Bangalore District Court
Annapoorneshwari Nagar Ps vs A1 Vivek B on 28 November, 2024
KABC010094662020
IN THE COURT OF THE LXX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE, AT
BENGALURU (CCH. No.71)
Dated this the 28th day of November, 2024.
Present;
Present: Sri. Rajesh Karnam.K, B.Sc., LL.B.,
LL.M.,
LXX Additional City Civil and Sessions
Judge and Special Judge, Bengaluru.
Spl.C.No.179/2020
COMPLAINANT: STATE
Represented by
Annapoorneshwari Nagar Police
Station, Bengaluru.
(Rep.by Special Public Prosecutor).
-V/s-
ACCUSED : 1.Vivek.B.,
S/o.Basavaraju.B.R.,
Aged about 22 years,
2.Basavaraju.B.R.,
S/o.Revachari,
Aged about 53 years;
3.Radha,
W/o.Basavaraju.B.R.,
Aged about 46 years;
All are R/at No.39,
3rd block, Sri Sai Nagar,
Near A.G.S.Layout,
Ittamadu,
Bengaluru-61.
(Rep.by Sri.NT, Advocate).
2 Spl.C.No.179/2020
1. Date of commission of offence : 17.01.2020
2. Date of report of Offence : 17.01.2020
3. Name of the Complainant : XXXXX
4. Date of commencement of : 07.08.2021
recording of evidence
5. Date of closing of evidence : 20.09.2024
6. Offences Complained are : U/sec.417,406,420,376 of
IPC and u/s Sec.3(1)(r),
(s),3(1)(w)(i),3(2)(v) of the
SC/ST (POA) Act, 1989.
7. Opinion of the Judge : Accused No.1 is convicted
for the offence punishable
u/s.420, 376 of IPC and
sec.3(1)(w)(i), 3(2)(v) of
SC/ST (POA) Act 1989
Accused No.2 & 3
acquitted of the offences
sec.3(1)(r),(s) and 3(2)
(v)SC/ST (POA) Act, 1989.
JUDGMENT
This case is registered as per the charge sheet submitted by the ACP, Kengeri Gate Sub Division against the accused persons for the offences punishable under Section U/s 417,406,420,376 of IPC and u/s Sec.3(1)(r),(s),3(1) (w)(i),3(2)(v) of the SC/ST (POA) Act, 1989. 3 Spl.C.No.179/2020
2. The brief facts of the prosecution case is that the complainant and accused No.1 were in love, as on 29.4.2019 a female child is born out of relationship between victim and accused no.1. The accused No.1 and the victim both were classmates of first Year and Second Year PUC from 2015-2016 to 2016-2017 academic year. The accused No.1 was behaving in a very close with the victim, even though victim tried to avoid the accused No.1, he by behaving in differently and mentioned is in love with her while they were in Second Year PUC, accused No.1 mentioned he will marry her, as such he took her to hotel, park and when the victim told she belongs to schedule caste and if the parents of the accused No.1 refused to marry the life will be spoiled. Even after telling this accused No.1 did not left the victim, he forced her to believe and he gave explanation he is the only son to his parents and as they are belonging to 'Badagi caste' he will convince his parents to take the victim in marriage. 4 Spl.C.No.179/2020 The accused No.1 once took to his parents and mentioned she is only daughter of her parents, both are working in Government job. The accused No.1 on coming to know that victim parents used to be out of the house from morning till evening and during leave, to the college and lecturers are not able to take classes, he used to take her by force to her house even during summer vacation, he used to visit her house often without permission of the parents of the victim or the victim, he by promising he will marry the victim used to force her for sexual intercourse. The same was continued for a period of 2 to 3 months, after that victim became pregnant. When the same was confirmed while victim went to medical check up, even then accused No.1 convinced her that he will marry her. The parents of the accused No.1 were informed, then the accused Nos.2 and 3 mentioned there is no question of permission, there is no entry of the SC/ST persons in their family and they cannot take victim as daughter-in-law. Then they driven her 5 Spl.C.No.179/2020 away from the house. After this parents of the victim came to know the same fact, they enquired with accused persons, then accused Nos.2 and 3 did not accepted the victim to be their daughter-in- law. They even abused her even the father of the victim questioned what is the result for this, they directed to remove fetus, after this the parents of the victim came to know that it is a 6 months pregnancy, if they force abortion it would lead to health complications of the victim. Then accused Nos.2 and 3 mentioned that he will consult doctor known to him and took all the medical records, after this accused No.1 mentioned that they have to do as per the wish of his parents. After this, they were driven out of the house of the accused persons. After this on 30.1.2019, the accused No.1 and the victim consulted one Aradya advocate and they got the certificate notarized they will marry as per the Arya Samaj customs since both were not at fault and they have to see the child interest. The accused No.1 nor his parents came forward for the 6 Spl.C.No.179/2020 marriage. They used to dodge, the complainant on 29.4.2019 the victim gave birth to the female child. Even after this accused No.1 never came to see the victim or the child and due to this victim being deceived was depressed after 7 to 8 months even though accused No.1 was asked to marry, he did not responded, then it has been demanded to give a house which is in the name of the victim to be transferred to the name of accused No.1 and give one site in the name of accused No.1 and two floor house is to be constructed and gifted the same to the accused and RS.15,000/- is to be paid for expenses of accused No.1. The victim's father was unable to meet all these demands . The complainant being deceived after being having relationship the victim being abused in filthy language and the caste of the victim was seen as degrading. In fact victim though asked to give the name to the child accused refused and demanded a house and also amount for his expenses, to which accused no.1 was mum, refused. Accordingly on 7 Spl.C.No.179/2020 8.9.2019 father of the victim got registered a complaint before the office of the Commissioner of Police. Accordingly victim being troubled by the attitude of the accused and illegal demands being made with regard to site, house, amount, victim had reported the same before the police.
3. On the basis of the same, the IO took up investigation and after concluding the same submitted charge sheet. After filing of charge sheet, this Court took cognizance of the offences and charge sheet copy was furnished to the accused perseons as contemplated under Section 207 of Cr.P.C. Heard before the charge. As there was sufficient materials available, charge was framed for the above said offences, read over and explained to the accused persons in vernacular language and they pleaded not guilty and claimed to be tried.
4. At trial prosecution got examined PWs.1 to 13 in proof of its case and got marked Exs.P.1 to 25 8 Spl.C.No.179/2020 and in defence accused No.1 got himself examined as D.W.1 and Exs.D1 to 4 got marked. After completion of evidence of prosecution, the statement of the accused persons U/Sec.313 of Code of Criminal Procedure were recorded. The accused persons denied all incriminating evidence appeared against them and they did choose to lead defence evidence.
5. On hearing both side, the following points would arise for the determination of this Court are as follows;
POINTS
1) Whether the prosecution proves beyond all reasonable doubt that on accused No.1 and CW.1 were studying in College they were in love and in the house No.446, 5th Main road, Vinayaka Layout, Nagarabhavi in the year 2018 in the summer vacation when the parents of C.W.1 were away for work, accused No.1 went to victim house pretending to marry her and had sexual intercourse with her and thereby cheated, thereby committed an offence u/sec.417 of IPC?
9 Spl.C.No.179/2020
2) Whether the prosecution proves beyond all reasonable doubt that on aforesaid date and place, the accused No.1 pretending to marry C.W.1 had sexual intercourse with her and made her pregnant, committed breach of trust by not marrying later and thereby committed the offence punishable under Section 406 of IPC within the cognizance of this Court?
3) Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date and place, the accused No.1 had sexual intercourse with her in her house and made her pregnant and on 29.4.2019 C.W.1 gave birth to a female child and without marrying her cheated and thereby committed the offence Punishable under Section 420 of IPC?
4) Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date and place, the accused No.1 had forceful sexual intercourse with C.W.1 against her will and thereby committed the offence Punishable under Section 376 of IPC?
5) Whether the prosecution proves beyond all reasonable doubt that accused persons though not belonging to SC/ST has intentionally insulted as "ನೀನು ಕೀಳು ಜಾತಿಯವಳು, ಹೀನ ಕುಲದವರು, ನಮ್ಮ ಮನೆಯಲ್ಲಿ ನಿನಗೆ ಜಾಗ ಇಲ್ಲ , ನಿನ್ನ ನ್ನು ಮದುವೆ ಮಾಡಿಕೊಳ್ಳ ಲು ಸಾಧ್ಯ ವಿಲ್ಲ " with intent to 10 Spl.C.No.179/2020 humiliate CW1 being the member of Scheduled Caste in a place within the public view and thereby committed offence punishable u/sec 3(1)(r) of SC and ST (Prevention of Atrocities) Act?
6) Whether the prosecution proves beyond all reasonable doubt that the accused persons not being the members of SC/ST has abused CW1 being the member of Scheduled Caste by taking the name of her caste as "ನೀನು ಕೀಳು ಜಾತಿಯವಳು, ಹೀನ ಕುಲದವರು, ನಮ್ಮ ಮನೆಯಲ್ಲಿ ನಿನಗೆ ಜಾಗ ಇಲ್ಲ , ನಿನ್ನ ನ್ನು ಮದುವೆ ಮಾಡಿಕೊಳ್ಳ ಲು ಸಾಧ್ಯ ವಿಲ್ಲ " in a place within public view and thereby committed offence punishable u/sec 3(1)(s) of SC and ST (Prevention of Atrocities) Act?
7) Whether the prosecution proves beyond all reasonable doubt that the accused No.1 not being the member of SC/ST has committed sexual intercourse forcefully and made her pregnant and later abused her as "ನೀನು ಕೀಳು ಜಾತಿಯವಳು, ಹೀನ ಕುಲದವರು, ನಮ್ಮ ಮನೆಯಲ್ಲಿ ನಿನಗೆ ಜಾಗ ಇಲ್ಲ , ನಿನ್ನ ನ್ನು ಮದುವೆ ಮಾಡಿಕೊಳ್ಳ ಲು ಸಾಧ್ಯ ವಿಲ್ಲ " , on 29.4.2019 she gave birth to a female child but accused No.1 did not married her and cheater her and thereby committed offence punishable u/sec 3(1)(w)(i) of SC and ST (Prevention of Atrocities) Act?
8) Whether the prosecution proves beyond all reasonable doubt that the 11 Spl.C.No.179/2020 accused is not being the member of SC/ST has committed forcible sexual intercourse with CW1, who belongs to scheduled caste and thereby you have committed offence which is punishable with more than 10 years or imprisonment for life, which is punishable under Section 376 of IPC and thereby you have committed offences punishable under section 3(2)(v) of the SC and ST(Prevention of Atrocities) Act, within cognizance of this court?
9) What order?
6. My findings to the above points are as follows;
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Affirmative Point No.4 : In the Affirmative Point No.5 : In the Negative Point No.6 : In the Negative Point No.7 : In the Affirmative Point No.8 : In the Affirmative Point No.9 : As per final order, for the following;
REASONS
7. The learned SPP submits that accused No.1 and victim were known to each other is an undisputed fact. Even PWs.1 to 13 are examined. 12 Spl.C.No.179/2020 All of them support the prosecution case in the case on hand, the blood samples of the victim and the accused and the child are taken in the open court, as such Ex.P.16 the DNA Report discloses due to the relationship between the victim and the accused, the minor child is born. In the case on hand, the medical who examined the victim and the accused is examined. The Medical Officer who took the sample for DNA Report has specifically deposed about taking the sample in open court. In the evidence of the material witnesses they support consistently with regard to the relationship of accused No.1 with victim. There is presumption with regard to having relationship since on the pretext of marriage, the relationship was forced one by the accused No.1 against the victim the placing of Ex.D.1 and D.4 during the course of evidence prosecution does not make it absolute, however by appreciating the facts placed on record, it clearly points towards the guilt of the accused. The accused has accepted the 13 Spl.C.No.179/2020 relationship, even though a specific defence is taken that he has not deceived but it has not been proved, the say of the victim will have to be followed in this regard brings to the court notice Ramu Harijan V/s. State of U.P (2012)5 SCC 777 Note 'C', as such the appreciation of evidence is to be made as per the Note (G) in para-31 of the same decision. Further relies on B.C.Deva @ Dyava V/s. State of Karnataka in Crl.A.No.205/2001 dated:25.7.2002 Vijay Painuli V/s. State of Uttarkhand in case of Crl.A.592/2020 dated:12.8.2021.
8. The learned SPP submits as per sec.90 of IPC as observed by the Hon'ble Supreme Court of India Anurag Soni V/s. State of Chattisgarh, there is presumption with regard to offence punishable u/s.376 of IPC being committed by the accused No.1 and the suggestions made to P.W.1 that she got pregnant from some other person definitely goes against the accused since he had no 14 Spl.C.No.179/2020 explanation to take the responsibility by marrying the victim. In fact the victim has suffered at the hands of the accused No.1 also due to the attitude of the accused Nos.2 and 3 who made victim to suffer even though attempt is made by the victim to get married with the accused No.1, adverse inference is to be drawn against the accused No.1. Since his conduct and the suggestions made in cross examination definitely discloses the commission of the offence. In fact the other material witnesses examined by the prosecution has specifically supported the prosecution case. As such, accused are to be held guilty.
9. The learned SPP submits as per the provisions of sec.357 of Cr.PC victim is to be awarded suitable compensation for undergoing the trauma by believing the words of the accused No.1.
