Karnataka High Court
State Of Karnataka vs M. Praveen Kumar on 16 August, 2023
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NC: 2023:KHC-D:9341-DB
CRL.A No. 100441 of 2019
IN THE HIGH COURT OF KARNATAKA R
DHARWAD BENCH
DATED THIS THE 16TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100441 OF 2019 (A-).
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE POLICE SUB-INSPECTOR,
T. B. DAM POLICE STATION, TQ: HOSAPETE,
DIST: BALLARI, THROUGH THE ADDL. STATE PUBLIC
PROSECUTOR, ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT.
(BY SRI. M. B. GUNDAWADE, ADDL. SPP)
AND:
SAMREEN 1. M. PRAVEEN KUMAR,
AYUB AGE: 23 YEARS, OCC: COOLIE.
DESHNUR
Digitally signed by
SAMREEN AYUB
DESHNUR
2. POOLAIAH S/O. M. AMMUR,
Date: 2023.09.05
16:04:35 +0530
AGE: 50 YEARS, OCC: EMPLOYEE IN FISHERIES
DEPARTMENT, T. B. DAM.
3. SMT. CHITTAMMA W/O. POOLAIAH,
AGE: 45 YEARS,
4. RAJU S/O. POOLAIAH,
AGE: 28 YEARS, OCC: COOLIE.
5. KUM. CHANDRIKA D/O. POOLAIAH,
AGE: 21 YEARS.
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NC: 2023:KHC-D:9341-DB
CRL.A No. 100441 of 2019
6. KUM. SUMITRA D/O. POOLAIAH,
AGE: 18 YEARS,
ALL ARE R/O. PLC AREA, T. B. DAM,
HOSPET, BELLARY DISTRICT.
...RESPONDENTS
(BY SRI. J. BASAVARAJ, ADV. FOR R1 TO R6)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 17/07/2019,
PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE
BALLARI IN S.C. NO.142/2014 AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28/02/2019,
PASSED BY THE 17/07/2019, PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE, BALLARI IN S.C.
NO.142/2014 AND CONVICT THE RESPONDENTS / ACCUSED
FOR THE OFFENCES PUNISHABLE U/SEC.376, 417, 506 R/W
SECTION 149 OF IPC AND UNDER SECTION 3(1)(X)(XI) OF
SC/ST (POA) ACT, 1989.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved and dissatisfied by the judgment of acquittal dated 17.07.2019 passed in Spl. Case No.142/2014 by the I Additional District and Sessions Judge, Ballari, the State of Karnataka represented by the Police Sub Inspector, T.B. Dam Police Station, Hosapete through the Additional State Public Prosecutor, High Court of Karnataka, Dharwad Bench have preferred this appeal. -3-
NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019
2. The parties to this appeal are referred as per their rank before the Trial Court for the purpose of convenience.
Facts of the case:
3. That the complainant/victim girl submitted a complaint on 02.07.2014 at 00.15 a.m., by appearing before the Police Sub Inspector T.B. Dam Police Station, Hosapete Taluk, alleging that one Praveenakumar was having a love affair with her and by assuring her to marry committed rape on her. So also the said Praveenakumar and his family members abused the family members of complainant by taking their caste.
4. It is her allegation that, at the time of filing the complaint she was aged 21 years and belongs to Madiga caste which comes under the definition of Scheduled Caste. During the year 2014 she was studying in PUC and used to reside at the address so stated in the complaint along with her parents. For the last three years prior to filing of the complaint, she came in contact with accused No.1 one Praveenakumar belonging to Fishermen caste -4- NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 (Bestha) and he was loving her and promised her to marry her.
5. It is her further assertion that on promise to marry her and making her to believe the same, used to take her to the park at T.B. Dam and also to the cinema theaters. Complainant had lot of faith on him that he is going to marry her. Because of this faith, she used to move with accused - Praveenakumar and used to go along with him wherever and whenever he called her.
6. It is her further allegation that, whenever she pressurized him to marry her, he used to tell that, he belongs to Fishermen caste and she belongs to Madiga caste. He will make his parents to agree for the marriage and thereafter, he will marry her.
7. It is the specific allegation of the complainant/victim that, on 24.06.2014, Tuesday at 6.00 p.m. accused called her to go to park. Accordingly she went with him but, accused took her to the hind side of National College, Vidyanagar area and told her that, he is going to marry her and except her he is not going to -5- NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 marry any other girl. He also told that, his parents also have agreed for the said marriage. By saying so he put his hand on her and though there was resistance by her but he committed rape on her. Thereafter, at about 8.00 p.m., on that day he took her towards her house but, left at the middle on the way to her house. From that day onwards accused stopped talking with her, did not see her and did not call her. Because of this, complainant called him on his mobile phone but it was found switched off.
