Karnataka High Court
The State By vs Dhananjaya on 4 October, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
-1-
NC: 2023:KHC:35916-DB
CRL.A No. 969 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 969 OF 2017 (A)
BETWEEN:
The State By
Amruthur Police Station,
Reprsented By
State Public Prosecutor,
High Court Building,
Bengaluru-560001.
...Appellant
(By Sri. B.N.Jagadeesha, Addl. Spp)
Digitally
signed by AND:
SUMITHRA R
Location: 1. Dhananjaya,
HIGH COURT
OF S/O Kempaiah,
KARNATAKA Aged About 29 Years,
Car Driver,
R/O. Vagaragere Village,
Yediyur Hobli,
Kunigal Taluk-572 130.
2. Mahalakshmi,
D/O Thimmappa,
Aged About 29 Years,
R/O Vagaragere Village,
Yediyuru Hobli,
-2-
NC: 2023:KHC:35916-DB
CRL.A No. 969 of 2017
Kunigal Taluk,
Tumkur District.
(Vide Order Dated 18.08.2022)
...Respondents
(By Sri. C.R.Gopala Swamy, Senior Counsel, For
Sri. Bhargav G., Advocate And
Ms. Nandini B., Advocate For R1;
Notice To R2 Victim Served. Unrepresented.)
This Appeal is filed under Section 378(1) and (3) of Code
of Criminal Procedure, praying to grant leave against the
judgment and order of acquittal dated 08.11.2016 passed in
Special Case No.341/2011 on the file of the Court of the
III Addl.Sessions Judge and Spl.Court for Trial of Cases under
SC/ST (Prevention of Atrocities) Act, 1989, Tumakuru, for the
offences punishable under Sections 417, 420, 376 and 506 of
IPC and Section 3 Cl.(1) Sub Cl.(x), under Section 3 Cl.(1) Sub
Cl.(xi), under Section 3 Cl.(2) and Sub Cl.(v) of SC/ST (POA)
Act, set aside the aforesaid judgment and order dated
08.11.2016 passed in Special Case No.341/2011 on the file of
the Court of the III Addl.Sessions Judge and Spl.Court for Trial
of Cases under SC/ST (Prevention of Atrocities) Act, 1989,
Tumakuru, for the offences punishable under Sections 417,
420, 376 and 506 of IPC and Section 3 Cl.(1) Sub Cl.(x), under
Section 3 Cl.(1) Sub Cl.(xi), under Section 3 Cl,(2) and Sub
Cl.(v) of SC/ST (POA) Act, and convict and sentence the
accused for the offences punishable under Sections 417, 420,
376 and 506 of IPC and Section 3 Cl.(1) Sub Cl.(x), under
Section 3 Cl.(1) Sub Cl.(xi), under Section 3 Cl,(2) and Sub
Cl.(v) of SC/ST(POA) Act in accordance with law, in the interest
of justice and equity.
This Criminal Appeal coming on for Further Arguments
through Physical Hearing/Video Conference this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
-3-
NC: 2023:KHC:35916-DB
CRL.A No. 969 of 2017
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.'), challenging the judgment of acquittal dated 08.11.2016, passed by the learned III Addl.District and Sessions Judge Court, Tumakuru, (hereinafter for brevity referred to as the `Sessions Judge's Court') in Special Case No.341/2011, acquitting the accused of the offences punishable under Sections 417, 420, 376 and 506 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC') and Section 3 Cl.(1) Sub Cl.(x), under Section 3 Cl.(1) Sub Cl.(xi), under Section 3 Cl. (2) and Sub Cl.(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, [hereinafter for brevity referred to as `SC/ST (POA) Act'].
2. The summary of the case of the prosecution is that six or seven months prior to the date of complaint, which was filed by the prosecutrix on 06.09.2011, the -4- NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 accused who was belonging to the same place of the complainant, was approaching the complainant asking her to love him and that he would marry her. In the said process, since there was no favourable response from her, he proceeded to say that, in case, if she does not respond favourably, he won't hesitate to put an end to the life of her father by running a motor car on him or that he would kidnap her or else he may also not hesitate to commit suicide if she won't agree. Later on she started talking to him, which resulted into she developing intimacy and love towards the accused. The mutual love between them proceeded in they having sexual intercourse with each other.
It is further the case of prosecution that, after some incidents of physical relationship between them, the same came to the notice of the parents of the complainant before whom the accused appeared and stated that he would marry the complainant. In that connection, he also made a writing on a piece of paper and handed it over to -5- NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 the family of the complainant. However, thereafter, he refused to marry her, even though the complainant asked him to marry her. The reason given by him was that she belongs to a lower caste. This made the complainant to approach the complainant-Police Station on 06.09.2011 and lodging a complaint against the accused which came to be registered in the complainant-Police Station in crime No.151/2011 against the accused for the offences punishable under Sections 376, 417, 420, 506 of IPC and Section 3 Cl.(1)(Xi) of SC/ST (POA) Act. After completion of investigation, the police filed the charge sheet against the accused for the offences punishable under Section 417, 420, 376, 506 of IPC and Section 3 Cl.(1) Sub Cl.(x), under Section 3 Cl.(1) Sub Cl.(xi), under Section 3 Cl. (2) and Sub Cl.(v) of SC/ST (POA) Act.
