Karnataka High Court
Miss Sunitha vs State Of Karnataka on 23 January, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23rd DAY OF JANUARY 2014
BEFORE
HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.752 OF 2008
BETWEEN
MISS SUNITHA
D/O SRI NANJUNDAIAH
AGE: 23 YEARS,
R/O KALEGOWDANA DODDI VILLAGE
HARISANDRA DHAKALE AND POST
KASABA HOBLI,
RAMANAGARAM TQ & DIST. .. PETITIONER
(By Sri: R B SADASIVAPPA, ADV., )
AND
1.STATE OF KARNATAKA
BY RURAL POLICE
RAMANAGARAM
REP BY LEARNED PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE-560 001.
2.SRI CHANDRASHEKARA
S/O SRI MARE GOWDA
AGE:30 YEARS
R/O KALEGOWDANA DODI VILLAGE
HARISANDRA DHAKALE AND POST
KASABA HOBLI,
RAMANAGARAM TQ & DIST.
... RESPONDENTS
(By Sri: NASRULLA KHAN, HCGP FOR R1
M. PARTHASARATHY, ADV. FOR R2)
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THIS CRL.RP IS FILED U/S.397 CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT DATED 23.7.07 PASSED BY
THE AD-HOC DIST. & S.J., & P.O., FTC., RAMANAGARAM IN
S.C.NO.319/03 ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE P/U/S376, 417 AND 420 OF IPC.
THIS CRL.RP HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, PRADEEP D.
WAINGANKAR J., PRONOUNCED THE FOLLOWING:
ORDER
This criminal revision petition under Section 397 Cr.P.C. is filed to set-aside the judgment dated 23.7.2007 in S.C.No.319/2003 on the file of Fast Track Court, Ramangaram, whereby the respondent No.2 accused has been acquitted for the offences punishable under sections 376, 417 and 420 of IPC.
2. The brief facts which gave rise to this revision petition are stated as under:-
The complainant PW-2(who shall hereinafter be referred as 'victim') fell in love with the accused while going to borewell near the house of the accused to fetch water. They used to meet each other in the mulberry garden of father of the victim. Respondent accused promised the victim of getting married and under the promise, she was 3 subjected to sexual intercourse several times by respondent No.2 accused and thereby she became pregnant. When she was running three months, at the instance of the accused, she underwent abortion without the knowledge of her parents. When she was scolded by her parents, she disclosed the fact to her parents. They tried to settle the matter amicably by arranging the marriage. But the respondent accused declined to marry, as such, a complaint was lodged before the jurisdictional police. Upon investigation, the police filed charge-sheet against the respondent No.2- accused for the offences punishable under Sections 376, 417 and 420 of IPC. The accused appeared before the Magistrate before whom the charge- sheet was filed. The accused was committed to Court of Sessions Judge. He appeared and faced trial. The prosecution in order to prove the charges leveled against the accused examined eight witnesses as PWs-1 to 8 and marked Exs-P1 to P9. The statement of accused was recorded under Section 313 of Cr.P.C. He denied all the incriminating evidence surfaced against him. His defence is that he never promised the victim to marry. He got himself 4 examined as DW-1 and Lingappa as DW-2 apart from marking Ex-D1. The learned Sessions Judge upon appreciation of the entire evidence placed on record and upon hearing the arguments addressed has come to the conclusion that the victim was subjected to sexual intercourse by the accused and thereby she became pregnant. But, it is held that the sexual intercourse was with the consent of the victim and without there being any promise from the accused to marry her, which ultimately resulted in the acquittal of the accused by the impugned judgment. Questioning the legality and correctness of the judgment, this revision petition is preferred by the victim.
3. Upon securing the records, I have heard the arguments addressed by the counsel for the revision petitioner and respondent Nos.1 and 2. Before going to facts of the case, it is worthwhile to know the jurisdiction of this Court while examining an order of acquittal. It has been held in the case of VENKATESAN Vs. RANI AND ANOTHER reported in AIR 2013 SC 3320 as under:-
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"Criminal P.C. (2 of 1974), S.401 - Revision against acquittal - Powers of High Court -No power vested in High Court to convert a finding of acquittal into one of conviction".
The revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where the trial Court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified, the only course of action that can be adopted is to order a retrial after setting aside the acquittal. As the language of Section 401 of the Code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction"
From the reading of the above ratio laid down by the Supreme Court, it is obvious that the revisional jurisdiction of this Court while examining an order of acquittal is 6 extremely narrow and ought to be exercised only in cases where the trial Court had committed a manifest error of law or procedure or had over-looked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified, the only course of action that can be adopted is to order a retrial after setting aside the acquittal. As the language of Section 401 of the Code makes is amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction.
