Madeppa vs The State

A.V. Chandrashekara, J—The present appeal filed under Section 374 of Cr.P.C. is directed against the judgment of conviction and sentence passed in Spl. Case No. 107/2009, which was pending on the file of the Court of II Addl. Sessions Judge, Gulbarga. The appellant has been convicted for the offences punishable under Section 354 of IPC and Section 3(1)(x)(xi) of Schedule Caste and Scheduled Tribes (POA) Act, 1989 and has been sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 2,000/- relating to offence punishable under Section 354 of IPC and to undergo six months imprisonment and to pay fine of Rs. 3,000/- in respect of offence punishable under Section 3(1)(x)(xi) of Schedule Caste and Scheduled Tribes (POA) Act, 1989. Several grounds have been urged in the appeal memo filed on behalf of the appellant who was the only accused in the Special Case No. 107/2009.

The facts leading to the registration of the case and consequential conviction are as follows;

Appellant is a permanent resident of village named Akhandahalli Village in Jewargi Taluk of Gulbarga District. He was stated to be looking after the land of one Shankaragouda situated in Akhanda Village within the purview of Yadrami police station, Tq. Jewargi. C.W. 4/Boramma a girl aged about 16 years and a member of Scheduled Caste had gone to the land of Shankaragouda to answer the nature call at about 5.15 p.m. on the evening of 08.04.2009. At that time, this appellant/accused is stated to have caught hold of C.W. 4, gagged her mouth and pulled her and made an attempt to outrage her modesty. On seeing C.Ws. 5 and 6 i.e. her maternal grand mother and aunt coming towards her, accused is stated to have run away from that place. It is alleged that when he had caught hold of C.W. 4, accused had threatened her with dire consequences abusing her with reference to her caste. The case of the prosecution is that C.W. 4 to 6 are the members belonging to the Scheduled Caste and since C.W. 4 was abused with reference to her caste, the offence is punishable under 3(1)(x)(xi) of Schedule Caste and Scheduled Tribes (POA) Act, 1989.

C.W. 4 to 6 came back to their house and were afraid of the accused and were in a great shock. Later on C.W. 4, 5 and 6 met a person by name Gollalappa of Yadrami village who took them to police station and lodge the first information at about 7.00 p.m. on 10.04.2009, on the basis of which a case came to be registered in Crime. No. 45/2009 for the offence punishable under Sections 354 of IPC and under Section 3(1)(x)(xi) of Schedule Caste and Scheduled Tribes (POA) Act, 1989.

The case was registered by the PSI Yadrami police station and matter was handed over to the Deputy Superintendent of Police Gulbarga, Rural Sub-Division and he conducted further investigation and chose to file a charge sheet after collecting the certificate from Tahsildar Jewargi regarding age of the accused and complainant belongs.

In order to bring home the guilt of the accused the prosecution has got examined in all 7 witnesses and has got marked 5 exhibits. The accused has been examined under Section 313 of Cr.P.C. One person by name Adiveppa Gouda has been examined as D.W. 1 in support of the accused. The defence taken on behalf of the accused is one of total denial of the allegation leveled against him. Mr. Adiveppa Gouda is examined as D.W. 1 to probabalize that accused had told the members of the family of C.W. 4 not to enter the land of Shankaragouda for attending to nature call and in spite of this, they were coming there and because of this a false case has been registered against him.

Charges had been framed against the accused for the offence punishable under Section 354 and 507 of IPC and Section 3(1)(x) and 3(1)(xi) of SC/ST (POA) Act, 1989 on 17.08.2009. Accused had pleaded not guilty and claimed to be tried.

P.W. 1 is Ambawwa grand, mother of C.W. 4/Boramma and she stated to be an eyewitness. P.W. 2 Rajashekahar is a witness to Ex. P2 the spot mahazar and he has supported the case of the prosecution. P.W. 3 is the victim girl Boramma the grand daughter of P.W. 1. P.W. 4 Radha is the wife of maternal uncle of P.W. 3 and daughter in law of P.W. 1. She stated to be an eyewitness to the incident in question. P.W. 5/Gollalappa a resident of Yadrami village is the person who took P.Ws. 1 and 3 to Yadrami police station and helped to lodge the first information. P.W. 6 is Basavantappa the then Deputy Superintendent of Police of Gulbarga Rural Sub-Division and it was who conducted the investigation after registration of the case. P.W. 7 Shivappa is the police officer who registered the first information report on the basis of the first information lodged by P.W. 1.

