Karnataka High Court
Manjunatha vs State By Karnataka on 21 February, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:7250
CRL.A No. 949 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 949 OF 2013
BETWEEN:
MANJUNATHA
S/O MUDALAGIRIYAPPA
AGED ABOUT 22 YEARS
RESIDING AT BYLAGOLLARAHATTI
MAYASANDRA HOBLI
TURUVEKERE TALUK
TUMKUR DISTRICT.
...APPELLANT
(BY SRI A N RADHAKRISHNA, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
AND:
COURT OF
KARNATAKA
STATE BY KARNATAKA
BY TURUVEKERE POLICE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.
...RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
THIS CRL.A IS FILED U/S 374(2)CR.P.C. PRAYING TO SET
ASIDE THE ORDER DATED 05.09.2013 PASSED BY THE V
ADDITIONAL DISTRICT AND S.J., TIPTUR IN S.C.No.33/2013
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 417 AND 376 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:7250
CRL.A No. 949 of 2013
JUDGMENT
1. This appeal is filed by the appellant - accused No. 1 praying to set aside the judgment of conviction and order on sentence dated 05.09.2013 passed in S.C. No. 33/2013 by the V Additional District and Sessions Judge, Tiptur. The appellant - accused No. 1 has been convicted for offence under Sections 417 and 376 of IPC. The appellant - accused No. 1 has been sentenced to undergo rigorous imprisonment for a period 7 years and to pay fine of Rs.50,000/- for offence under Section 376 of IPC and further sentenced to undergo rigorous imprisonment for a period of 6 months and to pay fine of Rs.5,000/- for offence under Section 417 of IPC. The trial Court has ordered both the sentences to run concurrently.
2. Factual matrix of the prosecution case is as under:
That on 15.05.2010 at 02.00 pm in the Mango garden situated at survey No. 54/4 belonging to P.W.2 - Kumara at Byalahalli Gollarahatti, Mayasandra Hobli, -3- NC: 2024:KHC:7250 CRL.A No. 949 of 2013 Turuvekere taluk District, the appellant - accused No. 1 committed forcible sexual intercourse on the victim girl (P.W.1) against her will. The appellant - accused No.1 again had forcible sexual intercourse with the victim girl several times thereafter, and lastly on 20.04.2012 at
03.00 pm by making her to believe that he will marry her and thereby cheated her. Due to the said sexual intercourse by appellant - accused No. 1 with victim girl she became pregnant and there was abortion on 15.05.2012 in the same Mango garden lands. Thereafter, panchayat was held in the village. Appellant - accused No. 1 agreed to marry the victim girl. Thereafter, accused Nos. 2 and 3 abetted accused No. 1 to escape from the village to avoid his marriage with the victim girl. Charge sheet came to be filed against appellant - accused No.1 for offence under Sections 376 and 417 of IPC and against accused Nos. 2 and 3 for offence under Sections 417 read with Section 109 of IPC. The trial Court has framed charges for the said offence. In order to prove the charge the prosecution has examined P.W.1 to P.W.10 and got -4- NC: 2024:KHC:7250 CRL.A No. 949 of 2013 marked Ex.P.1 to Ex.P.9. Statement of accused persons came to be recorded under Section 313 of Cr.P.C. The trial Court after hearing arguments, formulated points for consideration and after appreciating evidence on record convicted appellant - accused No.1 for offence punishable under Sections 376 and 417 of IPC and acquitted accused Nos.2 and 3 for offence punishable under section 417 read with Section 109 of IPC. Said judgment of conviction and order of sentence has been challenged by appellant - accused No. 1 in this appeal.
