IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH T DHARWAD DATED THIS THE Q5TH DAY OF APRIL 2011 PRESENT THE HON’BLE MR. JUSTICE SUBHASH B. ADI AND THE HON’BLE MR. JUSTICE N. ANANDA CRIMINAL APPEAL No.639/2006 BETWEEN: State by Yellapur Police Station. .Appeliant (By Shri,Bahubali A. Danawade, HCGP) AND: 1. Vithal Shivaram Gaonkar, Aged 38 years, Merchant, Shevkar, Ankola Taluka. 2. Mahabaleshwar, S/o. Subrav Hebbar, Age 36 years. Ryot, R/o, Alawad Village, Umbalesar. be 3. Shreedhar Ramakrishna Hegde, Aged 25 years, Ryot, Arecanut business, R/o. Aiwada village, Malagimane. . . .Respondents (By Shri.P.S.Bhat, Shri.O.R.Rayabagi and Shri.Pradeep Naik K., Advocates) This criminal appeal is ified under Section 378(1) and (3) of the Code of Criminal Procedure, by the State Public Prosecutor for the State praying that this Hon’ble Court may be pleased to grant leave to file an appeal against the judgment dated 24.09.2005 passed by the Sessions Judge, Fast Track Court-Il, Karwar, in S.C.No. 112/1999, acquitting the respondents - accused for the offences punishable under Sections 341, 354 and 307 read with Section 34 of the Indian Penal Code, and to set aside the aforesaid judgment and order of acquittal and to convict and sentence the accused — respondents and etc. This criminal appeal coming on for final hearing this day, N.Ananda J., delivered the following: , JUDGMENT The State has preferred this appeal against judgment of acquittal of respondents 1 to 3 (hereinafter referred to as accused Nos, I to 3) of offences punishable under Sections 341, 354 and 307 read with Section 34 of the Indian Penal Code, 2. We have heard Shri,Bahubali A. Danawade, learned HCGP for State and Shri,P.S,Bhat, learned Counsel for accused Nos, 1 to 3. 3. The learned trial Judge had framed the following charges: - “That on 13O31999 at 01:30 pm. near Hosagadde Cross in Vajralli in Yellapur Taluka, you all the accused have wrongfully restrained the complainant with common intention and thereby you have committed an offence punishable u/s341 r/w Sec 34 IP C. and within m cognizance Secondh on th above said date tim rnd plae oi ill the i eused ith ommon ntc t on a ( drags d l om 1 la na’-it 4 4 knowing that it will outrage modesty of the complainant and thereby you have committed an offence punishable under Section 354 r/w. Sec.34 IPC and within my cognizance. Thirdly, on the above said date, time and place, you all the accused with common intention, have assaulted the complainant with clubs on her body, and thereafter lifted her and thrown in a unused deep well in nearby hill, if death was caused you would have been guilty of murder, but you have caused grievous hurt to the complainant and thereby you have committed an offence punishable u/s. 307 r/w. Sec.34 IPC and within my cognizance.” 4. The facts giving rise to above charges as narrated by the prosecution may be stated thus: - P.W. 1 - Smt.Bhagirathi Ananth Hegde, was a native of Alwad within the jurisdiction of Yeliapur Police Station. P.W. 18- Vigneshwar Ananth Hegde, is her son. There was a civil dispute in respect of a vacant site F’ 5 between P.W.1 and accused no.2 Mahabaleshwar Sf0 Subra, Hebbar. 5. It is the case of the prosecution, that on 12.03.1999, accused no.1 Vithal Shivaram Gaonkar, who was stranger to P.W. 1, visited her house and informed her that she should give up the litigation pending between herself and accused no.2. He also told her that he would get her an alternate land. P.W. 1 was reluctant. However, accused no.1 persuaded her to meet him at Yellapur bus-station on the following day. 6. On 13.03.1999, at about 10:00 a.m., P W. I came to Yellapur bus station, but she could not find accused no.1. On that day around 12:00 p.m (afternoon) she met accused no 1, who took her in a bus to Vajralli. As informed b’ accused no.1, P W I got down from the bus and tollowed accused no.1 with reluctance After walking for some distance accused no I made indecent adances towards P.W 1, hich ;crc rcsisted I, F I At that uric ice ned Nos at 6 and 3, riding a motor bicycle reached that place. PW. I tried to ran from that place. When P.W. 1 tried to raise hue and cry, they gagged her and tied her hands and also covered her face with a cloth and she was beaten by the accused. Thereafter, accused Nos. 1 to 3 threw her into an abandoned well in a cashew grove. Somehow P.W. 1 managed to cling to a wooden rafter and thereafter