Karnataka High Court
Parashuramappa vs State By on 16 April, 2025
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NC: 2025:KHC:15748
CRL.A No. 143 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 143 OF 2013 (C)
BETWEEN:
PARASHURAMAPPA
S/O ANANDAPPA
AGED ABOAUT 46 YEARS
AGRICULTURIST
RESIDENT OF:
SORANGIHALLA VILLAGE
SHIKARIPURA TALUK
SHIMOGA DIST.
...APPELLANT
(BY SMT. MANJULADEVI R. KAMADOLLI, ADVOCATE)
AND:
STATE BY
SHIKARIPURA RURAL POLICE
REPRESENTED BY:
Digitally signed STATE PUBLIC PROSECUTOR
by SHAKAMBARI
Location: High HIGH COURT BUILDING
Court of BANGALORE-560 001
Karnataka
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 31.01.2013
PASSED BY THE P.O., F.T.C.-II, SHIMOGA IN S.C.NO.180/2012
- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 448 AND 376 OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC:15748
CRL.A No. 143 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 31.01.2013 passed in Sessions Case No.180/2012 by the Presiding Officer, FTC-II, Shivamogga.
Facts of the case:
2. That accused was charge sheeted by Circle Inspector of Police, Shikaripura for the offences punishable under Section 450 and 376 of IPC based on the complaint filed by PW.3 Nagaraj, alleging that on 21.06.2012 during the morning hours, he was away from the house and his wife had been to their agricultural land. When he returned at 10.15 a.m. to his house, he noticed that his daughter was screaming. On hearing the same, complainant and one Durgojirao (PW.6) went inside the house and noticed that accused ran away from house by pushing them. They noticed his daughter prosecutrix was crying and was undressed. When he enquired her, she informed, that -3- NC: 2025:KHC:15748 CRL.A No. 143 of 2013 accused had committed rape on her. Thereafter, complainant went to the Shikaripura Rural Police Station and lodged a complaint alleging commission of rape on his daughter by the accused which was registered in crime No.141/2012 for the aforesaid offences. The victim-
prosecutrix was taken to the hospital for medical examination. The Investigation Officer during the course of investigation arrested the accused and was subjected him to medical examination. On completion of investigation, charge sheet was filed by the IO against the accused for the offence under Sections 450 and 376 of IPC. Initially, the accused was in judicial custody and thereafter, he was enlarged on bail.
3. To prove the guilt of the accused, prosecution in all examined 15 witnesses (PW.1 to 15) and got marked 14 documents (Ex.P1 to P14) and closed its evidence. Thereafter, accused was questioned under Section 313 of Cr.PC so as to enable him to answer the incriminating circumstances appearing in the evidence of prosecution. -4-
NC: 2025:KHC:15748 CRL.A No. 143 of 2013 He denied his complicity in the crime and did not chose to lead any evidence on his behalf.
4. The learned trial Court, on hearing the arguments and on evaluation of the evidence raised two points for consideration and answered point nos.1 partly in the affirmative and point no.2 in the affirmative, and found the accused guilty of committing the offence under Sections 376, 448 of IPC and sentenced him as under:
"Accused is sentenced to undergo rigorous imprisonment for a period of seven years and also to pay fine of Rs.2,000/- and in default of payment of fine, he shall undergo further imprisonment for a period of two months for the offence punishable U/s.376 of IPC.
Accused is sentenced to undergo rigorous imprisonment for a period of Six months for the offence punishable U/s.448 of IPC.
The sentence of imprisonment shall run concurrently."-5-
NC: 2025:KHC:15748 CRL.A No. 143 of 2013
5. This is how now the accused/appellant is before this Court challenging the impugned judgment by preferring this appeal.