3. Heard learned counsel for appellant - accused No.1 and learned HCGP for respondent - State.
4. Learned counsel for appellant - accused no. 1 would contend that the victim girl was aged 22 years as on the date of alleged offence. Considering the averments of the complaint and evidence given by the victim girl, the alleged sexual intercourse by appellant - accused No. 1 with the victim girl is consensual. There is delay in filing the complaint as the alleged offence has taken place on 15.05.2010 and complaint came to be filed on 26.07.2012. -5-
NC: 2024:KHC:7250 CRL.A No. 949 of 2013 There is no evidence on record to establish that the victim girl became pregnant and there was abortion as the Court witness in his answer to the Court's question has stated that it is not possible to say whether there was abortion two months prior to his examination of the victim girl. He contends that evidence of P.W.2 will establish that the victim girl and appellant - accused No.1 were meeting frequently and sitting together talking to each other on different dates in different places and the same will indicate that there was affair between the victim girl and appellant - accused No. 1. On perusal of the cross- examination of P.W.1 - victim girl and cross-examination of P.W.10 - Investigating Officer it is clear that there are improvements and exaggeration by the victim girl and therefore, the version of P.W.1 - victim girl is not reliable. The victim girl has not stated the date of abortion. The victim girl has stated that she went to the Hospital after abortion and there is no investigation and collection of any document in that regard. Father of the victim girl - P.W.3 has stated that the victim girl has not gone to any -6- NC: 2024:KHC:7250 CRL.A No. 949 of 2013 Hospital. He contends that the victim girl was aged 22 years and had worldly knowledge and knows what is right and what is wrong. The alleged sexual intercourse between the appellant - accused No.1 and victim girl are during the period between 2010 - 2012 and victim girl is party to that act and it will indicate that she gave consent for sexual intercourse. Learned counsel further submits that appellant - accused No.1 is 3 - 4 years younger to the victim girl. Learned counsel for appellant - accused No. 1 has placed reliance on the following decisions:
a. Uday Vs. State of Karnataka, 2003 SCC (Cri)775 b. Kumaresh Chikkappa Bagodi Vs. State of Karnataka, Kolghatigi Police, ILR 2001 KAR 4964. c. Ramdas and Ors. Vs. State of Maharashtra, AIR 2007 SCC 155.
d. Alamelu and another Vs. State, represented by Inspector of Police, 2011 (1) SCC (Crl) 688 e. Munna Vs.State of Madhya Pradesh, 2015 (1) SCC (Cri) 59
5. Learned HCGP argued that the trial Court on proper appreciation of the evidence on record has rightly -7- NC: 2024:KHC:7250 CRL.A No. 949 of 2013 convicted appellant - accused No. 1. He has supported the reasons assigned by the trial Court. He further argued that evidence of P.W.1 to P.W.4 is sufficient to convict appellant - accused No.1 for offence under Sections 417 and 376 of IPC. On these grounds he sought for dismissal of the appeal.
6. On the grounds made out and considering the arguments advanced, the following point arises for my consideration.
"Whether the trial Court erred in convicting the appellant - accused No. 1 for offence under Sections 376 and 417 of IPC?
7. My answer to the above point is in the affirmative for the following reasons:
P.W.1 is the victim girl and she has filed a compliant as per Ex.P.1 wherein her age is mentioned as 22 years. Averments of Ex.P.1 - complaint and evidence of P.W.1 indicate that appellant - accused No.1 and victim girl were acquainted with each other and they were talking to each other. P.W.2 - a resident of the same village has deposed -8- NC: 2024:KHC:7250 CRL.A No. 949 of 2013 that he has seen P.W.1 and appellant - accused No.1 sitting in the land of father of victim girl, talking together and he has seen them as such for about 2-½ to 3 years. As per the averments of the complaint - Ex.P.1 and evidence of P.W.1 - victim girl there was sexual intercourse by appellant - accused No.1 on victim girl against her will on 15.05.2010 for the first time and he promised to marry her and she had agreed for the same. P.W.1 has also deposed that she and appellant - accused No. 1 were loving each other and since 3 years both were meeting in their Mango garden and during that time appellant - accused No.1 was having sexual intercourse with her. Said evidence of P.W.1 would indicate that such sexual intercourse by appellant - accused No.1 with the victim girl is consensual.
8. P.W.1 has deposed that she became pregnant and she intimated the same to appellant - accused No.1 and he agreed to marry her and when she was 2-½ months pregnant there was abortion when she was in the Mango garden and flesh of ball (mudde) size fell on the -9- NC: 2024:KHC:7250 CRL.A No. 949 of 2013 ground and she became unconscious for half an hour and thereafter she intimated regarding the same to her father and her father intimated the same to the villagers who held panchayat and appellant - accused No.1 admitted that he had sexual intercourse with her and agreed to marry her within 2 months. Prosecution has not examined any witness to prove whether P.W.1 - victim girl became pregnant and there was abortion. The Doctor was examined as a Court witness who had examined the victim girl. The said Doctor has deposed that there was no abortion one week or 15 days prior to his examination of the victim girl and he has given opinion as per Ex.P.7. In reply to the Court question he has answered that he cannot say whether there was any abortion 2 months prior to he examining the victim girl. Said evidence of Court witness does not establish that P.W.1 - victim girl had become pregnant and there was abortion. P.W.1 in her cross-examination has admitted that her date of birth is 31.07.1998 and appellant - accused No.1 is 3 - 4 years younger to her. P.W.1 has also admitted that on
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NC: 2024:KHC:7250 CRL.A No. 949 of 2013 15.05.2011 there was a marriage engagement of her with one Ravi.
9. P.W.1 in her cross-examination has stated that after abortion she went to the Hospital at Turuvekere on the next day and got treatment and it is a Government Hospital situated on the road leading to Mayasandra and she had visited the said Hospital 2 times and got treatment. Investigating agency has not made any investigation with regard to the victim girl taking treatment in Turuvekere Hospital. The victim girl has admitted that she belongs to separate sect and appellant - accused No.1 belongs to separate sect in Golla community. P.W.1 has also admitted that her marriage engagement with Ravi was broken.