8. It is alleged that, being scared of the attitude of the accused, she informed the aforesaid fact of rape on her to her maternal uncle S.M. Srinivas. Her maternal uncle and his friends i.e., N. Eshwar, Ramanjani, Hanumanthappa, Venakatesha and others went to the house of the accused to speak with his parents. It is alleged that when they enquired, accused told that, victim girl is not known to him and he has not committed any offence on her. When maternal uncle and others requested his parents, they told that, she being a Madiga prostitute and they were not ready to arrange the -6- NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 marriage. They abused in filthy language and told that she might have slept somewhere else with others and they have seen many girls like this victim girl. They abused the complainant's family by taking their caste. They also told that by putting forth the false plea of rape, she is trying to blackmail and they would not permit Praveenakumar to marry her. Even they gave a threat to the complainant and her family members.
9. It is alleged that, there was a humble and earnest request by the said maternal uncle of the complainant/victim and others to perform the marriage of complainant and Praveenakumar and not to spoil the life of the complainant and give her a life. But they did not agree. Because of this attitude of the family of the accused, the complainant was constrained to file the complaint as per Ex.P.1 which was registered in Crime No.37/2014 of T.B. Dam Police Station, Hosapete and thus the criminal law was set in motion.
10. The Investigation Officer after following all the formalities of investigation have filed the charge sheet -7- NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 against accused person for the offences punishable under Sections 417, 376, 506 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC' for brevity) and Section 3(1)(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'SC and ST (POA) Act' for brevity).
11. Before the learned Sessions Judge to prove the guilt of the accused, prosecution in all examined 17 witnesses and got marked Ex.P.1 to P.15 with respective signatures thereon. Closed its evidence.
12. The learned Trial Court having heard the arguments and on perusal of the materials found these accused not guilty and consequentially acquitted all the accused of the aforesaid offences.
13. Now the State has preferred this appeal challenging the said judgment of acquittal.
14. It is argued by Shri. M.B. Gundawade, learned Additional State Public Prosecutor that, there is a material evidence adduced by the prosecution to prove the guilt of -8- NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 the accused. Especially the complainant being the victim has corroborated the contents of her complaint in her evidence on oath. It is submitted that, her evidence itself is sufficient to prove that there was a cheating and rape by the accused on the guise of promising her to marry and committing of rape. He further submits that the learned Trial Court has not appreciated the evidence placed on record both oral and documentary though there was proof of rape on her. The doctors evidence proves about the commission of rape on her without her consent.
15. It is further submitted that, in view of this acquittal of accused persons, now the victim girl is suffering lot. He submits that, there cannot be any consensual sex as contended by the accused. The legislature in its wisdom has amended the provision of rape and justice is the first and foremost desire of every person who seeks the help of law. It is the ultimate end after a great legal battle in the Court. The complainant being a innocent girl expects justice from the hands of the Court. He submits that, it is proved by the prosecution -9- NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 that accused No.1 has committed the offence in the manner alleged by the prosecution and remaining accused are responsible in the commission of alleged crime so alleged against them. Hence, he prays to allow the appeal and set aside the impugned judgment and prays to pass an order of conviction and sentence against them.
16. As against this, it is the submission of learned counsel Sri. J. Basavaraj for accused/respondents that, the Trial Court has analyzed the evidence and has come to a proper conclusion that, no offences have been committed by accused persons. It has given cogent and acceptable reasons for acquittal of the accused persons. Thus, learned counsel for accused/respondents submits that, the Trial Court is justified in acquitting the accused persons by giving logical reasons. Hence, he prays to dismiss the appeal.
17. We have given our anxious consideration to the arguments of both the side. Perused the records.
18. As per the complainant allegations, victim girl was aged 21 years as on the date of commission of alleged
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 offence. To prove the said fact, the prosecution has collected documents. She was examined by the doctor. At that time her age was shown as 21 years. Thus, her age was 21 years at the time of alleged offence. She too deposes on line with contents of the complaint in her evidence on oath. When she gave evidence on 13.06.2016 her age was 23 years as stated by her.
19. It is her evidence that, she came to know accused No.1 through his sister Chandrika. He belongs to fishermen community. Chandrika is arrayed as accused No.5 in this case. Chandrika is the friend of complainant. Further, it is stated by her that, both Chandrika and herself were residing in one house. Thereafter, complainant came to Ambedkar Nagar. On the date of birthday of complainant, the complainant went to the house of Chandrika where accused No.1 gave a birthday gift by providing his mobile number to the complainant. He provided his telephone number and thereafter he used to call her and used to say "I love you". Initially he used to
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 call the mobile of her mother. Often he used to request her to marry him, as he is ready to marry her.
