Karnataka High Court
The State Of Karnataka vs Rajshekhar S/O Channaveerappa @ ... on 6 December, 2012
Bench: Mohan Shantanagoudar, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 6TH DAY OF DECEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE MOHAN SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
CRIMINAL APPEAL NO.3639/2009 (A)
BETWEEN:
The State of Karnataka
Through Addl. State Public
Prosecutor. .... APPELLANT
(By Sri Subhash Mallapur, HCGP)
AND:
Rajashekhar S/o Channaveerappa
@ Bajiraya Pavadashetty,
Aged 22 years,
Occ: Agriculture,
R/o Kollur,
Taluk: Chincholi. .. RESPONDENT
(By Sri Mahantesh Desai, Adv.)
This Criminal Appeal is filed under Section 378(1) and
(3) of Code of Criminal Procedure praying to grant leave to
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file an appeal against the Judgment and Order dated
30.1.2009 passed by the Prl. Sessions Judge, Gulbarga in
Sessions Case No.406/2007 acquitting the respondent/
accused for the offences punishable under sections 376,
420, 504 and 506 of IPC.
This Criminal Appeal coming up for final hearing this
day, MOHAN SHANTANAGOUDAR .J., delivered the
following.
JUDGMENT
This Criminal appeal is by the State questioning the Judgment and Order of acquittal passed by the Prl. Sessions Judge, Gulbarga in S.C. No.406/2007.
2. Case of the prosecution in brief is that the accused as well as prosecutrix viz., Narasamma were residents of Kollur village. The lands of the victim as well as prosecutrix are adjoining to each other. The father of the prosecutrix had got only 1 ½ acres of dry land. Thus the entire family of the prosecutrix including the prosecutrix used to go to the land of the accused for work. About three years prior to 12.6.2007, when prosecutrix was working in 3 her land, at about 4 p.m. the accused came from behind and made her to fall on the ground and thereafter committed rape on her and she cried. However, the accused promised her that he would marry her and that she should not inform the incident to anybody. Believing the words of the accused, she did not inform the incident to anybody. Thereafter the accused used to have sexual intercourse with the prosecutrix very often with the promise that he would marry her. The prosecutrix became pregnant. However, the accused got her aborted. Even thereafter, the affair between the victim and the accused continued. On 12.6.2007 at about 11 a.m. when the prosecutrix was in her land, again the accused came there and had intercourse with her. When she asked the accused to marry her, the accused told her that he would not marry her. He also threatened to take away her life if she were to inform anybody. However, the prosecutrix told her parents about the entire incident which took place and 4 consequently, the parents of the prosecutrix also requested the accused to marry the victim, but the accused refused to marry her. The complaint was scribed by PW-9 to the dictation of PW-2 and the same was lodged in the police station on 14.6.2007. The same was registered by PW-6 - ASI and investigation was completed. The Police filed the charge sheet against the accused for the offences punishable under sections 376, 493, 420, 504 and 506 of IPC. The charge was framed against the accused for the said offences.
3. In order to prove its case, the prosecution in all examined 14 witnesses and got marked 7 exhibits. On behalf of the accused, one Exhibit is marked. The trial Court on evaluation of the material on record acquitted the accused.
4. Sri Subhash Mallapur, learned High Court Government Pleader taking us through the material on 5 record submits that it is a clear case of deception by the accused; accused sought sexual favour from the victim making the victim believe that he would marry her in future. Therefore according to him, the offence squarely falls within Section-376 read with Section-417 of IPC.
Sri Mahantesh Desai, learned advocate appearing on behalf of the respondent argued in support of the judgment of the trial Court.