3. After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed the charge against the accused for the offences punishable under Sections 417, 420, 376, 506 of IPC and Section 3 -6- NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 Cl.(1) Sub Cl.(x), under Section 3 Cl.(1) Sub Cl.(xi), under Section 3 Cl. (2) and Sub Cl.(v) of SC/ST (POA) Act. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all eleven witnesses as PW-1 to PW-11, got produced and marked documents from Ex.P-1 to Ex.P-13 and got produced Material Objects from MO-1 to MO-5. From the accused's side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 08.11.2016, acquitted the accused of the offences punishable under Sections 417, 420, 376, 506 of IPC and Section 3 Cl.(1) Sub Cl.(x), under Section 3 Cl.(1) Sub Cl.(xi), under Section 3 Cl.(2) and Sub Cl.(v) of SC/ST (POA) Act. Challenging the same, the appellant - State has preferred the present appeal.
-7-
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017
5. The appellant -State is represented by the learned Addl.State Public Prosecutor and respondent No.1/accused is represented by his learned counsel, respondent No.2/victim is served and unrepresented. The learned Addl.State Public Prosecutor and the learned counsel for the respondent No.1 (accused) are physically appearing in the Court.
6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
9. Learned Addl.State Public Prosecutor for the appellant/State in his argument submitted that, the consent of the complainant obtained by the accused was -8- NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 on the false promise that he would marry her. As such, it is not a consent in the eye of law. The evidence of PW.1, the complainant/ prosecutrix, coupled with the evidence of her father as PW.10 has proved the case of prosecution beyond reasonable doubt. The accused not taking any steps to marry PW.1 itself would go to show that he has no intention to marry her. The villagers have seen the accused and complainant moving together in the village. As such, the accused falsely promising the complainant/prosecutrix that he would marry her and based upon his promise obtaining her consent and using her for sexual favour has stood proved beyond reasonable doubt. However, the Trial Court without considering these aspects and not properly appreciating the evidence in its proper perspective, has proceeded to pronounce the judgment on acquittal. As such, the interference by this Court is warranted. In support of this contention, the learned Additional State Public Prosecutor relied upon two reported judgments which would be referred to at the relevant places in this judgment here afterwards. -9-
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017
10. Per contra, learned senior counsel for the respondent/accused in his argument submitted that the evidence of prosecution itself would go to show that the accused and the complainant were known to each other since not less than seven months prior to the date of filing the complaint. Even though, the prosecution has contended that there was threat by the accused to the life of the father of the complainant and threat of kidnapping her and also threat to commit suicide, however, none of these alleged threats have been proved by the prosecution by leading cogent evidence. The alleged chit at Ex.P.3 said to have been written by the accused promising to marry the complainant also has not been proved by the prosecution. The seizure of the said letter itself is not proved since no seizure panchanama was drawn for seizing the said material object.
The learned senior counsel further submitted
that, if at all any evidence is there, that only go to
show that, there was consensual relationship
between the accused and the
- 10 -
NC: 2023:KHC:35916-DB
CRL.A No. 969 of 2017
complainant and that they were loving each other. That apart there is no piece of evidence to show that the alleged sexual act between them was an offence under Section 375 of IPC attracting the punishment under Section 376 of the same code. He also submitted that the alleged promise to marry is subsequent to the physical contact between them. As such, the question of having sexual intercourse with the complainant by falsely promising to marry would not arise in the instant case. In this support, he relied upon a reported judgment which would be referred at the relevant stage here afterwards. Further, stating that no case is made out by the prosecution to prove that the offence punishable under SC/ST(POA)Act the learned counsel submitted that the impugned judgment does not warrant any interference at the hands of this Court.
11. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
- 11 -
NC: 2023:KHC:35916-DB
CRL.A No. 969 of 2017
1) Whether the prosecution has proved
beyond reasonable doubt that six or seven months prior to the date 06.09.2011 in Vagaragere village within the limits of complainant-Police Station, the accused by voluntarily inducing the victim, obtained her consent for sexual intercourse and had sexual intercourse with her, which has caused her damage, harm in body, mind and reputation and thus has committed the act of cheating which is an offence punishable under Section 417 of IPC?
2) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused dishonestly inducing the victim by representing her that he would marry her, had sexual intercourse with her and thereafter refused to marry her and thereby committed an offence punishable under Section 420 of IPC?
3) Whether the prosecution has proved beyond reasonable doubt that, in the last week of June 2011, in a stream called Ennekola, situated by the side of the land of the victim in Vagaragere village within the limits of complainant-Police Station, the accused committed rape on the victim and thereby committed an offence punishable under Section 376 of IPC?
- 12 -
NC: 2023:KHC:35916-DB
CRL.A No. 969 of 2017
4) Whether the prosecution has proved
beyond reasonable doubt that the accused after committing the rape upon the victim girl as alleged in point 3 above, threatened the victim of murdering her in case if she reveals about the incident before anybody and lodges the police complaint and thereby has committed an offence punishable under Section 506 of IPC?
