- 1 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL NO. 985 OF 2013 (C) BETWEEN: IBJI @ IBRAHIM S/O ISMAIL AGED ABOUT 39 YEARS R/AT GANESH THOTA HOUSE ARKULA VILLAGE BANTWAL TALUK-574 211 …APPELLANT (BY SMT. POOJA KATTIMANI FOR SRI. R.B. DESHPANDE, ADVOCATES) AND: THE STATE OF KARNATAKA BANTWAL RURAL POLICE STATION BANTWAL, D.K.-574 211 …RESPONDENT (BY SRI. RAJATH SUBRAMANYAM, HCGP) THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED 28.09.2013 PASSED BY THE PRL. S.J., MANGALORE IN S.C.NO.128/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 447, 354, 504 AND 506 OF IPC. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SHAKAMBARI Location: High Court of Karnataka - 2 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 28th September 2020 passed in Sessions Case No.128/2012 by the Prl. Sessions Judge, D.K., Mangaluru. 2. The parties to this appeal are referred to as per their rank before the trial Court. 3. That the accused was charge sheeted by the Circle Inspector of Police, Bantwal Rural Police Station for the offences punishable under Sections 447, 304, 354, 307 and 506 of IPC based upon he complaint filed by the complainant-victim alleging that, on 03.06.2011 at about 5 p.m. that accused herein had committed criminal trespass into the courtyard of the complainant's mother Smt. Juliat Crasta's house, caught hold the complainant i.e., CW.1 and tried to outrage her modesty, abused her in filthy language, so also by brandishing MO No.1 Talwar - 3 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 towards her neck and attempted to commit her murder. Thus, the accused has committed the aforesaid offences. 4. The investigation officer, on receipt of the complaint registered the same and set the criminal law in motion. After completion of investigation, filed charge sheet against the accused for the aforesaid offences. 5. The learned trial Court, on hearing both the side, framed charges against the accused for the offence under Sections 447, 354, 504, 307 and 506 of IPC for which, the accused pleaded not guilty and claimed to be tried. 6. To prove the guilt of the accused, prosecution in all examined eight witnesses as PWs. 1 to 8 and got marked Exs.P1 to 5 with respective signatures and also MO No.1 Talwar and closed prosecution evidence. 7. On closure of the prosecution evidence, accused was questioned under Section 313 of Cr.PC so as to enable him to answer the incriminating circumstances - 4 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence on his behalf. 8. Learned trial Court, on hearing the arguments on both side, convicted the accused for the offences under Sections 443, 354, 504 and 506 of IPC and acquitted the accused for the offence under Section 307 of IPC and passed an order of sentence as under: "The accused Ibji @ Ibrahim who is found guilty and convicted for offence punishable under section 354 of Indian Penal Code, is sentenced to undergo rigorous imprisonment for two years. The accused is sentenced to pay fine of Rs.500/-, in default, to undergo imprisonment for fifteen days for the offence punishable under section 447 of Indian Penal code. The accused who is found guilty and convicted for offence punishable under section 504 Indian Penal code, is sentenced to undergo rigorous imprisonment for two years. The accused who is found guilty and convicted for offence punishable under section 506 Indian Penal code, is sentenced to undergo rigorous imprisonment for two years. - 5 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 The period of detention, if any, undergone by the accused be given set off against the imprisonment now imposed on him, as per section 428 of Code of Criminal Procedure. The substantive sentences imposed for offences punishable under sections 354, 504 and 506 of Indian Penal Code shall run concurrently." 9. Now the appellant-accused is before this Court challenging the said judgment of conviction and order of sentence. 10. Learned counsel for the appellant Smt.Pooja Kattimani appearing for Sri R.B.Deshpande, counsel on record would submits that, the conviction and sentence so passed by the trial Court is contrary to law and evidence. She would further submit that, there is no proper appreciation of evidence by the trial Court. The so called victim-complainant is not examined in this case. It is fatal to the case of the prosecution. She would further submit that, PWs. 1 to 3 are the interested witnesses and their evidence is not corroborated by any independent evidence. She would submit, even then the trial Court ventured to rely upon their evidence when the evidence of PWs. 1 to 3 - 6 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 is full of material contradictions, omissions and infirmities. She would submit that, there is delay in filing the complaint. Further there is no medical evidence to corroborate the prosecution witnesses. Thus, pointing out contradictions, omissions in the cross-examination, so also the findings of the trial Court, she would submit that, in view of grounds urged in the appeal memo, accused is entitled for acquittal. She prays to allow the appeal and set aside the impugned judgment. 