Karnataka High Court
State By Hunsur Rural Police vs Manjunath on 11 October, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11 T H DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'B LE MR. JUS TICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.1552 OF 2015
BETWEEN:
State by Hunsur Rural Police
Mysuru-571105, rep resented
By State Pub lic Prosecutor,
Beng aluru.
...Appellant
(By Sri K.S.Abhijith, HCGP)
AND:
Manjunath
S/o Thammab hovi,
Aged about 20 years,
Mutthurayanahosahalli Village,
Hunsur Taluk,
Mysuru District-571105.
...Respondent
(By Sri N.S.Sampangi Ramaiah, Amicus Curiae)
This Criminal Appeal is filed under Section 378(1)
and (3) of the Cr.P.C., praying to grant leave to
app eal ag ainst the judgment and ord er of acquittal
dated 24.04.2015 passed in S.C.No.101/2010 passed
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by the learned VII Additional Sessions Judge, Mysuru,
for the offences punishab le under Sections 376 and
417 of IPC and etc.
This Criminal Appeal coming on for hearing this
day, Sreenivas Harish Kumar J., the Court delivered
the following:
JUDGMENT
The judgment of acquittal dated 24.4.2015 in S.C.No.101/2010 on the file of VII Addl. Sessions Judge, Mysuru has given rise to this appeal by the State. The accused/respondent was prosecuted for the offences punishable under sections 376 and 417 of IPC. By the impugned judgment the trial court acquitted the accused/respondent of the two offences.
2. On the basis of information given by PW.1, FIR came to be registered and investigation was held leading to filing of charge sheet. The report given by PW.1 to the police was that two years before registration of FIR, on 21.12.2009 when :: 3 ::
she was working as a coolie along with the accused, at about 2.00 p.m., the accused dragged her forcibly inside the fields and committed rape on her. She further stated that the accused used to have sexual intercourse with her stating that he would marry her. She did not inform this incident to anybody. Her parents arranged the marriage with Shankara and the accused telephoned to Shankara and threatened him not to marry her as he wanted to marry. It is also stated that he made it clear before her that he would commit suicide in case she would marry anybody else. She missed her periods and came to know that she had become pregnant. Then she went to the house of the accused, disclosed her pregnancy and requested him to marry. He refused and panchayat was held thereafter. In the panchayat also he refused to marry her. This resulted in FIR being registered.
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3. The prosecution examined 26 witnesses and relied on 35 documents as per Ex.P.1 to P.35 and three material objects, M.Os.1 to 3. Assessing the evidence, the trial court has recorded findings that when the entire evidence of PW.1 is analyzed, a clear conclusion can be drawn that PW.1 participated in sexual intercourse with the accused voluntarily. She did not oblige the accused under misconception of fact. She was a fully grown up girl and able to understand the consequences of what she was doing. She also did not inform their relationship to anybody. They used to have intercourse once in fifteen days. Only after she became pregnant her parents convened the panchayat to convince the accused to marry her. Therefore the facts and circumstances clearly indicate that it was not a case of rape and thereby the prosecution failed to prove its case punishable under section 376 IPC.
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4. In regard to offence under section 417 IPC, the trial court has held that there is no independent evidence which is indicative of the fact that the accused/respondent had even promised to marry her. The evidence given by PW.6, 7 and 12 does not show that at any point of time accused had gone to their house and promised that he was ready to marry PW.1. It is further held that consent given under misconception of fact as contemplated under section 90 IPC has a wider application so as to include a circumstance not enumerated under section 375 IPC. With these findings the trial court acquitted the accused/respondent of both the offences.
5. Assailing the findings of the trial court, Sri. K.S.Abhijith, High Court Government Pleader argued that the trial court has grossly erred in acquitting the accused. If the evidence of PW.1 :: 6 ::
had been appreciated properly, it was not possible to hold that she was a consenting party. Actually PW.1 has stated that on the first day when the accused committed rape, she was not willing and he forcibly committed rape on her. She has stated so even in the complaint marked Ex.P.1. She might have had intercourse with the accused thereafter many times, but it was under the misconception of fact that the accused was ready to marry her. It is not in dispute that PW.1 became pregnant and gave birth to a male baby. This is fortified by DNA report marked Ex.P.35. The report is so clear that the child is the biological son of the accused and PW.1. This being the concrete evidence available on record, the trial court has grossly erred in acquitting the accused for both the offences. There is clear evidence for breaking the promise to marry and in this view, the offence under section 417 IPC also gets established. Therefore the trial court ought to :: 7 ::
have convicted the accused for both the offences and hence the judgment of the trial court requires to be set aside and the accused, convicted for both the offences.
6. Sri. N.S. Sampangi Ramaiah, learned Amicus Curiae argued that strict analysis of the evidence of PW.1 clearly indicates that she was a consenting party. Evidence does not disclose that even on the first day of intercourse she gave consent under misconception of fact. She did not inform about the relationship to anybody in the village until she became pregnant. Her evidence clearly discloses that she used to meet the accused once in 15 days in order to gratify their desire. In this view the trial court has come to right conclusion to hold that the evidence under section 376 IPC has not been established. In regard to offence under section 417 IPC also, his argument is that the evidence does not disclose :: 8 ::
that the accused promised to marry PW.1. Without any misconception of fact of promise of marriage, PW.1 had sexual intercourse with the accused and for this reason acquittal of the accused for the offence under section 417 IPC is proper and therefore the appeal deserves to be dismissed.
