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Karnataka High Court · body

2016 DIGILAW 244 (KAR)

R. Mahesh, s/o. Rachappa v. State of Karnataka

2016-03-08

H.BILLAPPA

body2016
JUDGMENT : This appeal by the appellant - accused is directed against the judgment and order dated 6.1.2010 passed by the District and Sessions Judge and Presiding Officer Fast Track Court-IV, Bengaluru, in S.C.No.556/2007. 2. By the impugned judgment and order, the trial Court has convicted the appellant – accused for the offences punishable under Sections 448, 306 and 354 of IPC and sentenced him to undergo S.I. for a period of one year and to pay a fine of Rs. 1,000/-, in default payment of fine, to undergo S.I. for a period of three months for the offence punishable under Section 448 of IPC. For the offence punishable under Section 354 of IPC, the appellant – accused has been sentenced to undergo S.I. for a period of two years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo S.I. for a period of three months. For the offence punishable under Section 306 of IPC, the appellant – accused has been sentenced to undergo S.I. for a period of six years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo S.I. for a period of six months. 3. Aggrieved by that, the appellant – accused has filed this appeal. 4. The victim will be referred to as ‘deceased’ in course of this judgment. 5. Briefly stated the case of the prosecution is as follows: That the victim i.e., the deceased is the daughter of PW.3 Gangamma and PW.4 Sampangappa. She was aged 15 years. She was residing at No.3240, 3rd Cross, Rajyothsava Nagar, Kumaraswamy Layout, Bangalore. Ex.P14 is the statement of the victim i.e., the deceased made on 6.4.2007 at Victoria Hospital. It is stated, that on 6.4.2007, at about 1.00 p.m., in the afternoon when the victim i.e., the deceased was watching T.V. alone in her house, the appellant – accused went there and pushed the door. He asked the deceased to give water for drinking. When the deceased went inside to bring the water, the accused entered into the house and closed the door. When the deceased questioned the accused, the accused closed the mouth of the deceased and made her to sleep on the cot. Thereafter, he pulled the cloth of the deceased and tried to rape her. When the deceased went inside to bring the water, the accused entered into the house and closed the door. When the deceased questioned the accused, the accused closed the mouth of the deceased and made her to sleep on the cot. Thereafter, he pulled the cloth of the deceased and tried to rape her. The deceased told the accused, xxxx.” The accused told the deceased that even if she dies, he would enjoy her and forcibly tried to rape the deceased. When the deceased screamed for help, the neighbours came there. At that time, the accused ran away from the place. The neighbours were talking that the accused slept on the deceased. Being frustrated that people may talk unnecessary things and pained by the conduct of the accused, the deceased poured kerosene on herself and set fire. Thereafter, she was taken to the hospital for treatment. She died on 10.4.2007 at 11.25 p.m. 6. Based on the statement of the deceased as per Ex.P14, a case in Crime No.79/2007 of Kumaraswamy layout police station has been registered for the offence punishable under Sections 448, 376 r/w Section 511 of IPC. After investigation charge sheet has been filed against the accused for the offences punishable under Sections 448, 306, 376 read with Section 511 of IPC. 7. At the trial, the prosecution has examined in all 22 witnesses i.e., PWs.1 to 22 and Exs.P1 to P22 and MOs.1 to 3 have been marked. On behalf of the defence, no evidence has been adduced. 8. The trial Court on appreciation of the evidence on record has held that the appellant – accused is guilty of the offences punishable under Sections 448, 306 and 354 of IPC and sentenced him as stated in para 2. 9. Aggrieved by that, the appellant – accused has filed this appeal. 