Dhanshetty and PW.4 – Jagappa are two Panch witnesses and both of them have also supported the case of prosecution, while PW.3 – Murali is an eye witness and also a pancha and he also supported the case of the prosecution. PW.5 – Satyamma is the mother of the deceased while PWs.6 and 7 – Sunita and Sunil are the younger sister and brother of the deceased and they have also supported the case of the prosecution. PW.8 – Praveen is the Scientific Officer and he deposed regarding issuing FSL. PW.9 – Janaradhan is another eye witness when the deceased disclose regarding the act of accused expecting sexual favour from her and threatening her in this regard. But he has turned hostile. PW.10 – Ashok is another eye witness and he has supported the case of the prosecution. PW.11 – Dr.Jagadishchandra Bulla deposed regarding conducting Post Mortem on the dead body. PW.12 – Savita is a woman constable and she has simply deposed in respect of escorting the dead body, while PW.13 – Ashok is the head constable who has deposed regarding submitting FIR PW.14 – Police sub inspector is the Investigating officer and PW.15 – Mahantesh is the Police constable who has translated the complaint from Telugu to Kannada when it was dictated by the complainant. Ex.P1 is the complaint and Ex.P2 is the Inquest Mahazar, Ex.P3 is the Seizure Panchanama while Ex.P4 – Handwritten death note said to have been written by the deceased. Ex.P5 is the Spot Mahazar while Ex.P6 is the FSL report. Ex.P7 and Ex.P8 are the statement of PWs.9 and 10 said to have been given before the investigation officer. Ex.P9 is the PME report and Ex.P10 is the final opinion. Ex.P13 is the FIR and Ex.D1 is the requisition letter by police to Doctor- PW.11.
12. PW-1 who is the complainant and he by lodging a complaint, set the law in motion. In his evidence, he has deposed as per the recitals of the complaint and he has completely supported the case of the prosecution. Though this witness was cross- examined, nothing was elicited so as to impeach his evidence. He specifically asserted that two years back his daughter came to village Ontichinta during the Deepavali festival and when he was sitting in a hotel, along with Murali Janardhan and Ashok, his daughter Surekha has approached him and reported that sexual favour sought by the accused and threatening her regarding they are going to rape her when she attends the nature call. He further deposed that then they all went to the house of the accused and advised them. No doubt, there are minor variances in the evidence but they are bound to occur due to lapse of time. Otherwise, the evidence becomes tutored one. It is further suggested that due to lodging of complaint against his elder daughter by accused No.2, this false complaint came to be lodged but he denied the said suggestion. The further defence is set up that the victim was interested to pursue her further education and since that was not entertained by him, she committed suicide. But she had not yet completed her graduation and question of she pursuing further education does not arise at all. Apart from that this aspect is not substantiated and same suggestion is not made to other witnesses. Even statement of the accused under Section 313 of Cr.P.C. is silent in this regard.
13. PW-2 and PW-4 are the two witnesses for seizure, spot and inquest mahazar and they have also supported the case of the prosecution. Nothing was elicited so as to impeach their evidence in the cross- examination.
14. PW-3 Murali is another eye witness and also a mahazar witness. He has also fully supported the case of the prosecution pertaining to fact of the victim disclosing before them in the hotel regarding accused threatening her and they advising the accused. Though this witness was cross-examined at length, nothing was elicited so as to impeach his evidence except formal denial.
15. PW-5 – Satyamma is the mother of the deceased and she has also supported the claim of the prosecution. No doubt in her examination-in-chief wherein she deposed that she was present when the incident has taken place but subsequently she admitted her absence and there is variance in her evidence but the evidence of other witnesses completely supported the case of the prosecution. Even PW-6 who is the younger sister of the deceased and PW-7 who is the younger brother of the deceased have also deposed regarding the incident and though these witnesses were cross-examined, their evidence is not at all impeached.
16. PW-8 has deposed regarding FSL report and his evidence is not challenged and Ex.P6 discloses that death is because of the consumption of Organophosphorous insecticide.
