Mahiboob Pasha S/O Mohammed Galin vs The State Through, M.B. Nagar, on 25 June, 2020

[Cites 22, Cited by 0]

Karnataka High Court

Mahiboob Pasha S/O Mohammed Galin vs The State Through, M.B. Nagar, on 25 June, 2020

Bench: P.N.Desai

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

       DATED THIS THE 25TH DAY OF JUNE, 2020
                        BEFORE
         THE HON'BLE MR.JUSTICE P.N.DESAI

           CRIMINAL APPEAL NO.3632/2012
BETWEEN:

MAHIBOOB PASHA S/O MOHAMMED GALIN
AGE: 30 YEARS OCC: BUSINESS
R/O: NEAR TAJ FUNCTION HALL,
MAKKA COLONY, GULBARGA.          .... APPELLANT

(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)

AND:

THE STATE THROUGH M.B. NAGAR
POLICE STATION, GULBARGA.            ... RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

       THIS APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C. PRAYING TO ALLOW THIS CRIMINAL APPEAL AND
PLEASED TO ACQUIT THE ACCUSED/APPELLANT AND
SET ASIDE THE JUDGMENT DATED 18.07.2012, PASSED
BY THE IV ADDITIONAL SESSIONS JUDGE, AT GULBARGA
IN     S.C.NO.86/2011   WHEREIN   CONVICTING    AND
SENTENCING THE APPELLANT AND ETC.,

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING;
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                       JUDGMENT

This appeal arises out of judgment passed by the IV Additional Sessions Judge, Kalaburagi dated 18.07.2012 convicting the accused - appellant for the offences punishable under Sections 366, 376, 504 and 506 of IPC.

02. The learned Sessions Judge sentenced the accused to undergo rigorous imprisonment for a period of 05 years and to pay fine of Rs.3,000/- to the offence punishable under Section 366 of IPC, in default of payment of fine the accused shall further undergo simple imprisonment period for 06 months. Accused to undergo rigorous imprisonment for a period of 07 years and to pay fine of Rs.3,000/- for the offence punishable under Section 376 of Indian Penal Code, in default of payment of fine he shall undergo simple imprisonment for 6 months. Accused to undergo simple imprisonment for a period of 03 months for the offence punishable 3 under Section 504 of IPC. Accused to undergo S.I. for a period of 06 months for the offence punishable under Section 506 of IPC. It is further ordered that all the substantive sentences shall run concurrently. If fine amount is recovered, out of fine amount an amount of Rs.5,000/- shall be paid to victim-girl as compensation. Accused is in judicial custody from 24.08.2010 and it is ordered that the period which accused has spent in judicial custody shall be set off against the sentence imposed against him.

03. The brief case of the prosecution is that the accused and victim-girl were residents of Kalaburagi City. The victim-girl is daughter of one Smt. Rubeena w/o Mohammed Khaleel-PW.1. The victim-girl has studied up to 10th standard. It is case of the prosecution that at about 10 to 15 days prior to lodging of the complaint by the complainant-PW.1, this accused came to Humnabad to attend the marriage of relatives of the 4 complainant. At that time, the accused also came there and started to talk with the victim-girl. It is further case of the prosecution that on 28.07.2010 in evening the complainant's daughter-victim-girl went out of her house. But she did not return to the house. Thereafter accused informed over phone to the complainant- victim's mother that he had married to her daughter- victim-girl. So, complainant-PW.1 has lodged the complaint stating that her daughter is minor and accused induced her and kidnapped her. The complaint is lodged before M. B. Nagar Police Station as per Ex.P.1 on 10.08.2010. The Police Sub Inspector - PW.9- Krishnappa s/o Shankreppa Kaldevaru who is the Station House Officer received the complaint at 01.00 p.m. and registered the case in Crime No.95/2010 for the offence punishable under Section 366A of IPC and sent the FIR to the Court as per Ex.P.9. He conducted spot panchanama as per Ex.P.2 which is shown by the complainant-PW.1 and recorded the statements of 5 panchas by name Pandu-PW.4 and Apparay-PW.3. Then he recorded the statements of Jaibunissa-PW.7 and Wassim Khan-PW.2.

04. On 18.08.2010 morning at 11.00 a.m. the victim-girl appeared before the Police Station and police have recorded her statement. At the time of recording the statement of victim-girl, the Investigating Officer came to know that, on 28.07.2010 at 05.30 p.m. when victim girl was going towards K.N.Z. Function Hall, accused came there. He abused her in filthy language and threatened her to come along with him stating that he will marry to her. He took the victim-girl to a building under construction situated at Kesaratagi garden and committed rape on her forcibly without her consent. Thereafter, accused threatened her stating that he will kill her if she discloses the same to anybody. Thereafter, they wandered in and around Kalaburagi such as railway station and Bus stand. On 29.07.2010 he took 6 her to Mumbai. It is case of the prosecution that both victim-girl and accused lived in house of the wife of accused for about 17 to 18 days. He has not committed any rape at Mumbai. On 17.08.2010 accused brought the victim-girl to Kalaburagi.

05. On the basis of statement, he sent the requisition to the Court for inclusion of the offence under Section 376 of IPC in the FIR as per Ex.P.10 and handed-over further investigation to the Circle Inspector of Police. PW.12-CPI took up further investigation, he visited the scene of offence and drawn panchanama as per Ex.P.3 in presence of panchas viz., Pandu-PW.4 and Apparay-PW.3 and he recorded further statements of Rubeena-PW.1, Jaibunnisa-PW.7 and Arif-PW.6 and also recorded statement of police constable No.170. He sent the victim-girl to Kalaburagi District Hospital for medical examination. On 22.08.2010 she was brought back and she was produced before the Court. Thereafter 7 on 27.08.2010 accused surrendered before the Court and the accused was sent for medical examination and collected his medical certificate as per Ex.P.4.

06. After completion of investigation he has filed charge sheet against the accused for the offences punishable under Sections 366(A), 376, 504 and 506 of IPC before the Committal Court-IV Additional J.M.F.C., Gulbarga.

07. Thereafter, the learned Magistrate took the cognizance and registered the case in C.C.No.3546/ 2010. After compliance with provision under Section 207 of Cr.P.C., the learned Magistrate committed the case to the Court of Sessions under Section 209 of Cr.P.C.

08. The learned Sessions Court registered the case in S.C.No.86/2011. The learned Sessions Judge after perusing the material and hearing the arguments 8 framed the charges against accused for the offences punishable under Sections 366, 376, 504 and 506 of IPC, but not framed the charge under Section 366A of IPC.