10. The learned counsel for the appellant – accused contended that the impugned judgment and order cannot be sustained in law. He also submitted that the trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the case is based on dying declaration. All the material witnesses have turned hostile. The dying declaration is not trust worthy and it suffers from serious infirmities. The trial Court has erred while relying upon the dying declaration to convict the appellant - accused. Further he submitted that the case is based on dying declaration. All the material witnesses have turned hostile. The dying declaration is not trust worthy and it suffers from serious infirmities. The trial Court has erred while relying upon the dying declaration to convict the appellant - accused. Further he submitted that the evidence of PWs.11, 16 and 19 is also not reliable as it is inconsistent and unacceptable. He also submitted that after the neighbours came, the accused has left the place. Therefore, the accused was in no way responsible for the suicide committed by the deceased. There is no complicity of the accused in the alleged crime. The deceased has committed suicide herself as the neighbour started abusing and insulting her. In the absence of any instigation or complicity of the accused in the alleged crime, the accused cannot be held responsible for the alleged offence. Therefore, the trial Court was not justified in convicting the appellant – accused for the offences punishable under Sections 448, 354 and 306 of IPC. He therefore submitted that, the impugned judgment and order cannot be sustained in law. In support of his submission, he placed reliance on the decisions of the Hon’ble Supreme Court reported in AIR 1975 SC page 175 Shri Ram Vs. The State of U.P., (2009) 16 SCC page 605 Chitresh Kumar Chopra Vs. State (Government of NCT of Delhi), AIR 1964 SC page 900 Moti Singh and another Vs. The State of U.P. 11. As against this, the learned Government Pleader submitted that the impugned judgment and order does not call for interference. Further he submitted that the trial Court on proper consideration of material on record has rightly convicted the appellant – accused for the offences punishable under Sections 448, 354 and 306 of IPC and therefore, the impugned judgment and order does not call for interference. He also submitted that though the material witnesses have not supported the prosecution case, the official witnesses have supported the prosecution case. The dying declarations Exs.P14 and P16 and the case sheet Ex.P20 clearly establish the guilt of the accused. Therefore, the impugned judgment and order does not call for interference. 12. I have carefully considered the submissions made by the learned counsel for the parties. 13. The point that arises for my consideration is; Whether the impugned judgment and order passed by the trial Court calls for interference? Therefore, the impugned judgment and order does not call for interference. 12. I have carefully considered the submissions made by the learned counsel for the parties. 13. The point that arises for my consideration is; Whether the impugned judgment and order passed by the trial Court calls for interference? 14. It is relevant to note, it is alleged, that on 6.4.2007, at about 1.00 p.m., when the deceased was watching T.V., alone in her house, the accused went there and asked the deceased to give water for drinking. When the deceased went inside to bring the water, the accused entered into the house and closed the door. When the deceased questioned the accused, the accused closed her mouth and made her sleep on the cot. Thereafter, the accused pulled her cloth of the deceased and tried to rape her. When the deceased told xxxxxxx, the accused responded saying, even if she dies, he would enjoy her and tried to rape the deceased. Thereafter, the deceased screamed for help and the neighbours came there. At that time, the accused ran away from the place. 15. The prosecution has examined in all 22 witnesses. The material witnesses i.e., PWs.11, 10 and 12 have turned hostile. Their evidence is not useful in any way. 16. The prosecution mainly relies upon the evidence of PWs.11, 16 and 19 and Exs.P14, 16 and 20. 17. PW11 is the ASI of Kumara Swamy Layout police station. He has deposed that on 6.4.2007, at about 3.45 p.m., he was informed by one Renuka Radhya of Victoria Hospital police station that the deceased has been admitted to the hospital due to burn injuries. PW11 along with PC-8986 went to the Victoria Hospital. After collecting memo in the Victoria Hospital police station, they went to the burn ward and enquired the deceased and recorded her statement. PC-8986 wrote the statement of the deceased. The statement was taken between 4.15 and 5.30 p.m. Thereafter, PW11 came back to the police station and registered a case in Crime No. 79/2007 for the offences punishable under Sections 448, 376 r/w Section 511 of IPC. He has stated that first information was sent