11. On the contrary, learned HCGP Sri Rajath Subramanya with all vehemence submits that, learned trial Court, believing the evidence of PWs. 1 to 3 who were the eye witnesses to the said incident has rightly come to the conclusion that, it is accused who has committed aforesaid offences. He fairly submits, being aggrieved of the acquittal of the accused for the offence under Section 307 of IPC, no appeal is preferred by the State. He would further submit that the evidence of PWs.1 to 3 do not inspire any confidence in the mind of the Court and non- - 7 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 examination of victim-complainant is not fatal to the case of the prosecution. PW.1 is the mother of the victim, PW.2 is the brother of the victim and PW.3 is an eye witness to the incident. He would submit that, evidence of these witnesses is sufficient to believe the story of the prosecution. Rightly the learned trial Court believed and convicted and sentenced the accused. He would submit that, no interference is called for in this appeal so as to set aside the impugned judgment. 12. I have given my anxious consideration to the arguments of both side and perused the record. In view of rival submission of both the side, the points that would arise for consideration are: "i. Whether the trial Court has committed any legal and factual error in convicting the accused? ii. If so, whether judgment of conviction and order of sentence require interference?" - 8 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 Point Nos. 1 and 2 are discussed together: 13. It is the specific case of the prosecution that, on 3.6.2011 at 5.00 p.m. at Shivajinagar, Meramajalu village, within the limits of Bantwal Police Station, the accused herein trespassed into the house of complainant's mother with an intention to outrage the modesty of the complainant by holding talwar in his hand and intentionally insulted the complainant in filthy language by abusing her in filthy language and gave a provocation to her so as to break the public peace and tried to outrage her modesty by brandishing the talwar MO No.1, attempted to murder her, so also he made her to fall. In a case of present nature, when a specific allegation is made by the prosecution with regard to the outraging the modesty of a women, the victim is the important witness to be examined by the prosecution. The reason assigned by the prosecution is that, as she is residing in Dubai therefore, she is not summoned as she is unable to attend the Court. In view of advancement of technology, attempts would - 9 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 have been made by the prosecution to examine her at least through video conference. A request to that effect would have been made by the prosecution. Thus, non- examination of complainant-victim is fatal to the case of the prosecution. 14. PW.1 Juliat Chrasta is the mother of victim and PW.2 is the brother of the victim. As per the evidence of PW.1 when the so called incident took place, her daughter- victim was in the courtyard and she was removing the clothes which were kept for drying. It is her evidence that, accused always used to seek sexual favour from the victim-girl and used to force her. This fact was informed by her daughter to her. Even a police complaint was lodged against him and police arrested him and thereafter he was enlarged on bail. It is her further evidence that, on the date of incident at about 5.00 p.m. when her daughter was in the courtyard, at that time, accused committed trespass into the courtyard along with MO No.1 Talwar and tried to hit the said Talwar on her neck. She escaped and the said - 10 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 Talwar dashed to the wall and the cement piece cut and fell down. At that time, herself and her son PW.2 were in the court yard. Herself and her son Melvin snatched the said Talwar from the hands of accused. Accused abused them in filthy language and gave life threat. She identified MO No.1 as the Talwar alleged to have been brought by the accused. 15. This PW.1 has been cross-examined by the defence. It is elicited in the cross-examination that, she does not know whether police have enquired or not. According to her, when her daughter was in the village, she used to do all household work. Bennet Feriar is running a shop. Her daughter had told about galata made by the accused with her. According to her, she came to the police station to lodge a complaint along with daughter. She states that, when the incident took place, it was raining. Her daughter was removing the clothes. At that time, she was quite away from her daughter. Even her son was also there. There was a conversation in between her daughter - 11 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 and the accused. She bombarded. On hearing the same one Padmavathi PW.3 came to rescue. When she snatched Talawar MO No.1 from accused, she did not sustain any injuries. 