09. In order to prove its case the prosecution examined twelve witnesses as PWs.1 to 12 and got marked twelve documents Exs.P.1 to 12. Thereafter accused statement as required under Section 313 of Cr.P.C. is recorded. Accused denied the incriminating circumstances in the evidence of prosecution witnesses. The accused has not chosen to lead defence evidence. After hearing the arguments the learned Sessions Judge convicted the accused for the offences punishable under Sections 366, 376, 504 and 506 of Indian Penal Code. The learned Session Judge imposed sentence and fine as referred above.

10. Aggrieved by the said judgment and conviction order, accused preferred this appeal on the following grounds.

That the Trial Court has not appreciated the evidence in a proper perspective. The prosecution has not produced any documents to show that victim-girl is a minor. The conduct of the victim girl in not trying to raise voice or trying to escape or raise alarm, all these circumstances clearly indicate that accused has not committed any offence, without her consent against her will. With these main contentions the appellant has prayed to acquit him.

11. Learned counsel for the accused-Appellant argued that prosecution witnesses PW.2-Wassim Khan and PW.6-Arif are the relatives of the victim-girl. PW.7- Jaibunissa who is the grandmother of the victim girl, has not at all supported the case of the prosecution. PW.3-Apparaya and PW.4-Pandu who are the panchas, 10 have also not supported the case of the prosecution. There is no medical evidence to show that victim was subjected to rape. There is no evidence that victim girl was minor girl. No school certificate or any material is produced. The Trial Court had rightly not framed the charges for the offence punishable under Section 366A. But there is a delay in lodging the FIR and complaint. The evidence of prosecutrix does not inspire any confidence. Her evidence does not indicate that the sexual intercourse committed on her without her consent and against her will or it was forcible act. If at all she was threatened, she could have shouted and tried to escape from the place. No such, evidence is stated by her. According to the statement of the victim- girl she was taken to bus-stand and railway station. There is every chance for her to speak to her mother or other persons who were present in the Train or Station. She has not informed anybody regarding the incident. She has stated that she lived about 17-18 days in the 11 house of the accused wife. It is not her case that she was confined and kept in the house lock. But she did not inform to anybody. The victim girl stated that she was taken in Tata Sumo and one woman by name Samima and driver of that vehicle accompanied them. They were not examined. The Investigating Officer has never visited Mumbai to investigate, whether victim-girl has stayed about 17 to 18 days in Mumbai. No medical examination of the victim-girl is made and even if made not produced any documents regarding her physical or mental status of body and mind. The consent as defined under Section 90 of Indian Penal Code is not applicable to this case. The Court could not raise presumption under Section 114-A of the Evidence Act. In the absence of medical examination, corroboration by any of the evidence and circumstances indicating that she was subjected to rape accused could not have been convicted. The chain of circumstances clearly indicates that the prosecution has failed to prove that accused 12 has committed offence of rape. In support of his contention, he relied upon three decisions of the Hon'ble Supreme Court of India reported in (2004) 1 SCC 88 in the case of Deelip Singh alias Dilip kumar vs. State of Bihar dated 03.11.2004, wherein the Hon'ble Supreme Court referred Section 90 of IPC regarding "Consent" and accused is acquitted, and also referred the decision of Hon'ble Supreme Court reported in (2013) 3 SCC 791 in the case of Rajesh Patel vs. State of Jharkhand dated: 15.03.2013 and relied upon paragraphs No.11 and 12, wherein the Hon'ble Supreme Court has referred its decision earlier judgment of Raju vs. State of Madhya Pradesh, wherein it is stated that non-examination of the Doctor who is important witness has caused prejudice to case of prosecution, accused has failed to chain of confine as per his case. In the absence of corroboration the evidence of prosecutrix convicting the accused solely on her evidence is not proper. He also relied upon the 13 recent judgment of the Hon'ble Supreme Court reported in 2020 SCC OnLine SC 194 the case of Santosh Prasad vs State of Bihar dated 14.02.2020, wherein at Para No.12 referred the earlier judgment in the case of Gurmit Sing reported in (1996) 2 SCC 384, wherein it is discussed about the presumption arising under Section 114-A of the Indian Evidence Act and how to appreciate the evidence of prosecutrix and how it should be presumed or presumption can be raised only if witness is "sterling witness" and relied on paragraph No.6 of the said judgment. He further contended that there are material contradiction in the evidence of PWs.1 and 10 which goes to the root of the case and creates doubt about the prosecution case. So, benefit of doubt should goes to the accused. In view of principles stated in the above decisions and evidence, the learned counsel for the appellant prayed to acquit the accused/appellant.

12. The learned High Court Government Pleader argued that the evidence of victim-girl is to be believed. In the case of offence punishable under Section 376 of IPC usually there will not be any corroborative evidence, it is only the evidence of the prosecutrix which is to be appreciated by the Court taking into consideration other material and circumstances. The victim-girl has stated that she was subjected to sexual intercourse forcibly without her consent and against her will. So, this evidence is sufficient to convict the accused. There is no material or evidence to show that the victim girl is consenting party. He further argued that the alleged incident has taken place on 28.07.2010. Thereafter the victim-girl and accused have left the place and they returned only on 18.08.2010. There could be no medical evidence to show that the victim-girl was subjected to sexual intercourse, because by that time medical evidence could disappears and there is nothing even on her cloths also. So, non-production of medical evidence 15 is not much importance in this case. He further argued that in fact the accused abused and threatened the victim-girl and out of the fear she went along with him and she was subjected to sexual intercourse under threat or fear to her life. So, that consent is not free consent as such consent obtained under threat to her life. So, it is without consent. He relied on the Section 90 of Indian Penal Code and also relied upon the decision of the Hon'ble Supreme Court reported in (2010) 8 SCC 714 in the case of Satpal Singh vs State of Haryana Head Note 'e' relevant Para No.31. So, in the light of that judgment, if evidence of victim girl is considered, then it is not a free consent and consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. The threat is sufficient to show that it was not with consent. He further argued that no girl could 16 come before the Court stating that she was subjected to sexual intercourse as it will put to her future life in danger and entire career will be at stake. Absolutely, there is no reason to disbelieve the statement of the prosecutrix on oath that she was subjected to sexual intercourse against her will and without her consent. Though there are some minor lacuna in the investigation, but same are not material and they does not go to the root of prosecution case. He also argued that if totality of the evidence of prosecution witnesses is considered, it is evident that the prosecution proved its case. The learned Sessions Judge has appreciated the evidence of prosecution regarding abuse and threat to life and also after considering evidence of the prosecution witnesses, the learned Sessions Judge believed the evidence of prosecutrix-victim-girl-PW.10. The learned Sessions Judge given reason as to why delay is not fatal in this case. There are no reason for the victim-girl to file case against this accused. Hence, 17 the learned Sessions Judge rightly convicted the accused. He supported the judgment of the learned Sessions Judge. Accordingly, he prayed to dismiss the appeal.