to the Court. Ex.P14 is the statement of the deceased. His signatures are Exs.P14(a) and P14(b). Ex.P14(c) is the signature of the deceased. He has stated that first information was sent to the Court. Ex.P14 is the statement of the deceased. His signatures are Exs.P14(a) and P14(b). Ex.P14(c) is the signature of the deceased. Further he has stated that he went to the spot, as the door was locked, he returned back and handed over further investigation to the PSI Shivraj. Further he has stated that, on 7.4.2007, at about 12.55 p.m., he received a call from one Boraiah from Victoria Hospital to record the dying declaration of the deceased. Thereafter, PW11 and PC-8986 Ashok went to the Tahsildar, Bangalore South Taluk and gave a memo to him. The Tahsildar visited the hospital and recorded the statement of the deceased in the presence of Dr.Shankarappa PW19. The dying declaration was dictated by the Tahsildar, Bangalore South Taluk and it was written by PC-8986 Ashok. The dying declaration is marked as Ex.P16. He has stated that Ex.P14 was recorded by him on 6.4.2007 between 4.15 and 5.30 p.m. In his cross-examination, PW1 has stated that he has not taken any written permission from the doctor stating that the deceased was in a fit state of mind to give statement. But, orally he asked the doctor and took his permission and recorded the statement. He has denied the suggestion that on 7.4.2007 he did not go to the hospital at all and that the deceased did not give statement as per Ex.P16. 18. PW16 is one Chikkabettaiah. He was working as Tahsildar and Taluka Executive Magistrate of Bangalore South Taluk. He has stated that on 7.4.2007, he received a request from Kumara Swamy Layout police station to record the statement of the deceased at Victoria Hospital. He went to the Victoria Hospital. After taking permission from the doctor, he recorded the statement of the deceased as per Ex.P16. His signature is at Ex.P16(a) and P16(b). He has stated that, the deceased told that on 6.4.2007, at about 1.00 p.m., when the deceased was alone in the house, the accused Mahesh went there and asked for water to drink. When the deceased went inside to bring water, the accused entered into the house and closed the door. Thereafter, he tried to rape the deceased. When the deceased screamed for help, the neighbours came there. The accused ran away from the place. Thereafter, people started talking that accused slept on the deceased. When the deceased went inside to bring water, the accused entered into the house and closed the door. Thereafter, he tried to rape the deceased. When the deceased screamed for help, the neighbours came there. The accused ran away from the place. Thereafter, people started talking that accused slept on the deceased. Being frustrated, the deceased poured kerosene and set fire on herself. When she came out, the neighbours came and extinguished the fire by pouring water. By that time, her mother also came there. She took the deceased to the Victoria Hospital. The accused was responsible for the incident. Ex.P16(c) and (d) are the thumb impressions of the deceased. At the time of recording Ex.P16 dying declaration, Dr.Shankarappa, nurse and PC-8986 were present. Dr.Shankarappa has certified the statement. His signatures are at Ex.P16(e) and (f). In his cross-examination, PW.16 has stated that, when he went to Victoria hospital, it was 3.30 p.m. He alone went to the Victoria Hospital. Police did not take him to the Victoria Hospital. After Dr.Shankarappa certified that the deceased is capable of making statement, he recorded the statement of the deceased. In the statement, the name of the father or address of Mahesh is not given. The deceased told that, Mahesh is residing in the same area where she was residing. The age or facial description of Mahesh is not given. He has stated that Ex.P16 is not in his handwriting. In Ex.P16, it is not stated that it was written by somebody to his dictation. He has denied the suggestion that the deceased was not in a fit state of mind to give the statement. 