10. The learned counsel for the accused submits the complainant at the first instance has filed 15 Spl.C.No.179/2020 complaint after 2 years from the date of consensual relationship. In fact the affidavit of the accused No.1 and the complainant, though a copy is got marked in defence the complainant had specifically admitted its contents which falsifies in their prosecution case. In fact as per the written complaint Ex.D.2 is on 17.1.2020 however there was talks held between the accused family and the complainant and her family to resolve the same by getting marriage performed to which accused No.1 has consented since the day one. The choice not to marry is even now in the complainant's hand as she has refused to marry accused No.1. In fact P.W.2 who is a signatory to even Ex.D.1 and who had signed the Ex.P.2 spot Mahazar in police station since admitted, definitely goes to show that there is no any proper investigation being conducted by the jurisdictional police. In fact after all the negotiations between the family members and even in police station of Annapoorneshwari nagar. In fact there is no any consensus arrived by 16 Spl.C.No.179/2020 the family of the victim. In fact accused Nos.2 and 3 have been dragged into the proceedings without there being any part of participation or doing any extraneous act either to harm the P.W.1 victim's involvement in relationship with the accused No.1 which is undisputed. However attempt has been made to manipulate and concoct as per Ex.P.1 just to make a case and harass the accused persons. In the case on hand, the mother of the victim has never being questioned by the Investigating Officers nor made as a witness which discloses a strong suspicious circumstance under which the present case came to be lodged.
11. In the cross examination of P.W.1 at page-7 dated:3.9.2021, there is a specific admissions given by the victim with regard to the sequel of events happened in the life of accused No.1 and the victim. In the cross examination of P.W.1 in page- 11 to 14 admissions have been got elicited from the mouth of the victim was not at all willing to part 17 Spl.C.No.179/2020 away from the accused No.1 as accused No.1 never tried to disturb the peace of mind of the victim. In fact the circumstances specifically disclose there was consensual sexual intercourse there is no any disharmony caused on the side of the accused No.1 with victim. In fact the child birth is also an undisputed fact. The accused No.1 was always ready to take the victim as his wife. However victim has been forced by some other elements not to accept the accused No.1 to marry.
12. The learned counsel for the accused brings to court notice, in the cross examination of P.W.1 at page-11 to 14 there are specific admissions given by P.W.1 herein it is specified when accused No.1 was in J.C she has visited jail and he had asked her to marry him as per the order of the Hon'ble High Court of Karnataka is admitted, however witness replies further she has rejected the offer. This witness admits she was about 8 months pregnant at that time. She has specified by admitting even 18 Spl.C.No.179/2020 on accused No.1 offer to marry she has rejected the same is admitted. The witness has admitted father's elder brother and his wife were residing near their house, she admits there are other houses in and around her house, admits her father's brother and his wife have not been made as witnesses. She admits she does not disclose about having love towards the accused No.1. This witness admits the Ex.P.2 has been admitted while she was in the house and her father's elder brother and his wife were witness to it and she deposes she does not know the contents of Ex.P.2. This witness admits police never seized any articles nor read over contents of Ex.P.2. This witness admits Ex.P.5 was taken at the time of college function. This witness admits as in Ex.P.6 the contents she has stated before the police in her statement is admitted. She admits she had signed Ex.P.3 while going to hospital for check up and accused No.1 was also present. She admits about not asking for DNA examination. This witness has admitted the 19 Spl.C.No.179/2020 chat taken place between the victim and the accused No.1 which is placed on record. She admits she has mentioned she desires to marry him but it is about 2 to 3 years back and it is before she became pregnant. This witness admits when she had went to Shanbhog hospital she had not married. This witness admits she has mentioned her husband as revealed in the hospital records. This witness deposes accused No.1 never came with her for hospital check up. This witness admits she had been taken to Vani Vilas hospital. She admits Darshan and Prashanth are her parents and she had disputed with accused No.1. This witness has admitted accused No.1 never asked for giving house property in exchange of marriage. Witness volunteers it has been demanded by the accused No.2 father of the accused No.1. This witness has admitted the child born is a symbol of love between herself and the accused No.1. This witness admits accused No.1 never demanded to give the child to him.
20 Spl.C.No.179/2020
13. The learned counsel for the accused argues as these facts disclose there is consensual sex there is no any disharmony on the side of the accused No.1 and victim and the child birth is undisputed. Therefore under such circumstances, as per Ex.P.1 complaint at page-7, the accused No.1 deceived the victim by making promise of marriage and later turning down the same are all fabricated only for the sake of filing this case. In fact the admission with regard to Ex.D.1 makes it clear that complainant victim never desired to make a complaint against the accused and family, however it is at the instance of father of the victim the present complaint came to be lodged. Therefore the admissions of P.W.1 and 2 clearly goes against the case of prosecution. Further P.W.2 had also admitted suggestions made. There is delay of two years to lodge complaint. As such seeks acquittal of the accused persons. 21 Spl.C.No.179/2020
14. The learned SPP submits there is no question of delay as the facts and circumstances discloses the delay has been caused by the accused rather victim. Moreover the Ex.D.1 is an inadmissible document as per sec.114(A) of Indian Evidence Act.
15. In order to prove the case of prosecution the complainant S.Manasa got examined as P.W.1. She has deposed that she belongs to schedule caste and accused belongs to Vishwakarma caste and accused was knowing her caste. In the year 2016- 2017 when she was studying PUC in National College, Basawanagudi, accused No.1 was also studying together and she had contact with him, accused No.1 informed her that he is loving her and will marry her, but when she informed him that she belongs to schedule caste and marriage is not possible, accused No.1 informed her that he will marry her and convince his parents for marriage and told her that she is his wife and had sexual intercourse with her. At the time when her parents 22 Spl.C.No.179/2020 were not in the house went to work, accused No.1 came to her house and told her to put leave and stay together in the house. In December 2018 she came to know that she became 6 months pregnancy, and informed the same to accused No.1 and both of them went to Maharaja Agrasen Hospital for medical checkup, doctor informed that she is 6 months pregnant and and abortion is impossible and it is against law. When she informed the same to her father, her father informed accused No.2 about her pregnancy and told to perform their marriage, at that time they told that they are upper caste and she is lower caste, marriage is impossible and told her to abort the child. She further deposed that they have made marriage affidavit, which was taken by accused No.2 and has not returned the same. Further she deposed that they have asked two floor house, one vacant site and every month Rs.15,000/- as dowry. The accused No.1 told her that if she does not abort the child, he will leave her. Further deposed 23 Spl.C.No.179/2020 that on 29.4.2019 she gave birth to a female child. The accused No.1 left her and his mobile phone was snatched by accused No.2 and it was blocked and P.W.1 was unable to talk with accused No.1. She further deposed that in the month of June/July they went to lodge complaint, but police have tried to pacify their quarrel for 4-5 times and they informed that they are upper caste and she belongs to lower caste and told her to abort the child but she did not oblige and informed that P.W.1 is having lot of boy friends and offer was there and police have not registered FIR. On 17.1.2020 FIR was registered and got marked complaint as Ex.P.1 and Panchanama conducted as per Ex.P.2. She further deposed that she was taken to Vani Vilas Hospital for medical examination and took her identification form as per Ex.P.3 and conducted DNA of her child and identification form of her child as per Ex.P.4 and gave the photo taken together with accused No.1 as per Ex.P.5. She further deposed that when she and her father was 24 Spl.C.No.179/2020 called to Parappana Agrahara jail, she had panic attack and doctor advised for higher treatment. She has produced C.D. containing statement u/s.164 of Cr.P.C marked at Ex.P.6 and C.D. at Ex.P.7.
16. P.W.1 was called on 03.09.2021 for cross examination. In the cross examination she admitted that she and accused No.1 were together after they completed PUC and admitted that they decided to get marry. Further admitted that the accused No.1 refused for marriage. She admitted that they have signed in the affidavit before notary agreeing for marriage and the xerox of the affidavit is marked at Ex.D.1. She admitted that police have called her and her father with regard to complaint. She denied that she refused for the marriage. She admitted that she was loving accused No.1 from PUC and they were knowing their caste, they were going to hotel and park. She admitted that accused No.1 informed her to get marry in Arya Samaja. 25 Spl.C.No.179/2020 She denied that she refused for the marriage. She further admitted that accused No.1 never abused her by taking her caste at the time of loving her. She further admitted that police have not read over the Ex.P.2. Further she admitted that she has given the photos and chats in the mobile to the police. She admitted that she informed accused No.1 that after 2-3 years to get marry. She admitted that she was not married at time of visiting the hospital. At the time of admitting to hospital she informed her husband name as Vivek. She admitted that Darshan and Prashanth were her friends. She admitted that the child is the symbol of their love. The accused No.1 has not forced her to have a child. She further denied that she does not know the contents of the complaint.
17. The P.W.2/Sridhar father of the complainant has deposed that in the year 2016-2017 accused No.1 had sexual intercourse with his daughter when they were not in the house. In the year 2017- 26 Spl.C.No.179/2020 2018 he advised accused No.1 that their caste are different but accused No.1 made believe the victim to get marry had sexual intercourse with her and in the year 2018 victim became pregnant. Further deposed that when he requested the parents of the accused No.1 for marriage of her daughter, they refused as she belongs to lower caste and told to get abort the child of the victim, due to which he lodged complaint in the police station. On 29.4.2019 victim gave birth to a female child.
18. In the cross examination P.W.2 has admitted that he has made affidavit for the marriage. There was no galata between them. Further admitted that accused No.1 accepted for the marriage. Further admitted that accused No.1 did not response to the phone call made by his daughter after her pregnancy. Further admitted that even though accused No.1 has accepted for marriage, they refused for the marriage as he has cheated her 27 Spl.C.No.179/2020 from the beginning and how to believe that he will look after her well in future.
19. The P.W.3/Vidyasagar has deposed that P.W.1 is his brother's daughter. He has deposed that he has signed Ex.P.2 Mahazar.
20. In the cross examination he has admitted that police have called him to the spot. Police have not given him notice for conducting panchanama. He denied that he was not in the spot while conducting panchanama.
21. The PW.4 Anitha G.S Assistant Professor of Vani Vilas Hospital has deposed that police have brought the victim on 18.1.2020 for medical examination and she has sent the victim and child for DNA examination.
22. In the cross examination she deposed that she has sent them for DNA examination and no 28 Spl.C.No.179/2020 other medical examination has been conducted by her.
23. The P.W.5 Dr.K.V.Sathish has deposed that on 21.1.2020 he conducted medical examination of accused No.1 at 12.30 p.m with identification of marks and consent. He deposed that accused has no any incapability to perform sexual intercourse.
24. In the cross examination he has deposed that they have not maintained any photograph of the person examined and separate pre-history. The chemical examination of the person brought concerning his potency about having sex is not sent as he is physically fit. He further deposed that it is not true to suggest he has not followed due procedure before giving opinion as per Ex.P.11.
25. The P.W.6 Vijayalakshmi.P WPC 15777 has deposed that on 20.1.2020 as per the order of ACP Kengeri Gate police station, she alongwith Gangadhar H.C., Amasegowda PC went to Archana 29 Spl.C.No.179/2020 Complex and secured the accused persons and produced before the higher officers.
26. In the cross examination he denied all the suggestions made to him.
27. The P.W.7/Gurunath H.A Police Constable has deposed about producing the accused before the Medical Officer for medical examination and he denies the suggestions made to that effect.
28. The P.W.8 Kavitha Bai deposed about subjecting the victim for medical examination on 18.1.2020 and she denies suggestions made to that effect.
29. The P.W.9 Shivakumar.H.B. deposed about handing over the blood sample of all the 3 persons as per the order of the court to the concerned forensic expert and placed the acknowledgment to that effect before the Investigating Officer. 30 Spl.C.No.179/2020
30. The P.W.10 Amasegowda is the Police Personnel deposed about producing the accused persons before the Investigating Officer and making the report to that effect and denies the suggestions made in cross examination.
31. The P.W.11 Rajashekaraiah.B.C is the Police Inspector who registered crime on obtaining Ex.P.1 as per Ex.P.14 and denied suggestion made in cross examination to that effect.
32. The P.W.12 L.Purushotham who is the medical officer conducted DNA profiling and deposed about issuing Ex.P.15 and taking the order from the court as per Ex.P.15 and 16 and this witness denies he has given caste report.
33. The P.W.13 U.D.Krishna Kumar is the Investigating Officer who deposed about taking of further investigation on 18.1.2020 as per Ex.P.17. He subjected the victim for medical examination as per Ex.P.10 and recorded statement as per Ex.P.14. 31 Spl.C.No.179/2020 He visited the spot and conducted Mahazar as per Ex.P.2 and recorded videograph of the panchanama.
34. This witness deposes he received screen shots provided by victim as per page-62 to 82 of his charge sheet under Ex.P.18. This witness deposes visiting Shanbhag hospital and obtaining copy of the document under Ex.P.19. He obtained Ex.P.20 statement u/s.ec.65B of Indian Evidence Act. This witness deposes about getting statement u/s.164 of Cr.PC of the victim as per Ex.P.6 from the jurisdictional court. He had obtained Ex.P.21 recording statement of C.W.10, 11, 12 on conclusion of investigation has filed charge sheet.