6. The learned counsel for the appellant-accused Smt.Manjuladevi R.Kamadolli would submit that, no offence under Section 448 and 376 of IPC are proved against the accused. She would submit that, there is no consistency in the evidence lead by the prosecution with regard to accused committing criminal trespass into the house of complainant and attempt to commit rape on the person of his daughter-prosecutrix. Based upon the self- severing, inconsistent and contradictory evidence, the learned trial Court has erroneously passed the impugned judgment. She would further submit that, none of the ingredients of the offence are brought on record. There was no occasion for the accused to enter the house of the complainant and commit such offence. She would further submit that in view of the cross-examination directed to the witnesses and the clear admissions of the witnesses -6- NC: 2025:KHC:15748 CRL.A No. 143 of 2013 especially that of the complainant PW.6 and the prosecutrix, the offences are not proved. She is pointing out certain contradictions and omissions in the evidence of the prosecution witnesses. She submits that, in view of the grounds urged in the appeal memo and her submissions, this appeal deserves to be allowed and the impugned judgment is liable to be set aside.
7. Per contra, the learned counsel for the State i.e. HCGP Sri.Channappa Erappa submits that, evidence of PW.3 complainant, PW.6, the person who was accompanying the complainant at the time of entering the house of complainant and the evidence of prosecutrix clinchingly establish about the commission of the offence of criminal trespass and commission of rape on the victim by accused. The learned trial Court according to him has rightly found the accused guilty of the said offences. This well-reasoned judgment according to him shall not be interfered with by this Court. Bringing to the notice of this Court about the chain of events that have taken place with -7- NC: 2025:KHC:15748 CRL.A No. 143 of 2013 regard to the incident, he submits to dismiss the appeal as it lacks merit.
8. In view of the rival submissions of both the side, and on perusal of the records, and on appreciating the arguments of both the side, the core question that is to be decided in this appeal is, "whether the prosecution has placed sufficient evidence to convict the accused for the offence under Section 448 and 376 of IPC?"
9. In a case of present nature, when offence under Section 376 is attributed against the accused, it is the bounden duty of the prosecution to prove the definition of the `Rape' as defined under the provisions of Section 375 of IPC. Section 375 of IPC reads as under:
"375. Rape.-- A man is said to commit "rape"
if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person;
or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the -8- NC: 2025:KHC:15748 CRL.A No. 143 of 2013 urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, Under the circumstances falling under any of the following seven descriptions:--
(First.)-- Against her will.
(Secondly.) -- Without her consent.
(Thirdly.) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, (Fourthly.) -- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly.) -- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly.) -- With or without her consent, when she is under eighteen years of age.-9-
NC: 2025:KHC:15748 CRL.A No. 143 of 2013 (Seventhly.) -- When she is unable to communicate consent.
Explanation 1.-- For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.-- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.-- A medical procedure or intervention shall not constitute rape.
Exception 2.-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
10. Thus, the prosecution is under obligation to prove:
(i) A man had sexual intercourse with the woman,
(ii) Such intercourse falls under one of the seven clauses of section.
(iii) The Case does not fall within the exception to the section.
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11. Now to ascertain about the proof of the aforesaid essentials, we have to read the evidence adduced by the prosecution.
12. PW.3 is the complainant. According to his evidence, on 21.6.2012, he returned to his house. His wife had been to her coolie work. His daughter PW.5 was alone in the house. When he came to his house, door of his house was found closed and he heard the screaming sound of his daughter. He opened the house and noticed that; accused had slept on his daughter. He called Durgoji Rao, (PW.6) who was residing in front of his house and they caught hold of accused and even then the accused by pushing them ran away from the said place. His daughter was wearing top only and accused had removed her pyjama and so also had removed his lungi. His daughter was weeping. When he enquired his daughter, she told that accused slapped her cheek and spoiled her. Thereafter, his daughter was taken to his wife's parental house. His wife also came to said house. When his wife
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 PW.4 enquired her daughter, she narrated that, accused had spoiled her. His daughter told that, she is suffering from stomach ache. Therefore, she was taken to Govt. Hospital, Shikaripura. There the police came. He gave his statement as per Ex.P3. The police came to the scene of offence in the evening, prepared the panchanama of scene of offence in the presence of Panchas by name Ajjappa and Nagaraj as per Ex.P4. When he lodged a complaint, he told that, his daughter is mentally challenged and used to talk with her mother only.
