Jilani vs State of Karnataka

The appellant Jeelani who was A1 and two others namely Moula Hussain and Virupakshi Who were A2 and A3, and who will hereinafter be also referred to as A1 to A3, were tried for the offences under Sec. 366 r/w Sec. 34 of IPC on two counts by the Sessions Judge, Bellary, in Sessions Case No. 6176: A1 and A2 were further tried for offences under Secs. 354, and 376 of IPC and A3 for the offence under Sec. 366 r/w Sec. 114 of IPC. The allegations under those charges, broadly stated, were that on 11-12-75 in the afternoon the said accused persons in furtherance of their common intention abducted Renuka PW. 8 and her sister Saraswathi (not examined) daughters of Dasappa alias Venkanna a resident of Balagami village in Shiralakoppa Taluk, Dist Shimoga, while they were standing on the road leading from Murali Sugar Factory to Hospet, two furlongs away from that factory, and took them in a truck bearing No. MYL-5761 in order that they might be forced or seduced to illicit intercourse, and on the way they (accused) behaved with them in an indecent and objectionable manner by using criminal force intending to outrage their modesty, and that at about 9 p. m. A1 and A2 committed rape on Renuka PW. 8 against her will one after the other in field situated by the side of a road near Nandihanda village between Hospet and Harapanahlli in Bellary Dist, and A3 aided and abetted A1 and A2 to commit rape on Renuka PW. 8.

The prosecution in support of its case examined 14 witnesses. The main witnesses in the case were Karibasappa PW. 3, Halappa PW. 4, and Renuka PW. 8. PWs. 3 and 4 claimed to have seen the truck in question being parked on the left side of the said road at about 7 or 8 p.m. on that day as also a girl and a boy standing by the side of that truck. They also claimed to have seen two persons and a woman standing beneath palm trees in the land of one Banakappasetty situated near Nandibanda Village and those two persons dragging that woman; they also claimed to have heard that woman weeping then. According to Renuka PW. 8 it was in that field she was raped first by A-1 and then by A-2 against her will and A-2 spared her sister Saraswathi on being told by her that she had not attained puberty. According to PW. 8 while she and her sitser Saraswathi were coming from Murali Sugar Factory on that day at about 1 p.m. along the road and when they had covered a distance of about two furlongs the said truck came from the side of Sindhanoor and the accused who were in that truck stopped the truck and asked them to get into the truck and when they refused to do so the accused by force made them to get into the truck and proceeded further and then A1 began to press her breasts and A2 began to press the breasts of her sister Saraswathi and outraged their modesty and the truck reached Hospet at about sunset time and A2 who was then driving the truck stopped the truck and A1 went into the village and brought food and after all of them ate the food near a nala A1 and A2 took her to the said field and committed rape on her.

The plea of the accused was denial simpliciter When examined under Sec. 313 CrlPC, while denying their complicity in the crime, A1 and A2 filed separate written statements almost to the same effect, and the one filed by A1 reads thus:

"I and the two others accused came in the lorry from Gangavathi and reached Harapanahalli at about 11 p. m. and went to the Arrack Depot. At that time the two girls came and asked to be taken to Hospet. I and other accused agreed to take after loading. In the meantime the two girls quarrelled among themselves and the older girl remained in the lorry and the younger girl left the place. Some time later the police came and took us and the lorry to the police station."

None of them adduced any evidence in defence.