19. PW19 is Dr.Shankarappa. He has deposed that, on 6.4.2007, the deceased was admitted in the burn ward of Victoria Hospital. He saw the deceased on 7.4.2007, at about 10.00 a.m. After examining the deceased, he has certified that the deceased was physically and mentally fit to make a statement. Further he has stated that he has recorded the statement of the deceased in the case sheet. The deceased signed the case sheet in English accepting that the statement recorded is correct. The deceased had suffered 42% burn injuries. He has certified that the deceased was capable of making statement from the beginning till the end. Further he has stated that he has recorded the statement of the deceased in the case sheet. The deceased signed the case sheet in English accepting that the statement recorded is correct. The deceased had suffered 42% burn injuries. He has certified that the deceased was capable of making statement from the beginning till the end. On 7.4.2007, at about 10.30 a.m., he sent information to Victoria Hospital police station to record the statement of the deceased as per Ex.P18. Further he has stated that, at 3.45 p.m., the Tahsildar, Bangalore South Taluk, Executive Magistrate, Bangalore South Taluk came to the hospital and asked him whether the deceased was fit to make a statement. Thereafter, he certified that the deceased is physically and mentally fit to make a statement. Thereafter, the statement of the deceased was recorded as per Ex.P16. The certificate and signature are at Ex.P16(d) and P16(e). The Tahsildar recorded the statement of the deceased in question and answer form. The statement was read over to the deceased and thereafter, her thumb impression was obtained. His signature is at Ex.P16(f). PC-8986 has also signed Ex.P16. His signature is at Ex.P16(g). He has stated that he has certified stating that the deceased was capable of making statement right from the beginning till the end. His signature is at Ex.P16(h). Ex.P20 is the case sheet of the deceased. Ex.P20(a) is the statement of the deceased. Ex.P20(b) is the signature of the deceased. Exs.P20(d) and P20(g) are signature of PW19. The deceased has also put her thumb impression. The deceased died on 10.4.2007, at about 11.30 p.m. In his cross-examination, PW19 has denied the suggestion that two sheets dated 7.4.2007 have been inserted subsequently. He has stated that the deceased was given treatment. He has denied the suggestion that he has signed Ex.P20 sitting in his Chambers. He has also denied the suggestion that the Tahsildar did not visit the hospital. 20. Ex.P12 is the inquest report. It shows that on 6.4.2007, at about 1.00 p.m., the accused Mahesh tried to rape the deceased and the deceased screamed for help, thereafter, the neighbours came there and the accused ran away from the place. Thereafter, thinking that the neighbours have seen the incident, they may talk something, being pained the deceased has poured kerosene on herself and set-fire. 21. Ex.P21 is the post mortem report. Thereafter, thinking that the neighbours have seen the incident, they may talk something, being pained the deceased has poured kerosene on herself and set-fire. 21. Ex.P21 is the post mortem report. It shows that the cause of death was due to ‘Toxaemia’ as a result of burn injury sustained by the deceased. 22. Ex.P14 is the statement of the deceased recorded by PW11, on 6.4.2007, between 4.15 and 5.30 p.m., at Victoria Hospital. The deceased has stated that on 6.4.2007, at about 1.00 p.m., when she was watching T.V., alone in her house, the accused Mahesh went there and asked the deceased to give water for drinking. When the deceased went inside to bring the water, the accused entered into the house and closed the door. When the deceased questioned the accused, the accused closed her mouth and made her to sleep on the cot. He pulled her clothes and tried to rape her. When the deceased told the accused, xxxxxxx the accused told the deceased, even if she dies, he would enjoy her and tried to forcibly rape the deceased. The deceased screamed for help. At that time, the neighbours came there and the accused ran away from the place. Thereafter, the neighbours started talking that the accused slept on the deceased. Being frustrated and pained by the conduct of the accused, the deceased poured kerosene on herself and set fire. Thereafter, the neighbours and her mother extinguished the fire and she was taken to the hospital. 