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Judgment
N. Ananda, J.—The appellants (hereinafter referred to as ''accused 2 to 4'') and accused No. 1 (since dead) were tried for offences punishable under sections 323, 354 & 306 r/w 34 IPC. Accused 1 to 4 were acquitted of an offence punishable u/s 306 IPC and they were convicted for offences punishable under sections 323 & 354 IPC. Accused No. 1 is dead. Therefore, accused 2 to 4 have preferred this appeal. I have heard Sri D.P. Mahesh, learned counsel for Sri Reuben Jacob, learned counsel for accused 2 to 4 and Sri B.T. Venkatesh, learned SPP for State.
The State had filed Criminal Appeal No. 1273/2005 against acquittal of accused 1 to 4 of an offence punishable u/s 306 IPC. This court by judgment dated 23.02.2006 dismissed the appeal and confirmed acquittal of appellants of an offence punishable u/s 306 IPC.
In view of judgment made by this court in Criminal Appeal No. 1273/2005 dated 23.02.2006 and death of accused No. 1 on 22.06.2005, the following points would arise for determination:--
(1) Whether prosecution has proved that on 25.12.2002 at about 11.30 a.m., on road in front of Krishna Medical Stores, situate in Jagalur Town, accused 2 to 4 shared common intention and assaulted P.W. 1-Mallikarjunappa and caused hurt to him and thereby committed an offence punishable u/s 323 r/w 34 IPCP
(2) Whether prosecution has proved in the same course of transaction stated in point No. 1, accused 2 to 4 outraged modesty of deceased Dakshayini when she came to the rescue of her father (P.W. 1-Mallikarjunappa) and thereby committed an offence punishable u/s 354 r/w 34 IPC?
(3) Whether learned trial Judge has properly appreciated evidence on record?
(4) To what order?
P.W. 1-Mallikarjunappa is the father of deceased Dakshayini. Accused 1 to 4 are direct brothers and they are sons of Vishalakshamma, who is the elder sister of P.W. 1. The elder sister of P.W. 1 (Vishalakshamma) was given in marriage to one Sharanappa, who is the nephew of father of P.W. 1. Accused 1 to 4 are maternal nephews of P.W. 1-Mallikarjunappa. P.W. 1 and accused are closely related. There were certain disputes between them and they were not cordial since 20 years prior to the date of incident.
P.W. 1-Mallikarjunappa has deposed; on 25.12.2002 at about 8 a.m., he had gone to a hotel of Swamy to drink tea; one Chayappa (PW4) was present in hotel; Chayappa (PW4) asked P.W. 1 that he was not having habit of drinking tea and asked P.W. 1 as to when he had started drinking tea; P.W. 1 in a jocular way told Chayappa (PW4) that he had cultivated drinking tea after visiting house of his sister (mother of accused); though it was not a fact; accused No. 3, who was sitting outside hotel, had overheard conversation between P.W. 1 and said Chayappa (PW4) and got offended and felt that P.W. 1 was insulting parents of accused No. 3; accused No. 3 stared at P.W. 1 and left that place; on the same day, at about 10.45 a.m. or 11 a.m., when P.W. 1 was tying buffaloes in front yard of his house; accused No. 1 came in front yard of house of Thippeswamy (elder brother of P.W. 1), which is situate opposite to house of P.W. 1; accused No. 1 questioned P.W. 1 and fisted on his face; accused No. 1 questioned P.W. 1 as to why he had insulted his parents; P.W. 1 denied the same; therefore, accused No. 1 took P.W. 1 towards Krishna Medical Stores and they were followed by accused 2 to 4; accused 2 to 4 surrounded and assaulted P.W. 1; at. that time, daughter of P.W. 1 intervened to save her father; accused 1 to 4 used criminal force and outraged her modesty; witnesses namely PW2-Basavarajappa, PW3-Shivaswamy@ Shivakumar, PW4-Chayappa, P.W. 12-Manjunath Reddy, P.W. 13-Somashekar, P.W. 14-Shankaramma and PV/15-Gangadharappa rescued P.W. 1 and deceased Dakshayini from hands of accused; deceased was very much pained and insulted by the incident of outraging her modesty; therefore, deceased was weeping and ran towards her house; P.W. 1 had gone to police station to lodge a complaint; police told P.W. 1 to lodge a written complaint; when P.W. 1 again visited police station to lodge a written complaint; police told P.W. 1 that accused No. 1 has already lodged a complaint against P.W. 1; when P.W. 1 returned home at about 12.45 p.m. (afternoon), he found deceased had committed suicide by hanging to a rafter in cattle shed of their house; people gathered there; the matter was informed to police; after inquest, dead-body was subjected to post-mortem examination; deceased had left note''s (suicide notes).