13. When PW.3 was cross-examined at length by the defence, certain aspects with regard to relations, friends are brought on record in the cross-examination. He states that, surrounding his house, there are about 20 houses situated and a house of PW.6-Durgoji is situated at 20 feet away from his house. He is consistent that, when he entered the house, accused was found sleeping on his daughter and on seeing them, accused ran away from that
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 place. He denied a suggestion that, because of ill will a false complaint is lodged by him.
14. PW.4 Kamudwati is the mother of the prosecutrix. She too states about enquiring her daughter in her parental house about the said incident of rape by the accused and victim narrated that, accused made her to sleep and he also slept on her and spoiled her. Though she has been cross-examined, she denied all the suggestions directed to her and she is consistent about narrating the incident by PW.5 (victim) to her.
15. PW.5 is the victim (Prosecutrix). According to her evidence, on the date of incident, when she was alone in the house, accused came inside the house and made her to sleep removed her pant, slept on her, and spoiled her. When accused was sleeping on her, he had closed the door and when her father entered the house, still accused was sleeping on her but, did not do anything. She was taken to the police station. Along with her, her mother accompanied to the police station. She denied all the
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 suggestions directed to her. She is consistent that, when she bombarded, PW.6 came there. Except this cross- examination, nothing is elicited from her mouth. Thus, she is consistent about accused sleeping on her person by removing her pant. He also had removed his lungi.
16. PW.6 Durgoji Rao has corroborated the evidence of PW.3 in material particulars. According to his evidence, PW.3 called him on that day. When he went to the house of the complainant, complainant was abusing the accused. When enquired, it was told to him that, accused has spoiled his daughter. At that time, accused was inside the house. He told that, in the evening, they would conduct the panchayath as he wanted to go to his landed properties. When he enquired the accused, accused told him to give it up and told that, he has spoiled the victim. The victim was weeping at that time. Though this PW.6 was cross-examined by the defence, but, he is consistent about he witnessing the presence of accused in the house of complainant, and also he noticed the weeping
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 of victim and he heard that, accused had spoiled the victim. There is no denial of this fact by the defence.
17. PW.1 Dr.Lakshmi a Gynecologist of Govt.Hospital, Shikaripura deposed in her evidence that, on 21.6.2012 at 1.25 p.m. victim aged 18 years was brought to her hospital by one Shobha Rani, the Head Constable of Shikaripura Rural Police Station with the history of rape on her by accused-Parashuram. On examination, she noticed that the victim was conscious and she was responding to the questions but, was unable to speak. She was mentally challenged girl. On clinical examination, she has not noticed any injuries on the person of victim on her breast and thigh and she noticed an old injury mark on the middle of her left leg. She noticed outer portion of her vagina was transformed into red colour. There was a bleeding and her hymn was intact. Thus, according to her, on her examination, there were no symptoms of rape on her and based upon FSL report, she had issued report Ex.P1.
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18. PW.2 Dr.Anil Kumar, the Sr.Surgeon had examined the accused and had issued the certificate to show, that accused is capable of performing sexual intercourse. The contents of Ex.P2 are not denied by him. Accused is a married person.
19. Thus, from the evidence of these witnesses discussed above, do establish that, when the said incident took place, there was a bleeding suffered by the victim prosecutrix and there were no symptoms of rape on her as per the evidence of Doctor. As per ex.P1, there are no signs suggestive to reach sexual intercourse. It is the opinion expressed by the doctor after getting the FSL Report. Even from the evidence of PW.4, the prosecutrix, accused has not done such sexual intercourse on her as stated by her in her evidence. She was just aged 18 years when the said incident took place. To that effect, Ex.P7 is produced by the prosecution to show her date of birth as 11.5.1994. The property extract of the house of the
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 complainant is collected by IO and marked Ex.P8 where the incident had taken place.
20. PW.7 Nagaraj is Pancha to Ex.P4 in whose presence the panchanama was conducted by the Police. Nothing worth is elicited in the cross-examination, except the denial. Therefore, it can be stated that in the presence of PW.7 the panchanama Ex.P4 was conducted by the police.
21. During the course of investigation, the victim was taken to the hospital and she was examined by the doctor i.e. Dr.Suresh examined as PW.8. According to his evidence, on his examination and on going through the certificate issued by the Psychiatrist of Meggan Hospital, Shivamogga, the victim prosecutrix is suffering from 65% mental illness. This fact is not denied by the defence. To that effect doctor has issued Ex.P5.