7. We have considered the arguments and perused the entire evidence. At the outset we are of the opinion that in regard to offence under section 376 IPC, it is the evidence of PW.1 alone that matters. She has stated in the examination- in-chief that she showed resistance on the first day and it was a forcible intercourse. But her testimony is difficult to be believed for the reason that in the cross-examination she has clearly stated that she never brought to the notice of that incident to anybody in the village. Her clear answers are that she used to meet the :: 9 ::
accused/respondent once in 15 days. They both went to Hunsur and had sexual intercourse in the corridor of the college. This was also not brought to the notice of anybody. She has stated that the accused had intercourse once with her in his house and she did not disclose this to anybody. So the entire evidence of PW.1 indicates that she participated in the sexual intercourse voluntarily with the accused. As has been rightly held by the trial court PW.1 is a fully grown up girl and she was aware of the consequences of what she was doing. Even after she conceived, she did not disclose the same till she became pregnant of four months. Only thereafter she decided to bring it to the notice of her parents. Thereafter panchayat was held. We may find it pertinent to refer to the evidence of PW.13, which throws some light on the conduct of PW.1 and the accused. PW.13 has clearly stated that PW.1 and the accused/respondent were coming to her fields to :: 10 ::
coolie work and that they used to be together always. She had observed the way they used to behave. They were not afraid of their acts and that they used to proclaim openly that they were going to marry. She has stated very clearly that once she advised them not to behave like that, but they did not respond positively. Of course in the cross-examination, it was sought to elicit from her whether she had given such a statement before the police when she was interrogated. Though in the first instance she answered that she did not give such a statement, then she further stated that she was not able to tell whether she had given such a statement before the police or not. If this is an omission according to the defence, the same should have been put to the investigating officer who was examined as PW.20. If the cross examination of PW.20 is seen, it becomes clear that the defence counsel has not questioned him in regard to omission. In this view whatever PW.13 :: 11 ::
stated in the examination-in-chief becomes fully believable and thereby an inference can be drawn that everybody in the village knew the way the PW.1 and the accused used to behave as husband and wife. Therefore this is enough to come to conclusion that PW.1 was a consenting party for the sexual intercourse and therefore offence under section 376 IPC is not made out.
8. So far as offence under section 417 IPC is concerned, we do not find that the trial court has come to correct conclusion when the said offence is made out. If the findings recorded by the trial court in this regard are seen, it becomes very clear that it has totally ignored the evidence of PW.13, the independent witness. We have already referred to the conclusions drawn by the trial court in regard to offence under section 417 IPC. But what we find is that no promise was made by the accused on the first date of incident that he would :: 12 ::
marry PW.1, but it appears that subsequently the accused might have promised to marry her. Only on that guise he used to have sexual intercourse with her. It has come in evidence that the accused stopped the marriage of PW.1 with Shankara. PW.13 has clearly stated that PW.1 and the accused used to publicly proclaim that they were going to marry. From this evidence, clear inference can be drawn that the accused might have promised PW.1 to marry her and thereafter, he went back upon his promise. Looked in this view, a clear case of offence under section 417 IPC is established. Therefore we find a case for modifying the judgment of the trial court.
9. With the above discussion we come to conclusion that the appeal is to be allowed partly. It is not in dispute that PW.1 gave birth to a baby because of her relationship with accused.
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Therefore keeping in mind the welfare and requirement of the child, fine is to be imposed.:
ORDER The appeal is partly allowed. The judgment dated 24.4.2015 is modified. Confirming the judgment of the trial court for the offence under section 376 IPC, we hold the accused guilty of the offence under section 417 IPC.
Section 417 IPC provides for punishment with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Sri. N.S. Sampangi Ramaiah submits that the accused/respondent is already married. He has spent about a month in the jail before being released on bail. His submission is that the period spent by the accused/respondent in jail may be set off and fine may be imposed.
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Keeping these circumstances in mind, we sentence the accused to simple imprisonment for a period of one month and award fine of Rs.1,00,000/-. In case of default in paying the fine amount, the accused shall undergo simple imprisonment for 15 days. His custody period is set off.
In accordance with section 357 Cr.P.C. we direct entire fine amount to be paid to the child of PW.1 - namely Prajwal by way of compensation. The fine amount shall be kept in fixed deposit in the name of the child till he attains majority in any Nationalized Bank, and PW.1 is permitted to withdraw the interest part, if necessary, with permission of the trial court to meet educational expenses or health issues of the child.
60 days time is given to the accused to deposit the fine before the trial court. 60 days time will begin from the day the trial court secures :: 15 ::
the presence of accused before it and directs him to make deposit. In case the accused fails to deposit the fine within the time specified, the same shall be recovered in accordance with section 421 Cr.P.C.
High Court Legal Services Committee is hereby directed to pay Rs.10,000/- to Sri. N.S.Sampangi Ramaiah, Amicus Curiae towards his remuneration.
Sd/-
JUDGE Sd/-
JUDGE sd