13. Heard Sri. Liyaqat Fareed Ustad, learned counsel for the appellant and the learned High Court Government Pleader appearing for the State.

14. From the above materials the points that arise for my consideration:

1) Whether the prosecution proved beyond all reasonable doubt that, on 28- 07-2010 at 5.30 p.m., in Osmania colony near KNZ function hall, the accused intentionally insulted the victim girl by abusing her in filthy language stating as "Randi, Bhosdi, Chinalli" and thereby gave provocation knowing that such provocation would likely to cause her to break the public peace and thereby committed an offence punishable under section 504 of Indian Penal Code?

2) Whether the prosecution proved beyond all reasonable doubt that, on the above said date, time and place the accused kidnapped the victim girl with intend that, she may be compelled to have illicit relationship or to marry against her will by use of criminal intimidation and thereby committed an offence punishable under section 366 of Indian Penal Code?

3) Whether the prosecution proved beyond all reasonable doubt that, the accused has committed rape on the victim girl on 28-07-2010 at 6.00 p.m., in a building situated at Keseratagi garden and thereby committed an offence punishable under section 376 of Indian Penal Code?

4) Whether the Judgment of conviction of learned Sessions Judge is not based on sound principles regarding appreciation of evidence in criminal cases and needs interference of this court?

15. The prosecution in order to prove its case in all examined 12 witnesses as PW.s 1 to 12. PW.1 Rubeena is the complainant and mother of victim-girl who has set the criminal into motion. She has stated in her evidence that on 10-06-2010 she had been to Humnabad for a function, there she came to know that about the accused. On 28-07-2010 at 5.30 p.m., her daughter went out of the house but did not returned on that day. Thereafter the accused telephoned her and informed that, he has taken her daughter along with him and he will marry her. Then on 10-08-2010 she went to the police station and lodged the complaint as per Ex.P.1. Thereafter on 18-08-2010 the accused brought the victim girl to her house. She enquired her daughter, she told PW.1 that accused took her to Kesaratagi garden and committed rape on her, then he took her to Mumbai. PW.1 has stated that she did not know how she had gone to Mumbai. Then her daughter was sent to hospital, she stayed there for 5 days, apart 20 from that, she did not know anything about the case. So, her examination in chief does not indicate when the accused telephoned her i.e., on which date and when he informed her. As per her own statement before the court on 28-07-2010 itself the accused took her daughter along with him, but in her written complaint before the police, which is at Ex.P.1 she has given a different version. She has stated that, about 10 -15 days prior to lodging the complaint she had been to Humnabad that means it must be in the last week of July 2010, but she has stated that in June she came to know about the accused. She has further stated that, accused was talking with her daughter by taking liberty, but she never states that the accused has taken her daughter on 28-07-2010. She simply states that, thereafter the accused telephoned her. When he informed her is not stated by her and she has stated that the accused told her that, he had already married the victim girl. But here she gives a different version 21 stating that the accused told her that, he will marry her daughter. So this complaint is lodged nearly after 12 days after the said victim girl left the house of the complainant. If at all according to her on 28-07-2010 she was knowing that the accused had taken victim along with him why she did not lodged any complaint is not forth coming. How and with which telephone number, when he has informed the complainant? there is nothing on record. No investigation is done in this regard. PW1 states that, victim girl told her that the accused took her to Kesaratagi garden and committed rape on her. But the scene of offence is not Kesaratagi garden, but some building near the garden. When the accused committed rape on victim is not forth coming in her evidence. Again in the cross-examination she gives a different version stating that prior to lodging of the complaint four months back she had been to Humnabad, there the accused was also present. But the victim has not informed her that, accused used to meet 22 her. She has further stated that, she has not given statement before the police as per Ex.D.1 i.e., the accused was closely talking with her daughter. Again she gives different version in the cross-examination that victim girl told that she will go to PW.1's sister's house and after six days the accused telephoned her and informed her about her daughter. Even she lodged a complaint with police within six days of her daughter missing. But no such missing complaint is forth coming. Further she has stated that, until the accused informed her over phone about her daughter she was not knowing the whereabouts of her daughter. Again she states that accused had informed about her daughter that itself contradict her statement that the accused had taken the victim girl along with him. After 15 days her daughter returned and in fact the accused himself had brought her. But the victim girl never telephoned her all these days. She has stated that, victim girl told her that at Mumbai she was residing in 23 accused wife mother's house. She has also admitted that, victim is her daughter from her first husband. She has denied the suggestion that she is falsely deposing that her daughter informed her that the accused has committed rape on her. So the very conduct of this PW.1 and her evidence before the court and her statement before the police and the contents of Ex.P.1 does not corroborate with each other. On the other hand there are material inconsistency and contradictions in her evidence. If at all immediately after six days she has lodged the missing complaint and the accused had telephoned her why no efforts were made to trace the accused or victim is not forth coming. Only this accused has brought the victim and left her in the house, which cannot be believed at all.

16. The next witness PW.2 is Waseem Khan who is relative of the victim and PW.1. He has also stated that, PW.1 informed him that on 28-07-2010 her 24 daughter has left the house and she did not return. Then only when the accused telephoned he came to know that the accused had taken victim girl and then the accused brought and left the victim. He went to the house and saw the victim but he did not say anything about the incident and he never enquired the victim as to what happened and he do not know anything further. So he never states about the sexual assault, threat or criminal intimidation committed by the accused. He is the relative of victim girl. If at all any such threat, abuse, criminal intimidation or the act of sexual intercourse against her will had taken places, this witness could have stated that victim informed him in this regard, but he did not say anything about it. So, this evidence creates a doubt about prosecution allegation.

17. PW.3 Apparaya and PW.4 Pandu, they are the witnesses to both panchnamas i.e., Ex.P.2 & Ex.P.3 25 panchnama drawn near green city garden and KNZ function hall. PW.3 has denied about drawing of any such panchnama either near KNZ function hall or near a room, near Kesaratagi garden green city and drawing of panchnama as per Ex.P.2 & Ex.P.3. He has denied the presence of both complainant and also victim girl at the time of said panchnama. The prosecution has treated this witness as hostile and cross-examined him, but nothing is elicited from his mouth. PW.4 has also not supported both the panchnamas. It is very pertinent to note that when he was treated as hostile and cross- examined by the prosecution, the prosecution has made suggestion to him that both panchnamas are drawn on the same day which is contrary and inconsistent with the case of the prosecution and evidence on record and contents of Ex.P.2 and Ex.P.3 and thereby creates doubt about scene of occurrence and the allegations of the prosecution case. Because admittedly both the panchnamas are written at different places as per 26 prosecution. How PW.1 came to know the place in Ex.P.2 is not forthcoming. Because in her evidence she has simply stated that, on 28-07-2010 the accused took her daughter. Even in her complaint she has stated that, on 28-07-2010 at 5.30 p.m., victim left the house, but did not return then how she came to know this place in Ex.P.2 as a place where the incident took place is not forth coming and thereby makes the evidence of Investigating Officer and PW.1 in this regard doubtful.