22. PW.9 Chikkappa was Head Master, issued the birth information of the victim showing birth date of victim
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 as 11.5.1994 as per Ex.P7. This fact is also not disputed by the defence.
23. PW.10 T.S.Manjunatha, PDO had issued the Tax Demand Register extracts as per Ex.P8 and P9 which are not disputed by the defence. PW.11 K.B.Banad has prepared the sketch of scene of offence as per PW.6 except denial nothing is elicited from his mouth. PW.12 the then PSI of Shikripura Rural Police Station, had come before the trial Court and deposed about receipt of complaint by PW.3 on 26.01.2012 and registering the same in Crime No.141/2012. He had sent the victim to the Hospital for examination with lady constable. Before PW.12 on the same day itself, the accused was produced. Accused has given a voluntary statement before him. Thereafter, PW.12 had handed over investigation to CPI, Shikripura. Except denial nothing is elicited in the cross- examination.
24. PW.13 Shobha Rani, deposed that, on the instructions of her senior officers, she took the victim to
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 the hospital and submitted the report as per Ex.P13. There is no denial of this fact by the defence.
25. PW.14 Harish, the then Constable of Shikaripura Rural Police Station at the directions of his superior officers apprehended the accused at Guddadatumbina Katte and produced him before the PSI. This fact is not also denied by the defence.
26. PW.15 T.V.Suresh is the IO and on conclusion of the investigation, he had filed the charge sheet. Except the denial, no evidence is brought on record by the defence to disbelieve his evidence.
27. On scrupulous reading of entire evidence placed on record by the prosecution, there is no linking evidence to show, that accused had committed rape on the person of the prosecutrix in the manner alleged by the prosecution. None of the ingredients of the offence under Section 376 of IPC are brought on record from the evidence of prosecutrix (PW.5) and other witnesses.
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28. It is proved by the prosecution that, on the date of incident i.e. on 21.6.2012, accused was found in the complainant's house and he was sleeping on the person of prosecutrix (PW.5). This fact has been spoken to by PW.3, complainant Nagaraj, victim (PW.5) and (PW.6) Dur3gojirao. This fact has been narrated by victim to her mother PW.4 Kamudwati. From the evidence of doctor discussed supra, there are no symptoms of rape on the person of victim PW.5. Therefore, the prosecution has utterly failed to prove that, this PW.5 was subjected to rape by the accused. There are no injuries on the person of the victim on her private part or on her person. The evidence so adduced by the prosecution shows that there must have been outraging the modesty of this PW.5 by the accused. Therefore, the offence under Section 354 of IPC is attracted. Section 354 of IPC reads as under:
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 "354. Assault or criminal force to woman with intent to outrage her modesty.--
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine."
29. Thus, if the definition of outraging of modesty of a woman is perused, accused had attempted to commit rape but, PW.5 herself states that, he has not done anything. The allegation that, accused was found sleeping on the person of victim. In the evidence of PW.5 victim, she deposed that accused has not done anything. But, he was found sleeping on her. Even accused had committed criminal trespass into the house of the complainant and was found sleeping on the person of PW.5, thereby, committed offence of outraging the modesty of PW.5. This incident is about 13 years back, parties are neighbours and this accused is the relative of complainant's family.
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 Though the accused was charge sheeted for the offence under Section 376 of IPC but, none of the ingredients of 376 are brought on record. In view of the same, when without consent or permission from anybody much less from the victim, accused was found sleeping on the person of the victim which was witnessed by complainant with his own eyes, then it amounts to outraging modesty of a woman. She has not sustained any injuries. Therefore, it is stated that, the accused is found guilty of committing outraging the modesty of a woman and has to be convicted for the said offence and to be sentenced accordingly.
30. Learned counsel for the appellant accused placed reliance upon the judgment of Hon'ble Apex Court in Premiya Alias Prem Prakash v. State of Rajasthan reported in , (2008) 10 SCC 81 The Hon'ble Apex Court in para 8, 10 and 11 of the said judgment have observed as under:
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 "8. Certain factual aspects need to be noted.