20. It is her evidence that, on 24.06.2014 he called her and at about 7.45 p.m. on that day he took her to the National College, Hosapete. At that time she enquired accused No.1 about her marriage with him. He told that his family members have agreed for the said marriage. By saying so, he took her in the middle of the group of trees and committed rape on her. Thereafter two persons who were there abused both accused and complainant victim. Amongst those two persons one was Pradeep. At that time, accused No.1 told that already their engagement was performed. Accused told that in the morning he will come to the house of the complainant and inform the parents of the complainant.
21. If these words spoken to by PW.1 are compared with the contents of the complaint, we find a different version spoken to by her in her evidence on oath. It is her evidence that, thereafter 2-3 times she called accused and found that, mobile phone of accused No.1 was switched
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 off. She informed the said fact to her maternal uncle Srinivas. He came to her house and consoled herself and her parents. Thereafter, about 5-6 persons including her parents, maternal uncle and others went to the house of accused persons and requested to perform the marriage of accused with the complainant. But they abused them in filthy language.
22. This PW.1 was cross examined at length by the defence. It is elicited that, she was studying in Arts when she gave evidence and also has undergone beautician training. She does not know in which subject the said Chandrika had obtained the degree and she had completed the same in the year 2015 . She has not stated before the police that from 2009 she was in love affair with accused No.1. She knew that, after completing 8th standard accused No.1 used to work at BMF Factory on daily wages.
23. It has come in her evidence that, with regard to her affair with accused No.1, she has not informed to her parents or to her friends or sisters. But Chandrika knows about those love affair. It is her evidence that, at Ex.P.3
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 and P.4 there is no mention with regard to National College.
24. She admits that, her maternal uncle Srinivas is the leader in DSS Sangha. Though the said incident has taken place as per her evidence on 24.06.2014 but the complaint was lodged on 02.07.2014. The reason for delay in filing the complaint was that, there were talks in between complainant's family and accused family and there was a request by the complainant's family to perform the marriage of the complainant with accused. As there was refusal therefore, a complaint was filed on 02.07.2014 in the midnight.
25. Her evidence has been corroborated by the evidence of her father Masthanappa, examined as PW.6. He too states with regard to rape on her daughter. He is a hearsay witness. PW.7-Lakshmi Masthanappa is the mother of the complainant/victim and she deposes that on one day accused No.1 took her daughter on his vehicle towards National college. There is improvement and
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 exaggeration in the evidence of all these witnesses. She has deposed ignorance of so many factual features.
26. Though the other witnesses have been examined in this case, the vital witnesses PWs.1, 6, 7 and parents of the victim. The other witnesses have not supported the case of the prosecution in material particulars.
27. The persons who accompanied the family of the complainant to the house of accused persons have not supported the case of the prosecution in material particulars. Some persons have stated about they accompanying the complainant's family. Except the same nothing is stated by them.
28. PW.13-Dr.Smt. Shailaja, who medically examined the victim had noticed no external injuries on the person of the victim and even there was no injury on her private part. Hymen was torn. She issued Ex.P.11. She has been cross examined at length but nothing is elicited.
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29. The other witnesses have stated about the report from the FSL etc. It is categorically stated in the cross examination that she was medically examined by the aforesaid doctor and there were no symptoms of commission of rape on her. Thus, from the evidence spoken to by the witnesses, the very commission of the offence of rape on complainant is doubtful. The evidence is scanty and cannot be accepted as a truthful evidence.
30. In this case to prove the said offence of rape on the complainant/victim, the best witness would have been the two persons who abused the victim and accused on that ill-fitted day. They are not arrayed as witnesses and they have not been examined. Amongst them, the victim identified one Pradeep.
31. It is very much clear from the evidence spoken to by the victim/complainant that at the instance of accused No.1, she voluntarily went with him as she had lot of faith on him that he is going to marry her. On the promise of he marrying her, she submitted herself and
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 thus it will be termed as consensual sex in between accused No.1 and the complainant.
32. Section 375 of IPC gives definition of rape. It is a non-bailable offence. The Section reads as "a man is said to commit rape". The first line clearly shows that the makers of the statute have intended to keep such an act as a gender specific that is committed only against women. The section also provides certain circumstances under which the act of man would amount to rape.
• "If the man commits the act against the will of the woman, that would be considered rape. • If it is done without her consent, it would be rape.
• If it is committed with her consent but her consent is obtained by putting her in fear of death or hurt, it would again be considered as rape. • If the act is committed 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, will also be concluded as a rape.
• If the act is committed with her consent when the consent is given by the woman in a state of
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 unsoundness of mind or intoxication or the man administers any stupefying or unwholesome substance due to which she becomes unable to understand the nature and consequences of that to which she gave her consent, it would be rape.