5) Whether the prosecution has proved beyond reasonable doubt that the accused not being a member of SC/ST and knowing that the victim was belonging to a Scheduled Caste, after repeating the act of sexual intercourse upon her, intentionally insulted and intimidated the victim with an intention to humiliate her by calling her a girl belonging to 'Madiga' community, an inferior caste, in a place within the public view in Vagaragere village within the limits of complainant- Police Station and thereby has committed an offence punishable under Section 3 Cl.(1) sub Cl.(x) of the SC/ST(POA) Act?
6) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.5, the accused himself not being a member of Scheduled Caste/Scheduled Tribe and knowing that the victim girl was belonging to Scheduled Caste has used
- 13 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 force against her with intend to dishonour and outrage her modesty and thereby has committed an offence punishable under Section 3 Cl.(1) sub Cl.(xi) of SC/ST (POA) Act?
7) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused himself not being a member of Scheduled Caste or Scheduled Tribe, committed an offences punishable under Sections 417, 420, 376 and 506 of IPC, punishable with imprisonment of a term of ten years or more against the victim, since she was belonging to Scheduled Caste and thereby committed an offence punishable under Section 3 Cl.(2) sub Cl.(v) of SC/ST (POA) Act?
8) Whether the impugned judgment of acquittal under appeal warrants any interference at the hands of this Court?
12. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused from the alleged offences punishable under 417, 420, 376, 506 of IPC and Section 3 Cl.(i) Sub Cl.(x), under
- 14 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 Section 3 Cl.(1) Sub Cl.(xi), under Section 3 Cl.(2) and Sub Cl.(v) of SC/ST (POA) Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law that, unless the guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused is already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under
- 15 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440,
- 16 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
- 17 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
13. It is not in dispute that the accused and complainant were known to each other as on the date of filing the complaint at Ex.P.4 and that originally they belonged to the same place. In that regard, evidence of PW.1 (CW.1) the complainant (the alleged victim girl), PW.4(CW.5) Gangadhara, PW.5(CW.2) Boralingaiah, PW.10(CW.9) Thimappa has remained undenied and undisputed specifically. The say of the complainant as PW.1 that she belonged to the caste called 'Holeya' which is a Scheduled Caste is reiterated by her father PW.10 (CW.9)-Thimappa and the same has remained undenied. Added to that the caste certificate of both the complainant and the accused said to have been issued by the Tahasildar of Kunigal Taluk was marked with consent as Ex.P.8. The said documents show that the complainant belongs to a caste called Adi Dravida which is a Scheduled
- 18 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 Caste and the accused belongs to a caste called 'Kuruba'. Thus, it proves to be a fact that the complainant belongs to Scheduled Caste.
14. To prove the alleged incident attracting the alleged offences, the prosecution though has examined eleven witnesses from PW.1 to PW.11 but the material witness among them is PW.1 the complainant and PW.10 her father, however, the remaining witnesses are shown to have given some logistic support to the evidence of PW.1 about her alleged acquaintance with the accused at the relevant point of time.
15. PW.1(CW.1) the complainant (the victim girl) in her evidence has stated that, after discarding her education, she was at home attending the work of house making and grazing the cattle. She has studied up to 8th standard. She used to take the cattle towards the stream in their land in the village for grazing. On those occasions, accused used to follow her and used to attempt to talk to her. She was not responding to his attempts to talk to her. The
- 19 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 accused was pestering that he is loving her and that she should marry him. The accused went to the extent of stating that, in case, if she is not talking to him he would run the car over her father and kill him. In that way for about four to five months, he was pestering her to respond positively. Prior to two months to the date of she lodging the complaint, accused one evening took her to the stream in the village, there undressing himself and also undressing her, subjected her to sexual intercourse. She stated that, she did not object to the same since the accused had stated that he would marry her.
16. PW.1 has further stated that after the above incident, the accused who had been to Bengaluru to pursue the avocation as a cab driver had returned to the village with the car and on one such occasion had taken her in his car one night towards Sottanahalli tank and in the car itself he subjected her to sexual intercourse. On that night she took the accused to her home, where the accused represented before her parents that he would
- 20 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 marry her even though she belongs to a different caste. In that connection, when her father asked about the guarantee of he marrying the complainant, the accused gave it in writing, which alleged writing said to have been given by the accused, the witness has identified and got it marked as Ex.P.3.
PW.1 has further stated that, few days thereafter when she enquired, the accused stated to her that he would not marry her since she belongs to an inferior caste. The witness stated that prior to that he had got a cell phone to her in which both of them were talking with each other, she also stated that since the accused refused to marry her, after discussing with her father, she lodged the complaint against the accused, which complaint she has identified and got it marked as Ex.P.4. She also stated that the police have visited the spot and drawn a scene of offence panchanama as per Ex.P.1. At the request of the police, she had handed them over the clothes worn by her at the time of incident, which she had kept in her sister's
- 21 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 house at Bengaluru and the police by drawing seizure panchanama as per Ex.P.2 has seized those clothes. The witness has identified those clothes from MO.1 to MO.3.