she was also able to prevent herself from drowning by catching the wall of the well. Accused Nos. 1 to 3 threw stones on her with an intention to commit her murder but somehow, she managed to avoid from being hit by stones. After some time, accused left that place. P.W. 1 raised hue and cry, but no one came to her rescue. P.W. 1 remained in the well for a period of 5 days. At last, hearing her hue and cr’, some passersby came and removed her from the well. Thereafter, she was shifted and admitted in Government Hospital at Yellapur. wherein her statement was recorded by the.. jurisdictional Police and a case was registered against the accused, 1 f%) 4* 7 7. During trial, PW.1 to 31 were examined and documents as per Ex.P. 1 to P.36 were marked and material objects were marked as MO. 1 to 16. On behalf of the defence, a letter from the Taluka Executive Magistrate, Yellapur, was marked as Ex.D. 1. 8. The learned trial Judge on appreciation of evidence arid on hearing the learned Counsel, acquitted the accused by recording following reasons: - i. The entire case of the prosecution rests upon evidence of PW. 1 -solitary witness. Evidence of PW. 1 does not inspire confidence and her evidence suffers from inherent improbabilities. ii. The first information recorded by the Investigation Officer soon after PW. 1 was removed from the well, does not inspire confidence in view of the evidence on record that condition of PW. 1 was critical and she could not have narrated the incident t olice. 0I 4 8 iii. Some of the witnesses who had removed PW. 1 did not support the case of prosecution. iv. The evidence of PW. 18 that he did not bother to inform the jurisdictional police though his mother was missing for a period of four days, more particularly, when he was aware that PW. 1 had gone to Yellapur at the instance of accused no.1 who was a total stranger to the family, is highly improbable. v. The evidence of PW.1 and 18 that PW.1 had gone to Yellapur at the instance of accused no.1 who was an utter stranger to them, to seek alternate land in lieu of the land which was in dispute between PW. 1 and accused no.2, is not credible, therefore it is not unsafe to rely upon solitary testimony ofPW.1. 9. On hearing the learned Counsel for parties, we fmd the evidence of prosecution that PW. 1 was found in an abandoned well situate in a cashew (0. .4 9 grove near Vajralli, has not been seriously controverted. Even otherwise, witnesses examined to prove this fact, have given consistent and credible evidence. It is also not in dispute that PW. 1 had suffered fracture due to external violence and there was slough and her right lower limb below knee level was amputed. In proof of this fact, we have medical evidence given by PW.2 1 - Dr. Annapurna Shanthaveerayya Vastrad. 10. The crucial point for determination is, whether the solitary evidence given by PW. 1 is credible, trustworthy and consistent, to hold the accused guilty of offences for which they were tried. 11. It is not in dispute that there was a long pending civil dispute in respect of a vacant land between PW. 1 and accused no.2. It is also not in dispute that accused no.1 was not known to PW. 1 before the date of incident. PW. 1 had deposed that accused no.1 — a stranger 7 had visited her house during evening of 12.3.1999 and to)d her that she 4 10 should give up the litigation pending in respect of the vacant land as many people had invested money over the vacant land. He also told PW. 1 he would get alternate land for her. This transpired in the house of PW.1 in the presence of PW.18. 12. The first doubt, which would arise is, as to whether PW. 1 would have followed accused no.1 who was a stranger to her, to Vajralli without knowing the purpose for which she was being taken, and whether PW. 18 would have allowed PW. 1 to go alone to Yeilapur to meet accused no.1. On careful examination of evidence of PW. 1 and PW.18, we find evidence of PW.1 and PW.18 relating to this aspect is highly improbable. PW. 1 after leaving the house to meet accused No.1 did not return on that day and she was found missing. • PW.18 who had seen accused no.1 (a stranger) in his house and who was aware of conversation that had taken place between PW. 1 and accuse4 no.1, did not (A a 11 bother to inform police either on 13.3.1999 or on the subsequent days. If PW. 1 had gone to Yellapur as instructed by accused no. 1 and did not return on the subsequent days, the natural conduct of PW,18 should have been to lodge a missing report or to lodge first information narrating that PW. 1 had left her house at the instance of accused no. 1. The evidence of PW. 1 in this regard is complacent. It looks highly improbable that PW. 18 had kept quite, more particularly, in view of long pending litigation between accused no.2 and PW. 1. 