18. PW5 Dr. Neelavati Tambre, lady Medical Officer who has examined the accused and stated about the examination of the accused by different Medical Officers and given a certificate and final opinion that the accused is not suffering from any sexual disease nor there is no clinical evidence suggestive of impotency. So her evidence will not help the prosecution to show any of the offence.

19. PW6-Arif is again a relative of the victim, but he also did not say anything about the accused kidnapping the said victim girl. He has not supported the prosecution case. The prosecution treated him as hostile and cross-examined at length. But nothing is elicited in the cross-examination by prosecution and he has stated that he has not given statement before police as per Ex.P5 and Ex.P6.

20. PW7-Jaibunnissa is the mother of PW1-Rubeena and the grand mother of the victim girl. She has also not supported the prosecution case. She has also stated that victim girl has not told her that accused has kidnapped her and committed rape on her. The prosecution has treated her as hostile witness. Though the prosecution has cross-examined her at length, nothing is elicited in her cross-examination. So, the evidence of this witness is very fatal to the prosecution and the evidence of prosecution witnesses, 28 thereby makes the theory of rape and kidnap as alleged by the prosecution doubtful. She being a grand mother of victim girl absolutely there are no reasons for her to depose before the Court if at all any such incident had happened. But she has categorically stated that she has not given the statement as per Ex.P7 and Ex.P8. The evidence of PW.7 in not supporting her daughter PW.1 and grand daughter PW.10, itself indicates that there is no truth in the prosecution allegation.

21. PW8 -Mohammed Rafik is a Police Constable, who has handed over the material objects collected to the forensic laboratory.

22. PW9-Krishnappa is a P.S.I. He has stated about receiving the complaint of the PW1 and registering the case and sending the FIR. He has further stated that on the same day he secured one Pandu and visited the scene of offence place and drawn panchanama as per Ex.P2. But both panchas have not 29 supported this witness. In fact PW1 herself do not know from which place the accused allegedly kidnapped victim girl and took the victim girl. So the scene of offence shown in Ex.P2 is a only a road i.e. a public road. It will not help the prosecution in any way. He has further stated that he has recorded the statement of Jaibunnissa, Shaik, Arif, Wassim Khan. But none of them supported the evidence of this witness. He has further stated that on 18.08.2010 morning at 11.00 a.m. the victim girl appeared before the police station and he recorded her statement and on the basis of her statement he gave a requisition to the Court to include Section 376 of Indian Penal Code in FIR already sent to court and handed over further investigation to higher Police Officer. In the cross examination, he has denied suggestion made by the accused side. But as already stated PW6, PW7 & PW8 have not at all supported his evidence about recording the statement nor pancha witnesses supported panchnama. Therefore, the 30 investigation done by this Investigating Officer creates a doubt about prosecution case.

23. PW10- is the victim girl. She has stated that she has got other three sisters. One day in the year 2010 herself and her mother and her sister had been to Humnabad for her cousin brother's function. At that time, the accused was also present there. He got introduced himself to her and he told that he will marry her. But the victim girl told him that as he is already married, she cannot marry him. So this portion of the evidence clearly indicates that the victim was knowing that accused is already a married person. So he making false promise to marry her itself becomes doubtful. That charge itself is not proved as victim knew that accused is already married and she refused to marry him. She has further stated on 27.07.2010 in the evening at about 6.00 p.m. when she was passing in front of KNZ function hall at Kalaburagi city, the accused came there 31 and told her that he intend to talk with her. She has further stated that the accused abused her by using vulgar words such as 'randi', 'bhosadi', 'chinalli' and told her if she did not follow him, he would take away of her life. Then, he took her to Kesaratagi garden. There was a empty building and he committed forcible sexual intercourse with her though she requested not to commit such act. Then accused took her to railway station at about 8.00 or 9.00 p.m. from there he took her to Mumbai Borivali. The relatives of accused are residing at Borivali. Further she states that about 17 to 18 days she stayed there at Mumbai. Her mother states that accused brought her in the last week of July or first week of August to Gulbarga and left her, then she informed her mother about what all happened. The police took her to hospital and police have taken her to place where accused committed the sexual intercourse. 32

24. In the cross-examination she has stated that she did not know house of the accused and even she was not talking with the accused earlier to this incident and accused never used to meet her. But again she has stated that she knew the accused prior to this case, as he is a friend of her cousin brother. She has stated that accused has not meet her even in the house of her cousin brother nor meet her anywhere. She has stated that prior to 15 to 20 days of the incident accused asked her that he will marry her, that was in the Humanabad. At that time she was talking with the accused. But again she has stated that she has not given statement before Investigating Officer as per Ex.D.2. But the Investigating Officer has stated that she has given statement as per Ex.D.2.

25. She has stated that accused took her to Kesaratagi garden in a Car i.e., in the Tata Sumo. She has admitted that between the said place on the said 33 road so many vehicles and peoples were moving. She was sitting in the backside of the Tata Sumo. She did not cry for help and scream for help or call anybody to help her. So, that conduct of the victim girl indicates that no force was used on her. She admitted that accused was sitting in the front seat of said Tata Sumo. So, the accused was not holding her in the said vehicle. Again she has stated that in the said vehicle there is another woman who was wearing Burka sitting with her. While going to Kesaratagi garden that woman was talking with her. She came to know that her name is one Samima. If at all, the accused took her forcibly against her will or kidnapped, she could have informed the said Samima. Said Samima is not examined or cited as witness, what is her role? and why she was present in the Tata Sumo?. No material is placed before the Court by the Investigating Officer or that Samima is produced as witness before the Court.