23. Ex.P16 is the dying declaration recorded by PW16-Tahsildar and Executive Magistrate, Bangalore. In Ex.P16, the deceased has stated that on 6.4.2007, at about 1.00 O’clock, when the deceased was watching T.V. alone, accused Mahesh went there and asked to give water for drinking. When she went to bring water, the accused entered into the house and closed the door. When the deceased questioned Mahesh, he closed the mouth of the deceased and pushed her on the cot and tried to rape her. When she screamed for help, the neighbours came there and Mahesh ran away from the place. The neighbours were talking that Mahesh slept on the deceased. Being frustrated by the conduct of the accused and that the neighbours may talk very badly in future, the deceased poured kerosene on herself and set fire. Thereafter, the neighbours and her mother poured water and extinguished the fire. The neighbours were talking that Mahesh slept on the deceased. Being frustrated by the conduct of the accused and that the neighbours may talk very badly in future, the deceased poured kerosene on herself and set fire. Thereafter, the neighbours and her mother poured water and extinguished the fire. Subsequently, she was taken to the hospital. The Doctor has certified that the deceased was physically and mentally fit to make the statement from the beginning till the end. 24. Ex.P20 is the case sheet. On 6.4.2007, at about 2.45 p.m., it is recorded in the case sheet that the patient is conscious, alert, co-operative, physically and mentally fit to give statement. Alleged history of suicidal burn at 2.00 p.m., on 6.4.2007, at Rajyotsava Nagar, Kumara Swamy Layout, Bengaluru. Patient put kerosene oil on her body and burnt herself. A guy by name Mahesh had come to her house and harassed her. By the fear of bad name patient did this. 25. The above statement has been read over to the deceased. She has stated, that it is true to the best of her knowledge. The deceased has put her thumb impression. 26. On 7.4.2007, at 10.00 a.m., it is recorded in the case sheet as follows; Case seen by Dr. M. Shankarappa; I have examined the patient (victim), 15 years, burns ward, P.100/m, BP 110/70, WS.S1, S2 normal. Normal breath. Conscious, alert, well oriented, physically fit to give statement. 27. The statement of the deceased is recorded in the case sheet. The deceased has stated that on 7.4.2007 at 2.00 p.m., at her residence Mahesh S/o. Rachappa entered the house when she was alone and asked for water to drink. She refused to get water. Immediately he took her inside and made to lie on cot and forcibly made attempt to pull out her dress and she was made to sleep with him. Immediately she shouted and raised alarm. Immediately Mahesh left the place. The neighbours shouted at her with vulgur words. She did not tolerate the insult and committed to die by pouring kerosene on her and ignited with match stick. Before setting ablaze she consumed paint 1/2 cup and omitted. The deceased has signed the statement in Ex.P20 in English and her thumb impression is also obtained. 28. From the evidence on record, it is clear, the material witnesses have not supported the prosecution case. Before setting ablaze she consumed paint 1/2 cup and omitted. The deceased has signed the statement in Ex.P20 in English and her thumb impression is also obtained. 28. From the evidence on record, it is clear, the material witnesses have not supported the prosecution case. But, the official witnesses have supported the prosecution case. PW11 has deposed that he recorded the statement of the deceased on 6.4.2007 between 4.15 p.m. and 5.30 p.m. and registered the case. PW16 has deposed that he recorded the statement of the deceased on 7.4.2007 as per Ex.P16 at Victoria Hospital. The deceased was in a fit state of mind to make the statement. PW19 has deposed that the statement of the deceased was recorded in the hospital and he has certified that the deceased was fit to make a statement right from the beginning till the end. The statement of the deceased was recorded as per Ex.P16 by PW16. Further, he has stated that the deceased gave statement and he has recorded the statement in Ex.P20 case sheet. From the evidence of PW11, PW16 and PW19 it is clear that the deceased has made the statement and she was capable of making statement. There is no reason to disbelieve the evidence of PWs.11, 16 and 19. Their evidence is trust worthy. From the evidence of PW11, PW16 and PW19 and Exs.P14, P16 and P20 it can be inferred that the deceased was fit to make a statement and she has made the statement. In her statement, the deceased has stated that on the date of alleged incident i.e. on 6.4.2007, at about 1.00 p.m., when she was watching T.V. alone in her house, the accused Mahesh went there and asked to give water for drinking. When the deceased went inside to bring water, the accused entered into the house and closed the door. When the deceased questioned the accused, the accused closed the mouth of the deceased and made her to sleep on the cot. Thereafter, the accused pulled the cloth of the deceased and tried to rape her. When the deceased told xxxxxxx the accused responded saying, even if she dies, he would enjoy her and tried to rape the deceased. It is clear from Exs.P14, P16 and P20 because of the conduct of the accused and neighbours started talking badly, being frustrated, the deceased has committed suicide. 