13. The next reasonable doubt that would arise is, as to whether PW.18 would have allowed his mother to go alone to Yellapur to meet accused no, 1, who admittedly was a stranger to them. We do not find any explanation for the strange conduct of PW. 18. 14. Now adverting to the evidence of PW. 1, we find that she had fought various litigations against accused no.2 in respect of a vacant site, which according to PW. 1 h..ad been acquired b,,yç her deceased f\. I, A husband. In the circumstances. it looks highly improbable that PW. 1 had entertained accused no.1 (a stranger) in her house to discuss about vacant site and also to get an alternate land. It looks highly improbable that PW. I had left the house alone to meet accused no.1 in Yellapur bus-station, even without knowing the location of the alternate land either near Vajralli or in some other place. From the evidence of PW. 1, we find that she was conversant with the Court proceedings and she had fought litigation against accused no.2 before various Courts. 15. PW. 1 had deposed that, at 12:00 noon accused no.1 met her in Yellapur bus station and from there they proceeded towards Vajralli. The prosecution has no case that there ‘as any property near Vajralh which accused no. I had assured PW 1 to give as an alternate land. In the circumstances, it looks improbable that P1W. 1 meekly followed accused no.1 and travelkd uth him in i bus towards Vajralli and they got down from the bus nea Vajralli. The prosecutior 4. jg4I 13 had not placed any independent evidence to prove this fact. 16. PW.1 had deposed that after getting down from the bus near \lajralli. she walked along with accused- 1 in a forest area. The assurance given by accused no. 1 (a stranger) to PW. 1 was to show an alternate land, PW. 1 could have hardly thought of getting an alternate land in a forest area. PW. 1 had deposed that after walking for some distance, accused no. 1 tried to outrage her modesty and it was resisted by her. PW. 1 had not deposed that there were no people around that area to help her. PW. 1 had deposed that accused Nos.2 and 3 came on a motorcycle and all of them tied her hands, gagged her and covered her face with a cloth and assaulted her and pushed her into a well. PW. 1 had not deposed that accused nos, 1 to 3 carried her and threw her into the well. On the other hand, she had deposed after being assaulted by the accused, she felt that she was thrown into water. PW. 1 was able to catch hold a wooden log in the well and later 14 she was clinging to the wall of that well. In that way, she did not drown and was able to stay in the well for a period of five days. PW, I had deposed that, she was able to remove the cloth from her mouth and at that time she noticed accused I to 3 were dumping stones at her. PW.8 had deposed three of the stones dumped by the accused fell on her. She managed to avoid from further being hit by stones. Thereafter, accused nos, 1 to 3 left that place. 17. PW. 1 had deposed, she raised hue and cry and continued to remain in the well for 5 days. On 17.03.1999, some passersby on hearing her hue and cry, came and removed her from the well. Immediately, thereafter she was taken to Government Hospital at Yellapur and she narrated the first information to the jurisdictional police. 18. PW, I had deposed that there was a case pending against her for trafficking the girls from that area for immoral purpose, such as, prostitution. She had admitted that she was owning a truck She as 15 found transporting timber in the truck, In that connection, a case was filed against her and she had paid penalty of Rs.8000/-. PW. 1 had admitted that when she was pushed into the well she had a vanity bag containing some documents, comb, spectacles, ball pen, bottle containing tables, ointment, account slips and cash of Rs.400/- to Rs5OO/. She had identified articles as MO.1 to 6. MO1 the vanity bag, MO2 spectacles, MO.3- ball pen and MO.4 to 6 bottles containing tablets. There was also a knife found in the vanity bag. 19. PW. 1 had admitted