PW.1 was subjected to a detailed cross-examination from the accused side, where she has given the details of how the initiation was made by the accused in approaching her and establishing the contact with her, which later on resulted into an acquaintance between them. She reiterated her version made in examination-in-chief that, pestering her that she should respond to him favourably and that he would marry her, the accused was following her and pressurising her. It is thereafter, she started responding to him. She also stated that she initially did not disclose these happenings to her parents, though her mother was the President of an association called 'Stree Shakthi Sangha' (Women Empowerment Association).
She further stated that, prior to she lodging the complaint, the accused had sexual intercourse with her for about four to five times. In her cross-examination a major portion of the evidence in the examination- in-chief was
- 22 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 proved to be an improvement made by her, since the relevant and substantial portion of her examination-in- chief which were read over to her was admitted by the witness as not stated by her earlier and that she was stating the same for the first time in the Court.
17. PW.2(CW.3) Chandra and PW.3(CW.4) Nagaraju both have stated that as shown by the complainant as the place where the accused had sexual intercourse with her, a scene of offence panchanama near the stream in their village was drawn by the police as per Ex.P.1 in their presence, to which they have subscribed their signatures. PW.4(CW.5) Gangadhara after stating that he knows both the accused and PW.1(CW.1), has proceeded to say in his evidence that in the year 2011, the accused and the complainant were loving each other and moving together. On one occasion, the father of the complainant approached him and stated that, since about two months the accused was not talking to his daughter (CW.1), he summoned the accused and enquired, for which the
- 23 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 accused stated that he is not marrying the complainant since she belongs to an inferior caste. The witness says that, it is thereafter he adviced the father of the complainant to lodge a complaint before the police. Accordingly, the father of the complainant got her daughter lodged the complaint against the accused. The witness further stated that, on 18.09.2011 the complainant police had summoned him to the Police Station and in his presence, seized the clothes produced by the complainant under a seizure panchanama as per Ex.P.2. Stating so the witness has identified those clothes at MO.1 to MO.3. The denial suggestions made in cross- examination were not admitted as true by this witness.
18. PW.5(CW.2) Boralingaiah also claimed that, he knows both the accused and the complainant who were loving with each other. He has stated that several times he has seen the accused taking the complainant along with him in his car and talking with her. The witness stated that, since the accused refused to marry the complainant,
- 24 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 the father of the complainant got the complaint lodged against the accused through the complainant.
The witness has further stated that, he was present when the police drew scene of offence panchanama near the stream in their village on 07.09.2011 as per Ex.P.1. Denial suggestions made to him in his cross-examination were not admitted as true by this witness.
19. PW.6(CW.6) Dhanaraju has stated that the seizer pancanama of the clothes belonging to the complainant as per Ex.P.2 was drawn in his presence where under three clothes at MO.1 to MO.3 were seized by the police. PW.7(CW.7) Gangadharaiah in his examination- in-chief initially stated that, while he was in his land in the village Vogaragere, one day the police had been there and drew a panchanama as per Ex.P.5. The said panchanama was with respect to the place of incident, where accused and complainant had joined each other. The police did not seize any articles under the panchanama.
- 25 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 After noticing this witness was not expected to say what is stated in examination-in-chief and his alleged role in the investigation was totally different, the prosecution got the witness treated as hostile and cross-examined him. In his cross-examination the witness admitted the suggestion as true that the seizure of the cloth of the accused, as per panchanama at per Ex.P.5 was drawn in his presence and the accused produced two clothes which are at MO.4 and MO.5, however, once again in his cross- examination from the accused side, he conceded that he does not know as what was written in that panchanama.
20. PW.8(CW.11) Gurusiddappa the Assistant Engineer of Public Works Department has stated that at the request of the Investigating Officer, the sketch pertaining to the scene of offence as per Ex.P.6 was drawn by him and handed over to the Investigating Officer. PW.9 the police Sub-Inspector of the complainant-Police Station has spoken about he receiving the complaint said to have been given by the complainant on 06.09.2011 at
- 26 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 7.50 p.m. as per Ex.P.4 and he preparing an FIR as per Ex.P.10 and submitting the same to the Court and handing over further investigation to CW.17, he has also stated that at the instruction of the Investigating Officer he has seized the clothes belonging to the accused by drawing a seizure panchanama as per Ex.P.5. He has identified and stated that those clothes are at MO.5 and MO.6.
21. The second material witness to the prosecution upon whom the prosecution has banked upon is PW.10(CW.9) Thimappa, the father of the complainant. This witness, in his examination-in-chief after stating that the complainant is his daughter who after discarding her studies was attending the work at home and was also attending grazing of the cattle, stated that on 01.07.2011 the accused her daughter (PW.1) came together to his house and at about 9.30 to 10.00 p.m. and on his enquiry with the accused as to why he had taken his daughter, the accused stated that both of them were loving each other
- 27 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 and they are going to marry with each other. The witness stated that accused proceeded to say further that the caste of the complainant is not a bar to him to marry her and as a guarantee that he would marry the complainant, he put the same in writing in a chit and handed it over to them which chit the witness has identified as at Ex.P.3. The witness has further stated that thereafter the accused started talking less with his daughter. The complainant also told him that the accused had sexual intercourse with her for about four to five times but now he is refusing to marry her. It is thereafter CW.5 summoned the accused and enquired him. Since, the accused did not marry his daughter and also refused to undergo marriage at Dharmasthala, though told by him or even in the office of the Registrar of marriages, he was constrained to lodge the complaint through the complainant with the police.