5. PW-1 is the doctor who examined the victim on 15.6.2007; PW-2 is the victim/prosecutrix; PW-3 is the father of the prosecutrix, who has deposed about approaching the accused requesting him to marry the victim; PWs.4 and 5 are the mahazar witnesses for the scene of offence panchanama - ExP3 and they have turned hostile. PW-6 is the ASI who received the complaint and registered the same and sent the FIR to the jurisdictional Magistrate; PW-7 is the police constable who carried certain 6 articles to Forensic Science Laboratory for examination; PW-8 is the doctor who examined the accused and issued the certificate as per Ex.P5 mentioning therein that the accused is potent and is able to have sexual intercourse. PW-9 is the scribe of the complaint; PW-10 is the Engineer who prepared the sketch of scene of offence as per Ex.P6; PW-11 is the Police Constable who took the victim for medical examination to Gulbarga; PW-12 is the Police Constable who carried the FIR to the jurisdictional Magistrate; PW-14 is the Investigating Officer and PW-13 has conducted further investigation and laid the charge sheet.
6. The important witnesses are PWs.1 and 2. The doctor - PW-1 has deposed that the victim did not have any external injury over the body. On local examination of external genitalia, the doctor did not find any abnormality or external injuries. It is further stated by 7 the doctor that there is no evidence of sexual intercourse in recent times i.e. within seven days prior to the examination. Ex.P1 is the opinion issued by the doctor. Same also discloses that there are no external injuries found over the body. It further discloses that spermatozoa was not found and that there is no evidence of sexual intercourse. However, he has further stated in the report that the victim used to have sexual intercourse. From the above, it is clear that the victim has not suffered any injury on any parts of her body and she was used to have sexual intercourse. There were no staminal stains on her private parts. Even the FSL report is in the negative inasmuch as items sent for FSL report did not contain any staminal stains.
PW-2 is the victim. She has no doubt deposed that about three years prior to the lodging of the complaint, the accused came from behind when she was working in her land and made her to fall on the ground and thereafter he 8 forcibly had intercourse. At that point of time, the accused assured the victim that he would marry her. Even thereafter, the affair continued for a long time. At one time, according to the victim, she became pregnant. However, the accused got her aborted. Even after abortion, there used to be sexual intercourse between the victim and the accused.
7. From the evidence of PW-2, it is clear that the affair between the victim and the accused continued for three years. The victim was aged about 20 years. The victim has not complained to anybody within the period of last three years i.e., till lodging of the FIR. She did not even told her parents for three years about the affair between them.
8. The first incident of rape had occurred about three years prior to lodging of the complaint. The alleged offence has taken place in the land of the victim. There was no 9 water and the land in question is a dry land and was full of stones. According to PW-2, she was made to fall on the ground and thereafter the rape was committed on her. But no injuries were found either on the back or any parts of her body. There is nothing on record to show the alleged abortion which took place. However, PW-2 has deposed that abortion has taken place in her house.
9. Having regard to the trend of cross-examination, it appears that the defence theory is that the false complaint was lodged against the accused as the victim and her parents were debarred from working in the field of the accused inasmuch as they have committed theft in the land of the accused. PW-3, the father of the victim admits that there was theft in the land of the accused. He further admits that all the family members used to work in the land of the accused for more than five years. Of late, the accused is not permitting them to work in his field. This itself goes to show that since a long time, the accused was 10 not willing to have the assistance of the parents of the victim or the victim in the agricultural land. Thus the story of the prosecution that the accused used to have sexual intercourse with the victim till lodging of the complaint, falls to the ground. According to the victim, the offence of rape continued upto even two days prior to lodging of the complaint, that too in the agricultural land. Even at that point of time, the victim has not sustained any injuries on any parts of her body.
10. Having regard to these circumstances, the Court below has observed that the prosecution has not proved its case beyond reasonable doubt inasmuch as the material on record is not sufficient to conclude that there is assurance by the accused to marry the victim. Even on re-appreciation of the material on record, we do not find any ground to take a different view under the facts and circumstances of the case.
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11. This being the appeal against the order of acquittal, this Court would be slow in interfering in the judgment of acquittal, even if the second view is possible under the facts and circumstances. We find that the view taken by the trial Court is one of the possible views under the facts and circumstances of the case. Hence no interference is called for.
Appeal fails and the same stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE Gss/-