The learned Sessions Judge appears to have accepted the only evidence given by PWs. 3 and 4 to the effect that they saw the said truck, having been parked by the side of a road near Nandibanda village at about 8 p.m., and not the rest of their evidence, and that is clear from paragraphs 34 and 52 of his judgment, and while rejecting the rest of their evidence this is what he has stated:

"The evidence of Karibasappa and Halappa pressed into service by the prosecution as corroborative pieces of evidence to the testimony of Renuka in regard to the allegation of rape, has failed to inspire confidence. According to Karibasappa he saw two persons and a woman in Benakappa Setty''s land beneath palm trees; and that he witnessed the actual dragging of the woman. According further to him, observing all this, he asked the boy standing on the road as to what persons in the land were doing, and that the boy replied to him saying that he had no concern in the dispute between husband and wife. If he had seen two persons dragging a woman and if he had heard that woman weeping, he could not have gone to the village as if nothing had happened. His explanation that being afraid he did not further probe into the matters besides being unacceptable is wholly unintelligible. Any person placed in the position of Karibasappa would have made further enquiries with the boy and would have gone to the land to see what was going on there. Halappa who according to Karibasappa was with him has not corroborated Karibasappa''s evidence in this regard. What all he has stated is that at the time of conversation he heard wailing voice of woman and that the voice came from the side of Benakappasetty''s land. If Kanbasappa and Halappa had seen and heard as they now claimed to have seen and heard, in my opinion they could not have left the matter at that. They could have gone to the village and with some villagers and light they could have come to Benkappa''s land to see what was going on there. Their subsequent conduct belies their evidence on the point."

The learned Sessions Judge also did not. accept the evidence of Renuka PW. 8 that she was raped by A1 and A2 in the said field at the time alleged by the prosecution, and his conclusion reads thus:

"The conclusion is inescapable that the prosecution has failed to prove the charges of rape levelled against A1 and A2 and A3 beyond reasonable doubt. The evidence of Renuka on being properly scrutinised on this aspect of the prosecution case, has failed to carry conviction. It stands wholly belied by Exht. D4. In this state of evidence I find it extremely unsafe to accept the words of Renuka with regard to the offence of rape." (Ex. D4 is the certificate of doctor who examined A1, A2 and PW. 8 on 12-12-75 between 1-30 a. m. and 3-00 a.m. in the Combined Dispensary at Harapanahalli).

Therefore, the learned Sessions Judge acquitted A1 and A2 of the charge under Sec. 376 IPC and A3 of the charge under Sec. 376 r/w Sec. 114 of IPC and while doing so what further appears to have weighed with himwas that the prosecution had failed to prove beyond reasonable doubt that Renuka PW. 8 was below 16 years of age as on 11-12-75; he also acquitted A2 on the charge under Sec. 354 of IPC as according to him there was no clear and sufficient evidence to show that A2 had used criminal force against Saraswathi intending to outrage her modesty; regarding the remaining charges, relying upon the evidence of Renuka he came to the conclusion that these charges were satisfactorily established, and consequently he convicted A1 to A3 under Sec. 366 r/w Sec. 34 of IPC on two counts and sentenced each of them to suffer rigorous imprisonment for one year on each count, and also convicted A1 under Sec. 354 of IPC and sentenced him tosuffer RI for one year, and directed all the substantive sentences to run concurrently, by his judgment dated 30-9-1976.

I am informed by the learned State Public Prosecutor that the State has not preferred any appeal against the acquittal of A1 to A3 in respect of the other charges. I am also informed that A2 and A3 have not preferred any appeal against their convictions and sentences. In this appeal, it is only A1 who has challenged the legality and correctness of the convictions and sentences passed against him.