Ex. P1 is complaint and Ex. P2 is the spot panchanama drawn by the police on 11.04.2009. Ex. P3 is the report submitted by PSI Yadrami police station to the Deputy Superintendent of Police producing the accused after apprehending him. Ex. P4 is the caste certificate issued by the Tahsildar Jewargi relating to the caste of P.W. 1 and 3 and accused. Ex. P5 is first information report prepared on the basis of the Ex. P1 and lodged before the jurisdictional Court on 11.04.2009 at 9.50 a.m.

Learned counsel for the appellant has vehemently argued that there was inordinate delay in lodging the first information before the police and this has weakened the substratum of the prosecution case. It is further argued that there was inordinate delay in lodging the F.I.R. by the police with the jurisdictional Judge and these aspects have been likely ignored by the trial Court. It is further argued that the evidence of defence witness has not been properly analyzed in right perspective and that the inconsistencies found in the case of the prosecution have been ignored. It is argued that serious omissions amounting to contradictions have been ignored by the trial Court. It is further argued that P.Ws. 1 to 3 and 4 are entrusted witnesses and their evidence has not been cautiously evaluated by the learned Judge. It is argued that the judgment of conviction and sentence is opposed to law, facts and probabilities.

Per contra learned counsel Government Pleader has supported the judgment of conviction and sentence on the ground that there is material corroboration in the evidence of material witnesses and that there is no reason to disbelieve the version of the material witnesses. It is argued that delay in lodging the F.I.R. has been suitably explained and it is properly considered by the trial Court.

Learned Judge has convicted the accused for offence punishable under Section 354 of IPC and Section 3(1)(x) of Schedule Caste and Scheduled Tribes (POA) Act, 1989. Reliance is placed upon the deposition of P.W. 3/Boramma a girl who was aged about 16 years as on the date of the incident. P.W. 1 is her maternal grandmother. P.W. 4 is her aunt being the wife of her maternal uncle. P.Ws. 1, 3 and 4 were living together in a house at Akhanadhalli village and they are the persons belonging to the Schedule Caste. This aspect is not seriously disputed. Documentary evidence is placed on record by the prosecution in support of the same. Ex. P4 is the certificate issued by the jurisdictional Tahsildar Jewargi on 29.04.2009 certifying that P.W. 1/Smt. Ambawwa and P.W. 3/Kumari Boramma residents of Akhandahalli Village are members of the Scheduled Caste being Holaya. Accused is the person belonging to Kuruba community, he does not belong to Scheduled Caste or Scheduled Tribe.

Admittedly, the house in which Ambawwa and her daughter-in-law and grand daughter are living does not have lavatory. Hence, they were usually going to attend nature call to the land of Shanakargouda, which is at a distance of about 200 Mts. from their house. On the evening of 08.04.2009 at about 5.00 p.m., P.W. 3/Boramma went near the land of Shankaragouda to attend nature call holding a tumbler containing water and at about 5.15 p.m., accused came there and caught hold of her and closed her mouth forcibly. When she tried to resist his attempt, he is stated to have abused her with reference to her caste as "Hole Randi" and further attempted to outrage her modesty. On seeing P.Ws. 1 and 4 coming near her, he ran away from the spot. This is found in Ex. P1 the first information lodged by Ambawwa/P.W. 1 with the help of Gollalappa/P.W. 5 a resident of Yadrami Village.

The learned Judge of the trial Court has evaluated the oral evidence of P.W. 3/Boramma and has come to the conclusion that there is no reason to disbelieve her version, which is corroborated in Ex. P1 as well as in the oral evidence of P.Ws. 1 and 4. P.W. 3 has deposed that at about 5.00 p.m. on 08.04.2009, she had been to the land of Shankaragouda to answer nature call and had sat behind Jali plants and at that time, accused came there and held her hands and closed her mouth and somehow attempted to escape from his clutches. At that time, he threatened her with dire consequences with reference to her caste. He is stated to have threatened in Kannada, the translation of which is as follows;

"O Holaya prostitute if you tell this to Your family members, I will take your life"

By that time her grandmother and aunt came there and on coming to know of their arrival near the place, accused ran away from the spot. Then she, went back to home along with her grandmother and aunt weeping and she was in house for almost two days being very much depressed about the incident. Then she went to the house of Gollalappa in Yadrami village along with her grandmother and complaint was got drafted by him and given to the police. She has further deposed that, as a result of the said incident she was very much humiliated and she did not like to show her face to anybody and being afraid of the incident she left Akhandahalli village and went to Rayabag.

She has been cross-examined at length by the learned counsel for the accused. She has deposed that she was studying in school while residing in her grandmother''s house and that she was going to school along with four girl students of the same village. She has feigned ignorance about the suggestion put her that accused was looking after the land of Shankaragouda. She has deposed that the ladies and girls of the said village go to answer nature call to the land of Shankaragouda. She has further deposed that when accused held her forcibly and closed her mouth and abused with reference to her caste, nobody was there. She has feigned ignorance about the approximate distance between place of incident and her house.