35. In his cross examination this witness admits he did not collected any documents while conducting spot Mahazar as per Ex.P.2. He denies specific suggestions, he never visited spot and conducted Mahazar. This witness admits parents of 32 Spl.C.No.179/2020 victim are Executive Engineers in PWD Department. Further admits there was enquiry conducted in Annapoorneshwarinagar police station and closed the same, but admits he did not observed the same in complaint whether mentioned or not. This witness admits he did not collected school documents of victim or her father with regard to caste of the victim. This witness denies the father of the victim never came to police station and gave further statement. This witness admits there was no any difference between the victim and the accused No.1 with regard to caste. He admits Ex.P.5 they were not having any difference as such as visible in Ex.P.5 witness replies may be. This witness denies falsely implicated the accused persons.
36. POINT NO.2: The prosecution to prove the ingredients of offence punishable u/s.406 of IPC, the complainant in his complaint has specifically mentioned in page-3 that when the parents of the 33 Spl.C.No.179/2020 victim were not in the house, accused No.1 used to induce victim during holidays to college or the lecturers were not taking classes he used to force her during summer vacations of the year 2018 and used to come to her house had specifically specified in the complaint that accused No.1 used to force her even though she did not agree to have sex. The accused used to promise he will marry her definitely he continued the same for a period of 2 or 3 months thereafter. Later when the complainant became ill, she took medical advise, she came to know that she became pregnant. In fact even then when the accused came to know about the same, he promised they are going to marry. As parents of the accused were informed as victim was taken to the house of the accused No.1, where the parents of the accused were informed has become pregnant, the accused No.1 has promised to marry her, they made the victim believe that they can marry later. However when victim insisted they informed that there is no space 34 Spl.C.No.179/2020 for her as she belongs to schedule caste/schedule tribe. Further in page-5 of the complaint, it is mentioned that on 30.01.2019 the accused No.1 took the victim to advocate Aradya where he had got notarised affidavit wherein it is mentioned both were marrying together with the help of 'Arya Samaja' and there is no part of both and accused No.1 will take care of the child after birth which are being written at the instance of accused.
37. The learned SPP submits as complainant in the complaint even the fact is undisputed accused in his cross examination dated:03.10.2024 he admits Ex.D.2 is of the year 2019. This witness has admitted he has placed Ex.D.1 by getting colour xerox of the same which is inadmissible document as original is in existence. There is no any explanation offered in the examination in chief that in the absence of original document Ex.D.1 is placed in its place. Therefore the document is inadmissible. On going through the document the 35 Spl.C.No.179/2020 mention made therein with regard to contents of the document Ex.D.1 is not disputed either by the accused No.1 or the complainant and even the P.W.2 father of the complainant however the existence of document originally is also undisputed fact. Under such circumstances the placing of Ex.D.1 by the accused No.1 where it is or in whose possession it is being not explained.
38. The learned SPP argues in consonance with the evidence of P.W.1, the P.W.2 father of the victim has also deposed similarly with regard to the ingredients of alleged offence in his examination in chief. The learned counsel for the accused submits as per the admissions given by the father of the victim P.W.2 in his cross examination in page-2 and 3, clearly shows that there was a negotiations made with regard to marriage and it has been reduced into affidavit, there was no any difference between the accused and the complainant's family is an admitted fact. Under such circumstances as 36 Spl.C.No.179/2020 on 12.1.2019 when there was no difference with regard to proceeding towards the marriage the complaint being lodged only on 17.1.2020 after a period of 15 days is a misconceived complaint. Further from date of so called sexual assault is about two years prior to lodging complaint.
39. The learned counsel for the accused brings to the court notice the further cross examination of P.W.2 in page-3 last line it has been admitted by the father of the complainant that victim was 6 months pregnant when the affidavit was prepared. Therefore as on date of Ex.D.1 the parties have consent for proceeding towards marriage is established. Accordingly the complaint being made after 15 days is against the will and consent of the victim. As such the ingredients of offence punishable u/s.406 of IPC is not made out seems reasonable. Accordingly, this Point No.2 is answered in the Negative.
37 Spl.C.No.179/2020
40. POINT NO.4: In the case on hand, to prove the ingredients of offence punishable u/s.376 of IPC, the learned SPP submits in the case on hand the victim has been subdued by the accused No.1, for his demand of having sex. The victim has specifically alleged in complaint that accused used to visit the house of victim often whenever there was holiday or there is no class taken by the lecturer or during holidays victim was visited by the accused No.1 at that juncture he had forced her to have sex often. The same has been specifically mentioned in the complaint especially in page-2 and 3. In this regard, Ex.P.5 is placed which discloses accused and victim seen together as accused No.1 after sexual intercourse as a result of that even after child birth he never married. Under such circumstances, the definition of the offence punishable u/s.375 which is as follows:
[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 38 Spl.C.No.179/2020
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the 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.39 Spl.C.No.179/2020
Sixthly.With or without her consent, when she is under eighteen years of age.
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
41. The explanation that her consent when at the time of giving such consent she is unable to understand the nature and consequence of that to which she gives consent. Definitely comes to the 40 Spl.C.No.179/2020 operation in the case on hand, as such if the same is read with sec.90 of IPC the consent given by victim is as victim has been promised of marriage, as such as she was in misconception with accused No.1 is going to marry her, as such the consent is not at all a consent. Therefore the complaint is very specific about the consent from the victim is under misconception of fact only, as such the medical reports namely Ex.P.10 and 11 clearly discloses the FSL.Report as per Ex.P.15 directly points towards the accused No.1 as deposed by P.W.1 the responsibility of the victim and the minor child, rests on the accused no.1. However after child birth he has taken back. The whatsapp messages clearly establishes the accused No.1 has even been called as "hubby" as per the message shared between the victim and the complainant in page-67 and even victim has been assured by the accused No.1 to that effect. Accordingly, the evidence of P.W.1 itself is sufficient, which discloses that she has been made to believe that accused No.1 is 41 Spl.C.No.179/2020 going to marry her. After this, the accused No.1 has backed out, as such the offence as per presumption u/s.90 r/w.375 of IPC is come into effect and accused No.1 is guilty of the alleged offence. Accordingly, submits accused No.1 is to be convicted for the above offence punishable u/s.376 of IPC.
42. The learned SPP brings to the court notice the following citations namely:
1. AIR 2019 SC 1857 in case of Anurag Soni V/s.
The State of Chhattisgarh wherein it is held that:
"9. The question in the present case is whether this conduct of the accused apparently falls under any of the six descriptions of Section 375 IPC as mentioned above. It is clear that the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore, whether this amounts to a consent or the accused obtained a consent by playing fraud on her. Section 90 of the Penal Code says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be 42 Spl.C.No.179/2020 construed to be a valid consent. Section 90 reads as under:
"90. Consent known to be given under fear or misconception.--A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or [Consent of insane person] if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or [Consent of child] unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her.
43 Spl.C.No.179/2020Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. .......
15. In this connection reference may be made to the amendment made in the Evidence Act. Section 114A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114A reads as under: "114A.
Presumption as to absence of consent in certain prosecutions for rape.--In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."
16. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Presumption has 44 Spl.C.No.179/2020 been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her." 10.4 In the case of State of U.P. v. Naushad (2013) 16 SCC 651, in the similar facts and circumstances of the case, this Court reversed the acquittal by the High Court and convicted the accused for the offence under Section 376 of the IPC. This Court observed and held as under: "17. Section 376 IPC prescribes the punishment for the offence of rape. Section 375 IPC defines the offence of rape, and enumerates six descriptions of the offence. The description "secondly" speaks of rape "without her consent". Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix "against her consent". The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of "bad character".
15. Now, so far as the submission on behalf of the accusedappellant that the 45 Spl.C.No.179/2020 accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.
As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused 46 Spl.C.No.179/2020 had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant accused for the offence punishable under Section 376 of the IPC. The appellantaccused must face the consequences of the crime committed by him.
16. In view of the above and for the reasons stated above, we are of the opinion that both the Courts below have rightly convicted the appellant accused under Section 376 of the IPC. We also maintain the conviction of the appellant accused under Section 376 of the IPC. However, in the facts and circumstances of the case and the request made by the learned counsel appearing on behalf of the appellant accused, the sentence of 10 years' RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 of the IPC.
2.B.C.Deva @ Dyava V/s. State of Karnataka in Crl.A.No.205/2001 wherein it is held that:
"13. The evidence of the prosecutrix finds full support and corroboration from the testimony of PW-3, the mother of the prosecutrix. It is the evidence of PW-3 that on the day of the incident after lunch break, the prosecutrix came weeping to her and narrated the entire incident to her and also disclosed that the prosecutrix had no intention to live further in this world as no good and prudent boy will extend an offer of marrying her on hearing about the unfortunate incident. It is also the 47 Spl.C.No.179/2020 evidence of this witness that the prosecutrix rushed towards a nearby water tank with clear intention of commiting suicide by jumping into the water tank and eventually she was rescued from drowning by PW-4 Shashappa, PW-5 Yashodhara, Babu and Vishwanath. It is the evidence of PW- 4 that in the afternoon of the day of incident when he was working in the pump house near the water tank, he heard slight sound of somebody falling into the tank. He along with Babu, Vishwanath and PW-5 Yashodhara immediately rushed to the water tank and noticed the prosecutrix drowning in the water. He stated that the prosecutrix was pulled out of the water tank by them and when he asked her about the cause of her committing suicide, the prosecutrix disclosed that she was forcibly raped by the accused in the afternoon on the day of occurrence. This witness was cross-examined at length, but nothing could be elicited from his evidence to establish that the witness has given evidence to implicate the accused in a false case or the witness is, in any way, related to the prosecutrix and therefore, tried to help her. Yashodara (PW- 5) has testified and corroborated the testimony of the prosecutrix and PW-4 in its entirety. The proseuctrix has given graphic narration of the occurrence in complaint Ex. P-2 lodged against the accused at 7.00 p.m. in the Police Station. The name of the accused, who was also working as a Mistry in the same Coffee Estate where the prosecutrix and her parents (PWs-2 and 13), besides PWs-4, 5 and other persons were working has been categorically mentioned as an offender of the crime. Thus, the entire incident narrated in the complaint (Ex.P-2) stands corroborated by the oral testimony of the prosecutrix, her mother (PW-3), her father (PW-13) and independent witnesses (PWs-4 48 Spl.C.No.179/2020 and 5). The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted. Though, the FSL Report marked as Ex.C-1 pertaining to the undergarments of the accused and the victim did not contain any seminal stains, yet the said report cannot be given any importance because the underwear of the accused was taken into possession by the police on the next day of the incident when he was arrested. There is no evidence brought on record to show that the accused handed over the same under wear to the police, which he was wearing on the day of incident or he had handed over some other underwear which was seized under mahazer (Ex.P-5) by the police. The possibility of absence of seminal stains on petticoat of the prosecutrix which she was wearing at the time of the incident, could not be ruled out due to the fact that the petticoat got drenched in the water and the seminal stains might have been washed away.
14. The Trial Court as well as the High Court have recorded the finding of guilt of the accused based upon proper appreciation of the evidence led by the prosecution in this case. In view of the aforesaid discussion, we do not find any justified and justifiable ground to interfere with the conviction and sentence 49 Spl.C.No.179/2020 awarded by the Trial Court and confirmed by the High Court. The appeal is, therefore, dismissed.
15. The accused is on bail. He is directed to surrender before the Trial Court forthwith and to suffer the remaining period of sentence."
3. Shahaja @ Shahajan Ismail Mohd.Shaikh V/s. State of Maharashra in Crl.A.No.739/2017 wherein it is held that:
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the 50 Spl.C.No.179/2020 evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of 51 Spl.C.No.179/2020 another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."52 Spl.C.No.179/2020
4. Vijay Peinuly V/s. State of Uttarkhand in Crl.A.No.592/2020 of Hon'ble Supreme Court of India wherein it is held that:
"We have carefully scrutinized the entire material on record including the evidence that is filed by the prosecution. After considring the submissions of the learned Amicus Curiae appearing for the app, we are not in agreement that an error has been committed by the courts below in convicting the appellant u/s.376(2)(1), IPC. It is true that there was delay in the registration of the FIR. Naturally, the medical examination of the victim 20 days after the incident would not discloses any injuries or any evidence of rape. There are certain minor contradictions in the evidence. However, we are of the considered view that the testimony of the prosecutrix, which is credible, can be the sole basis for the conviction of the app u/s.376(2)(1) IPC. The judgment in the Santosh Prasad casse (supra) is a case where there was a dispute of land between the prosecutrix and the accused. Taking that into account, this court held that the contradictions in the evidence of the prosecutrix and the medical evidence has to be looked into by the courts carefully. In para-
5.3 of the said judgment, this court made it clear that the conviction can be based solely on the evidence of the prosecutrix. After detailed consideration of the submissions made by both sides, we see no reason to interfere with the judgments of the courts below convicting the appellant under sec.376(2)(1) IPC. As the sentence imposed is for a period of 10 years which is the minimum 53 Spl.C.No.179/2020 prescribed u/s.376(2)(1) IPC, there is no case for interference with the sentence as well. The appeal is dismissed. Pending apli if any shall stand disposed of."
5. (2012)5 SCC 777 in case of Ramesh Harijan V/s. State of Uttar Pradesh in Crl.A.No.1340/2007 dtd:21.5.2012 wherien it is held that:
"27. In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC 3678, this Court held as under:
"It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account."
23. A similar view has been re-iterated in Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696, wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not dis-believe 54 Spl.C.No.179/2020 the evidence of such witnesses altogether if they are otherwise trustworthy.
24. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.
25. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622, this Court held :
"...Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short, our jurisprudential enthusiasm for presumed innocence must be 55 Spl.C.No.179/2020 moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant..." (See also: Bhagwan Singh & Ors. v. State of M.P., AIR 2002 SC 1621; Gangadhar Behera & Ors. v. State of Orissa, AIR 2002 SC 3633; Sucha Singh (supra); and S. Ganesan v. Rama Raghuraman & Ors., (2011) 2 SCC
26. Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.
27. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis- appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal. In view of the above, the appeal lacks merit and is accordingly dismissed."
56 Spl.C.No.179/2020
6. Hon'ble Supreme Court of India in Crl.A.No.1520/2021 in case of Phool Singh V/s. State of Madhya Pradesh wherein it is held that:
"6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).]
7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving 57 Spl.C.No.179/2020 sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635)."
6. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained.
8. Now so far as the submission on behalf of the accused that the learned trial Court erred in not believing DW1 and erred in not believing the defence and the plea of alibi that on the night of the incident he had gone to Indore and was not present in the village is 58 Spl.C.No.179/2020 concerned, at the outset, it is required to be noted that cogent reasons have been given by the learned trial Court not to believe DW1 and not to believe the plea of alibi raised by the accused. DW1 belongs to the same village of the accused. The reason to go to Indore has been disbelieved by the court. It was the case on behalf of the accused and the defence that as one Babulal had met with an accident, DW1 and the accused had gone to Indore taking Babulal and they had stayed at Indore on that night. However, it was found that Babulal had an injury before two months. Defence had not produced the record of the hospital or examined doctor or employee of the hospital where the said Babulal was taken for treatment. According to the defence, they had stayed in the house of Tulsiram at Indore but the said Tulsiram has not been examined. Even the Babulal has also not been examined. Under the circumstances, the learned trial Court has rightly disbelieved the plea of alibi raised by the accused and has rightly disbelieved DW1. On appreciation of evidence, the learned trial Court has specifically observed that the deposition of DW1 does not inspire any confidence.
10. Now so far as the prayer on behalf of the accused to reduce the sentence considering the proviso to Section 376 IPC is concerned, as per section 376 IPC pre-amendment, the minimum punishment shall be seven years. However, as per the proviso, the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. No exceptional and/or special reasons are made out to impose the sentence of imprisonment for a term of less than seven years. On the contrary and in the facts and circumstances of the case, it can be 59 Spl.C.No.179/2020 said that accused has been dealt with lightly by imposing the minimum sentence of seven years rigorous imprisonment only. The victim was the relative. Nobody in the family at matrimonial home supported her and she suffered the trauma. She was compelled to go to her parental house and thereafter she was able to lodge the FIR. The accused has come out with a false case/plea of alibi, which is not accepted by the courts below. Under the circumstances, the prayer of the appellant to reduce the sentence and/or to convert the sentence from seven years rigorous imprisonment to seven years simple imprisonment is not accepted and it is rejected".
43. The learned SPP argues as per the citations relied by the prosecution they are directly on the point in issue. In the case on hand, accused No.1 did promised of marriage with the victim and had sexual intercourse with the victim by which child has been born out of the forced intercourse by the accused No.1. The DNA Report has been placed on record which is also an undisputed fact, that child is born due to the relationship between the victim and the accused no.1. Therefore accused is to be convicted for the offence punishable u/s.376 of IPC. The direct evidence of the victim has been placed on record to 60 Spl.C.No.179/2020 prove this ingredients of alleged offence. This fact as deposed by complainant and even the accused entering witness box as D.W.1 has admitted the relationship, as such there is fool proof with regard to accused No.1 committed the offence punishable u/s.376 of IPC.
44. The learned counsel for the accused submits the child birth is an undisputed fact. The victim and the accused No.1 were in relationship is also an undisputed fact. The prosecution is trying to mislead the court and the analogy as mentioned u/s.375 R/w.sec.90 of IPC cannot be drawn in the present case. The learned counsel for the accused submits the whatsapp messages which are being allegedly exists between the accused and the victim clearly discloses the victim was fond of accused No.1. The belief of the victim as accused No.1 being her husband as per the messages exchanged would have been considered when at any point of time accused No.1 had or did refused the victim being taken as his wife. This belief 61 Spl.C.No.179/2020 made the accused No.1 to enter the witness box as D.W.1. The accused No.1 brings to the court notice the cross examination of P.W.1 in page-7 and 8 as"
"ನನ್ನ ತಾಯಿ ಇಂಜಿನಿಯರ್ ಆಗಿರುತ್ತಾರೆ. ಅವರು ಸರ್ಕಾರಿ ನೌಕರರಾಗಿದ್ದಾರೆ. ನನ್ನ ದೂರಿನಲ್ಲಾ ಗಲೀ ಅಥವಾ ಹೇಳಿಕೆಯಲ್ಲಾ ಗಲೀ ಅಥವಾ ದೋಷರೋಪಣಾ ಪಟ್ಟಿಯಲ್ಲಿ ನನ್ನ ತಾಯಿ ಹೆಸರನ್ನು ಸಾಕ್ಷಿಯಾಗಿ ತಿಳಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಪೊಲೀಸರು ನನ್ನ ತಾಯಿಯನ್ನು ವಿಚಾರಣೆ ಮಾಡಿ ಹೇಳಿಕೆ ಪಡೆದಿಲ್ಲ . ಈ ಪ್ರಕರಣದ ಬಗ್ಗೆ ನನ್ನ ತಾಯಿಗೆ ಎಲ್ಲಾ ಮಾಹಿತಿ ಇದೆ ಎಂದರೆ ಸರಿ.
ಪಿಯುಸಿ ಮುಗಿದ ನಂತರವೂ ನಾನು ಹಾಗೂ 1 ನೇ ಆರೋಪಿ ಜೊತೆಯಲ್ಲಿದ್ದೆವು. ಪಿಯುಸಿ ಓದುತ್ತಿದ್ದಾಗ ಇಬ್ಬ ರೂ ಮದುವೆಯಾಗಬೇಕು ಎಂದು ಅಂದುಕೊಂಡಿದ್ದೆವು ಎಂದರೆ ಸರಿ. ನನ್ನ ನ್ನು ಮದುವೆಯಾಗಲಿಲ್ಲ ಎಂದು ನಾನು ದೂರನ್ನು ಕೊಟ್ಟಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ನಾವಿಬ್ಬ ರೂ ಮದುವೆಗೆ ಒಪ್ಪಿಕೊಂಡಿದ್ದೇವೆ ಎಂದು ಹೇಳಿ ನೋಟರಿ ಮುಂದೆ ಪ್ರಮಾಣಪತ್ರದಲ್ಲಿ ಸಹಿ ಮಾಡಿದ್ದೆವು ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿಗೆ ಪ್ರಮಾಣಪತ್ರದ ಜೆರಾಕ್ಸ್ ಪ್ರತಿ ತೋರಿಸಲಾಗಿ ಮೂಲ ಪತ್ರ ತೋರಿಸಿದಲ್ಲಿ ಗುರುತು ಹಿಡಿಯುತ್ತೇನೆ ಎಂದು ನುಡಿಯುತ್ತಾರೆ.. ಸಾಕ್ಷಿ ಜೆರಾಕ್ಸ್ ಪ್ರತಿ ನೋಡಿ ಇದು ಮೂಲ ಪ್ರತಿಯ ಯಥವತ್ತಾದ ಪ್ರತಿ ಎಂದು ನುಡಿಯುತ್ತಾರೆ. ಸದರಿ ಜೆರಾಕ್ಸ್ ಪ್ರತಿಯನ್ನು ನಿಡಿ 1 ಎಂದು ಗುರುತಿಸಲಾಯಿತು.
ನೋಟರಿ ಹತ್ತಿರ ನಾನು, ನನ್ನ ತಂದೆ ಹಾಗೂ ವಿವೇಕ್ಮಾತ್ರ ಹೋಗಿರುತ್ತೇವೆ. ನೋಟರಿ ಹತ್ತಿರ ಬರೆದ ನಿಡಿ 1 ನ್ನು ಓದಿ ನಾನು ಸಹಿ ಮಾಡಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ನೋಟರಿ ಪ್ರಮಾಣಪತ್ರ ಮಾಡಿದಾಗ 1 ನೇ ಆರೋಪಿ ತಂದೆ ತಾಯಿಯವರಿಗೆ ನಮ್ಮ ಮದುವೆ ವಿಚಾರ ಗೊತ್ತಿರಲಿಲ್ಲ ಎಂದರೆ ಸರಿ. ನೋಟರಿ ಮಾಡಿದ ಪ್ರಮಾಣಪತ್ರದಲ್ಲಿ ನಾನು ಗರ್ಭಿಣಿಯಾದ ವಿಚಾರವನ್ನು ನಮೂದು ಮಾಡಿಲ್ಲ ಎಂದರೆ ಸರಿ.
ನನ್ನ ತಂದೆ ಕೊಟ್ಟ ದೂರನ್ನು ನಾನು
ನೋಡಿರುವುದಿಲ್ಲ . ಸದರಿ ದೂರಿನ ವಿಚಾರವಾಗಿ
62 Spl.C.No.179/2020
ಅನ್ನ ಪೂರ್ಣೆಶ್ವ ರಿ ನಗರ ಪೊಲೀಸ್ ಠಾಣೆಗೆ ನನ್ನ್ನನ್ನು ಹಾಗೂ ನನ್ನ ತಂದೆಯನ್ನು ಕರೆಸಿದ್ದ ರು ಎಂದರೆ ಸರಿ. ಆರೋಪಿತರನ್ನು ಸಹ ಕರೆಸಿ ನಮ್ಮೆಲ್ಲ ರನ್ನು ವಿಚಾರಣೆ ಮಾಡಿದ್ದ ರು ಎಂದರೆ ಸರಿ. ಸದರಿ ವಿಚಾರಣೆಯಿಲ್ಲಿ 1 ನೇ ಆರೋಪಿತನು ನನ್ನ ನ್ನು ಮದುವೆಯಾಗುತ್ತೇನೆಂದು ಬರೆದಕೊಟ್ಟಿರುತ್ತಾನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಸದರಿ ವಿಚಾರಣೆ ನಡೆದಾಗ ನಾನು ದೂುರು ಕೊಟ್ಟ ರೂ ಪೊಲೀಸರು ದೂರನ್ನು ತೆಗೆದುಕೊಂಡಿರುವುದಿಲ್ಲ . ಸದರಿ ವಿಚಾರಣೆ ನಡೆದಾಗ 1 ನೇ ಆರೋಪಿ ನನ್ನ ನ್ನು ಮದುವೆ ಮಾಡಿಕೊಳ್ಳು ತ್ತೇನೆ ಎಂದು ಹೇಳಿದ್ದು ನಾನು ನಿರಾಕರಿಸಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ , ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ಎಫ್.ಐ.ಆರ್ ದಾಖಲಾದ ನಂತರ ಮಾತ್ರ ನನ್ನ ನ್ನು ಮದುವೆಯಾಗುವುದಾಗಿ ಹೇಳಿರುತ್ತಾನೆ..
ನಿಪಿ 1 ದೂರನ್ನು ನಾನು ಹೇಳಿದ ಹಾಗೆ ನನ್ನ ತಂದೆ ಬರೆದಿದ್ದು , ಅದಕ್ಕೆ ನಾನು ಸಹಿ ಮಾಡಿರುತ್ತೇನೆ. ದೂರನ್ನು ಓದಿ ನಾನು ಸಹಿ ಹಾಕಿರುತ್ತೇನೆ."
45. The learned counsel for the counsel argues as per Ex.P.1 as deposed by P.W.1 she has specifically admitted Ex.P.1 is written by her father as she has mentioned. To the specific question that para-8 as:
"ನನ್ನ ದೂರಿನ 5 ನೇ ಪುಟದ ವೊದಲನೇ ಪ್ಯಾರಾದಲ್ಲಿ ತಿಳಿಸಿದಂತೆ "ನನಗೆ ಮದುವೆಯಾಗಿ ಮರುಜನ್ಮ ನೀಡುವಂತೆ ಪ್ರಾರ್ಥಿಸುತ್ತಿದ್ದೆ, ನಿನಾಂಕ 30.01.2019 ರಂದು ಶ್ರೀ ಬಿ ವಿವೇಕರವರು ನನ್ನ ನ್ನು ವಕೀಲರಾದ ಶ್ರೀ ಆರಾಧ್ಯ ಅನುರವರ ಬಳಿ ಕರೆದುಕೊಂಡು ಹೋಗಿ ಒಂದು ಪ್ರಮಾಣಪತ್ರ ಮಾಡಿಸಿ ಅದನ್ನು ನೋಟರೈಸ್ಡ್ ಮಾಡಿರುತ್ತಾೆ, ಆ ಪ್ರಮಾಣಪತ್ರದಲ್ಲಿ ಅವರು ನಾವು ಸ್ವ ಇಚ್ಚೆ ಯಿಂದ ಮದುವೆಯಾಗುತ್ತಿರುವುದಾಗಿಯೂ, ಆರ್ಯ ಸಮಾಜದ ಸಹಾಯ ಪಡೆಯುವುದಾಗಿಯೂ ಇದರಲ್ಲಿ ಯಾರದೂ ತಪ್ಪಿಲ್ಲ , ಮಗುವಿನ ಸಂಪೂರ್ಣ ರಕ್ಷಣೆ ಮತ್ತು ಜವಾಬ್ದಾರಿ ನನ್ನ ದೆ ಅಂತೆಲ್ಲಾ ಬರೆದು ಪ್ರಮಾಣೀಸಿರುತ್ತಾರೆ " ಈ ವಿಷಯಗಳನ್ನು ನಿಡಿ 1 ರಲ್ಲಿ ನಮೂದಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿ".63 Spl.C.No.179/2020
46. The victim has specifically admitted since the PUC they were staying together, they were in love. It is specifically admitted they were moving to hotel, park and they have actually promised each other to marry after they become major. The victim has specifically admitted she asked accused No.1 that they will go to 'Arya Samaja' and they will marry there. In page-10 of the cross examination she has specifically admitted before execution of the notarised affidavit there was no direct contact between the family of the victim and that of accused No.1. Only after this marriage talks were started. This fact discloses that there was no any dates between the victim and the accused No.1 till the date of execution of affidavit which has been executed by both the parties having no any difference, this fact falsifies the entire allegations made by the prosecution that accused had made false promise to the victim. The victim has specifically admitted in page-10 that she never intended not to marry accused No.1 in page-11 of cross examination of P.W.1 she has specifically 64 Spl.C.No.179/2020 mentioned as per the directions of the Hon'ble High Court of Karnataka as accused No.1 was in judicial custody, she has been approached to marry but she refused. In page-13 as:
"ಶಾನುಬಾಗ್ ಆಸ್ಪ ತ್ರೆಗೆ ಹೋದಾಗ ಮದುವೆ ಆಗಿರಲಿಲ್ಲ ಎಂದರೆ ಸರಿ . ನನ್ನ ನ್ನು ಗೀತಾ ಪಿ ಶಾನುಬಾಗ್ ರವರು ವೈದ್ಯ ಕೀಯ ತಪಾಸಣೆ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿ ."