22. This witness was subjected to a detailed cross-examination from the accused side where in he has given more details as to the alleged acquaintance of the
- 28 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 accused with the complainant and both of them moving together in the village. He also stated that though he has not given any complaint in writing to the local panchayath, however, orally he has informed the President of local panchayath and also to the brother of the accused about their affair and the requirement for the accused to marry his daughter as promised. He denied several of the suggestions made to him in his cross-examination.
23. The last witness in the series is PW.11(CW.17), R.Shivarudraswamy, the Investigating Officer in this case. The said witness has given a detailed account of the procedure of investigation conducted by him in the matter. He has stated of he sending the complainant for her medical examination to the doctor and recording the statements of witness, visiting the place of offence as shown by the complainant and drawing the scene of offence panchanama as per Ex.P.1 and also drawing the seizure panchanama as per Ex.P.3. He has spoken about collecting the Caste Certificate of the accused and
- 29 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 complainant from the Tahasildar at Ex.P.8 and the RTC of the land, where the alleged offence said to have taken place, as per Ex.P.9. He has further stated that, he drew the seizure panchanama of the clothes of the complainant said to have been worn by her at the time of the incident and has identified those clothes at MO.1 to MO.3. The witness has further stated about he recorded the voluntary statement of the accused and based upon the same, seized the pant and an underwear said to have been worn by the accused at the time of the incident by drawing a seizure panchanama as per Ex.P.5. He also stated that he got the accused medically examined, got prepared the sketch of the place of offence through the Assistant Engineer, Public Works Department as per Ex.P.6. The witness stated that he sent the seized clothes for the chemical examination to the Forensic Science Laboratory and completing the investigation, has filed the charge sheet against the accused. The denial suggestions made to him in cross-examination were not admitted as true by this witness.
- 30 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017
24. The above evidence led by the prosecution witnesses would go to show that except the evidence of PW.2 and PW.10, none of the prosecution witnesses have spoken anything about any of the alleged offences said to have been committed by the accused against the complainant and her father. PW.2, PW.3, PW.6, PW.7 are the witnesses for panchanamas. As such, they have not whispered anything about the alleged incident. Among them, the evidence of PW.7 since is in total confusion to the witness from the beginning, is not safe to believe even as a pancha to the panchanama at Ex.P.5. Among the remaining witnesses, it is only PW.4 and PW.5 who could have spoken anything about the alleged incident and information about the incident to the satisfaction of the prosecution. However, both of them except stating that accused and the complainant are both known to them and they were loving each other and that they have seen they were moving together in the village, have not stated about the alleged incident as material witnesses. The amount of
- 31 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 evidence about the accused's alleged breach of promise to marry the complainant, which is stated by PW.4, is admittedly a hear say evidence since the very witness himself has stated that it is based upon the information given to him by the father of the complainant, he came to know that the accused has refused to marry the complainant.
Interestingly, the said witness in his cross-examination has specifically stated that police have enquired with respect to the incident and have not recorded his statement. Thus, he spilled cold water on the expectation of the prosecution by taking a U-turn in his cross-examination. Moreover, with respect to the alleged seizure of the clothes of the complainant also the witness in his cross-examination has stated that by the time he went to the Police Station, clothes at MO.1 and MO.3 were already there on the table in Police Station. Thus, the say of the prosecution that the complainant (PW.1) produced those clothes before the police in the presence of PW.4 is falsified by the evidence of PW.4. Thus, it is not safe to
- 32 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 believe the evidence of PW.4 to arrive at any conclusion with respect to his alleged knowledge about the incident and his participation or role in the investigation.
25. The very evidence of PW.5 even if it is taken as true in its completeness would only go to show that accused and the complainant not just were known to each other but they were loving each other and this witness has seen them moving together and talking to each other. Except the same the evidence of PW.5 does not throw much light about the alleged incident attracting any of the alleged offences against the accused as such also, it is only the evidence of PW.1 and PW.10 is of greater importance to the prosecution to prove the alleged guilt against the accused.
26. The evidence of PW.10 also, as summarized above, does not give the first hand information of the accused putting threat either to the life of the complainant or to the life of this witness (PW.10) his evidence gains an entry in the prosecution case only from
- 33 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 the stage of the accused visiting his house along with the complainant on the night of 01.07.2011. It is the development from that date onwards the witness has stated. The evidence of this witness about the accused having sexual intercourse with his (PW.10's) daughter (the complainant) is admittedly a here say from the information said to have been revealed to him by the complainant. As such, the evidence of PW.10 as a direct witness is only with respect to the accused said to have given the letter in writing as per Ex.P.3 to him. Incidentally, PW.1 the complainant also has stated about the accused giving the letter to her father and identified the said letter at Ex.P.3.
27. The said letter at Ex.P.3 is said to have been written by the accused in his hand writing, which according to the prosecution was given to PW.10 by the accused himself. The said letter was marked at Ex.P.3.