It admits of no doubt that Renuka PW. 8 and her sister Saraswathi who belonged to Balagami village in Shiralkoppa Taluk Shimoga District without informing their parents, left their home some time prior to the date of the alleged occurrence and began to serve in the ''Khanavali'' belonging to Mahadevappa PW.1 which he was running in Murali Sugar Factory premises situate at a distance of about 5 miles from Gangavathi It is the case of the prosecution that on 11-12-1975 at about 10 a.m. both Renuka PW. 8 and her sister Saraswathi without informing Mahadevappa PW. 1 left his khanavali and while they were proceeding towards Gangavathi and when they had covered a distance of about two furlongs at about 1 p.m. the truck in question which belonged to Yemanappa PW. 2 and was driven by A2 and which was proceeding towards Haranahalli to Sriramanagar Camp was stopped by their side and A1 and A2 who were also in the truck made them by force to get into the truck with the intention that they might be forced or seduced to have illicit intercourse with them and from there they were taken up to a liquor shop in Harapanahalli and on the way they(A1 and A2) outraged their modesty. There is no dispute that the said truck belonged to PW. 2 and A2 was serving as a driver and A3 as a cleaner of that truck under him, and that on the date of the occurrence PW. 2 had instructed A2 & A3 to take the truck from Gangavathi for transporting liquor cans belonging to Ashok Sindne from Harapanahalli to Sriramanagar Camp. There is also no dispute that A1 was also accompanying A2 and A3 in the truck on that date from Gangavathi and that is what he has also stated in his written statement. Now, the question is whether the evidence of Renuka PW. 8 is clear and sufficient to sustain the charges under Secs. 366 r/w 34 and 354 of IPC. No doubt Renuka has stated in her evidence that while she and her sister Saraswathi were going towards Gangavathi and when they had covered a distance of about two furlongs from Murali Sugar Factory at about 1 p.m. on that day the truck in question driven by A2 along with the other two accused came and stopped near them and the accused then asked them to board the truck and on their refusal to do so the accused by force made them to get into the truck and on the way A1 outraged her modesty and A2 outraged the modesty of her sister Saraswathi by pressing their breasts though they resented and objected to the same. But, as mentioned earlier, Saraswathi is not examined. It is said that all efforts were made and even a non-bailable warrant was issued to secure her presence but since she was not traced the prosecution had to close its case without examining her. Be that as it may, the fact remains that the case solely rests on the evidence of Renuka PW. 8.

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In view of the conduct of PW. 8 Renuka and her sister Saraswathi prior and subsequent to date of the alleged occurrence, and in view of the above circumstances which the learned Sessions Judge has overlooked, the version put forward by the prosecution cannot be accepted as true. Therefore, the fact that Saraswathi was seen weeping on the road at Harapanahalli at about 11 p.m. on 11-12-1975 and Renuka PW. 8 was seen sitting in the cabin of the truck belonging to PW. 2, cannot be made much of, because, the prosecution evidence does not inspire confidence and does not render the defence version improbable. The evidence of PW. 8 Renuka Buffers from various infirmities which I have already adverted to, and it is hazardous to place implicit reliance pn her solitary testimony, and the learned Sessions Judge was not justified in acting on her testimony while convicting the accused for the said offences. Consequently, the convictions and sentences passed on the appellant-accused (A1) cannot be sustained and have to be set aside.

Now, the question is whether in the view I have taken the convictions and sentences passed on the other two accused viz A2 and A3 who have not appealed, have also to be set aside. The learned State Public Prosecutor, when this question was posed to him, submitted that even while dealing with a Criminal Appeal filed by only one of the convicted accused persons, if the Court finds that there is no evidence worth the name to sutain the convictions of not only the accused who has appealed but also the other accused who have not appealed, the Court can acting under Secs. 401 and 482 of the Code of Criminal Procedure, 1973 also set aside the convictions and sentences passed on the other accused who have not appealed. I think the learned State Public Prosecutor is right in making thi9 submission. No doubt, A2 and A3 could have filed appeals under sub-sec(2) of Sec. 374 CrlPC, and the provision contained in that subsection merely promulgates the rule that any person convicted on a trial held by a Sessions Judge or an Addl Sessions Judge may appeal to the High Court. But, the powers which are to be exercised by the High Court are not to be found in the staid sub-sec (2), and those powers are referred to in Sec. 386 CrlPC. The provisions of the CrlPC including those contained in sub-sec(2) of Sec. 374 do not contemplate to restrict the revisionary powers of High Court under Sec. 401 while dealing with criminal matters including an appeal under Sec. 374(2). Even if there be any doubt as to the jurisdiction to exercise the revisionary powers under Sec. 401, CrPC there cannot be any doubt that the High Court has inherent jurisdiction u/S. 482 CrPC to follow a procedure to secure the ends of justice. While considering the case of A1. I have come to the conclusion that the evidence on record was neither convincing nor sufficient to prove not only his guilt but the guilt of the other accused viz, A2 and A3. Therefore, it is not only in the exercise of the inherent power, but it is also the duty of this Court to exercise jurisdiction in such a manner that manifest injustice may not be continued to be perpetrated. Though A2 and A3 have not appealed against their convictions and sentences, the matter having come to the notice of this Court, this Court has sufficient jurisdiction under its inherent powers under Sec. 482 CrlPC to pass appropriate orders even in respect of A2 and A3.