This fact clearly goes against the prosecution case so as to bring home the guilt of the accused No.1 with regard to the commission of offence punishable u/s.376 of IPC since accused No.1 never back away from the promise he made that he is ready to take the victim as wife.
47. The learned counsel for the accused brings to the court notice page-14 of cross examination of P.W.1 dated:3.9.2021 wherein specific admission has been given by the victim as:
"ಮದುವೆ ವಿಚಾರವಾಗಿ ದುಡ್ಡು ಹಾಗೂ ಮನೆಯನ್ನು ಕೊಡು ಎಂದು 1 ನೇ ಆರೋಪಿತನು ಕೇಳಿರುವುದಿಲ್ಲ , ನನ್ನ ಮಗು ನಮಿಬ್ಬ ರ ಪ್ರೀತಿಯ ಸಂಕೇತ ಎಂದರೆ ಸರಿ."
This fact makes it clear that the ingredients of alleged offence punishable u/s.376 of IPC even the offence 65 Spl.C.No.179/2020 punishable u/s.375 of IPC r/w.sec.90 of IPC are not applicable to the case on hand. In this regard, learned counsel for the accused relies on following citations:
1. 2022 Crl.L.J.2873 (Sanjib Rai V/s. State of Sikkim) wherein it is held that:
"10. On the anvil of all the discussions that have emanated above, it thus falls to conclude that no proof whatsoever was furnished by the Prosecution to establish that offence of rape was committed by A1 and A2 on the victim, P.W.1. The acts are evidently consensual. We are, therefore, inclined to disagree with the findings of the Learned Trial Court for the aforestated reasons.
11. Consequently, the conviction and sentence imposed on A1 and A2 vide the impugned Judgment and Order on Sentence of the Learned Trial Court are set aside."
2. 2023 Crl.L.J.4530 (Shankar V/s. State of Karnataka) wherein it is held that:
"18. In the instant case, the author of the entry made in the admission register that, the date of birth of the victim was 29.01.2001 has not been examined. The evidence of PW.1 i.e., the mother of the victim was recorded on 11.06.2018. In the examination-in-chief, she has categorically stated that she was married about 24-25 years back and she gave birth to the victim two years after her marriage. Further, she has stated that, the date of birth of the victim in the admission register was entered based on the oral information furnished by her, but, however, admits that 66 Spl.C.No.179/2020 she has not supplied the information furnished by the hospital indicating the date of birth of the victim. She further submits that her daughter had appeared in the SSLC examination and she furnished the copy of the marks card to the police. The admissibility of the admission register has no evidentiary value in the absence of material on the basis of which the age was recorded. The statement of PW.1 that she gave birth to the victim after two years from the date of marriage would indicate that the marriage was performed somewhere in the year 1994-1995 and she gave birth to the child in 1997 or 1998. She has further categorically stated that the date of birth of the victim was entered on the basis of oral information and not supported by any material documents. Hence, the doubt arises as to whether the victim was a minor as on the date of the incident and the benefit of doubt is to be given to the appellant-accused. The accused is in judicial custody since 11.01.2018 till today. The prosecution having failed to establish that the victim was a minor as on the date of incident beyond all reasonable doubt, and also having regard to the fact that the sexual intercourse was with mutual consent, the impugned judgment of conviction and the order of sentence is not sustainable in law. Hence, the point raised is answered in the negative".
3. 2022 Crl.L.J.2289 (Shajan V/s. State of Kerala), wherein it is held that:
"5. We find considerable force in the submission made by the counsel for the appellant. It is an admitted fact that the parties, namely the appellant and the prosecutrix/respondent No.2 were living 67 Spl.C.No.179/2020 together for quite sometime. The factum of registration of Ex.P.1 being the marriage agreement also indicates the agreed terms between the parties. It is nobody's case that the agreement was forced on the prosecutrix/respondent No.2, as even the high court was pleased to observe that it was done voluntarily.
6. Sec.3(1)(xii) deals with a case of one party being in a dominant position, exerting such dominance on the will of a woman and thereafter, using it to exploit her sexually. The facts of the case do not attract the aforesaid provisions as there is no evidence to suggest that the appellant was in a position to dominate the will of the prosecutrix and thereafter used it to exploit her sexually. We may usefully refer to a decision of this court in the case of Uday V. State of Karnataka (2003 4 SCC 46 (AIR 2003 SC 1639)."
4. 2022 Crl.L.J.4056 in case of S.K.Hasibul V/s. State of West Bengal, wherein it is held that:
"The nutshell of allegation as stated in the written complaint (Ext.1) is forceful rape on assurance of marriage. Medical evidence does not corroborate the allegation of forceful rape. Both the prosecutrix and the appellant had love affairs for a year prior to the incident. It is in the written complaint that the appellant expressed his willingness to marry the prosecutrix. In cross examination she stated that both of them condescended to marry each other. They had travelled freely. Medical report, Ext. 4, indicates that she was habituated to sexual 68 Spl.C.No.179/2020 intercourse. It is also in the medical report that no foreign body or injury was found on examination of the prosecutrix. In the written complaint the prosecutrix did not spell out whether she had any consent or not; the written complaint is silent as to whether the prosecutrix resisted the act of the appellant or not. It rather indicates that the act of rape was committed on assurance of marriage. Since they married each other later, it cannot be said that the appellant while committing the act, nurtured within himself an intention to avoid marriage and that the assurance of marriage was false. Circumstance, as emanates from the written complaint is one. In her statement recorded under Section 164 of the Code of Criminal Procedure, 1973, she stated differently that she was called by the appellant in his locality; that when the prosecutrix reached there, the appellant, in inebriated state, dragged her to a nearby room under construction and committed rape upon her forcefully. She resisted, shouted and raised hue and cry but because of a loud speaker which was being played at that point of time, none could hear her and she was not rescued by anyone.
Circumstances narrated in the statement recorded under Section 164 of the code of Criminal Procedure, 1973 (Ext. 2) is different. According to Ext. 2 she was forcefully ravished against her will inspite of resistances, hue and cry raised by her. The earlier circumstance, as stated in the written complaint, that rape was made on representation of marriage is absent. Medical Report negated presence of foreign body or use of force. This statement of the prosecutrix is rather contradictory to the statement contained 69 Spl.C.No.179/2020 in the written complaint. In her deposition before the trial court she only stated that appellant committed raped upon her on 28/10/2012 inside a pacca room at Halder Para. She did not state whether she had consent or not, whether it was forceful or violent or not; whether she had consented to or whether her consent was procured on assurance of marriage. She stated nothing about the circumstances of the alleged rape.
Section 114A of the Indian Evidence Act raises a presumption as follow:
"114A. Presumption as to absence of consent in certain prosecutions for rape.-- In a prosecution for rape under clause
(a) or clause (b) or clause (c) or clause (d) or clause (e) or clause
(g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."
In this case the prosecutrix did not say a single word expressing that she had no consent in the sexual intercourse. In cross- examination she conceded that they had eagerness to marry each other and that they travelled at different places. In view of that evidence it cannot be presumed also that she did not consent to the alleged sexual intercourse. If it is a case of rape on assurance of marriage then such allegation losses much of its force on marriage. Marriage is admitted by the prosecutrix herself (P.W. 1), her brother (P.W. 2), P.W. 3 as well as P.W. 4 being the mother. It is in the statement of mother 70 Spl.C.No.179/2020 and elder brother of the prosecutrix that they are living happily right now. Since there was no eye witness to the incident, evidence of the prosecutrix is solely to be relied upon. Statements of the prosecutrix contain dichotomy, ambivalence and vagueness as to what happened at the material point of time of rape".
5. 2021 (2)KCCR.1152 (DB)Mohan Kumar V/s. State of Karnataka) wherein it is held that:
"B.Penal code, 1860- sec.376-Acquittal- victim having intercourse with accused on promise of marriage-Admitting that she had given liberty to accused to have sexual intercourse on several occasions- Becoming pregnants as a result of _holding of panchayat upon breach of promise by accused - Father of accused refusing to take victim in marriage- Lodging of complaint thereafter-Thus delay in lodging complaint-Presence of evidence thereafter-Thus delay in lodging complaint-Presence of evidence to show that accused intended to marry accused But not mustering enough courage to refute opinion of his father Victim not only willfully consenting to have intercourse with accused but she also desired so- Judgment of conviction set aside".
6. AIR.2024 S.C.3485 (Shiv Pratap Singh Rana V/s. State of M.P.) wherein it is held that:
"24. Learned counsel for respondents had relied heavily on the expression "misconception of fact". However, according to us, there is no misconception 71 Spl.C.No.179/2020 of fact here. Right from the inception, it is the case of the prosecution that while the appellant was insisting on having a relationship with the prosecutrix, the later had turned down the same on the ground that appellant was the friend of her younger brother and a distant relative of her jijaji. That apart, according to the prosecutrix, the appellant was younger to her. Nonetheless, the prosecutrix had accompanied the appellant to a temple, where she had voluntarily taken bath under a waterfall. Her allegation that appellant had surreptitiously taken photographs of her while she was bathing and later on changing clothes and was blackmailing her with such photographs remain unfounded in the absence of seizure of such photographs or the mobile phone on which such photographs were taken by the appellant. If, indeed, she was under some kind of threat from the appellant, it defies any logic, when the prosecutrix accompanied the appellant to Gwalior from Dabra, a journey which they had made together by train. On reaching Gwalior, she accompanied the appellant on a scooter to a rented premises at Anupam Nagar, where she alleged that appellant had forced himself upon her. But she did not raise any alarm or hue and cry at any point of time. Rather, she returned back to Dabra alongwith the appellant. The relationship did not terminate there. It continued even thereafter. It is the case of the prosecutrix herself that at one point of time the family members of the two had met to discuss about their marriage but nothing final could be reached regarding their marriage. It was only thereafter that the FIR was lodged. As already pointed out above, neither the affidavit nor stamp 72 Spl.C.No.179/2020 papers have been recovered or seized by the police; so also the jewellery. The alleged cheque of the prosecutrix's mother given to the appellant or the bank statement to indicate transfer of such money have not been gathered by the police. In the absence of such materials, the entire sub-stratum of the prosecutrix's case collapses. Thus, there is hardly any possibility of conviction of the appellant. As a matter of fact, it is not even a case which can stand trial. It appears to be a case of a consensual relationship which had gone sour leading to lodging of FIR. In the circumstances, Court is of the view that compelling the appellant to face the criminal trial on these materials would be nothing but an abuse of the process of the Court, result of the trial being a foregone conclusion".
Therefore the ingredients of alleged offence is not made out. Accordingly, seeks to acquit the accused for the offence punishable u/s.376 of IPC.
48. The learned SPP argues as per the observations made by the Hon'ble Apex Court in Anurag Soni V/s. State of Chhattisgarh Judgment dated:9.4.2019 the observations made in para-14 and 15 are as follows:
"14. Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning 73 Spl.C.No.179/2020 the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. Though, in Section 313 statement, the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B. Pharmacy. Therefore, it is not believable that despite having knowledge that that appellant's marriage is fixed with another lady - Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant's promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant accused. Even considering Section 114A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent 74 Spl.C.No.179/2020 for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.
15. Now, so far as the submission on behalf of the accusedappellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception."75 Spl.C.No.179/2020
49. In the case on hand, the victim is subjected to sexual intercourse. It is true during the course of conduct of the accused no.1 and the victim, it appears to be consent given by the victim, however the victim and accused were both of tender age. It is natural having attraction, lust and as such the conduct of the victim and the accused no.1 is natural, however, when the victim was informed about her advanced stage of pregnancy the victim informed the same to the accused No.1, however he became speechless. The parents of the victim did tried to contact accused No.1 and even his parents, however when the parents of the accused No.1 directed to go for abortion which was an impossible thing as on that day, as per the medical advise, which was also informed by the victim to the accused no.1, accused No.1 kept mum. After this, the accused No.1 conduct definitely makes it clear that he was backing out from the promise of marrying the victim is evident from the conduct of the accused No.1 alone.