During cross-examination, P.W. 1 has reiterated version given in examination-in-chief. P.W. 1 has denied suggestion that accused did not assault his daughter and accused did not outrage modesty of his daughter. P.W. 1 has denied suggestion that due to pre-existing enmity between family members of P.W. 1 and family members of accused, he had falsely implicated accused.
The learned counsel for accused referring to evidence of P.W. 1 would submit that evidence of P.W. 1 is hardly sufficient to prove the incident of assault and outraging modesty of deceased, which is alleged to have taken place at about 11.30 a.m. on 25.12.2002. The first information was lodged at 8 p.m. on 25.12.2002 though jurisdictional police station is at a distance of one furlong. Therefore, delay in lodging first information by P.W. 1 would create a grave doubt in the evidence of P.W. 1.
The delay in lodging first information by P.W. 1 has to be considered with reference to incident of assault and outraging the modesty of deceased. After the incident of assault, P.W. 1 had gone to lodge first information, however, police instructed P.W. 1 to lodge a written first information. When P.W. 1 visited police station for the second time, accused No. 1 had already lodged first information. It appears, police were contemplating to settle the matter between parties. P.W. 1 after returning home found that his daughter had committed suicide, which was a rude shock to him. In the circumstances, it would not be proper to expect that P.W. 1 should have rushed to police station to lodge first information, ignoring death of his only daughter. Therefore, submission of learned counsel for accused that delay in lodging first information would create a grave doubt cannot be accepted.
It is true that there was pre-existing enmity between family members of P.W. 1 and family members of accused.. however that cannot be a ground to discredit the evidence of P.W. 1. The evidence of P.W. 1 has to be carefully scrutinised. The evidence of P.W. 1 that he was assaulted near Sri Krishna medical store by accused 2 to 4 finds corroboration from evidence of PW3 & P.W. 14.
PW3-Shivaswamy @ Shivakumar is the nephew of P.W. 1. P.W. 3 is also related to accused. PW3 has deposed; on the date of incident, accused were assaulting P.W. 1 near medical stores; when deceased intervened; accused also assaulted her and used criminal force with intention to outrage modesty of deceased; PW3 intervened and pacified the quarrel and told deceased to go home; PW3 had accompanied P.W. 1 to police station.
During cross-examination, evidence of PW3 regarding incident of assault and outraging modesty of deceased has not been shaken. The cross-examination of PW3 is more suggestive in nature. It has not been suggested to PW3 that he had motives to falsely implicate accused.
At the relevant time, P.W. 14-Shankaramma was working as a cook in a hostel at Jagalur. P.W. 14 has deposed; on 25.12.2002 (on Christmas day) P.W. 14 was in her house; at about 11.30 a.m., she heard noise of quarrel; P.W. 14 came out and reached place of incident (medical shop); accused 1 to 4 were assaulting P.W. 1; deceased and Basavaraja (son of P.W. 1) reached place of incident; accused assaulted said Basavaraja; he fell down; deceased raised her voice and asked accused as to why they were assaulting her father (P.W. 1); accused No. 4 used criminal force and outraged modesty of deceased; deceased fell down; accused No. 3 also used criminal force to outrage modesty of deceased; deceased retorted by kicking accused No. 3; Manjunath (accused No. 3) as a result Manjunath suffered injuries to his nose; P.W. 14 and other witnesses separated them and sent deceased to her house; within 10 to 15 minutes, P.W. 14 learnt that deceased had committed suicide as she had become disgusted on account of outrageous acts committed by accused.