Sri Gollalappa is a person belonging to Scheduled Caste but he is not related to her. It is her case that she was in police station along with her grand mother and Gollalappa four about one hour.

To a specific question put to her as to whether she did not feel lodging complaint to the police on the same day, she has answered that she intended to lodge the complaint but she was unwell because of fever and cold and therefore they did not come to the police station. In her further cross-examination she has deposed about giving statement to the police with regard to accused abusing her as "Holaya prostitute" the suggestion put her that she did not tell the police about the same has been specifically denied. What is suggested to her that accused had told the ladies of the said village, not to come near the land of Shankaragouda to attend to nature call and in spite of the same they were coming there and being unhappy with the words of accused, a false case has been specifically denied.

On going through the entire evidence of P.W. 3 it is certain that nothing useful has been elicited from his mouth to discredit her deposition or to doubt her credibility.

Admittedly, neither P.W. 3 nor her family members had any ill-will against the accused. Nothing is placed on record by the accused to show that he had permitted by Shankaragouda to cultivate his land and therefore he had authority to tell the ladies of the village not to come near the land for attending nature call.

Accused has examined one witness by name Adiveppa aged about 21 years on his behalf. The said D.W. 1 has deposed that Shanakaragouda is uncle and Shankaragouda''s land is adjacent to his land and that accused was cultivating the land of Shanakaragouda for more than two years and that the lady members of the Akhandahalli village would go to the land of Shankaragouda for attending nature call. He has deposed that after taking over land from Shankaragouda, accused was not permitting the lady members of the village for attending nature call in his land and that there is a trash yard in the land of Shankaragouda cultivated by the accused.

During the course of cross-examination D.W. 1 has admitted that normally ladies in the village would go to attend nature call in an open space. The best person would have been Shankaragouda to speak about the same and he is not examined. The evidence of D.W. 1 is not at all helpful to the accused to probabalize the defence taken on his behalf. Therefore, the learned Judge has not given much importance to the evidence of D.W. 1 after assessing the same in right perspective.

Corroboration is only a rule of prudence and not a rule of evidence. There is no legal inhibition in a criminal case to convict the accused on the basis of uncorroborated version of a solitary eyewitness provided it inspires confidence in the mind of the Court. In the present case the prosecution has examined P.Ws. 1 and 4 to corroborate the version of P.W. 3.

Ambawa examined as P.W. 1 is the grand mother of P.W. 3 and mother-in-law of P.W. 4 and they were residing in the same house. Her son Shiva was working in Goa and therefore she was living with her grand daughter and daughter-in-law. Mother of P.W. 3 was working in Bombay to eke her livelihood and there were no male members in her family. She has deposed that her grand daughter went out of the house to attend at about 5.00 p.m. one day. She went near the land of Shankaragouda and after few minutes herself and daughter-in-law also went near the land and saw accused holding the hands of P.W. 3 and threatening her with caste. She has specifically deposed that accused threatened her by using vulgar words and the English translation by Kananda is as follows;

"O Holaya prostitute, if you resist I will finish you"

When he saw P.W. 1 and P.W. 4 coming there he ran away from the place and all of them returned to the house being very much upset with the incident. All of them very much worried and therefore did not move from the house for almost two days and then went to house of Gollalappa with Boramma and disclosed to him as to what happened. Then Gollalappa wrote a complaint and she lodged the complaint to the police and it is marked as Ex. P1.

The first information can be used either for corroboration or for contradiction, the contents of Ex. P1 have been corroborated in her examination in chief. She has further deposed that police came to the spot and drew up a mahazar and it was of the place was shown by herself and Boramma. It is her case that accused knew that they were the members of Scheduled Caste. She has further deposed that she was very much afraid because she was a widow and they had been humiliated because of this incident. She has further deposed that she was very much worried since she was a school going student.

During the course of her cross-examination she has specifically deposed that there are three house in between the house and that of the accused. She has feigned feeling ignorance about the suggestion put to her that he was looking after the land of Shanakaragouda. On the other hand she has deposed that all the ladies in the village go near the land of Shankaragouda for attending nature call and Shankaragouda had ear marked that space for the use of the ladies in the village.

Of course the accused was not coming to her house at any point of time and she was also not going to his house. She has admitted that there is a trash yard in the land of Shankaragouda and Jawar crop had been stored there. The suggestion put to her that accused had told her 4-5 times not to enter his land has been specifically denied suggestion put her that neither herself nor her daughter-in-law had gone near the land of Shankaragouda on that evening has been specifically denied.