29. When the deceased told xxxxxxx the accused responded saying, even if she dies, he would enjoy her and tried to rape the deceased. It is clear from Exs.P14, P16 and P20 because of the conduct of the accused and neighbours started talking badly, being frustrated, the deceased has committed suicide. 29. It was contended by the learned counsel for the accused that after the neighbours came, the accused has left the place. Therefore, the accused was in no way responsible for the suicide committed by the deceased. It is difficult to accept the contention of the learned counsel for the accused, for the reason, the entire act from the beginning till the deceased committed suicide is continuous and inseparable. The accused has entered into the house. Thereafter, he has tried to rape the deceased. Thereafter, when the neighbours came, the accused has left the place. Immediately thereafter, the deceased has poured kerosene on herself and set fire. The statement of the deceased reveals that when the accused entered into the house and tried to rape her, the deceased has told the accused xxxxxx. In spite of that, the accused has tried to rape the deceased. Thereafter, the neighbours have started talking badly. Being frustrated by the conduct of the accused and the neighbours were talking badly the deceased has committed suicide by pouring kerosene on herself and setting fire. The conduct of the accused has prompted the deceased to commit suicide. Therefore, it cannot be said that accused was not responsible for the suicide committed by the deceased. Therefore, the contention of the learned counsel for the appellant cannot be accepted. The material on record clearly establishes the guilt of the accused for the offences punishable under sections 448, 354 and 306 of IPC. The Trial Court on proper consideration of the material on record has rightly convicted the appellant –accused for the offences punishable under sections 448, 354 and 306 of IPC. It does not call for interference. However, the sentence imposed for the offence punishable under section 306 of IPC needs to be modified having regard to the age of the accused and the circumstances of the case. 30. Accordingly, the following order is passed: The appeal is allowed to the limited extent of modifying the sentence imposed for the offence punishable under section 306 of IPC. However, the sentence imposed for the offence punishable under section 306 of IPC needs to be modified having regard to the age of the accused and the circumstances of the case. 30. Accordingly, the following order is passed: The appeal is allowed to the limited extent of modifying the sentence imposed for the offence punishable under section 306 of IPC. The judgment and order passed by the District and Sessions Judge and Presiding Officer Fast Track Court-IV, Bengaluru, in S.C.No.556/2007 convicting the appellant – accused for the offences punishable under sections 448, 306 and 354 of IPC is confirmed. The sentence passed by the Trial Court for the offence punishable under sections 448 and 354 of IPC is also confirmed. However, the sentence passed by the Trial Court for the offence punishable under section 306 of IPC is modified as follows: The appellant–accused is sentenced to imprisonment already undergone by the accused during trial and subsequent to conviction i.e., from 7.4.2007 to 6.1.2010 during trial and thereafter, from 7.1.2010 to 16.2.2010 till the sentence was suspended and the appellant was released on bail. Further, the appellant shall pay a fine of Rs. 25,000/- and in default of payment of fine, the appellant shall undergo S.I. for a period of six months. Out of fine amount of Rs. 25,000/-, a sum of Rs. 10,000/- shall be paid to PWs.3 and 4 i.e., Gangamma and Sampangappa, the parents of the deceased. The sentence of imprisonment imposed for the offences punishable under sections 448, 354 and 306 of IPC shall run concurrently. The appellant – accused shall be entitled to the benefit of Section 428 of Cr.P.C. Send a copy of the judgment to the Trial Court for further action. Send back LCR.