4. In the light of the observation made in the aforesaid decision of the Supreme Court and the ratio laid down therein, let me now examine the facts of the case on hand. It is seen from the evidence placed on record that the victim and the accused fell in love with each other and they used to meet each other oftenly that too in the mulberry 7 garden of the father of the victim. The victim has also admitted that she was subjected to intercourse on two to three occasions and thereby she became pregnant. But according to her, she was subjected to sexual intercourse under the promise of marriage by the accused with her. The accused has categorically denied having given any such promise. The victim has been examined as PW-2 before the Court below. In para 5 of her deposition in the cross- examination, she has stated as under:-
"At the time of committing sexual intercourse, the accused used to remove my wearing clothes. The accused used to make me to lie on the ground for committing sexual assault. The accused used to commit sexual assault on me for about one hour. After the sexual assault, I used to be with the accused for some time talking and then I used to leave to my residence. I have not sustained any abrasions on my back while the accused committing sexual assault on me. After the sexual assault myself and the accused used to stay in the middle of the garden land for a period of 15 minutes. I have not informed my parents about the sexual assault on me by the accused at any time. I used to take care of myself after the sexual assault so that my 8 parents should not doubt me. Now, I do not remember the gap in terms of days between the 1st sexual intercourse and the second and also the third sexual intercourse on me by the accused. Since the beginning, I have been maintaining good health and now also. My mancess cycle was regular and for some times once in a month or once in one and half months. I managed in not informing my mother about by three months pregnancy."
The aforesaid evidence of the victim demonstrates that sexual intercourse was with the consent of the victim and not under the promise of marrying the victim said to have been given by the accused to marry her. It is pertinent to note that the victim underwent abortion on 3.3.2003 in Ashwini Nursing Home, B.M. Road, Ramanagar. She had been to the hospital with her friend wtihout informing her parents on that night. On that day, she was admitted to the hospital and on discharge on 4.4.2003 at about 10.00 a.m, when she returned to the house next day, she was taken to task by her parents and it is at that time, she disclosed her pregnancy, intercourse and her relationship with the accused. Otherwise, she would 9 not have informed regarding the pregnancy to her parents. Be that as it may, the Sessions judge on proper appreciation of the evidence on record has come to the conclusion that the intercourse was with the consent of the victim and there was no promise on the part of the accused to marry the victim, which resulted in the acquittal of the accused. I do not find manifest error of law committed by the trial Court or for that matter, the trial Court has overlooked and ignored relevant and material evidence thereby causing miscarriage of justice.
5. Learned counsel appearing for the petitioner victim has placed reliance on a decision of our high Court in the case of LAKSHMANA NAIK VS. STATE OF KARNATAKA, BY ITS BANTWAL POLICE, MANGALORE reported in ILR 2004 KAR 4722 wherein it has been held as under:-
CRIMINAL PROCEDURE CODE, 1973 (CENTRAL ACT NO.2 OF 1974) - SECTION 374 -INDIAN PENAL CODE - SECTIONS 375, 376 AND SECTIONS 415, 417 - The victim having sex with the accused on a 'false promise' of marriage made by him- Held -
The ' Consent and will" by the victim is said to be 10 voluntary, and the act of the accused does not attract the ingredient of Section 375 I.P.C.- At most, it comes within the definition of Section 415 IPC- The findings of the Trial Court that the accused is liable for the offence punishable under Section 375 IPC is unsustainable.
When it is clearly admitted by the prosecutrix-PW11 that she was frequently visiting the house of the accused whereas the accused was also visiting the house of the prosecutrix and moving together which resulted in pregnancy, it is rather difficult to hold that the accused had committed the offence of rope on her, when she has permitted the accused to have sex and it has to be held that it is with her 'consent and will'." The ratio laid down in the aforesaid decision is rightly applicable to the facts of the case and therefore it has been held that the act of the accused does not attract the ingredients of Section 375 of IPC and at the most comes within the definition of Section 415 IPC and thereby the accused has been convicted and sentenced him to pay Rs.20,000/-. It has to be stated that the High Court while deciding the said case was dealing with an appeal filed 11 against the judgment of acquittal and not revision petition, where the High Court has no jurisdiction to reappreciate the evidence. Moreover in the said case, the complaint-Ex-P1 was lodged two days prior to the birth of child and taking into consideration the birth of the child, the Court held that at the most, it comes within the ingredients of Section 415 of IPC and thereby he was convicted under Section 415 of IPC and ordered to pay Rs. 20,000/- to the victim. As such, the above decision relied upon by the petitioner's counsel will not help the petitioner in any way. It is suffice to say that no case has been made out by the petitioner to interfere with the impugned order passed by the Sessions Judge. Criminal revision petition is devoid of merit, accordingly, the same is dismissed.
Sd/-
JUDGE *mn/-