Learned counsel for the respondent in his argument though submitted that the letter does not attract any recognition by the Court, since the said letter was not
- 34 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 seized by the Investigating Officer by drawing a seizure panchanama, however, fairly conceded that when that document was confronted to the witness and marked as an exhibit, no objection was raised from the accused side. In the light of the above when the said document at Ex.P.3 is perused, the following points can be noticed.
i) Even according to PW.11 the Investigating Officer no seizure panchanama was drawn for seizing the said document, which according to the prosecution plays an important role in improving its case. Admittedly, the said document is not issued by any Public Authority or the Scientific Laboratory or by a Medical Hospital, but it is said to be an act of an individual in the form of giving an undertaking in writing and promising to marry the complainant. As such, in order to prove that this document was not a mere receipt or collection of the report, as such, from under Public Authority, but it is an incriminating
- 35 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 material secured in the process of investigation from a witness, the Investigating Officer was required to draw a seizure mahazer and to seize it. However, for the reasons best known to him PW.11, did not do it rather he simply said to have accepted the delivery of that letter said to have given by PW.10 and kept it in the file. He has stated that the complainant delivered the said letter which he received. Interestingly the complainant as PW.1 herself has not stated that she has given any such letter to the Investigating Officer. No doubt she has identified the said letter at Ex.P.3 as the one given by the accused. However, she has not stated that the said letter was in her possession and she handed it over to PW.11. Therefore, the very placing of the letter at Ex.P.3 in the records of the investigation creates a doubt about the acceptability of the said letter at Ex.P.3.
- 36 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017
ii) The accused has denied that Ex.P.3 was written by him and given either to the complainant or to her father. Under such circumstances it was required for the Investigating Officer to refer the said document to hand writing expert and get his opinion. For the reasons best known to him, the Investigating Officer has not performed the said exercise. On the other hand, after said to have received the said document he had simply kept it in the case file and placed it before the Court. Therefore, when the very procurement of Ex.P.3 is seriously doubtful and its writing and the contents are also seriously disputed and doubtful and also in view of the fact that the Investigating Officer has not made any attempt to refer the document to hand writing expert and to obtain his opinion, it is not safe to rely upon Ex.P.3. Thus, even the alleged letter said
- 37 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 to have been written by the accused at Ex.P.3 also would not come to the help of prosecution. As such, the only evidence which remains upon the prosecution to bank upon to prove its case is that of the evidence of complainant as PW.1.
28. Learned Additional State Public Prosecutor in his argument relied upon the judgment of Hon'ble Apex Court in Phool Singh Vs. State of Madhya Pradesh reported in (2022) 2 SCC 74 and submitted that the conviction can be based upon the sole testimony of the prosecutrix without anticipating any further corroboration. In the said case the Hon'ble Apex Court has summarized the principles as to when corroboration is required or when it is not required to the sole testimony of the victim/prosecutrix in a case involving the offence punishable under Section 376 of IPC. After referring to several of the previous judgments including
- 38 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 the one given in Ranjit Hazarika Vs. State of Assam reported in (1998) 8 SCC 635 wherein the Hon'ble Apex Court had observed that, seeking corroboration of her statement (of the prosecutrix) before relying upon the same, as a rule, in such cases amounts to adding insult to injury. The Hon'ble Apex Court proceeded to hold that as a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration. Sole testimony of the prosecutrix should not be doubted by the Court merely on the basis of assumptions and surmises. Keeping this principle laid down by the Hon'ble Apex Court in mind, the evidence of PW.1 (the complainant) is required to be analysed in this matter.
29. It is the case of the prosecution as well the evidence of PW.1, as canvassed by learned Additional State Public Prosecutor that, the complainant gave her consent for the sexual intercourse with the accused only because the accused promised to her that he would marry her. As such, the consent of the complainant obtained by the accused was based upon misconception. As such, it is not a consent at
- 39 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 all. In that regard, the learned Additional State Public Prosecutor relied upon the judgment of the Hon'ble Apex Court in Anurag Soni Vs. State of Chhattisgarh reported in (2019) 13 SCC 1 and drew our attention to para 12 of the judgment which reads as below:
"The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC".
30. Per contra, learned senior counsel for the respondent in his arguments relied upon the judgment of the Hon'ble Apex Court in Tilak Raj Vs. State of Himachal Pradesh reported in AIR 2016 Supreme Court 406, wherein,
- 40 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 considering the facts and circumstances of the case before it and noticing that the prosecutrix in the said case was in relationship with the accused for the last two years prior to the incident and the accused used to stay over night with the prosecutrix and the medical report of the case of the prosecutrix regarding sexual intercourse that it was on the false pretext of marrying the prosecutrix by the accused was held to be concocted and not believable. Incidentally, the Hon'ble Apex Court in Anurag Soni's case (supra) in para 11 of its judgment has mentioned about Tilak Raj's case (supra) and made a distinction between the case before it to that of Tilak Raj's case (supra). However, the observation made in the above cases and the principles laid down in the Anurag Soni's case as to what amounts to a misconception is to be born in the mind while analyzing the evidence of PW.1 in the case on hand.