• When such an act is committed with or without her consent but the women is under the age of 18 years and it would also amount to rape. • When the women is unable to communicate consent and man commits the act against her, it would also amounts to rape."
33. Any such act defined under Section 375 of IPC committed by a man is therefore, considered to constitute rape and the offender is subject to punishment under Section 376 of IPC.
34. So far as consensual sex is concerned as in the present case, it would be the next step after reviewing all the conditions and aspects linked to rape. Consensual sex is the amalgamation of two terms. The later term is typically used to refer to a sexual encounter between two leaving creatures. The concept of rape in Section 375 of IPC, does not apply to consensual intercourse. Thus,
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 consensual sex can be said to be an act that happens only with voluntary and free consent. It is used to say that when there is consent, there is no crime.
35. If the aforesaid analogy is applied to the present facts of this case, on the day when accused No.1 called the complainant on 24.06.2014, she voluntarily went with him. She had a lot of love on him and lot of faith on him that he is going to marry her. Thus, even without informing her parents she went with him and he promised her to marry took her in the middle of group of trees and on the promise to marry her had sexual intercourse with her. The very conduct of the complainant do demonstrate that she submitted herself to have the sexual intercourse with her voluntarily. There was no force. The ingredients stated supra do not attract that she was subjected to rape.
36. As the whole term, consensual sex is based on and surrounds only one term that is consent. It is only without it, a sexual intercourse false within the definition of rape. The term is more legal rather than liberal.
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37. Section 90 of the IPC does not clearly define what consent is, rather it explains what is not consent. The section speaks that if someone gives consent out of fear of harm or due to misperception of the truth, and the person performing the act knows or has reason to think that a consent was provided as a result of that fear or misperception, the consent is not valid. If the consent is provided by someone due to insanity or alcoholism or incapacity to understand the nature and the consequences of the things to which he offers his permission or unless the context indicates that if the consent is made by the person who is under the age of 12 , it would again not be a valid consent.
38. Here in this case, complainant knew the consequences and the nature of the offence being committed on her and with full understanding of the same, she submitted herself with consent. Therefore, such a consent was in her senses, and she was capable of consenting, was free from any misconception of fear and
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 on giving such consent according to her desire. Thus, it was a consensual sex.
39. Though it is submitted by the Additional State Public Prosecutor that, there was a cheating and on the guise of promise to marry her, he committed rape on her etc. The Hon'ble Supreme Court of India in host of judgments have categorically held with regard to the offence of the present nature and defined the provisions of Section 375 of IPC. The consent may be express or implied, misguided, obtained willingly or though defeat. Here there is a voluntarily participation by the victim not only by exercise of intelligence based on the knowledge of significant and the moral quantity of the act, but also after having fully exercised the choice between resistance and assent.
40. In the case of in Uday Vs. State of Karnataka1, the Hon'ble Supreme Court considering the circumstances that the prosecutrix, aged 19 years, had given consent to 1 (2003) 4 SCC 466
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date and the prosecutrix continued to meet the accused and often have sexual intercourse and became pregnant, and when a complaint was lodged on failure of the accused to marry her, held that consent cannot be said to be given on the misconception of facts.
41. Yet in another judgment in the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar2 which was a case of passive submission on the face of psychological pressure exerted or allurements made by the accused and it was a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the acts, she had indulged in, it was held that it did not amount to rape.
42. Thus, in the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the accused persons. The accused No.1 may have 2 (2005) 1 SCC 88
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 possibly made a false promise of marriage to the complainant, but, it cannot be termed as a rape as there is distinction between rape and consensual sex. Even FIR so filed no way traced out any wrong committed by accused No.1, so also other accused persons under Section 420 of IPC or under the provisions of the SC and ST (POA) Act.
43. Learned Trial Court has evaluated the evidence in proper perspective and has rightly come to the conclusion that the offence of rape is not proved. This is an appeal on acquittal and even the appellate Court cannot lightly interfere with the acquittal judgment. Therefore, the appeal filed by the State fails and is liable to be dismissed.
44. Resultantly, we pass the following:
ORDER
(i) Criminal appeal filed by the State is dismissed.
(ii) Judgment of acquittal passed in Spl.
Case No.142/2014 dated 17.07.2019 by the I
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NC: 2023:KHC-D:9341-DB CRL.A No. 100441 of 2019 Additional District and Sessions Judge, Ballari, is confirmed.
(iii) The order of disposal of the property passed by the Trial Court is maintained.
(iv) If the accused has executed any bond, stands cancelled.
(v) Send back the Trial Court records along with the copy of the judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE SMM List No.: 1 Sl No.: 42