16. She denied about filing of false complaint against accused. She is specific in her examination-in-chief that, the cement piece fell down from the wall but, police have not seized the cement piece. Her evidence shows that, she was quite away from victim at that time. She abused the accused. But, no such recital is found in the complaint. A perusal of the evidence of PW.1, the mother of the victim, we find that, material contradictions are elicited in the cross-examination. If such material contradictions are there, it requires corroboration. 17. PW.2 Melwyn Sequiera is none else than the brother of complainant. He says accused used to go to the house of her sister and used to take meals there. It is further stated that, when accused forced sexual favour from victim and started harassing the victim, it was made - 12 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 known to husband of the victim. Though there was advise to the accused, even then, accused did not stop the same. This fact was informed to him by the victim. But, to that effect, a complaint was lodged against accused by the victim and he accompanied his sister to the police station. It is further stated by him that, about two years back prior to filing of the complaint, one day, at 5.00 p.m. when his sister was removing the clothes from the courtyard, at that time, accused came there along with MO No.1 and told that why she has lodged a complaint against him and by saying so, accused brandished MO No.1 on victim. The victim CW.1 escaped herself and the said MO No.1 dashed to the wall. The cement piece fell down. He too speaks about falling down of the cement piece. He says, accused was holding the hands of victim. On hearing bombardment, he came out. He states that, when the said incident took place, his mother and himself were very much there in the courtyard. But, PW.1's evidence is otherwise. He came to the spot only after hearing the galata. According to him, his mother was in the courtyard. - 13 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 He says after he coming out from the house, himself, his daughter snatched MO No.1 from the hands of accused. At that time, accused abused his sister and gave life threat to her. Thereafter, he went to police station to lodge complaint. Thus, in his examination-in-chief, he has spoken so much improved evidence as that of PW.1. 18. In the cross-examination, he states that, when the said incident took place, neighbour Padmavathi was very much there. He further states when accused brandished MO No.1 Talwar, it dashed near the window of their house. This fact of incident was informed by him to the husband of CW.1. According to him, on the following day of the incident, they lodged a complaint. There is delay in filing the complaint and there is no explanation offered by the complainant as to why there was delay in filing the complaint. 19. If the evidence of PW.1 is compared with the evidence of PW.2, we find so much of improvement and it is full of contradictions and omissions. - 14 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 20. PW.3 Padmavathi is stated to be an eye witness to the incident. According to her, 2 years back prior to giving of her evidence, at about 5.00 p.m, she was standing in Anganawadi Centre as it was raining at that time. She saw accused moving to the house of complainant along with MO No.1 Talwar. She also went towards house of PW.1. When CW.1 was removing the clothes from the court yard, at that time, accused caught hold of her hands. The said MO No.1 was about to hit on the neck of CW.1. At that time, PW.1 and 2 came and saved CW.1, PW.2 snatched MO No.1 from accused. Thereafter, accused went away. 21. Thus, in the examination-in-chief itself, she has given a different version from that of the evidence of PWs.1 and 2. PW.1 never says that, accused abused C.W1 in filthy language and gave life threat. PW.3 an eye witness never says about abusing of CW.1 by the accused and also giving life threat. According to the defence of accused PW.3 has given evidence on behalf of PW.1 in - 15 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 criminal Court. She further states that, she has seen the accused and his house was quite near to her house. She further states, CW.1 has told her about sexual harassment was attempted by the accused, two years back itself.. She does not know about handing over of MO No.1 to the police etc. Thus, if the evidence of PWs.1 to 3 is perused, we find material contradictions, omissions, discrepancies and full of embellishment. So also, we find exaggeration in the evidence of PWs.1 to 3. This fact is not properly appreciated by the trial Court. 