31. The very complaint which has put the criminal law into motion and marked at Ex.P.4 which undisputedly is given by the complainant to the police would go to show that the complainant has given a detailed account of what lead to
- 41 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 the alleged incident, she shown to have stated in the complaint that while she was grazing the cattle, accused used to follow and he used to tell her that he would marry her and wanted her to respond positively to his request.
32. No doubt the complainant has stated that the accused was pestering her that she should love him since he intend to marry her, however, the very same complainant shown to have stated in her complaint at Ex.P.4 that in due course (emphasis supplied) it led to acquaintance between them and both of them started loving each other. Thus, in the complaint itself the complainant has shown that once she started loving the accused, all his previous alleged threat or compulsion or statement that he would marry her have all gone to the background since she being major in her age, started loving him. The further reading of the complaint would go to show that the alleged sexual intercourse between them is a subsequent event after she started loving him. Therefore, in the very complaint itself the complainant has stated that when she gave her consent to the accused to
- 42 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 have sexual intercourse with her as she was in love with him.
33. The evidence of PW.4 and PW.5 that both the accused and the complainant were loving with each other and they were moving together in the village and PW.5 has seen both the accused and the complainant talking to each other would all go to show that both the accused and the complainant were mutually loving each other. However, neither the complaint nor the evidence of PW.1, PW.4 and PW.5 and PW.10 gives any lead or clue or evidence to the effect that the said love between the accused and the complainant was only because of the alleged promise of the accused that he would marry the complainant otherwise she would not have loved him. On the other hand, the very complaint at Ex.P.4 as well the evidence of the complainant as PW.1 would go to show that though initially there was some pestering or pressure by the accused by various means including alleged threat to the life of the father of the complainant or alleged kidnapping of the girl etc., however, later on the complainant herself started loving the accused. It is
- 43 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 thereafter, the accused has taken her towards the stream called Enne Halla which is said to be in the land mentioned in the RTC at Ex.P.9 and had sexual intercourse with the complainant. Therefore, in the complaint the complainant has nowhere specifically stated that it is because of the promise given by the accused which was false promise, she gave her consent for sexual intercourse.
34. Secondly, the very material portion of the evidence about the alleged sexual intercourse between them which is shown to have revealed the details of incident and the manner of the incident for the first time sexual act between them and the subsequent event narrated by the complainant as PW.1 in her examination- in-chief was proved to be improvement made by her for the first time in her evidence, by eliciting the admission in that regard in the cross-examination of the very same witness. PW.1 in her cross-examination at different places has clearly admitted as true that the details of the alleged sexual intercourse between her and the accused what she
- 44 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 has narrated in her examination-in-chief have not been stated by her earlier, she has been stating it for the first time in the Court. Therefore, admittedly the material aspect regarding the alleged sexual intercourse between the accused and the complainant and that the accused has stated that he would marry her as such she did not had any objection to him for having sexual intercourse with her for the second time would all resulted in improvement made by the complainant which improvements undoubtedly are material improvements made by the prosecution witness.
35. Thirdly, even though PW.1 the complainant has stated in her evidence that accused had sexual intercourse with her about four to five times prior to she filing the complaint against the accused, however, nowhere she has stated that after the accused alleged to have given to her father a letter of alleged undertaking of marriage as per Ex.P.3, he had any sexual intercourse with her. On the other hand, PW.1 in her further examination-in-chief has
- 45 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 stated that few days after the accused giving the letter at Ex.P.3 when enquired accused stated that he is not marrying her since she belongs to an inferior caste. Even PW.10 the father of the complainant also has stated in his evidence that after giving the letter at Ex.P.3 the accused reduced his talking with his daughter (PW.1) and he brought the same to the notice of CW.5(PW.4).
36. Incidentally, said CW.5(PW.4) also, as observed above, in his evidence stated that after hearing from the father of the victim girl, he summoned the accused and enquired him for which the accused said he would not marry the complainant. Thus none of these witnesses any where have stated that after the alleged letter at Ex.P.3, the accused had sexual intercourse with the complainant and that believing the alleged promise made by the accused, the complainant agreed to such a sexual intercourse. Therefore, if at all any sexual intercourse though for about four to five times were there, they have to be taken as happened prior to the alleged letter at Ex.P.3.
37. Ex.P.3 plays an important role because except the letter at Ex.P.3 there
- 46 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 are no other corroborating evidence placed by the prosecution to the evidence of PW.1 that accused had promised that he would marry her.
38. Even the other material witnesses including PW.4 and PW.5 also have not whispered anything about the accused giving promise to PW.1 that he would marry her and then having sexual intercourse with her. As such, the alleged letter at Ex.P.3 plays a pivotal role regarding the alleged promise to marry by the accused towards the complainant.
39. The above evidence of PW.1, PW.10 and its analysis would go to show that if at all it is taken that the accused has given the letter at Ex.P.3 wherein an undertaking to marry PW.1 by the accused which shown to have been expressed by the accused, still there is no evidence to show that from the date of the said letter till the date of the complaint, the accused had any sexual intercourse with the complainant.
40. Incidentally, in this case the doctor, who is said to have examined either the complainant (victim) or the accused have been examined as prosecution witnesses.