17. In the entire prosecution case, only PW-9 has turned hostile. But however his evidence cannot be discarded entirely as in examination-in-chief he specifically deposed that when he was taking tea in the hotel, CWs-1, 3 and 11 were talking regarding the quarrel of victim. This discloses that there some incident did took place. But he was not prepared to accept that it is pertaining to the accused. However, PW-10 – Ashok is again fully supported the case of the prosecution. PW-11 – Medical Officer who has conducted the autopsy report of the victim and his evidence is not seriously challenged. The much cross-examination is made regarding inquest mahazar Ex.P2 and entries in Col.No.11 regarding cause of the death. But he is not the author of the inquest mahazar. This question is redundant to him. PWs-12, 13, 14 and 15 are the police officers.
18. The cross-examination of PW-15 hinges around translation and other things which were irrelevant questions. It is to be noted here that the complainant has not deviated from his complaint and he has given the oral complaint in Telugu which was translated by PW – 15 and got typed by PW-14 Investigating Officer. The complainant never asserted that the complaint was not recorded as per his say and stick on to the recitals of complaint and under such circumstances, the cross-examination of this witnesses does not have any relevance in this regard. The evidence led by the prosecution clearly establish that the accused have regularly humiliated and put mental pressure on the victim girl seeking sexual favour failing which they are going to rape her. It ultimately forced the victim girl to take a serious step of committing suicide under depressed state of mind. Hence the ingredients of Section 107 of IPC are directly applicable and the appellants have instigated the deceased to take extreme step of committing suicide.
19. Learned counsel for the appellants has placed reliance on the decision reported by the Hon’ble Apex Court in 2017 (1) SCC 433 in the case of Gurcharan Singh vs. State of Punjab. But the facts are entirely different as in the said case the victim committed suicide making allegation by staying in a rented house by leaving a death note. It was in respect of share in the property. But the facts in the present case are entirely different and here the specific evidence is led to show that the victim was mentally tortured that too by seeking sexual favour and threatening her. Hence, the principle enunciated in the above cited decision does not come to the aid of the appellants in any way.
20. He has further placed reliance on the other decision of the Hon’ble Apex Court in SLP (Criminal) No.6811/2009 dated 12.08.2010 arising out of Crl. Appeal No.1503/2010. But again, the facts are entirely different and there also the dispute was between two students in respect of commission of theft of the mobile and the said principles have no applicability to the case on hand. He further placed reliance on the decision reported in 2010 Crl.L.J. 2110 in the case of Gangula Mohan Reddy vs. State of Andra Pradesh. But again, there was simple act of leveling allegations of theft of ornaments of the deceased and demanding payment advance made at the time of employment. Hence, it is held that the ingredients of Section 107 of Cr.P.C. and mental state was not there and said principles does not come to the aid of the appellants. He further placed reliance on the decisions of Hon’ble Apex Court reported in 2010(8) SCC 628 in the case of Madan Mohan Sing vs. State of Gujarath and Ors., 2001(9)SCC 618 in the case of Ramesh Kumar vs. State of Chattisgarh, Crl.A.No.1175/2016 dated 15.03.2019 in the case of Shivaswamy @ Kalal vs. The State of Karnataka, Crl.A.No.2628/2010 dated 20.02.2019 in the case of Shri Siddappa Gangappa Khanagavi and Ors vs. The State of Karnataka, Crl.A.No.795/2010 dated 29.10.2014 in the case of Hrushikesh vs. The State of Karnataka, SPL (Crl).A.No.572/2002 of the Hon’ble Apex Court in the case of [email protected] Singh Sengar vs. The State of M.P and SPL.(Crl).A.Nos.5928-5929/2016, of the Hon’ble Apex court in the case of K.V.Prakash Babu vs. The State of Karnataka.
21. But the facts are entirely different in these matters. In the said reported cases, it was in respect of certain transactions, partition and dispute of dispossession between family members etc. That was not the case in hand and hence, considering these aspects it is held in the above said decisions that the ingredients of Section 107 of Cr.P.C. are not attracted which is essential for attracting the offence under Section 306 of IPC. But in the instant case the evidence consistently pointed out against accused and their subsequent conduct in getting the matter compromised and submitting the compromise petition before the Court which by itself establishes the conduct of the appellants which falsify their own defence. Hence the citations relied by the learned counsel for appellants does not come to the aid of the appellants in any way.