We have the evidence of Radha examined as P.W. 4 she is wife of the maternal uncle of P.W. 3/Boramma. She has specifically deposed that on 08.04.2009. at about 5.00 p.m. P.W. 3 went near the land of Shankaragouda to attend to nature call, within 2-3 minutes herself and her mother in-law also went near the land to attend to nature call. There she saw accused holding the hand of P.W. 3/Boramma and abusing her with reference to her caste and threatening her with dire consequences. On seeing her and her mother in law he run away from the place is the version. She has specifically deposed that because of this incident herself and her mother-in-law and the victim were very much humiliated and they were under stress. She has further deposed that on 10.04.2009 her mother-in-law and Boramma went to Yadrami and met Gollalappa who helped them in filing the complaint.

She has been cross-examined by the learned counsel for the accused, it is her case that except herself, her mother-in-law and Boramma there was no other person in the seen of occurrence. It is her case, suggestion put to her that the ladies in the village had been specifically not to come near Shankaragouda land to attend to nature call and because of this a false case has been lodged against him has specifically denied. On going through the entire evidence of P.W. 4/Radha nothing useful has been elicited from her mouth to discredit. It has inspired confidence in the mind of the trial Court as also this Court.

First information lodged by P.W. 1/Ambawwa is marked as Ex. P1 and has already discussed, it can be used either for the purpose of corroboration or for contradiction. She has specifically deposed that she went to the house of Gollalappa of Yadrmai village and took his assistance in filing the complaint, Gollalappa is also a member belonging to the Scheduled Caste but not related to either P.W. 3 or P.W. 4 in any manner. Of course he was the coordinator of Dalita Sangharsha Samithi at Yadrami. He has specifically deposed that he would help the members of his community if they are not able to lodge the complaints. It is his case that he went along with Ambawwa and Boramma and he had prepared a complaint on the say of Ambawwa and she lodged the same before the SHO and she gave it to the police Suggestion put to him that a false complaint was prepared by him has been specifically denied. Nothing has been elicited from his mouth that he was inimical towards the accused at any point of time. The evidence of Gollalappa examined as P.W. 5 is not corroboration of the evidence of P.Ws. 1, 3 and 4.

Then the question that arise for consideration that about the delay in lodging the first information report normally first information should be lodged at the earliest and the first information report that would be prepared by the police must also be lodged with the jurisdictional lodged at the earliest. Unexplained delay would weaken the substratum of the prosecution case. In the present case P.Ws. 1, 3 and 4 have consistently held that because of the incident that happened in the land of Shankaragouda, they felt humiliated and had lot of apprehension to their safety, being the members of Scheduled Caste. P.W. 3/Boramma has deposed that, she had fever because of this incident and even left the village being afraid of her safety in Akhandahalli village at future. This aspect, the matter has been considered at length by the learned Judge of the trial Court. The dignity and honor of an unmarried girl was at stake and no girl would go to police unnecessarily alleging that some act was committed by a person, which resulted in causing dishonor to her, one cannot forget that victim girl had lot her father and mother was working hence depending only on her grandmother and uncle''s wife. There were no male members in their family therefore P.Ws. 1 and 4 were really worried about the dignity and the honor of their family in order to protect Boramma. In fact, the delay has been suitably explained by all these persons, there is an explanation about the delay in Ex. P1. It is mentioned that P.W. 3 was pacified by P.W. 1 and since there was no male members in the family, she had consulted the members of her community and later on gave a complaint. Taking into consideration the circumstance in which the alleged offence was committed on a young girl of 16 years by a grownup boy of 21 years, the delay is deemed to have properly explained.

So far as the version of the evidence of P.Ws. 1, 3 and 4 is concerned the learned Judge has properly evaluated the evidence with caution relying upon a decision reported in 2007 Criminal Law Journal 2736 (SC). The learned Judge has held that just because P.Ws. 1, 3 and 4 nothing was relied, their evidence cannot be rejected out rate. It is further held that no foundation has been laid to probabalize plea of false amplification. It is further held that normally the relatives would not conceal the actual culprit and make allegations against the innocent person, relationship is not a fact to affect the credibility of a witness.

The learned Judge has held that all the ingredients of Section 354 of IPC fit into the facts of the case and hence he has convicted the accused for the offence punishable under Section 354 of IPC and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is nothing but extension of Section 354 of IPC. If the modesty of a lady belonging to SC/ST is outraged the offence punishable under Section 3(1)(xi) would be attracted.