During cross-examination, P.W. 14 has reiterated her version given in examination-in-chief. Much of the cross-examination of P.W. 14 is concentrated on location of her house; distance between house of P.W. 14 and place of incident and also distance between her house and other landmarks.
In my considered opinion, distance factor and location of house of P.W. 14 and place of incident have no bearing on evidence of P.W. 14. It is not a case where there was obstruction to witness the incident or incident had taken place under the cover of darkness. From cross-examination of P.W. 14, we do not find that P.W. 14 had any grudge or animosity against accused. P.W. 14 is not related to P.W. 1. Therefore, there are no reasons to suspect the evidence of P.W. 14.
It is true that some of the witnesses, including medical shop owner namely Manjunath Reddy (P.W. 12) have turned hostile, however evidence of prosecution witnesses who have supported the case of prosecution is found to be credible and consistent and it cannot be brushed aside on the ground that some of the prosecution witnesses have turned hostile. If some of the prosecution witnesses have turned hostile, their evidence will not be available to prosecution. The accused cannot contend that evidence of other witnesses, who have supported the case of prosecution is false and not trustworthy.
The learned counsel for accused would submit that P.W. 1 was not examined by doctor to prove that he had suffered injuries due to assault.
The accused were tried for an offence punishable u/s 323 IPC. The evidence adduced by prosecution is sufficient to hold that accused had used criminal force and caused bodily pain to P.W. 1. In order to attract an offence punishable u/s 323 IPC, it is not necessary that victim must have suffered visible injuries. Therefore, submission of learned counsel for accused cannot be accepted.
The learned counsel for accused would submit that prosecution witnesses, including P.W. 1 has given exaggerated version that accused had outraged modesty of deceased. The learned counsel for accused would submit that accused being the close relatives of P.W. 1 would hardly outrage modesty of daughter of their maternal uncle (deceased).
The relationship between parties has not been disputed. At the same time, it cannot be disputed that relationship between parties was strained and there was no cordiality between family members of P.W. 1 and family members of accused since two decades prior to date of incident. The fact that accused had used criminal force against deceased in a public place and accused had "manhandled deceased would necessarily lead to an inference that intention of accused was to outrage modesty of deceased. The incident has to be considered from point of view of deceased. The criminal force on the deceased, without having regard to decency would certainly lead to an inference that accused had used criminal force with intention to outrage modesty of deceased. At this juncture, it is relevant to state that deceased had committed suicide within two hours from time of incident.
The learned counsel for accused would submit that P.W. 1 had not performed marriage of deceased, though she was aged about 26 years at the time of incident and deceased being disgusted in life had committed suicide.
18 The evidence on record discloses that deceased Dakshayani was working as a teacher in a primary school. The evidence on record does not disclose possibility of P.W. 1 not performing marriage of deceased had been ruled out. The deceased was aged about 26 years at the time of incident. Therefore, it cannot be said that deceased had attained the age, which did not permit her marriage.
As already stated, deceased committed suicide within two hours from time of incident. Therefore, it can safely be inferred that deceased felt insulted and became disgusted in life as her modesty was outraged in the midst of town, within public vision. Therefore, submission of learned counsel for accused that prosecution has failed to prove that accused had outraged modesty of deceased cannot be accepted. The learned trial Judge or proper appreciation of evidence has rightly convicted accused for offences punishable under sections 323 & 354 r/w 34 IPC. The learned trial Judge has imposed fine. Therefore, impugned sentence does not call for interference. In the result, I pass the following:--
ORDER
The appeal is dismissed.