There was no unexplained delay in lodging the FIR. So far as absence of injury on the private parts of the prosecutrix is concerned, admittedly, she was a married lady. But on a close reading of the evidence of the prosecutrix, it is clear that the accused outraged the modesty but had not raped her. The prosecutrix has not stated specifically about the act, but has loosely described as "fondling". So far as the enmity with the aunt of Laxman (PW 4), the husband of the prosecutrix is concerned it is unnatural that a married lady belonging to the rural areas would falsely implicate the accused with whom she or her husband had no enmity.
10. "9. In order to constitute the offence under Section 354 [IPC] mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab v. Major Singh [AIR 1967 SC 63] .) A careful approach has to be adopted by the court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are as under:
(i) that the person assaulted must be a woman;
(ii) that the accused must have used criminal force on her; and
(iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.
10. Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight." [Ed. : Quoting from Vidyadharan v. State of Kerala, (2004) 1 SCC 215, p. 221, paras 9-10.] In the instant case, after careful consideration of the evidence, the trial court and the High Court have found the accused guilty. But the offence is under Section 354 IPC.
11. In the instant case, we alter the conviction of the accused from Section 376 IPC to Section 354 IPC. The accused has undergone nearly two years of sentence. The occurrence is of 1987. Custodial sentence shall be the period already undergone. The appellant shall be released forthwith unless required in custody in connection with any other case."
31. The said observation can very well be applied to the present facts of the case, that, the accused assaulted the victim by sleeping on her and he has used criminal force on her by slapping her cheek. He has used the said criminal force on PW.5 intending, thereby, to outrage her modesty. Therefore, knowledge and intention of the accused that, his committing the offence are essentially proved by the prosecution. The testimony of PW.5 should receive the weight to believe her evidence. Therefore,
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 after careful consideration of the evidence, it can be stated that, accused is found guilty of committing the offence under Section 354 of IPC and not under Section 376 of IPC. So far as offence under section 448 of IPC is concerned, it is duly proved by the prosecution and the conviction and order of sentence so passed in respect of said offence has to be maintained.
32. It is submitted that, accused was arrested on 21.6.2012 and subsequently, he was enlarged on bail, on 24.11.2012. He was in judicial custody for a period of five months 1 day, till he was released on bail.
33. After passing the judgment of conviction and order of sentence, accused was taken to custody. The accused has preferred this appeal on 1.4.2013. The co-ordinate Bench of this Court suspended the sentence so passed in SC No.180/12 with a condition to deposit the fine amount. He was ordered to be released by executing his personal bond for Rs.50,000/-with two solvent sureties. Thus, accused was in judicial custody initially for
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NC: 2025:KHC:15748 CRL.A No. 143 of 2013 a period of five months one day and thereafter, from the date of judgment till 1.4.2013 i.e., for a period of one month in all he was in custody for a period of eight months one day. Therefore, in the instant case, as the prosecution is able to prove the offence under Section 354 of IPC and has not proved offence under Section 376 of IPC, it is just and proper to alter the conviction of the accused from Section 376 of IPC to Section 354 of IPC. The accused- appellant had undergone nearly eight months 1 day sentence. The occurrence of incident is of the year 2012. Therefore, custodial sentence shall be the period already undergone. With this observation, I pass the following:
ORDER
(i) The appeal is allowed in-part.
(ii) The impugned judgment of conviction dated 31.01.2013 and order on sentence dated 01.02.2013 passed in Sessions Case No.180/2012 by the Presiding Officer, FTC-II, Shivamogga, is hereby confirmed.
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(iii) The accused is convicted and sentenced for the offence under Section 354 of IPC. Consequentially, he is sentenced to undergo simple imprisonment for eight months 1 day. His custodial sentence shall be the period already undergone by him.
Same shall be treated as his
imprisonment.
(iv) So far as conviction and sentence for the offence under Section 448 of IPC is concerned, it remains undisturbed.
(v) Send back the trial Court records along with a copy of this judgment.
(vi) Send the operative portion of this judgment to the Trial Court forthwith by e-mail.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE Sk/-, List No.: 1 Sl No.: 11