In the present case the accused is a Kuruba by caste and P.Ws. 1, 3 and 4 are Holaya by caste and the said accused case within the purview of Scheduled Caste. Ex. P4 is a document issued to that effect by the Tahsildar Jewargi. The learned Judge has come to the conclusion that though she was abused with reference to her caste it was not in the public view and therefore accused has not been convicted for the offence punishable under Section 3(1)(x) of Schedule Caste and Scheduled Tribes (POA) Act, 1989.

Though conviction is maintainable for the offence punishable under Section 354 of IPC as well as Section 3(1)(xi) of Scheduled Caste and Scheduled Tribes (POA) Act, 1989, it would not be appropriate to sentence on both the grounds since the offence punishable under Section 3(1)(xi) would cover the offence punishable under Section 354 of IPC.

P.W. 2/Rajashekhar is the attestor to the mahazar drawn at the scene of occurrence. He is resident of Yadrami village and has identified the land of Shanakargouda and the existence of Jali trees. Suggestion put to him that he is also a member belonging to Scheduled Caste and therefore he is deposing falsely, has been specifically denied. Ex. P2 has been duly proved.

It was P.W. 6 Deputy Superintendent of Police who conducted the investigation after the case was registered. It was in his presence Ex. P2 was drawn. He has deposed about the recording of statement of Boramma, Radha and Gollalappa, further statement of the victim. It was he who secured caste certificate from the Taluka office marked as Ex. P4 In his cross examination he has specifically deposed that if one were to scream in the land of Shankaragouda it would not be audible to the village because of the existence of Jali trees in between the village and this land. No useful omissions have been elicited from the mouth of material witnesses and no contradictions have been got marked in order to confront the same to the investigating officer.

Mr. Shivappa who was the PSI of Yadrami village has deposed about the receipt of Ex. P1 and registration of the case and submitting the report to the jurisdictional Judge. Suggestion put to him that nobody had accompanied Ambawwa and a false case has been registered against him has been specifically denied.

The learned Judge has navigated through the entire oral and documentary evidence properly. The evidence has been appreciated on the touchstone of preponderance of probabilities keeping in mind the trustworthiness of the witnesses examined on behalf of the prosecution. The judgment of the trial Court is neither based of surmises nor conjectures. The learned Judge has adopted right approach to the real state of affairs. The trim Court has given valid and cogent reasons as to why the version of material witnesses i.e. P.Ws. 1, 3 and 4 inspire the confidence of the Court. Thus the learned Judge is justified in convicting the accused for the offence punishable under Section 354 of IPC and Section 3(1)(xi) of Scheduled Caste/Scheduled Tribes (POA) Act, 1989.

The learned Judge has sentenced the appellant to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 2,000/- for the offence punishable under Section 354 of IPC. As already discussed all the ingredients of Section 354 of IPC are found in Section 3(1)(xi) of Scheduled Caste/Scheduled Tribes (POA) Act, 1989. The minimum sentence of imprisonment contemplated for this offence is six months. The learned Judge has directed the accused/appellant to undergo six months imprisonment and also to pay a fine of Rs. 3,000/- in regard to the offence punishable under Section 3(1)(xi) of Scheduled Caste/Scheduled Tribes (POA) Act, 1989.

Though the learned Judge is justified in convicting for both the accused, it would not be proper to sentence the accused on both these grounds since all the ingredients of offence punishable under Section 354 of IPC are forthcoming in the offence punishable under Section 3(1)(xi) of Scheduled Caste/Scheduled Tribes (POA) Act, 1989. Therefore, the sentence of imprisonment and fine imposed on the accused for the offence punishable under Section 3(1)(xi) of Scheduled Caste/Scheduled Tribes (POA) Act, 1989 will have to be confirmed by setting aside the sentence of fine and imprisonment in so far as offence punishable under Section 354 of IPC is concerned.

The appeal is allowed in part confirming the sentence of imprisonment and sentence passed for the offence punishable under Section 3(1)(xi) of Scheduled Caste/Scheduled Tribes (POA) Act, 1989. The sentence of imprisonment and to pay a fine for the offence punishable under Section 354 of IPC is set aside.

The entire amount of fine of Rs. 3,000/- imposed for the offence punishable under Section 3(1)(xi) of Scheduled Caste/Scheduled Tribes (POA) Act, 1989, is to be given to P.W. 3/victim girl after proper verification and identification.

If the period of detention already undergone by the accused to be given set off as per 428 or Cr.P.C.

The appellant shall surrender before the Special Court on or before 20.08.2015 to serve the sentence lest the Court to secure him by taking coercive steps.

A copy of this judgment shall be supplied to the appellant/accused free of cost.