The view I take gets support from the decision in Parbati Devi v. State, AIR. 1952 Cal. 835. In that case, two persons namely Parbhati Devi and Shew Nath Shaw were convicted under Sec. l20B r/w Sec. 366 of IPC. But, only Parbati Devi appealed against her conviction and sentence. A Bench of the Calcutta High Court consisting of R.P. Mookerjee and Lahiri., JJ came to the conclusion that there was absolutely no evidence to sustain the conviction of Parbati Devi or Shew Nath Shaw. Since Shew Nath Shaw had not appealed, the question that arose for consideration was whether the conviction and sentence passed on him could also be set aside even though he had not appealed. While dealing with that question, their Lordships said thus:

"It is sufficient for our present purpose if we come to the conclusion that under the specific provisions of the CrlPC, certain jurisdiction is given to the Bench dealing with criminal matters, and particularly when an appeal under Sec. 411A is being heard to exercise jurisdiction under the revisionary powers. There are certain anomalies no doubt, as have been pointed out by the learned Standing Counsel."

Even if there be any doubt about the extent of the jurisdiction of this Court under the revisionary powers, there is no doubt that under the inherent jurisdiction of the Court it has the power to pass a proper order when a manifest injustice is being done. Therefore, even if there had been any doubt as to the applicability of Sec. 435, CrlPC, we can have no doubt whatsoever that the Court has, in the absence of any direct provisions in the Code, the inherent power to adopt a procedure to secure the ends of justice. This inherent power had always been recognised even before the introduction of Sec. 561A CriPC. Sec. 561A merely gives recognition to the existence of the inherent power of the Court in criminal matters. Vide Pratul Chandra v. Commandant, Hiji Detention Camp (61 Cal. 197), Rogers v. Srinivas(42 BomLR. 478) and Emperor v. Nazir Ahmed(47 BomLR. 245).

When we were considering the appeal by Parvati Devi we came to the definite conclusion that there was no evidence in the record which would justify a conviction for conspiracy as between Parbati Devi and Shew Nath. It is not only in the exercise of the inherent power but we consider it to be the duty of the Court to exercise jurisdiction in such a manner that manifest injustice may not be continued to be perpetrated. It does not matter that Shew Nath has not appealed. This matter having come to the notice of the Court we think we have got sufficient jurisdiction under the inherent powers of the Court under S. 561A CrPC to pass appropriate orders in the case of Shew Nath also. For the reasons given above, we make this Rule absolute. We direct that Shew Nath Shaw be acquitted and set at liberty."

In Jalal v. Emperor, AIR. 1932 Lah. 615, Agha Haider,J while dealing with an appeal filed by one of the convicted persons, reduced the sentence passed on Barkat who had not appealed, and observed thus:

"Barkat has not appealed, but the record is before me, I reduce his sentence to 18 months RI as I consider it would meet the ends of justice. The conviction and sentence of Jalal and Bharkat in the connected cases are hereby set aside."

In the result, for the reasons stated above, the appeal is allowed, the convictions and sentences passed on not only A1 but also on A2 and A3 are set aside and they are acquitted of the said offences. The bail bonds of A1 shall stand cancelled, and as I am told that A2 & A3 are undergoing the term of imprisonment they are directed to be set at liberty forthwith.