50. In para-15 of the Hon'ble Apex Court citation has observed as follows:
76 Spl.C.No.179/2020
15. Now, so far as the submission on behalf of the accusedappellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust.
But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception."
51. The learned SPP brings to the court notice on the same point decision of Hon'ble Supreme Court of India in case of B.C.Deva @ Dyava V/s. State of Karnataka dated:25.7.2007 wherein the Hon'ble Supreme Court of India before concluding in para-13,14 and 15 has observed as follows:
"13. The evidence of the prosecutrix finds full support and corroboration from the testimony of PW-3, the mother of the prosecutrix. It is the evidence of PW-3 that on the day of the incident after lunch break, the prosecutrix came weeping to her and narrated the entire incident to her and also disclosed that the prosecutrix had no intention to live further in this world as no good and prudent boy will extend an offer of marrying her on hearing about the unfortunate incident. It is also the evidence of this witness that the prosecutrix 77 Spl.C.No.179/2020 rushed towards a nearby water tank with clear intention of committing suicide by jumping into the water tank and eventually she was rescued from drowning by PW-4 Shashappa, PW-5 Yashodhara, Babu and Vishwanath. It is the evidence of PW- 4 that in the afternoon of the day of incident when he was working in the pump house near the water tank, he heard slight sound of somebody falling into the tank. He along with Babu, Vishwanath and PW-5 Yashodhara immediately rushed to the water tank and noticed the prosecutrix drowning in the water. He stated that the prosecutrix was pulled out of the water tank by them and when he asked her about the cause of her committing suicide, the prosecutrix disclosed that she was forcibly raped by the accused in the afternoon on the day of occurrence. This witness was cross-examined at length, but nothing could be elicited from his evidence to establish that the witness has given evidence to implicate the accused in a false case or the witness is, in any way, related to the prosecutrix and therefore, tried to help her. Yashodara (PW-5) has testified and corroborated the testimony of the prosecutrix and PW-4 in its entirety. The proseuctrix has given graphic narration of the occurrence in complaint Ex. P-2 lodged against the accused at 7.00 p.m. in the Police Station. The name of the accused, who was also working as a Mistry in the same Coffee Estate where the prosecutrix and her parents (PWs-2 and 13), besides PWs-4, 5 and other persons were working has been categorically mentioned as an offender of the crime. Thus, the entire incident narrated in the complaint (Ex.P-2) stands corroborated by the oral testimony of the prosecutrix, her mother (PW-3), her father (PW-13) and independent witnesses (PWs-4 and 5). The plea that no marks of injuries were found either on the person of the accused or 78 Spl.C.No.179/2020 the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted. Though, the FSL Report marked as Ex.C-1 pertaining to the undergarments of the accused and the victim did not contain any seminal stains, yet the said report cannot be given any importance because the underwear of the accused was taken into possession by the police on the next day of the incident when he was arrested. There is no evidence brought on record to show that the accused handed over the same under wear to the police, which he was wearing on the day of incident or he had handed over some other underwear which was seized under mahazer (Ex.P-5) by the police. The possibility of absence of seminal stains on petticoat of the prosecutrix which she was wearing at the time of the incident, could not be ruled out due to the fact that the petticoat got drenched in the water and the seminal stains might have been washed away.
14. The Trial Court as well as the High Court have recorded the finding of guilt of the accused based upon proper appreciation of the evidence led by the prosecution in this case. In view of the aforesaid discussion, we do not find any justified and justifiable ground to interfere with the conviction and sentence awarded by the Trial Court and confirmed by the High Court. The appeal is, therefore, dismissed.79 Spl.C.No.179/2020
15. The accused is on bail. He is directed to surrender before the Trial Court forthwith and to suffer the remaining period of sentence."
52. The learned SPP also brings to the court notice other citations namely Shahaja @ Shahajan V/s. State of Maharashtra in Crl.A.No.739/2017 dtd:14.7.2022 wherein in para-27 the Hon'ble Apex Court has made clear in what manner court has to proceed to appreciate the oral evidence of the victim and in this case on hand, all the facts are having good co-relation with the guidelines enumerated in the decision. Therefore the same is applicable to the case on hand seems a reasonable prayer. Further SPP relies on Crl.A.No.592/2020 in case of Vijay Peinuly V/s. State of Uttarkhand has observed in the conclusion as follows:
"The appeal is dismissed in terms of the signed order. Pending application(s), if any, shall stand disposed of."
53. Further relies on Ramesh Harijan V/s. State of Uttar Pradesh in Crl.A.No.1340/2007 in para-28 to 33:
23. A similar view has been re-iterated in Appabhai & Anr. v. State of Gujarat, AIR 1988 80 Spl.C.No.179/2020 SC 696, wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now-
a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not dis-believe the evidence of such witnesses altogether if they are otherwise trustworthy.
24. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. 81 Spl.C.No.179/2020
25. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622, this Court held :
"...Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant..." (See also:
Bhagwan Singh & Ors. v. State of M.P., AIR 2002 SC 1621; Gangadhar Behera & Ors. v. State of Orissa, AIR 2002 SC 3633; Sucha Singh (supra); and S. Ganesan v. Rama Raghuraman & Ors., (2011) 2 SCC
26. Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.
82 Spl.C.No.179/2020
27. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis- appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal.
In view of the above, the appeal lacks merit and is accordingly dismissed".
54. In Crl.A.No.1520/2021 in case of Phool Singh V/s. State of Madhya Pradesh wherein it is held that:
"5.3 In the case of Pankaj Chaudhary (supra), it is observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it is observed and held as under:
"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of 83 Spl.C.No.179/2020 the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30]."
55. The Hon'ble Apex Court has laid on the principles and courts have to proceed while appreciating the facts and the testimony of the prosecutrix is to be considered. Further in para-8 and 10 has observed the prayer on behalf of the accused to reduce the sentence with regard to provision u/s.376 of IPC, this has been considered by the Apex Court and this court has no discretion to that effect to pass such an order at this stage itself since it is the intention of the prosecution to get maximum punishment to the accused and justice to the victim. Further brings to the court notice S.P.S.Rathore V/s. Central Bureau of investigation and another wherein the Hon'ble Apex Court has held accused responsible and confirmed the sentence passed as per para-41 to 44 wherein it is held that:
84 Spl.C.No.179/2020
"The High Court, on proper re-appreciation of the entire evidence, came to the right conclusion that the prosecution was successful in proving the case beyond reasonable doubt and the offence punishable under Section 354 of the IPC was made out. There is devastating increase in cases relating to crime against women in the world and our country is also no exception to it. Although the statutory provisions provide strict penal action against such offenders, it is for the courts to ultimately decide whether such incident has occurred or not. The courts should be more cautious in appreciating the evidence and the accused should not be left scot-free merely on flimsy grounds. By the consistent evidence of Ms. Aradhana (PW-13), the prosecution has proved beyond reasonable doubt the offence committed by the appellant under Section 354 of the IPC. A charge under Section 354 of the IPC is one which is very easy to make and is very difficult to rebut. It is not that on account of alleged enmity between the appellant and Shri Duggal and Shri Ojha, he was falsely implicated. It would, however, be unusual in a conservative society that a woman would be used as a pawn to wreak vengeance. When a plea is taken by the appellant- accused that he has been falsely implicated, courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations made against him. In the instant case, both the trial court and the High Court have done that. There is no scope for taking a different view from the view already been taken by the courts below. The occurrence of the overt act is well proved by the unimpeachable testimony of the eye- witness - Ms. Aradhana (PW-13).85 Spl.C.No.179/2020
22) In order to constitute the offence under Section 354 of the 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. 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.
23) This Court, in Vidyadharan vs. State of Kerala (2004) 1 SCC 215, held as under "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 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 ....."
24) It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other 86 Spl.C.No.179/2020 ingredients for convicting a person. But, it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. The sequence of events which we have detailed earlier indicates that the appellant- accused had the requisite culpable intention.
56. The learned counsel for the accused submits the citations cannot be applied to the present case on hand since prosecution has not at all brought anything to show that accused No.1 is having guilty mind as alleged. In fact accused No.1 never intended to back out from the marriage as he had promised. The accused No.1 did entered the witness box as D.W.1 and presented his prayer that the victim herself has withdrawn from marrying him to the reasons best known to her. In fact the whatsapp chats made between the victim and the accused placed by the prosecution is to be interpreted in favour of the accused No.1 and even today the accused No.1 is ready and willing to take the victim as his wife.
87 Spl.C.No.179/2020
57. The learned SPP argues the facts and circumstances putforth by the prosecution though there are discrepancy in the evidence of the P.W.2, Pw3, the fact that the accused No.1 remained mum after the accused Nos.2 and 3 directed the victim to go for abortion, which was an impossible thing as on the date which has been revealed to the accused No.1. However accused No.1 by that date was a major and having worldly knowledge and an educated person did not heeded to the request of the victim who delivered the child did believed that accused No.1 will co-operate with her and he will keep the promise as made. However the conduct of the accused No.1 at the time of child birth by switching of his mobile phone and remaining silent without taking responsibility as per his promise is to be construed as a breach of promise. The other material witnesses have deposed consistently about the investigation. The question of delay of registration of crime has no consequence as the relationship is fairly accepted by the accused no.1. 88 Spl.C.No.179/2020 However his silence on repeated request of victim to accept her as wife before child birth a fact every women wants to cherish, was not made avilable by the accused no.1 is a unpardonable thing. The facts in the citations brought to the notice of court by the defence are conserning where non of the accused therein have accepted the responsibilty about the child birth accepted by accused no.1 in this case. Therefore the citations cannot subsutitute the mental state of the victim, as brought on record by prosecution in this case. This court on considering the materials finds that the silence of the accused No.1 made by his own decision to be silent or as per the advise or the love and affection of the accused No.1 towards his parents made him silent is a different aspect. However with regard to the promise made by the accused No.1 towards the victim that he will marry definitely the same promise has not been kept by the accused No.1. This fact is not just worth of promise, however it is a matter of question of love of victim and the accused 89 Spl.C.No.179/2020 No.1 both. The learned counsel for the accused argues that accused No.1 is ready to accept the child and the victim as his wife after the entire trial though it would be the reasonable one. However the acceptance of the same proposal at this juncture when the same has been broken when the victim had made the same the acceptance of the same definitely rest with the victim alone, however this court cannot make an attempt to convince the victim to accept the offer of the accused. In fact it is the discretion of the victim to decide about her love, life. The admissions of the P.W.2 with regard to the advise given to the victim with regard to the request made by the accused No.1 and all other facts definitely goes against the accused. Therefore the evidence of P.W.1 alone is sufficient to consider the accused No.1 is responsible for not keeping his promise for marriage. In the case on hand, the learned counsel for the accused has brought to the court notice the discrepancies appearing in the evidence of material witnesses since P.W.1 had 90 Spl.C.No.179/2020 admitted that she signed the Mahazar in her residence and the specific admissions of the victim with regard to the suggestions made in page-14, 15 of her cross examination the admissions with regard to Ex.D.1 the benefit of doubt is to be given to the accused and he is to be acquitted is the prayer. However as there is presumption with regard to conduct of the accused No.1 as per sec.114(A) of Indian Evidence Act the arguments made by the learned counsel for the accused are not sufficient so as to consider the prayer of the defence being a specific counter to the case of prosecution. Per contra, the medical evidence and the evidence of the Investigating Officer do however definitely points towards the accused and accused No.1 with regard to the ingredients of alleged offence. Accordingly, this court is satisfied to answer Point No.4 for consideration in the Affirmative.
58. POINT NO.3: The learned SPP argues as per the prosecution case, the complainant has 91 Spl.C.No.179/2020 specifically mentioned in the complaint that accused Nos.2 and 3 have abused her and accused No.2 did demanded house is to be given to the victim by her parents and also amount is to be paid each month by the parents of the accused No.1 and victim and one site is to be given to the accused No.1 and construction be made therein. As such in the complaint at page-4 it has been specifically alleged that when accused No.1 took the victim to his parents as:
"ಶ್ರೀ ಬಿ ವಿವೇಕ ರವರ ತಂದೆ ಶ್ರೀ ಬಸವರಾಜ ರವರನ್ನು ಭೇಟಿಯಾಗಿ ಮುಂದಿನ ಕ್ರಮದ ಬಗ್ಗೆ ವಿಚಾರಿಸಿರುತ್ತಾರೆ, ಆಗ ಬಸವರಾಜು ಮತ್ತು ಅವರ ಶ್ರೀಮತಿ ರಾಧರವರು ಈ ವಿಷಯ ಅಸಹ್ಯ ಕರ ಅನ್ನು ವಂತೆ ಕಿವಿ ಮುಚ್ಚಿ ಕೊಂಡು ಪರಿಶಿಷ್ಟ ಕುಲದ ಹೆಣ್ಣ ನ್ನು ಸತ್ತರೂ ನಾವು ಸೊಳೆಯಾಗಿ ಮಾಡಿಕೊಳ್ಳು ವುದಿಲ್ಲ . ಸಂಬಂಧ ಮಾಡುವ ಮಾತನ್ನು ಇಲ್ಲಿಗೆ ನಿಲ್ಲಿಸಿ ಎಂದು ಕೊಗಾಡಿರುತ್ತಾರೆ ".