10. P.W.1 has stated in her examination-in-chief which were not stated in her statement recorded by P.W.10 - Investigating Officer and it has been proved in the cross-examination of P.W.10. Therefore, the version of P.W.1 is an improvement and exaggeration.
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NC: 2024:KHC:7250 CRL.A No. 949 of 2013
11. P.W.2 has deposed regarding holding of panchayat and in that panchayat accused No.2 admitting that his grandson has done a wrong and seeking for 2 months time for performing the marriage of his grandson with victim girl. Even P.W.4 - one of the panchayatdar has deposed regarding holding of the panchayat and he has stated that appellant - accused No.1 had admitted that he had physical contact with P.W.1. Even though P.W.2 and P.W.4 are members of the said panchayath, there is contradiction with regard to the presence of appellant - accused No.1 and he admitting the wrong committed by him.
12. In the case of Uday Vs. State of Karntaka, reported in 2003 SCC (Cri.) 775 the Hon'ble Apex Court has held that consent given by the prosecutrix to sexual intercourse with the accused - appellant with whom she was deeply in love, on a promise that he would marry her on a later date, prosecutrix continuing to meet accused and often having sexual intercourse and becoming pregnant, lodging of complaint on failure of appellant to
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NC: 2024:KHC:7250 CRL.A No. 949 of 2013 marry her, consent cannot be said to be given under a misconception of fact to attract an offence under Section 376 of IPC.
13. A coordinate Bench of this Court in the case of Kumaresh Chikkappa Bagodi Vs. State of Karnataka, Kolghatigi Police reported in ILR 2001 Kar 4964 has held as under :
"12. Taking into consideration these aspects and after bestowing my attention in detail, I am of the view that as the victim was a consenting party though possibly on the basis of alleged promise of marriage by no stretch of imagination, the act of having sexual intercourse by the accused can be brought under the offence of rape as defined under Section 375 of the IPC, punishable under Section 376 of the IPC. Similar is the view taken by Calcutta High Court in the case of Hari Majhi vs. The State, M.C. Prasannan vs. State and this Court in the case of State Karnataka Vs. Anthonidas. In my view, without considering this basic aspect the Trial Court has erroneously held that the offence of rape punishable under Section 376 of IPC has
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NC: 2024:KHC:7250 CRL.A No. 949 of 2013 been proved against the accused. As the conclusion arrived at by the Trial Court is based on wrong interpretation of section of rape as defined under Section 375 of IPC read with Section 90 of the IPC, the conviction is liable to be set aside and the accused is to be acquitted of the charge of rape made against him."
14. Learned counsel for appellant has argued that there is delay in filing the complaint of more than 2 years and it has not been explained property. The Hon'ble Apex Court in the case of Ramdas and others Vs. State of Maharashtra reported in AIR 2007 SC 155 has held as under:
"Mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."
15. In the case on hand, appellant - accused No. 1 had sexual intercourse with the victim girl between 2010 -
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NC: 2024:KHC:7250 CRL.A No. 949 of 2013 2012. In the meantime there was marriage engagement of the victim girl with one Ravi on 15.05.2011 and thereafter, it was broken. Filing of complaint is after alleged pregnancy and abortion. It creates a doubt in the case of the prosecution and also cause for delay in filing the complaint. It is also material that appellant - accused No.1 is 3 - 4 years younger to the victim girl. Therefore, considering the entire testimony of P.W.1 - victim girl, it is clear that there are inherent infirmities in her evidence. The Hon'ble Apex Court in the case of Munna Vs. State of Madhya Pradesh, reported in 2015 (1) SCC (Cri) 59 has held that inherent infirmities in statement of prosecutrix, her version becomes doubtful and conviction cannot be based on her sole testimony.
16. Considering all these above aspects a doubt arises in the case of the prosecution and therefore, benefit of doubt is to be extended in favour of appellant - accused No. 1. Without considering all these aspects learned Sessions Judge erred in convicting the appellant - accused No.1 for offence under Sections 376 and 417 of IPC.
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NC: 2024:KHC:7250 CRL.A No. 949 of 2013
17. In the result, the following;
ORDER I. Appeal is allowed.
II. Impugned judgment of conviction and
order on sentence dated 05.09.2013
passed in S.C. No. 33/2013 by the V
Additional District and Sessions Judge,
Tiptur is set aside.
III. Appellant - accused No.1 is acquitted for
offence under Sections 376 and 417 of IPC.
Sd/-
JUDGE LRS List No.: 1 Sl No.: 13