26. PW.10 has further stated that place where she was taken is a RCC building having roofs, but she does not know whether it was situated inside the garden or outside the garden. She does not know, whether it is a government garden and there were police in the entry gate and that building was by the side of said Kesaratagi garden. She does not know that there was a Police Training Centre near it. She further admits that another lady came in the Tata Sumo and driver of Tata Sumo also came with her to the said room. Bed-sheet was already spread there. She did not sustain any injury by pharsy-stone floor in the said act. She has stated that first time she shouted in the room, which is not stated by in her examination-in-chief. She has further stated that they stayed in the said room about 3 to 4 hours. Why that another lady in the said room did not try to rescue her is not stated and what they are doing for 3 to 4 hours is not stated. She stated that accused committed forcible sexual intercourse on her. 35 Then in the said Tata Sumo they came to railway station. But at that time the said another lady and driver did not came to railway station, but another driver was there. At that time also she was sitting in the back-sheet. In the Railway Station one boy who was in the Tata Sumo and accused accompanied her. But who was that boy is not forthcoming. She does not know who has taken the ticket. She never tried to inform about the incident nor sought help from anybody in the Railway Station. This evidence in the cross-examination is contrary to the case of the prosecution. According to the police report and case of the prosecution is that, after the sexual intercourse both accused and victim- girl were in city itself. They wandered near bus-stand and railway station and thereafter on the next day i.e. on 29.07.2010 they left for Mumbai. So, the evidence of this witnesses that on the same day after 3 to 4 hours of the incident they left for Mumbai is contrary and inconsistent to the prosecution case. The case of the 36 prosecution is that after the incident the accused threatened her to takeaway her life if she discloses to anyone and took her to bus-stand and other places at Kalaburagi for one day. On the next day he took her to Mumbai. There is lot of opportunity to the victim girl to call for help and escape from the accused, but she has not chosen to seek for help by any person or tried to escape for the reasons best known to her. Further, she has stated that they went Mumbai in a Train. There are lot of passengers present in the said compartment wherein accused and victim-girl were sitting. She has stated that she has not used the bathroom even after the incident while going in a Train. She has stated that accused used to go bathroom in the Train. When accused used to go bathroom, the victim-girl did not disclose to the passengers about the incident and she never tried to inform her mother over phone. She has admitted that her mother is having mobile phone. Even then she never tried to ask the mobile phone or the 37 neighbouring passengers who were sitting in the Train. This again creates doubt about kidnapping and forcible sexual intercourse. It is not the case of the prosecution that accused has threatened her in the Train. On the other hand he was going to bathroom. Mumbai is situated at a long distance from the Kalaburagi. It is nearly about 12 hours journey from Kalaburagi, if the Court takes judicial note of the distance between the Kalaburagi and Mumbai. So, if at all accused has committed kidnap or abducted her and committed sexual intercourse against her will, she had all opportunity to make complaint about him and escape from the said accused, she did not use any of such opportunities to call anybody or inform the sitting passengers by her side nor make call to her relatives or mother over phone. Her evidence creates doubt of her allegations. She has stated further in her evidence that at Borivali, Mumbai about 3 to 4 persons are residing in the house of accused wife. But how many rooms are 38 there, she cannot state. She has stayed there about 17 to 18 days. The accused was not sleeping with her. Even he was not talking with her in the room. Then how she was living there? Why she was living there is not forthcoming. According to the prosecution no act of the sexual intercourse was performed by the accused on her at Mumbai. Even he was not sleeping with her. It is not her case that she was always confined in the room and accused was hiding her in any remote or secret room or house anywhere. She has stated that the accused wife used to give food and other things to her. She does not know, whether the accused was sleeping in the house or not. Even there are other houses situated by the side of the house where she was residing. So, if she was kidnapped and abducted against her will and if there is sexual intercourse on her without her consent, nothing prevented her from escaping from that place or inform any persons in the said location in this regard or her relatives, mother or neighbors or to the police station of 39 that area. So, this conduct moving with accused after the incident about 17 to 18 days clearly indicate that she was not kidnapped under threat, nor it can be inferred that sexual intercourse was committed on her against her will and forcibly.

27. She has further stated that the police have not taken her to Mumbai. When police asked her cloths, she told that cloths are burnt. Why she burned the cloths is not forthcoming. The investigating officer never visited to Mumbai nor recorded the statement of any persons in the said Borivali Mumbai. Whether wife or mother of the accused are residing there is also not forthcoming. No investigation is done in this regard. No cloths have been seized. These factors indicates reasonable doubts about sexual intercourse against her will. Why she herself burned the cloths is not forthcoming. It is suggested to her that as there was quarrel between her brother and accused, she is 40 deposing falsely as per his say against accused. She has denied it.

28. So, on entire reading of her evidence and prosecution witnesses it indicates that her evidence is full of contradiction and inconsistency. It is evident that she met the accused accidentally. As per her own version, the accused asked her to follow her otherwise he will take away her life. It is not in her evidence that accused forcibly put her in any vehicle. She voluntarily gone with accused and one Samima and another person also came there along with them in Tata Sumo. So, all of them went in a room. Then how accused committed sexual intercourse against her will when the other persons were also present. Thereafter they stayed in Kalaburagi for one day. But she has stated that they left for Mumbai on the same day. What prevented her from escaping from the said place or inform to her relatives or give information to anybody for 17 to 18 days is not 41 forthcoming. Even there is no record that the Doctor has examined this victim girl. Who are the Doctor and who have give any report is not forthcoming. She herself burnt her cloths and there is no medical evidence. Even there is no record that Doctor examined this victim-girl. No medical report is produced in this case. Though according to this witness, she was admitted in the hospital for 4 to 5 days, why she was admitted in the hospital for 4 to 5 days is not forthcoming. There are no records or material placed before the Court, about her physical condition or mental condition.

29. It is also pertinent to note that in the entire prosecution papers there is nothing to show that how this victim-girl and accused went to Kesaratagi garden from KNZ Function Hall. It is stated that they are at the distance of about 03 kms. Only for the first time in the cross-examination PW.10 states that the accused took her in a Car and thereafter she stated that in a Tata 42 Sumo. How that Tata Sumo or Car came there is not forthcoming. Who has brought that Car, whether accused came in a Car is also not forthcoming. Further, on perusal of Court file of prosecution papers it is evident that nowhere it is mentioned that how they went to Mumbai. There is nothing in any of the statements of the prosecution witnesses that how this witness went to Mumbai. The prosecution case is case diary which is available in the file indicates that according to police case accused took her to Mumbai in a Bus. Only for the first time this witness states that he took her in a Train to Mumbai.

30. If at all the accused has kept victim girl in the house his wife, why his wife will keep quite? When accused brought another lady in the house, that too for 17 to 18 days, why his wife and other in a family keep quite and they are not examined by Investigating Officer. PW.10 stated that wife of the accused used to 43 give food, cloths and everything to her. So, why the victim-girl stayed comfortably in the house of wife of the accused for such long days is not forthcoming. Entire her evidence if considered in the light of the evidence discussed above, it makes her evidence not trustworthy and it does not inspire confidence. It is not safe to rely only on her evidence in view of inherent improbabilities and contradictions and inconsistent evidence and depositions about material particulars, when compared with other evidence before Court. Her evidence is not natural, consistent and probable to sustain conviction.