- 47 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 However, the medical report with respect to the accused was marked with consent as Ex.P.7 and medical report with respect to the complainant(victim) was marked with consent as at Ex.P.11 and Ex.P.12. The medical report with respect to the accused at Ex.P.7 shows that the doctor after examining the accused has opined that there was nothing to suggest that the accused was incapable of performing the sexual intercourse. The said opinion is not denied thus the accused was proved to be capable of having sexual intercourse.
The medical opinion of Ex.P.11 and Ex.P.12 would go to show that the doctor who examined the complainant has opined that as on the date of the examination of the complainant there was no evidence of recent sexual intercourse. The said report also shows that the doctor has collected no materials for forensic examination. The final opinion of the doctor at Ex.P.12 which was also marked with consent shows that the doctor has opined that the complainant could have been used for sexual act in the past. Therefore, both the medical evidence with respect to
- 48 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 the accused and the complainant though would go to show that both of them were capable to have the sexual intercourse and the complainant was used for the act of sex, however, none of those medical reports raise any finger at the accused that he had subjected the complainant to any sexual act or sexual intercourse. However, the learned counsel for the respondent during the course of the argument himself submitted that the accused and the complainant since were loving each other they had consensual relationship. He did not rule out that the accused had sexual intercourse with the complainant. For the reason observed above even after assuming the accused had sexual intercourse with the complainant, still there is no evidence to show that the consent for such a sexual intercourse was obtained by the accused only after promising her that he would marry her and that it was a false promise.
41. The above observation finds more support in the very judgment in Anurag Soni's case referred to by the
- 49 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 learned Additional State Public Prosecutor for the State. In para 12 of the said judgment extracted above, it is made very clear that the promise to marry the prosecutrix should have been made having no intention to marry. It is only then the question of misconception arises. Thus in a case of false promise to marrying and having sexual intercourse with the girl itself is not sufficient to attract Sections 415, 417, 420 of IPC unless the prosecution proves that at the time of giving that promise the accused had no intention to marry the girl which means he intended not to perform his promise from the inception.
42. In the instant case, it is neither the case of the prosecution that accused had no such intention nor the evidence of any of the prosecution witnesses much less PW.1 and PW.10 leads to any such inference. On the other hand, as observed above, before giving her consent for the very first time for sexual intercourse with the accused, the complainant was already in love with the accused and it is only then she gave her consent. The alleged promise to marry if at all can be taken as given by the accused by
- 50 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 virtue of Ex.P.3 is only at a later date and subsequent to Ex.P.3, there is no instance of any sexual intercourse by the accused with the complainant. As such, any false promise by the accused to marry the complainant and by the said false promise was never intended by the accused to perform, since has not been proved by the prosecution, it cannot be said that the consent of the complainant was only upon the fraud practiced upon her by the accused or upon the false promise. On the other hand, the very evidence of none else than the complainant as PW.1 that the accused was acquainted for about six to seven months prior to the date of the incident and her evidence that the accused was taking her to different places including in the motor car, would all go to show that she being a girl major in her age was participating in the alleged act of sexual intercourse knowingly and with her consent only. In the said circumstance, it is the observation made by their Lordship in Tilak Raj's case (supra) that would squarely apply to this case than Phool Singh's case(supra) and Anurag Soni's case (supra) relied
- 51 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 upon by the learned Additional State Public Prosecutor. That being the facts and circumstances of the case, though sole evidence of prosecutrix is sufficient to convict the accused for the guilt punishable under Section 376 IPC, since, in the instant case the evidence of the complainant as PW.1 does not inspire confidence to believe in it as admittedly there are material improvements in it and also in view of the fact that her own evidence does not stand on own leg to support the case of the prosecution, the only finding that has to be arrived is that the prosecution has failed to prove any of the alleged guilt levelled against the accused.
43. Merely because the accused belongs to Scheduled Caste would not by itself make an act of the accused as the one punishable under the alleged offences punishable under Sections 3 Cl.(1) Sub Cl.(x), under Section 3 Cl.(1) Sub Cl.(xi), under Section 3 Cl,(2) and Sub Cl.(v) of the Scheduled Caste and Scheduled Tribe Act when the very
- 52 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 major offence that accused has committed an offence attracting Section 376 of IPC has failed to be proved by the prosecution. The accused committing any such act of rape upon the complainant merely because she was belonging to Scheduled Caste or giving her a false promise and threatening her and her father would not attract the provisions of SC/ST (POA) Act that too in the circumstances independent of the said provisions of the SC/ST (POA) Act also the prosecution could not able to prove its case against the accused even under relevant Sections of IPC.
44. Since the Sessions Judge's Court though not giving such a vivid reasoning for its finding, still has arrived at a proper finding of holding that the prosecution as failed to prove the alleged guilt against the accused, we do not find any reason to interference in it.
45. Accordingly, we proceed to pass the following:
- 53 -
NC: 2023:KHC:35916-DB CRL.A No. 969 of 2017 ORDER The Criminal Appeal stands dismissed as devoid of merits.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.
SD/-
JUDGE SD/-
JUDGE GSR List No.: 1 Sl No.: 7