22. PW.4 Neelayya Poojari is pancha to Ex.P1. He states that, at the instance of police, he signed Ex.P1. He does not know the contents of Ex.P1. He put his signature at the instance of the police. In all criminal cases, panchas are authors of the panchanama. When he has singed Ex.P1 as per the say of police, his evidence gives room to suspect his presence at the time of preparing Ex.P1 panchanama. Thus, much value cannot be given to his - 16 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 evidence. Therefore, evidence of PW.4 becomes inconsequence to the case of the prosecution. 23. PW.5 V.Bhaskar is the Head Constable at the relevant time and on receipt of the complaint on 04.06.2011 at about 12 noon, he registered the crime in Crime No.127/2011. So called incident has taken place on 03.06.2011 at 5 p.m and a complaint was lodged at 12 noon on 04.06.2011. There is delay but, there is no explanation offered either by the complainant or by PWs.2 and 3, for this delay. This unexplained delay is fatal to the case of the prosecution. It is the defence version that, because of false animosity, a false complaint might have been filed. This possibility cannot be ruled out, in view of the evidence spoken to by PWs.1 to 3. 24. PW6, Rajesh Centring Worker a pancha to Ex.P1 and has been turned hostile. Therefore, his evidence would not help the case of the prosecution. 25. PW7, Rashmi Kille is the PDO of Meramajal village. She says that she was working as PDO for the last - 17 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 21/2 years and has furnished the details of the house of PW.1 at Meramajal, Shivajinagar and furnished Ex.P4 copy of letter issued by PDO. To the extent of issuing Ex.P4, her evidence is to be accepted. 26. PW8, Mohammed Raffiq, is the Investigation Officer. According to him, on registering the crime, he went to the scene of offence, conducted the panchanama. He prepared the sketch as per Ex.P5 and prepared Mahazar as per Ex.P1, seized MO No.1. As per the evidence of PWs.1 and 3 accused took away the said MO No.1. From where and from whom MO No.1 was seized is not properly explained by this PW.8. The evidence of the IO can be accepted to the extent of investigation. His evidence is not corroborative in nature with that of the evidence of other witnesses. The Investigation Officers are the supervisor of the investigation. In the absence of corroborative evidence, the evidence of IO becomes formal in nature. - 18 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 27. In all criminal cases, where the victims are the injured and are not examined, as stated supra, it is fatal to the case of prosecution. Because in a case of present nature, the evidence of the victim plays an important role. She is the best person to speak about the incident. PWs.2 and 3 though say that, they were very much present, but, PW.2 says that, herself and PW.3 were in the house, when the said incident take place. PW.3 says that, he was inside the house and on hearing galata sound, he came out. Though the said MO No.1 dashed to the wall of the house of PW.2, cement is fell down, but it is not seized by the police. Prosecution has to prove that, really there was hitting of the said MO No.1 on the wall of the PW.2's house. It is fatal to the case of prosecution. The learned Trial Court has not properly appreciated the evidence placed on record. Because of so many contradictions in the evidence about making allegations against the accused, that he is harassing her and seeking sexual favours etc., unless the said ingredients of offence are proved against the accused, it cannot be said that, the - 19 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 prosecution is able to establish the guilt of the accused beyond all reasonable doubts. Though the learned trial Court referred to certain portions of the evidence placed on record by the prosecution, but, contradictions pointed out above were not appreciated. If all these factual features are put together, none of the ingredients alleged against the accused are fulfilled by the prosecution with legal and acceptable evidence. Therefore, as rightly submitted by the counsel for the appellant / accused, there arises doubt in the case of prosecution. Therefore, accused is entitled for acquittal by giving benefit of doubt. The impugned judgment so passed by the trial Court needs interference and it is liable to be set aside. 28. Resultantly, I pass the following: ORDER (i) Criminal Appeal is allowed. (ii) Judgment of Conviction and Order of Sentence dated 28.09.2013 passed in Sessions Case No.128/2012 by the Principal Sessions Judge, Dakshina Kannada, - 20 - NC: 2025:KHC:10483 CRL.A No. 985 of 2013 Mangaluru is hereby set aside. Consequentially, accused is acquitted of the charges under Sections 354, 447, 504 and 506 of IPC. (iii) His bail bonds stand cancelled and is set at liberty. (iv) Fine amount if paid by the accused be refunded to him digitally. (v) Send the operative portion of the Judgment to the trial Court for needful. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK, List No.: 1 Sl No.: 35