31. PW.11-Narayan is police constable taken FIR to the Court. PW.12 is Circle Police Inspector who has conducted the investigation. It appears that he has not done investigation in this case. He has stated that he has taken further investigation from the Police Sub Inspector and went to Kesaratagi garden and drawn panchanama in respect of scene of offence as per 44 Ex.P.3. But if it is seen from the scene of offence as per Ex.P.3, there is nothing in the said panchanama, so as to ascertain or to come to the conclusion that what is the exact place where incident of kidnapping and incident of sexual intercourse stated to be committed. Whether rooms of that place are open or closed, whether there is roof to that house, what is nature of ground, what is the measurement, whether it has got window, light, whether it is surrounded by any other place nothing is mentioned in the scene of offence panchanama. Simply, diagram report and house, square is shown. No records were produced to show that what is that place or whether it belongs to private person or it is public place?. There is nothing mentioned about it. It appears that Ex.P.2 and Ex.P.3 are stated to be drawn in the presence of pancha witnesses viz., Pandu and Appayya. Both are the witnesses for both panchanama and both of them have not supported the case of prosecution. The Investigating Officer taken 45 casual approach in such type of serious case and not taken any care to show exactly what is the nature of the room or place whether alleged offence is said to have taken place. So, casual approach of Investigating Officer has resulted in making prosecution case doubtful. The said inspector has further stated that he has recorded the further statement of Rubina, Jaibunissa, Shahir, Wassim. But they have not at all supported the prosecution case. He has stated that the victim-girl was minor, after medical examination she was produced before the Court. But no medical report is produced. Then he has sent the accused for medical examination and after completion of investigation he has filed report. In the cross-examination his entire evidence is demolished. He has stated that he do not know who has shown the scene of offence/place. He never inquired about it. Even he do not known whether Kesaratagi garden belongs to government. He has admitted that persons entering that garden have to take tickets for 46 entrance of Kesaratagi garden. But he did not inquire any watchman or police who will be present there. Even he has not gone to the railway station and inquired as to whether victim-girl was forcibly taken from railway station. He never bothered to inquire by which Train on what date they went to Mumbai. He has given go-bye to the evidence to the victim-girl by stating that accused took this victim-girl from KNZ function hall to Kesaratagi garden by walk. So, again this is totally inconsistent and contrary to the oral evidence of victim- girl. Because, victim-girl stated that they went in a Car. Nowhere in prosecution papers it is stated that as to how they have went to Kesaratagi garden. If at all they are walking in public place for 03 kms, that too in city day time, then question that accused forcibly took her to that garden cannot be believed. Because, naturally it is daytime there will be lot of persons. If at all accused tried to kidnap her without her consent, then she will alarm and cry or sought for help from public or try to 47 escape from the said public place. But no such incident had taken place. On the other hand she has stated that she went with accused in a Tata Sumo. Neither the driver nor other inmates of the said Tata Sumo, are examined or cited as witnesses. No such vehicle is seized in the case.

32. PW.12-The Investigating Officer further stated that he inquired the victim-girl about going to Mumbai. But he has not gone to Mumbai, neither he inquired any of the witnesses or wife of the accused at Mumbai. It clearly indicates that this Investigating Officer has not done any investigation. The entire evidence of Investigating Officer is totally contrary to the case of the prosecution and evidence of victim-girl. If at all she stayed about 17 to 18 days in Mumbai, if at all accused has got wife, the Investigating Officer could have inquired her and visited that place or taken victim girl to Mumbai.

33. The Investigating Officer tried to suppress everything before the court thereby suppressed the genesis of the crime and makes the prosecution case doubtful. Further he states that he sent victim girl for medical examination. No iota of medical evidence is produced or any medical evidence is produced before the court. What is the examination report of the said victim girl is not forthcoming. It is settled principle of law that though medical evidence is not conclusive proof or conclusive evidence in a case of rape but at-least the medical evidence should have given some support to the prosecution case or to the evidence of the victim. No iota of evidence is placed regarding what type of examination she has undergone what was her condition? nothing is before the court. So non production of medical evidence of that victim girl is fatal to the prosecution case. No Doctor is cited as a witness nor any such report is produced. This clearly indicates the total neglect of the Investigating Officer. If at all the medical evidence or 49 report of examination of the victim could have been before the court, they could would have been in a better position to appreciate the oral evidence of the prosecutrix, whether it supports or not i.e. another aspect. But at-least it should have given some idea as to what was the state of mind or physical condition of the prosecutrix when she was examined by the Medical Officer. There is nothing to show that, who has examined her, where she was examined, no such report is forthcoming.

34. The Investigating Officer has further stated that, he has not sent the victim girl for medical examination to ascertain her age and he states that, in the SSLC certificate there is a mention regarding her date of birth, so he did not feel to send the victim for medical examination to ascertain the age of the victim. Such approach of the Investigating Officer in this type of serious cases is condemnable. Because when the 50 prosecution makes allegation that, the girl is a minor or she is under the age of 18 years it is burden upon the prosecution to place before the court legally, admissible evidence regarding proof of date of birth. That can be ascertained by various methods i.e. by producing school records or examining the persons who have issued the school certificates or by medical evidence or birth certificate so that the experts can give a opinion as to exactly what is her date of birth or age. But here in this case the Investigating Officer has not produced any documents or cited any of the school teachers as witness to show what is date of birth of the victim. The victim herself has not stated her date of birth before the court. Therefore, the Investigating Officer say that at the time of incident the age of the victim is 17 years cannot be believed. On what basis he states this is not forth- coming. It appears that is why the trial court has not framed charge U/Sec.366-A of Indian Penal Code as there is no material or evidence prima-facie to come to 51 the conclusion regarding date of birth of the victim. The Investigating Officer has admitted that, the Doctor has not given any opinion as to whether the victim was subjected to sexual intercourse recently or not. There is no opinion of the Doctor or no medical evidence regarding the victim / PW.10. He has denied the suggestion that, he has not recorded the statement of the witnesses nor he has conducted the spot panchnama nor he done investigation properly, he has denied it. So the evidence of Investigating Officer is totally inconsistent, contrary to the oral evidence of the victim and it is full of doubtful circumstances. His evidence does not show as to what was the age of the victim girl what was her condition when she was sent to medical examination, whether her story that they went to Mumbai and stayed there for 17 to 18 days it is true or not? how they went there, where they stayed, whether the accused is having any place or not at Mumbai, whether he is having wife or not, nothing is 52 enquired by the Investigating Officer. Simply the victim has appeared before him and he has produced her before the court. If at all the victim has appeared on 18-08-2010 itself then what efforts they made to search the accused. On the other hand, accused himself surrendered before the Court. So all these circumstances clearly indicate that the prosecution is suppressing the genesis of the crime and it is not safe to believe the prosecution evidence.