that after the incident there was settlement before the Lok Adalat in the pending litigation between PW. 1 and accused no,2. Before Lok Adalat, it was decided that accused no,2 shall pay a sum of Rs,4 lakhs to PW. 1. Accordingly, accused no,2 paid a sum of Rs3,25,OOO/ to PW. 1 and she had agreed not to pursue the instant case. 20. PW. I had deposed that while she wa.s being treated in the Yellapur hospital, she had narated the 71 (V C7VAJk 16 first information, but she cannot say who recorded the first information: whether it was recorded by medical officer or local journalist or b the police. She had admitted that 107 Cr.P.C. proceedings were pending against accused no3 and PW. 1. When she was specifically questioned. why she had carried cosmetics in her bag. she has not given any explanation. When she was specifically questioned, when she had left the house to go to Yellapur, whom she had consulted, she had not given any satisfactory answer. PW. 1 had admitted that when she left the house she was aware that she was going towards Vajralli. At this juncture, it is necessary to state that accused no. I (a stranger) had not told her that he would take her to Vajralli. PW.1 had admitted, when accused no.1 asked her to accompany him she did not have any idea of purchasing any land and she was not prepared to accept any land cx en if it had been offered free of cost. 21 PW.I had admitted. that till 13.031999. she had not gone alone with a stranger. She cannot sax, 17 who amongst the accused assaulted her and whom amongst the accused gagged her, PW. 1 had admitted that there was dispute between PW. I and accused nos,2 and PW. 18 had brought goondas from Bangalore and Tumkur to use criminal force against accused no.2 and in that connection, she had executed a bond before the Taluk Executive Magistrate. 22. At this juncture it is necessary to refer to evidence of PW. 13-Shantha Sairu Chinchankar, that PW. 1 was not unfamiliar to Vajralli village. PW. 14- Villiam Kaithan Fernandes who was present when PW. I was removed from the well had deposed, that girls from Vajralli village and surrounding villages were being trafficked for prostitution. There were rumors that PW. 1 and one Manjula were visiting Vajralli to take girls for immoral purposes. PW. 14 had deposed that when PW. 1 was removed from the well, he came to know that PW. 1 was taking girls for ili..gal and immoral purpose and she was involved in trafficking gi.rls from that area. 18 23. PW.18 is the son of PW.1. PW.18 had deposed, that on a certain day about 6.30 or 7 p.m. a stranger (later identified as accused No.1) came to their house and he told PW. 1 that she cannot prolong the litigation pending between her and accused no.2 and offered her to get money. When PW. 1 refused, the stranger insisted that he would get money from a lady of Bangalore who was residing at Vajralli. He asked PW. 1 to visit Vajralli but PW. 1 refused. However, he insisted that he would take PW. 1 at his cost. PW. 18 had deposed the stranger (accused no.1) took food and left their house during night. Thereafter, PW. 1 consulted PW.18. On the following day, PW.18 advised PW.1 to go to Vajraili as informed by the stranger. On the following day at about 11 a.m., PW. 1 left her house to go to Vajralli. She did not return for a period of five days. PW. 18 searched for her and after five days, Yellapur Police caned PW. 18 to police station and informed that some persons had assaulted PW. 1 and had thrown her into a well near Vajra9i and that 4%j 19 she had been removed from the well and admitted in the hospital. PW, 18 visited the hospital and learnt about entire incident from PW. 1. 24. During cross-examination. PW.18 had admitted that he was arrested in a criminal case on the allegation that PW. 1 and PW. 18 had brought goondas from Bangalore and Tumkur with intent to use criminai force against accused no.2 and in that connection, the Taluk Executive Magistrate had initiated proceedings against PW. 1 and PW. 18. PW. 18 had admitted that he had not seen accused no. 1 before he had visited their house. 25. Before adverting to the remaining part of evidence of PW.18, it is necessary to state as per evidence of PW. 1 she had gone to meet accused no. 1 in Yellapur to see an alternate land, whereas PW. 18 deposed that her rnother left the house on the assurance given by accused no. I that he would get m.oney from an unknown lady at Vajralii village. PW. 18 1” 4.