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1993 DIGILAW 163 (SC)

State of Karnataka v. Ganapathy

1993-02-17

A.S.ANAND, N.P.SINGH

body1993
ORDER : A.S. Anand, J. 1. The State of Karnataka has, on leave being granted, appealed against the order of the High Court of Karnataka in Criminal Appeal No. 421 of 1982 acquitting the respondent of the charges under Sections 376/511 Indian Penal Code and Section 324 Indian Penal Code. 2. Jabeen Taj, PW 1 is the prosecutrix. The police challaned the respondent for offences under Sections 376/511 and 307 Indian Penal Code on the basis of the report lodged by PW 3 Nissar Ahmad at the police station. He was sent up for trial and a charge-sheet was framed against him for offences under Sections 376/511 Indian Penal Code and Section 324 Indian Penal Code. The trial court after recording the evidence of nine prosecution witnesses convicted the respondent on both counts. He was sentenced to suffer RI for three years for the offence under Sections 376/511 Indian Penal Code and to suffer RI for two years for the offence under Section 324 Indian Penal Code. Both the sentences were directed to run concurrently. On an appeal against the judgment of conviction and sentence by the respondent, the High Court acquitted him of both the charges. 3. Appearing for the State, Mr. Veerappa, learned counsel rightly did not assail the acquittal of the respondent for the offence under Sections 376/511 Indian Penal Code as indeed it is neither the case of the prosecutrix herself nor there is any other evidence to suggest that the respondent had attempted to commit rape on her. The medical evidence also did not support the prosecution case on that account. We, therefore, uphold the acquittal of the respondent for the offence under Sections 376/511 Indian Penal Code. 4. Learned counsel, Mr. Veerappa, however, submitted that the offence under Section 324 Indian Penal Code had been clearly made out beyond any doubt and sought conviction of the respondent for that offence and the setting aside of the acquittal of the respondent for the offence under Section 324 Indian Penal Code. 5. Jabeen Taj, PW 1, the prosecutrix, according to her evidence in court was washing clothes on February 5, 1981 while her father PW 8 had gone to attend his duties and her mother PW 7 to see her ailing grandmother. 5. Jabeen Taj, PW 1, the prosecutrix, according to her evidence in court was washing clothes on February 5, 1981 while her father PW 8 had gone to attend his duties and her mother PW 7 to see her ailing grandmother. Her younger brother Shamshuddin was at home along with her younger sister PW 2 and both of them were playing in front of their house. The respondent called out to the prosecutrix and when she went near him, he tried to pull her inside the house but on her warning him to behave he let go of her. According to her, the respondent once again called her but she refused to come to him whereupon he jumped the compound wall and picked up a bottle of kerosene lying in the cupboard nearby and splashed it towards her and after striking a matchstick threw it on her as a result whereof she suffered burn injuries. The brother of the prosecutrix saw the accused respondent running away from the scene. The prosecutrix was examined for her burn injuries by PW 5 Dr C. (illegible) the lady Medical Officer of the Combined Hospital at Bangarapet. She had found the patient to be conscious at the time of her examination and kerosene smell was present on her person. She had also found burn injuries on different parts of her body. According to the doctor, the prosecutrix had sustained 16 to 18 per cent of first degree burns. The prosecutrix was after first-aid, referred to the Civil Hospital where PW 6 Dr N. Bangarappa examined her. He has also testified to the presence of burn injuries on the lower part of the face of the prosecutrix. 6. With the assistance of learned counsel for the parties, we have gone through the evidence of the prosecutrix PW 1. Her testimony has impressed us and she appears to us to be a reliable witness. Her evidence has been supported by the medical evidence insofar as the burn injuries are concerned. There is nothing on the record to suggest any motive for her to falsely implicate the respondent and she denied suggestion regarding the earlier incident is of no consequence or relevance. Her evidence has been supported by the medical evidence insofar as the burn injuries are concerned. There is nothing on the record to suggest any motive for her to falsely implicate the respondent and she denied suggestion regarding the earlier incident is of no consequence or relevance. The learned trial court, in our opinion, was justified in coming to the conclusion that an offence under Section 324 Indian Penal Code had been brought home to the respondent for causing the burn injuries on the prosecutrix. The finding was based on proper appreciation of evidence and was otherwise also sound and reasonable. The appellate court, in our opinion, fell in error in upsetting the judgment of the trial court insofar as the offence under Section 324 Indian Penal Code is concerned. The appellate court has not given any cogent reasons to disbelieve the prosecutrix nor discussed the co-relation of the medical evidence with that of the testimony of the prosecutrix. The mere fact that no neighbour that had been examined would not in any way detract from the reliability of the prosecutrix, who as already stated has impressed us as a reliable and truthful witness. From the entire material on the record, including the testimony of the police witnesses and the medical evidence we are satisfied that the judgment of the trial court insofar as it convicted the respondent for an offence under Section 324 Indian Penal Code was well-merited and that the High Court has erroneously interfered with that judgment. We are unable to sustain the judgment of the High Court in that behalf. Learned counsel for the respondent was unable to assail the evidence of the prosecutrix or the medical evidence. He was not able to persuade us to agree with the finding recorded by the High Court in preference to the finding of the trial court. We, consequently, accept this appeal and set aside the judgment of the High Court insofar as the offence under Section 324 Indian Penal Code is concerned and agreeing with the trial court find the respondent guilty of the said offence and convict him accordingly. 7. Coming now to the question of sentence. The occurrence took place more than 12 years ago. The respondent has been on bail all through. 7. Coming now to the question of sentence. The occurrence took place more than 12 years ago. The respondent has been on bail all through. In our opinion it would not be appropriate to sentence him to any terms of imprisonment at this stage and send him to jail more particularly when the present trend in the field of penology is to reform the offender rather than to make him a hardened criminal. In our opinion, therefore, the ends of justice would be met if we sentence him to pay a fine of Rs. 2000 (Rupees two thousand only) for the offence under Section 324 Indian Penal Code. In default of payment of fine, he shall suffer RI for one year. 8. Keeping in view the provisions of Section 357 of the Code of Criminal Procedure, in our opinion, it is a fit case where a direction is required to be given that the fine when realised shall be paid to the prosecutrix by way of compensation for the injuries sustained by her. The fine shall be deposited by the respondent within eight weeks from today in the trial court which shall be paid to her by way of compensation, as already indicated. 9. To the above extent, the appeal succeeds and is allowed. 10. The bail bonds of the respondent shall stand discharged.