35. In a case like this, it is settled principle of law that the Court has to consider the evidence of the prosecutrix on par with the evidence of injured witnesses. The Hon'ble Supreme Court of India in a decision referred by the learned counsel for the appellant in case of Santosh Prasad @ Santosh Kumar V/s State of Bihar reported in Criminal Appeal No.264 of 2020 SCC Online SC 194 wherein the Hon'ble Apex Court has discussed U/Sec.114-A of Evidence Act with 53 respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. The Hon'ble Supreme Court of India has also considered how the evidence of the victim in these type of cases has to be appreciated. When such a witness can be called as "sterling witness", the evidence of this witness must inspire the confidence of the court. If the witness evidence suffers totally from inherent, inconsistent and contradictions when there are no supportive or corroborative circumstances of evidence which suggests the probabilities of the version of the prosecutrix then under such circumstances it is not safe to rely only on the vague, inconsistent un-corroborative and doubtful evidence of the prosecutrix. The Hon'ble Supreme Court of India in the said case relied on its previous decision in case of Raju and others Vs State of Madhya Pradesh (2008) 15 SCC 133 wherein it is held as under:

5.4.1 In the case of Raju (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:

"11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

"12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely.

We believe that it is under these principles that this case, and others such as this one, need to be examined." 5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:

"22 In our considered opinion, the "sterling witness"

should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be 56 applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." 5.4.3 In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 5.5 With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?

6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination- in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O'clock she went to the police station and gave oral complaint. However, according 57 to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5 -prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix - PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt.

36. So, in the light of the principles stated by the Hon'ble Apex Court in the above referred decision if the evidence of the prosecutrix is considered it is evident that it does not inspire confidence and it is not trust- worthy. It is not unblemished and it is not of a sterling quality, the manner in which she was taken cannot be 58 believed. Her version therefore cannot be taken as gospel truth on the face value.

37. The learned counsel for appellant/accused has further relied upon a decision of Hon'ble Apex Court in case of Rajesh Patel Vs State of Jharkhand reported in (2013) 3 Supreme Court Cases 791) dated: 15-03-2013 wherein it is held as under:

Penal Code, 1860 - S.376 Rape - Appreciation of evidence - Contradictions, inconsistencies, exaggerations or embellishments - Testimony of prosecutrix unnatural and improbable - Delay in filing FIR not properly explained - Prosecution case not consistent - Case if one of consensual sex - Benefit of doubt extended and conviction reversed - Criminal Procedure Code, 1973 - S.154- Delay in lodging /filing FIR - Not properly explained.

38. The Hon'ble Supreme Court in case of Pramod Suryabhan Pawar Vs State of Maharashtra and another reported in AIR 2019 Supreme Court 4010 AIR Online 2019 SC 904 in Criminal Appeal No.1165 of 2019 59 (Arising out of SLP (Crl.) No.2712 of 2019 Dated: 21-08- 2019 wherein it is held as under:

(A) Criminal P.C (2 of 19074), S.482 - Penal Code (45 of 1860), Ss. 375, 376, 417, 504, 506 - Quashing of FIR - Offence of rape, cheating and criminal intimidation - Allegations in FIR that accused on promise of marriage established sexual relations with informant - No allegations in FIR that when accused promised to marry informant, it was done in bad faith or with intention to deceive her - Offences alleged not made out against accused - FIR quashed.

"Consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact"

arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediately relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual 60 relations, there is a "misconception of fact" that vitiates the woman's consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a misconception of fact" were such misconception was the basis for her choosing to engage in the said act. In the present case the allegations in the FIR indicate that the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. 61

Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statement are accepted in totality, no offence under Section 375 of the IPC has occurred.

39. The Hon'ble Supreme Court in case of Deelip Singh @ Dilip Kumar Vs State of Bihar, reported in (2005) 1 Supreme Court Cases 88 in Criminal Appeal No.44 of 2004 dated: 03-11-2004 wherein the Hon'ble Supreme Court of India has held as under:

The discussion that follows the above passage is important and is extracted hereunder:

"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a 62 misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. S. 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her."

(emphasis supplied) The learned Judges referred to the decision of Chancery Court in Edgomgtpm vs. Fotz,airoce (1885) 29 Ch.D 459 and observed thus:

(Crl. LJ P. 1538, para 8) "This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect: "There must be a misstatement of an existing fact." Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Sec. 90 cannot be called in aid in support of the contention that the consent of the 63 complainant was obtained on a misconception of fact."

40. The learned High Court Government Pleader has relied upon a decision of Hon'ble Supreme Court of India in case of Satpal Singh Vs State of Haryana reported in (2010) 8 Supreme Court Cases 714 in Criminal Appeal No.763 of 2008 dated: 28-07-2010 wherein it is held as under:

A. Penal Code 1860 - S-.376 - Rape - Delay in lodging FIR - Effect of _ FIR lodged after about four months of commission of offence - Panchayat had intervened and it pressurised complainant to compromise - Panchayat met several times - Fine of Rs.1100 imposed on appellant - Complainant had demanded that appellant be fined to the tune of Rs.5000/- and be taken in procession after blackening his face and be paraded in village - Demand not accepted by Panchayat - Ultimately complainant raised grievance before SP - Report lodged on instruction of SP - Held, delay in lodging FIR has been satisfactorily explained - Delay in lodging FIR in sexual offences has to be considered with a different yardstick - Criminal Procedure Code 1973 - S- 154 FIR - Delay - Considerations in sexual offences.

1..... to 29.......

30. It can be held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted.

Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness on the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat or use of force is sufficient.