- 20 had admitted that her mother left Vajralli village to bring money. PW. 18 had not deposed the purpose for which an unknown lady was prepared to pay money to pw.1. 26. PW. 18 had admitted that his mother PW. 1 did not return even after five days. He had not reported the matter to police. PW. 18 had deposed, accused no.1 (a stranger) had told them to maintain secrecy, therefore, he did not go to police. The evidence of PW. 18 is highly improbable. When his mother had alone left the house and did not return for 4 to 5 days, one would naturally expect PW. 18 should have reported the matter to police. PW. 18 in order to explain his improbable conduct, had concocted a story that accused no.1 had told them to maintain secrecy of the transaction. In the circumstances, conduct of PW. 18 is entirely inconsistent with the conduct of a normal person. Therefore, evidence of PW. 18 does not inspire confidence. N. JL.. 4 21 27. PW.28-Investigation Officer had deposed, that on 17.3.1999 he was the Station House Officer of Yellapur Police Station. On that day at 11.00 a.m. he received a phone call from one Savera Fernandes (not examined before Court) that some woman was found in an abandoned weil on Vajralli-Honagadde road near Vajrafli. PW.28 along with his staff visited that place and found some people were lifting a woman from the well. After she was lifted from the well, PW.28 noticed she had suffered injuries on her left upper limb and right lower limb. After she was provided first aid treatment by Dr. Arvind, she was sent to General Hospital, Yeflapur, for further treatment. PW.28 enquired with the medical officer whether PW. 1 was in a fit condition to give her statement. The Medical Officer opined that she was in a fit condition to give her statement. Thereafter, PW.28 recorded her statement as per Ex.P.1. PW.28 had admitted that when PW. 1 was removed from the well) there was a vanity bag, which contained N ALL- ettt’tL 22 certain documents, tablets and ointment spectacles, two account books, etc. At this juncture, it is relevant to state that the story of the prosecution as deposed by PW. 1 that she was assaulted by accused Nos. 1 to 3 and they pushed her into a well, is rendered doubtful. It looks highly improbable that she had not left her vanity bag even after she was brutally assaulted and pushed into the well. It looks improbable that PW. 1 had carried documents and account slips when she had accompanied accused no.1 (a stranger). 28. The evidence of PW.28, that he recorded first information after ascertaining the condition of PW. 1 in the Government Hospital at Yellapur is not supported by documentary evidence. As per evidence of PW. 1 she was aged more than 50 years at the time of incident. If she had been thrown by the accused after a brutal assault and remained in the well without food and water for five days, it looks highly improbable that she was in a fit condition to give statement soon after she was N. , 23 admitted in Government Hospital at Yellapur. As per evidence of PW.28 he had received a phone call at 11 a.m. on 17.3.1999. Thereafter he left Yellapura Police Station and reached place of incident (well) near Vajralli-Honngadde Road. As per first information report marked as Ex.P. 19, the distance between Yellapura Police Station and place of incident is 20 kilometers. The first information bears an endorsement that it was recorded between 2.15 p.m. and 3.30 p.m. on 17.3.1999. The first information report was received at 6.40 p.m. on 17.3.1999 by the Magistrate at Yellapura. The first information contains minute details of alleged incident. Therefore, first information appears to be an outcome of deliberations. In a decision reported in 1957 S.C.614 (In the case of Vadivelu Thevar Vs. The State of Madras), the Supreme Court has held that, the guilt of an accused person may be proved by the testimony of a single witness if it inspires confidence. However, the Court has to weigh carefully such testimony and it could be f%I. 4. 24 acted if it is satisfied that the evidence of solitary witness is reliable and free from all taints to render the oral testimony open to suspicion. 29. In the discussion made supra, we have referred to evidence of PW. 1, and we have assigned reasons to suspect the credibility of PW. 1. There was also long standing enmity between accused nos.2, 3 and PW. 1. Though the prosecution has proved that