59. Further it has been specified by the accused No.1 to get aborted as advised by his parents. In fact when father of the victim informed the parents of the accused No.1 that at this stage when victim is 6 six months pregnant, if they tried to abort it will have adverse consequence on the health of the victim to which the accused No.2 informed as per law there is 92 Spl.C.No.179/2020 no scope for that, and mentioned he knows a particular doctor and he will give the address and go there and get aborted. Further in page-2 the complainant has specifically stated in last 4 lines that as he is the only son of his parents, his parents will not refuse for his proposal of marriage and even he introduced the victim to the parents of the accused No.1. In page-3 of the complaint, it has been specifically mentioned by the complainant that when the accused No.1 took the victim to his parents, it has been specifically promised by the parents of accused No.1 as accused No.1 has promised to marry the relationship has been continued is specified by the complainant in that regard. In page-4 bottom 2 lines it has been specifically mentioned by the complainant that:
"ಶ್ರೀ ಬಿ ವಿವೇಕರವರನ್ನು ಕೇಳಲು ಅವರು ಕೂಡ ನಮ್ಮ ತಂದೆ ತಾಯಿ ಹೇಳಿದ ಹಾಗೇ ಮಾಡಿರಿ ಅವರ ಮಾತಿನ ನಂತರ ನನ್ನ ದೇನೂ ಮಾತಿಲ್ಲ , ಅವರ ಇಷ್ಟ ಕ್ಕೆ ವಿರುದ್ದ ವಾಗಿ ನಾನು ನಡೆಯಲಾರೆ ".
60. Further it has been specified in page-5 victim tried to pacify herself in the belief that accused No.1 93 Spl.C.No.179/2020 will one day marry her. The complainant specified that on 30.01.2019 accused No.1 took her to advocate Aradya there they have got notarised the affidavit and accused No.1 mentioned it is his responsibility to take care of the victim and the child as such complainant accompanied accused No.1 to execute the affidavit, however later they refused to marry. In this regard, the learned SPP brings to the court notice the evidence of P.W.1 in her examination in chief in page- 2 and 3 with regard to proposal made by the accused No.1 to marry in page-3 it has been mentioned by the Investigating Officer that accused No.1 parents forced to accept abortion at that time the words used by the accused No.1 are as mentioned by P.W.1 in her examination in chief as:
"ಅಬಾರ್ಷನ್ ಮಾಡಿಸಿದೆ ಇದ್ದ ರೆ ನಿನ್ನ ನ್ನು ಬಿಟ್ಟು ಹೋಗುತ್ತೇನೆ ಎಂದು 1 ನೇ ಆರೋಪಿ ನನಗೆ ಹೇಳಿರುತ್ತಾನೆ."
61. It is further deposed by the victim that even after child birth accused No.1 never came to her nor enquired about the child. The evidence of complainant 94 Spl.C.No.179/2020 herself is sufficient to consider the offence punishable u/s.420 of IPC being proved by the prosecution since no any corroboration is needed to the factum of non- marrying by the accused No.1. The accused No.1 tried to shift his responsibility on the parents of the accused No.1 that as mentioned by the parents of accused No.1 victim has to act. Therefore the conduct of the accused No.1 is against the promise made. As such the accused No.1 deceived the victim. The learned counsel for the accused argues the allegations made against the accused No.1 are being falsified even during the course of cross examination of P.W.1 wherein she has specifically mentioned in page-13, victim has been specifically admitted about Ex.D.3 and it has been specifically admitted by the victim that accused No.1 mentioned after 2-3 years, they can marry. Accordingly in consonance with the promise made by the accused No.1, after 2-3 years, namely as per Ex.D.1, accused No.1 tried to approach the victim to marry since Ex.D.1 has been notarised on 12.1.2019 which is approximately after 2 years. 95 Spl.C.No.179/2020 Therefore there is no any crime committed by the accused No.1 in making promise to marry and he even today ready to marry her. In fact in the cross examination of P.W.1, she has specifically admitted that she herself is not ready to marry the accused No.1 as per her own evidence in page-11 as:
"ಮಾನ್ಯ ಹೈಕೋರ್ಟಿನ ಆದೇಶದ ಮೇರೆಗೆ ನಾನು ಕಾರಾಗೃಹಕ್ಕೆ ಹೋದಾಗ 1 ನೇ ಆರೋಪಿತನು ನನ್ನ ನ್ನು ಮದುವೆಯಾಗುವುದಾಗಿ ಕೇಳಿದ್ದು ಆಗ ನಾನು ಅದನ್ನು ತಿರಸ್ಕ ರಿಸಿರುತ್ತೇನೆ, ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ನಾನು 8 ತಿಂಗಳ ಗರ್ಭಿಣಿ ಇದ್ದು ಆಗ ನನ್ನ ನ್ನು ಬಿಟ್ಟು ಹೋಗಿದ್ದ ಕಾರಣದಿಂದ ನಾನು ಮದುವೆಯಾಗಲು ಒಪ್ಪಿಕೊಂಡಿರುವುದಿಲ್ಲ . ಈ ದಿನವೂ 1 ನೇ ಆರೋಪಿಯನ್ನು ಮದುವೆಯಾಗುವುದಾಗಿ ಕೇಳಿದರೂ ನಾನು ಒಪ್ಪು ವುದಿಲ್ಲ ಎಂದು ಸಾಕ್ಷಿ ನುಡಿಯುತ್ತಾರೆ. ಇಷ್ಟು ದಿನ ನಾನು ಕಷ್ಟ ಪಟ್ಟಿದ್ದು ಇದರಿಂದಾಗಿ ನನ್ನ ಆರೋಗ್ಯ ದ ಮೇಲೆ ಪರಿಣಾಮವಾಗಿ ನಾನು ಡಿಪ್ರೆಷನ್ಗೆ ಹೋಗಿದ್ದು ಆದ್ದ ರಿಂದ ನಾನು ಮದುವೆಯಾಗಲು ಒಪ್ಪು ವುದಿಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾರೆ".
62. Further even as per the evidence of P.W.1, she has specifically agreed as per Ex.P.3 when she signed accused No.1 was present with her and he co- operated for DNA test. Therefore the accused as admitted by P.W.1 was never intending to deceive the victim. Therefore the citations relied by the prosecution in 2023 Crl.L.J.4530 (Shankar V/s. State of Karnataka) admitted in para-18 the Hon'ble Court has 96 Spl.C.No.179/2020 considered that when victim herself has admitted that she is in love with the accused No.1 and sexual intercourse was out of mutual consent, then the question of deceiving the victim by the accused No.1 does not arises. Even further brings to the court notice 2022 Crl.L.J.2289 Shajan V/s. State of Kerala wherein the prosecutrix and accused were loving together for quite sometime, there is no evidence that accused is in position to dominate will of prosecutrix, which indicates they have agreed to marry. When such being the case, the question of fraud does not arise. The entire crime registration and criminal case being foisted is only at the instance of P.W.2 Sridhar father of the victim only to harass the accused persons.
63. In citation AIR.2024 SC.3485 (Shiva Pratap Singh Rana V/s. State of Madhya pradesh) wherein as per 164 statement the evidence of the victim is different from the evidence given before the court. There is contradictory statement made by the victim. Moreover the victim had consented for the 97 Spl.C.No.179/2020 relationship though there was talks between the parties and the family members regarding marriage, same did not fructify leading to lodging of FIR. Therefore in the case on hand, similar situations is arising as admitted by PWs.1 and 2, there was negotiations between the family members even police have intervened, even Hon'ble High Court of Karnataka has suggested at the time of bail application of accused No.1, but only at the instance of complainant the performance of marriage has failed. Therefore for this reason, the accused no.1 cannot be convicted. Accordingly accused is to be acquitted for the alleged offence punishable u/s.420 of IPC.
64. On going through the material on record, the complainant has specifically mentioned about accused was intending to marry her upto the preparation of affidavit. After that she refused to marry to which complainant has specified in page-6 of her complaint that there was demand made to give a house, to give 98 Spl.C.No.179/2020 a vacant site and also Rs.15,000/- amount for monthly expenses of the accused No.1. This aspect was unable to be made by the father of the victim. In fact it is true in the evidence of P.W.1 she has specifically admitted in page-8 that Ex.P.1 has been signed by the victim as argued by the learned counsel for the accused, however she has specifically mentioned therein that as per her instructions only her father has written the complaint.
65. The learned counsel for the accused submits the complaint discloses it is a type written but not hand written. This court has to see whether the complaint is type written or hand written as deposed by the complainant that she signed the complaint as prepared by her father clearly goes to show that she is conscious about making the complaint. Further has brought to the court notice by the learned SPP the complainant reasoning for making the complaint in page-6 that when demand of house, site and amount is made for monthly expenses victim had decided not 99 Spl.C.No.179/2020 to marry the accused definitely goes against the accused persons. Under such circumstances the questions raised by the learned counsel for the accused in the above citations specified the facts therein actually differs. In the case on hand, the question of having sexual relationship is not at all in dispute by both the parties namely complainant and the accused No.1 otherwise the refusal to marry is at the instance of accused No.1 or at the instance of victim as argued by learned counsel for the accused is the crept of the entire case. This court on going through the material on record, specifically finds support to the prosecution case that victim has given explanation, she was willing to marry the accused No.1 as per Ex.D.1. However in the complaint it has been specified when the demand of house, vacant site and amount being made by the parents of the accused No.1, accused No.1 opposed the same, is not finding place in the entire materials on record. The accused No.1 even though he has entered witness box though admits he has relationship with the victim and 100 Spl.C.No.179/2020 also placed Ex.D.2 to 4 he never whispers even in cross examination that he was intending to marry, but whether he abused the proposal putforth or in other words the conditions as specified by the complainant that parents of accused No.1 demanded certain things as noted above being opposed by the accused No.1 is absent. Hence, this court finds that the citations relied by the defence with regard to the offence committed u/s.420 of IPC, the defence has failed at the same time the evidence of P.W.1 finds corroboration in the complaint that when the demand of dowry in other words being made for the marriage the victim had refused finds specific support. Hence, this court is satisfied to answer this Point No.3 in the Affirmative.
66. POINT NO.1: In the case on hand, on considering the ingredients of offence punishable u/s.417 of IPC which is similar to the offence punishable u/s.420 of IPC, the charge made by this court with regard to the offence punishable u/s.417 has been taken care while answering the Point No.3 101 Spl.C.No.179/2020 for consideration with regard to offence punishable u/s.420 of IPC. Hence, this court feels there is no any definite distinct offence being committed by the accused No.1 to convict him separately for offence punishable u/s.417 of IPC. Accordingly, this Point No.1 is answered in the Negative.
67. POINT NO.7: The accused No.1 has been charged for the offence punishable u/s.3(1)(w)(i) of SC/ST (POA) Act 1989 wherein the victim has been subjected for sexual intercourse by the accused No.1. The ingredients are as follows:
"Section 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 criminalizes the following actions against a woman belonging to a Scheduled Caste or Scheduled Tribe:
Intentionally touching the woman in a sexual manner without her consent Using sexual words, acts, or gestures towards the woman"
68. In the case on hand, on the basis of the entire evidence on record, while discussing supra with regard to the intention to touching by the accused, there is no any backing out by the accused since even 102 Spl.C.No.179/2020 the accused No.1 has entered witness box and deposed both victim and accused are having relationship. This court on going through the explanation :
"W(i)(ii) is a part of the explanation for an offense under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. W(i)(ii) states that an offense is committed when:
A person intentionally touches a woman of a Scheduled Caste or Tribe in a sexual manner without her consent A person uses words, acts, or gestures of a sexual nature towards a woman of a Scheduled Caste or Tribe"
which has been mentioned by the statute that even consent means when a person uses words, acts, or gestures of a sexual nature towards a woman of a Scheduled Caste or Tribe". In the case on hand, as per the evidence of P.W.1 has brought to the court notice by the counsel for the complainant she has specifically admitted in her cross examination in page-14 as follows:
"ನನ್ನ ಮಗು ನಮ್ಮಿಬ್ಬ ರ ಪ್ರೀತಿಯ ಸಂಕೇತ ಎಂದರೆ ಸರಿ. ನನಗೆ 1 ನೇ ಆರೋಪಿ ಮಗು ಬೇಕು ಎಂದು ಒತ್ತಾಯ ಮಾಡಿಲ್ಲ ಎಂದರೆ ಸರಿ."
Therefore in the case on hand, as argued by the learned counsel for the accused the conduct of the victim that 103 Spl.C.No.179/2020 the accused is voluntary and the consent given by the victim is unequivocal. As such the decisions relied by the learned counsel for the accused namely 2013(9) SC 245 (Ravindra Singh V/s. Sukhbir Singh and Ors) wherein in part-D as:
"D. scheduled castes and schedule tribes (Prevention of Atrocities) Act, 1989 - S.3(1)
(viii) - Offence under as to institution of false, malicious or vexatious-legal proceedings against a member of schedule caste or scheduled tribe-Words "malicious"/malafides"or vexatious"
"malicious", Malafides, Vexatious".
of the head note definitely applies to the case on hand. In para-20 of the citation it is held that:
"In the event that the appellant preferred an application for the purpose of quashing the FIR lodged by respondent no.1, and was unsuccessful therein, the same does not mean that the appellant had filed a false case against respondent No. 1. There is a difference between the terms `not proved' and `false'. Merely because a party is unable to prove a fact, the same cannot be categorized as false in each and every case. (Vide: A. Abdul Rashid Khan (dead) & Ors. v. P.A.K.A. Shahul Hamid & Ors., (2000) 10 SCC
636)."