22. The evidence on record clearly establish that the accused have instigated the deceased by humiliating her and by threatening her of committing rape whenever she used to attend nature’s call and thereby put a such a mental pressure on the victim girl that she was compelled to consume pesticide and commit suicide. It was because of the mental torture subjected to her which resulted in her suicide. The act of the accused forced the deceased victim to take the drastic step of committing suicide. Hence, now it cannot be lie in the mouth of the accused that she had got different reasons for committing suicide.
23. Learned Sessions Judge appreciated the oral as well as the documentary evidence placed before the court in proper perspective and he is justified in convicting the accused for the offences punishable under Sections 306 and 506 r/w 34 of IPC. The act of the criminal intimidation is also forthcoming from the evidence on record. Hence, question of interfering with the judgment of conviction does not arise at all.
24. The learned Sessions Judge has convicted the accused by imposing imprisonment of 7 years for the offences punishable under Section 306 of IPC with fine of Rs.10,000/- and one year for the offence punishable under Section 506 of IPC with fine of Rs.2,000/-. As regards offence punishable under Sections 506 of IPC, in my considered opinion the learned Sessions Judge is justified in imposing the sentence of one year imprisonment with fine of Rs.2,000/-. However, for the offences under Section 306 of IPC, he has imposed imprisonment for a period of 7 years with fine of Rs.10,000/-. The maximum sentence prescribed for the offences punishable under Section 306 of IPC is 10 years. No doubt, the act of accused has created humiliation and apprehension in the mind of the victim girl and caused great trauma which has forced her to take drastic step of committing suicide. But it is to be noted here that no allegation is made against the appellants that they are habitual offenders or they were involved in similar offences earlier. Further they are aged about 20, 25, 22 and 19 years respectively. Hence, looking to these facts and circumstances it appears that the sentence of imprisonment of 7 years is on higher side. Further appellant Nos.1 to 3 are the brothers and the appellant No.4 is their cousin. All are belonging to same family.
25. Under these circumstances, in my considered opinion, if the sentence of imprisonment is reduced by increasing the fine, it will set right the things and balance the act. The appellants being youngsters cannot be allowed to languish in jail for long period as they have already suffered a lot and underwent sufficient imprisonment.
26. Looking to all these aspects, and considering the facts, in my considered opinion, it is just and proper to impose sentence of rigorous imprisonment of 4 years to appellants by increasing the fine to Rs.25,000/- which will serve the purpose.
27. The learned counsel alternatively has also submitted that sentence of imprisonment already undergone by the accused may be set off against them by restricting imprisonment to that extent only.
28. But that itself is not sufficient and looking to the facts and circumstances, the rigorous imprisonment for 4 years for the offences punishable under Section 306 of IPC with fine of Rs.25,000/- will serve the purpose. Hence, to that extent only the order of sentence calls for interference by modifying the sentence of imprisonment by retaining conviction. Hence, I proceed to answer the point partly in affirmative and accordingly proceed to pass the following:
O R D E R
The appeal is partly allowed.
The judgment of conviction passed by the learned V Additional District and Sessions Judge/Special Judge, Kalaburagi in S.C.No.112/2015 dated 11.01.2018 is confirmed. However, the order of sentence dated 16.01.2018 is modified and accused Nos.1 to 4 are directed to undergo rigorous imprisonment for a period of four years for the offences punishable under Section 306 of IPC and pay fine of Rs.25,000/- each and in default they shall undergo simple imprisonment for a period of one year.
The sentence of imprisonment passed in respect of offence punishable under Section 506 of IPC by the learned Sessions Judge stands unaltered.
The sentences shall run concurrently and the appellants are also entitled for set off under Section 428 of Cr.P.C.
The additional fine amount of Rs.60,000/- shall be credited to the State.
Registry is directed to send back Trial Court Records with copy of this order for compliance.