31. The concept of `Consent' in the context of Section 375 IPC has to be understood differently, keeping in mind the provision of Section 90 IPC, according to which a consent given under fear/coercion or misconception/mistake of fact is not a consent at all. Scheme of Section 90 IPC is couched in negative terminology. Consent is different from submission. [Vide Uday Vs. State of Karnataka AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar Vs. State of Bihar AIR 2005 SC 203; and Yedla Srinivasa Rao Vs. State of A.P. (2006) 11 SCC 615.] 65

41. The Hon'ble Supreme Court of India in the said decision has considered what is the consent and what is the submission, but the facts of this case are totally different. In that case the prosecutrix has resisted, she had even given blow to the teeth of the accused breaking the button of the shirt in order to rescue from the clutches of the accused. Here in this case if the evidence of the prosecutrix is considered, it is not the case of prosecution that, accused on that day called her and asked her to come to any place. On the other hand, she herself states that, she voluntarily went there and she was simply passing infront of the KNJ function hall, there she met the accused, so the question of accused abducting or kidnapping from lawful guardianship of her parents or from her house does not arise. In her evidence she states that, accused abused her by saying 'Randi Bhosdi, Chinali', but such words are not forthcoming in the case as alleged by the prosecution. In fact the learned Sessions Judge while 66 framing the charge U/sec.504 of Indian Penal Code has not mentioned the actual words used by the accused and stating so, the accused asked her to follow him, otherwise he will take away her life. There is nothing on record to show that the accused caught hold the victim or whether he has confined her anywhere or whether she resisted the accused. It is a public place, how the accused took her to a place that too 3 kilo meters away from that place to scene of offence place is not forthcoming. The Investigating Officer states that, they went by walk. PW.10 states that they went by Tata Sumo. Who brought Tata Sumo, whether she resisted to enter said vehicle is not stated. On the other hand, she states that there was another lady present in the vehicle wearing burkha accompanied them. Whether she was forcibly made to sit in the said Tata Sumo or not was not stated by the victim. There is no material or evidence to show that the victim was confined in the vehicle or she was not allowed to jump out of the 67 vehicle, nor she was forcibly made to board the vehicle. No investigation or evidence regarding this aspect is forth-coming. The Investigating Officer has given go-bye to the said version. So, there is no any force used by the accused against the prosecutrix as per the evidence of PW.10. The prosecutrix simply states that, the accused took her to a vacant building there he committed sexual intercourse forcibly on her. She never stated that, thereafter accused threatened her that, if she disclosed to anybody he will cause any injury to her, no such evidence is forth-coming. What prevented her from raising alarm or hue or cry? what prevented her to run from vacant building is not forth-coming. It is not her case that, she was forcibly taken in that room and the door was locked and the accused committed rape on her. Again it is prosecution case that, thereafter whole day they were wandering in Gulbarga city coming to Railway station in Tata Sumo. All these circumstances practically indicates that, it is not safe to 68 believe the uncorroborated evidence of the prosecutrix. Even going to Mumbai itself is doubtful. Whether the prosecutrix has given consent or not all depends upon the facts of the case from where the court can draw inference, whether there was consent or not, whether there was any force used by the accused and whether it is voluntarily act evidence is not forth-coming. The Investigating Officer states that, the victim is aged about 17 years. This incident has taken place in the year 2010. So it is prior to amendment of Sec.375 of Indian Penal Code in the year 2013. Because subsequently the age of the victim was raised to 18 years. Therefore here only the charge under Section 366 of Indian Penal Code is framed, that also the prosecution failed to prove the same. There is no medical evidence indicating any pathological report or physical report of the prosecutrix. Ofcourse the version of the mother of prosecutrix is that, the accused himself informed her about the victim, it does not inspire any confidence. Why she did not 69 make any efforts to search her daughter immediately. The relatives of prosecutrix and own grand mother did not support the version of the complainant. Therefore, under these circumstances the entire evidence of the prosecution creates doubt in the mind of the court and thereby makes the charges doubtful.

42. It is settled principle of law that, in all criminal cases, the initial burden is always on the prosecution. It has to prove its case as alleged beyond all reasonable doubt. When the victim deposes against a particular person regarding the offence of rape it cannot be answered against the accused as the Hon'ble Supreme Court has stated that always the evidence of the prosecutrix cannot be taken as gospel truth and the approach and caution, the Court has to take while appreciating such evidence is stated in the above referred decision. So in the light of these principles, the suggestion made by the accused to the victim that there 70 was some quarrel between the brother of the victim and the accused, for that purpose this case has been lodged also cannot be ruled out. Admittedly according to the prosecution case it is only in cousin brother's marriage of victim when this victim and the accused also came there, they came to know each other. So it is evident that, she has got brother. Ofcourse what is the nature of the dispute between them is not forth-coming. Be that as it may, when the entire evidence of the prosecution does not inspire any confidence in evidence of prosecution and when it clearly indicates that, the evidence of the prosecutrix is full of contradiction and inconsistencies about the material particulars, then it is not safe to base any conviction on such uncorroborated and not trustworthy evidence. There is lot of differences between may be true and must be true. The prosecution has not been able to clear the clouds of certainty that hangs its narration. So in view of these discussions, I hold that, the prosecution has failed to prove the guilt 71 against the accused and the accused is entitled for benefit of doubt and acquittal from all the charges.

43. I have perused the impugned Judgment of learned Sessions Judge. The learned Sessions Judge has not considered the inconsistencies, inherent improbabilities appearing in the evidence of PW.10 victim girl. The learned Sessions Judge has not discussed as to how the accused has taken her to scene of offence place, simply he has stated that the accused used filthy language and threatened her by saying that he will kill her if she refuses to accompany him took her to a building situated in Kesaratagi garden and committed rape on her. In the light of the evidence, the learned Sessions Judge has not appreciated the material on record in a proper perspective. He never discussed what is the nature of the empty building and never stated anything as to why the victim has not raised alarm or tried to escape or resisted the acts of the 72 accused. There is nothing to show that the accused was having any weapon or threatened her. So the learned Sessions Judge has simply stated that the evidence of victim girl PW.10 and her mother PW.1 goes to prove the offences U/Secs. 504, 506, 366 & 376 of Indian Penal Code without appreciating their evidence in proper perspective and based on sound principles regarding appreciating the evidence in criminal cases.

44. There is no proper appreciation of evidence about accused threatening and forcibly committing sexual intercourse on the victim. The delay in lodging the complaint is also not properly discussed. The evidence of the Investigating Officer is not appreciated in proper perspective. There is inconsistency in the oral evidence of victim and prosecution witnesses and the medical evidence is not properly appreciated. The learned Sessions Judge has not considered the case on the basis of settled principle of law regarding coming to 73 the conclusion or proof of guilt in this type of cases, this has resulted in mis-carriage of justice. Accordingly the Judgment of the trial court needs interference by this court. Therefore, I answer Point Nos.1 to 3 in the Negative and Point No.4 in the affirmative. In the result, I pass the following:

ORDER Appeal is allowed.

The Judgment of conviction and sentence passed by IV Addl. Sessions Judge, Gulbarga in S.C No.86/2011 dated: 18-07-2012 is hereby set aside. The accused by name Mahiboob Pasha S/o Mohammed Galin is acquitted of the offences punishable under sections 366, 376, 504 & 506 of Indian Penal Code.

The bail bond of the accused and the bond executed by the surety, if any, is hereby cancelled.

If the fine amount is already deposited, the same is ordered to be refunded to the accused /appellant.

Send back the records of the trial court forthwith.

Sd/-

JUDGE KJJ/SMP/MNS

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Karnataka High Court