69. The Hon'ble Supreme Court of India has considered elaborately in what manner the consent being obtained 104 Spl.C.No.179/2020 is by playing fraud or misrepresentation is to be considered by the court.
70. Under these circumstances, accused had obtained consent from the victim by putting her in misconception of fact cannot be attributed. Moreover as argued by the learned counsel for the accused in the documents placed on record by the prosecution, has brought to the court notice in the whatsapp conversations page-79 in whatsapp chat between victim and the 3 rd person the petitioner has specifically mentioned as on 22.4.2019 victim had no idea even about the abortion. Therefore accused is innocent of alleged offences.
71. The learned SPP submits as per the citation AIR.2019 SC 1857 the Hon'ble Supreme Court of India discussed about the similar situations whether the consent given by the victim under misconception or under fear of injury and the person doing the act knows, or has reason to believe the consent was given in consequence of fear or such misconception or if consent 105 Spl.C.No.179/2020 given by a person who is unable to understand the consequence to which he gives his consent. The presumption under sec.90 will apply, as such the observations made by the Hon'ble Supreme Court of India that it amounts to rape. Therefore it is not pre- consent. The learned SPP submits the victim as per the documents placed on record, discloses did believed the accused No.1 till January 2020 that he will accept her and marry her, however accused No.1 did not responded for any of the request of the victim, as such the subsequent conduct of the victim after registering crime is natural that she is hit beyond inconsolable. As such, accused No.1 committed offence under sec.3(1)(w)(i) of SC/ST (POA) Act 1989 is to be considered. In this regard the learned SPP brings to the court notice the following citations:
1. AIR 2019 SC 1857 in case of Anurag Soni V/s.
The State of Chhattisgarh
2.B.C.Deva @ Dyava V/s. State of Karnataka in Crl.A.No.205/2001
3. 2022 Livelaw SC 596 in case of Shahaja @ Shahajan Ismail Mohd.Shaikh V/s. State of Maharashra in Crl.A.No.739/2017 106 Spl.C.No.179/2020
4. Vijay Peinuly V/s. State of Uttarkhand in Crl.A.No.592/2020 of Hon'ble Supreme Court of India
5. (2012)5 SCC 777 in case of Ramesh Harijan V/s. State of Uttar Pradesh in Crl.A.No.1340/2007 dtd:21.5.2012
6.Phool Singh V/s. State of M.P. in Crl.A.No.1520/2021 of Hon'ble Supreme Court of India
72. This court on going through the material on record, on going through the provisions of sec.3(1)(w)
(i) the conduct of the victim and accused at the time of having sexual pleasure was not the same at the time of child birth since accused No.1 had not gone alongwith promise made to the victim but he backed away and obliged to follow his parents. Therefore under such circumstances as the accused No.1 was knowing that victim had given consent in the belief that he will marry her as per his promise definitely goes against the accused. Accordingly, this court finds the prayer made by the learned counsel for the accused that the documents given by the victim goes against the prosecution cannot be considered. Accordingly, Point No.3 is answered in the Affirmative. 107 Spl.C.No.179/2020
73. POINT NOs.5 & 6: In the cases on hand, as per the complaint, the complainant had specifically mentioned in the complaint that in page-4 she has been abused by the accused Nos.2 and 3 when father of the victim went to explain the medical condition of the victim, they had refused to take her as their daughter-in-law and they have even closed their ears and though suggested for undergoing for abortion, though it was not possible the conduct of the parents of the accused No.1 as explained in the complaint definitely goes against the prosecution is the contention raised by the learned SPP by bringing to the court notice that the accused Nos.2 and 3 are instrumental in abusing victim in filthy language. In this regard, there is corroboration even in the evidence of P.W.2 examination in chief itself. Therefore, when the accused were knowing victim is belonging to schedule caste and they refused to get marriage of the accused No.1 being performed with the victim, it itself shows that knowing fully the victim 108 Spl.C.No.179/2020 being schedule caste person and abusing her in filthy language, the guilt of the accused No.2 and 3 alongwith accused No.1 is brought to the court. Accordingly, accused are to be convicted.
74. The learned counsel for the accused submits in the case on hand, there is no any independent witness to prove the abusive words being used by the accused persons. In fact other than the official witnesses none of the independent witnesses other than the family members of the victim are being examined. The P.Ws.5 to 12 are all official witnesses. P.W.2 is the father of the victim and the P.W.3 is elder brother of P.W.1 had been the Mahazar witness and in his cross examination he has specifically admitted the suggestion that no any independent witnesses have been summoned so as to consider such a thing happened as per the spot Mahazar conducted by the Investigating Officer. Therefore, in this regard, the citations namely 2013(9) SC 245 (Ravindra Singh V/s. Sukhbir Singh 109 Spl.C.No.179/2020 and Ors and the citation 2022 Crl.L.J.2873 (Sanjib Rai V/s. State of Sikkim) definitely comes to the aid of the accused and further there is delay in lodging the complaint since 2 years delay from the date of alleged incident, as such the question of Atrocity Act ingredients are missing in the present case seems reasonable. Under these circumstances, in the absence of cogent, corroborative evidence being absent and whether the abusive words are used in a public place or not being not specified in the complaint nor proved before the court seems reasonable. Accordingly, this court is satisfied to answer Point Nos.5 and 6 in the Negative.
75. POINT NO.8: In the case on hand, with regard to offence punishable u/s.3(2)(v) of SC/ST (POA) Act 1989 accused No.1 had committed offence punishable u/s.376 of IPC, as such the offence is punishable upto 10 years and above. As such the ingredients of offence punishable u/s.3(2)(v) of SC/ST (POA) Act 1989 being made out. Accordingly, 110 Spl.C.No.179/2020 accused No.1 alone is found guilty of the alleged offence. Accordingly, I answer this Point No.8 in the Affirmative.
76. POINT No.9 :- The accused Nos.2 and 3 do complied the provisions of section 437A of Cr.P.C., by providing personal bond before this court, for their appearance before the Hon'ble Appellate court. In view of my foregoing reasons, I proceed the pass the following;
ORDER Acting under Section 235(2) of Cr.P.C, the accused No.1 is hereby convicted for the offences punishable under Sections 376, 420 of IPC and sec.3(1)(w)(i) and 3(2)(v) of SC/ST (POA) Act 1989.
Acting under Section 235(1) of Cr.P.C, the accused No.1 is hereby acquitted for the offences punishable u/s 417,406 of IPC and 111 Spl.C.No.179/2020 u/s Sec.3(1)(r),(s) of the SC/ST (POA) Act, 1989.
Acting under Section 235(1) of Cr.P.C, the accused Nos.2 and 3 are hereby acquitted for the offences punishable u/s.3(1)(r),(s), and 3(2)
(v) of the SC/ST (POA) Act, 1989.
The accused Nos.2 and 3 are set at liberty.
Bail bonds of the accused Nos.2 and 3 and their surety stand cancelled.
However, the bond executed in compliance of Sec.437(A) of Cr.P.C. of accused 2 & 3, shall be in force till appeal period.
Call on to hear on sentence.
(Dictated to the stenographer Grade I, transcript thereof is corrected, signed and then pronounced in open Court on this day the 28th day of November, 2024).
(Rajesh Karnam. K) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
112 Spl.C.No.179/2020Heard both side on sentence.
ORDER ON SENTENCE The learned SPP for prosecution submits for the offence punishable u/s.376 of IPC maximum punishment of life imprisonment is provided. As such, the same is to be imposed in the accused.
Secondly for the offence punishable u/s.420 of IPC accused is to be sentenced for maximum punishment provided therein which may extend to 7 years imprisonment.
With regard to offence punishable u/s.3(1) (w)(i) of SC/ST (POA) Act 1989 punishment has been provided, as such maximum punishment is to be imposed on the accused.
The learned counsel for the accused submits accused No.1 may be granted minimum punishment by taking lenient view as he is having parents who are to be looked after. The father of the accused No.1 is handicapped, as such the entire family burden is on the accused No.1. 113 Spl.C.No.179/2020
On going through the entire materials on record, accused No.1 for the offence punishable u/s.376 of IPC, considering there is a child born, is sentenced imprisonment for a period of 10 years, shall also liable to pay fine of Rs.1,00,000/-. Out of the fine amount of Rs.1,00,000/-, Rs.90,000/- is to be paid to the victim as per sec.357 of Cr.P.C.
The accused for the offence punishable u/s.420 of IPC sentenced to imprisonment for a period of 3 years and is liable to pay fine of Rs.10,000/-, default of payment of fine, is sentenced to further undergo imprisonment for 6 months.
The accused for the offence punishable u/s.3(1)(w)(i) of SC/ST (POA) Act 1989 is sentenced to undergo imprisonment for a period of 1 year and shall pay fine of Rs.10,000/-.
The accused for the offence punishable u/s.3(2)(v) of SC/ST (POA) Act 1989 if the offence punishable under the provisions of the IPC are punishable for a period of 10 years or more, the 114 Spl.C.No.179/2020 accused shall be punished with imprisonment for life and with fine is the sentence provided under sec.3(2)(v) of SC/ST (POA) Act 1989. Accordingly, accused sentenced to imprisonment for life as provided u/s.3(2)(v) of SC/ST (POA) Act 1989 and with fine of RS.10,000/-.
In all accused sentenced to pay fine of Rs.1,30,000/-.
The accused as a matter of compensation to the victim already as per directions of Hon'ble High Court of Karnataka in Crl.A.No.2575/2020 dated:26.06.2020 mandatory payment of Rs.50,000/- as an interim measure. This court feels as a matter of maintenance to the victim and the minor child, is sentenced to pay compensation of Rs.5,00,000/- (five lakhs) which includes previously paid amount and also the compensation as final measne to child, other than this victim compensation is to be provided by State as per provision of law.
115 Spl.C.No.179/2020
Office to issue conviction warrant. (Dictated to the Stenographer Grade-I in open court, transcript thereof is corrected, signed and then pronounced in open court on this the 28th day of November, 2024).
(Rajesh Karnam.K) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PROSECUTION:
PW-1 Manasa.S.
PW-2 Sridhar
PW-3 Vidyasagar
PW-4 Dr.Anitha
PW-5 Dr.Sathish.K.V.
PW-6 Vijayalakshmi
PW-7 Gurunath
PW-8 Kavitha Bai
PW-9 H.B.Shivakumar
PW-10 Amasegowda
PW-11 Rajashekaraiah.B.C.
116 Spl.C.No.179/2020
PW-12 L.Purushotham
PW-13 U.D.Krishnakumar
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 Complaint
Ex.P.1(a), (b) :Signature of P.W.1, P.W.11
Ex.P.2 :Mahazar
Ex.P.2(a), (b),(c) :Signature of P.W.1, P.W.3, P.W.13
Ex.P.3 : Identification form of victim
Ex.P.3(a),(b) :Signature of P.W.1,P.W.12
Ex.P.4 : Identification form of 9 month girl
baby
Ex.P.4(a) :Signature of P.W.1
Ex.P.5 : Photo
Ex.P.6 : Statement u/s.164 of Cr.PC
Ex.P.6(a) :Signature of P.W.1
Ex.P.7 : C.D. (Kept in safe custody)
Ex.P.8 : MLC Register
Ex.P.8(a) :Signature of P.W.4
Ex.P.9 : OPD signature
Ex.P.9(a) :signature of P.W.4
Ex.P.10 : Notice letter
Ex.P.10(a) :Signature of P.W.4
Ex.P.11 : M.Report of accused No.1
117 Spl.C.No.179/2020
Ex.P.11(a)(b)(c) :Signature of P.W.5,7, 13
Ex.P.12 : Acknowledgment
Ex.P.13 :Reminder
Ex.P.13(a)(b) : Signature of P.W.10 and 13
Ex.P.14 :FIR
Ex.P.14(a) :Signature of P.W.11
Ex.P.15 :FSL Report
Ex.P.15(a) :Signature of P.W.12
Ex.P.16 :DNA Identification form
Ex.P.16(a) :Signature of P.W.12
Ex.P.17 :Dep Order
Ex.P.17(a) :Signature of P.W.13
Ex.P.18 :Whatsapp chat
Ex.P.18(a) :Signature of P.W.13
Ex.P.19 :Hospital document
Ex.P.19(a) :Signature of P.W.13
Ex.P.20 :65B certificate
Ex.P.20(a) :Signature of P.W.13
Ex.P.21 :Report of HC 7707
Ex.P.21(a) :Signature of P.W.13
Ex.P.22 :Requisition
Ex.P.22(a) :Signature of P.W.13
Ex.P.23 :Caste report of complainant
118 Spl.C.No.179/2020
Ex.P.23(a) :Signature of P.W.13
Ex.P.24 :Caste report of accused
Ex.P.24(a) :Signature of P.W.13
Ex.P.25 :P.F.35/2020
Ex.P.25(a) :Signature of P.W.13
3. WITNESSES EXAMINED FOR THE DEFENCE:
D.W.1 Vivek
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D.1 Affidavit
Ex.D2 and 3 Whatsapp messsages taken through
mobile
Ex.D.4 C.D.
5. LIST OF MATERIAL OBJECTS:
Nil
(Rajesh Karnam K)
LXX Addl. City Civil & Sessions
Judge & Special Judge, Bangalore.