Bangalore District Court
The State By vs A.Narayana S/O Late Chidambar Roy on 20 December, 2019
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 20 th day of December 2019
:PRESENT:
SRI. MOHAN PRABHU
M.A., L.L.M.,
LXX Addl. City Civil & Sessions &
Special Judge, Bengaluru.
S.C.No:1333/2014
Complainant The State by
Bayyappanahalli Police Station,
Bengaluru.
By Special Public Prosecutor
Vs
Accused A.Narayana S/o late Chidambar Roy, 33
years, R/at No.6, Near Akshay Medical,
Devasandra Main Road, K.R.Puram,
Bengaluru.
By Sri. M.R. Nanjunda Gowda, Advocate.
1 Date of commission of 01.01.2008
offence
2. Date of report of 31.01.2013
occurrence
3. Date of commencement of 20.01.2018
recording evidence
4. Date of closing of evidence 08.11.2019
2 S.C.No:1333/2014
5. Name of the complainant Victim
6. Offences complained of U/Secs. 376, 420 of IPC
& u/s 3(2)(v) of SC/ST
(POA) Act
7. Opinion of the Judge Accused is acquitted
JU DG M E NT
The Assistant Commissioner of Police, Halasuru Sub-
Division, Bengaluru City has filed the charge sheet against
the accused for the offences punishable under Sections 376,
420 of IPC and U/s 3(2)(v) of The Schedule Caste and
Schedule Tribes (Prevention of Atrocities) Act.
2. Based upon the first information lodged by CW1
victim on 12.10.2013 Bayyappanahalli Police have registered
the first information report bearing Cr.No:272/2013. After
completion of investigation charge sheet is submitted directly
before the designated II Addl. City Civil & Sessions Court and
Special Court, Bengaluru. After establish this Exclusive
Special Court, this case transferred to this court as per
Notification ADM-I(A) 599/17 dated 29.7.2017.
3 S.C.No:1333/2014
3. The case of the prosecution briefly stated as
follows:
CW1 is the complainant and victim. CW.1 belongs to
Scheduled Caste. Accused do not belongs to Scheduled Caste
or Scheduled Tribe. CW.1 was doing job typing work within
the premises of K.R. Puram Sub-Registrar office. The
accused was working as Clerk at K.R. Puram Sub-Registrar
Office. As the accused has transferred to K.R. Puram Sub-
Registrar in the year 2008, as the accused working in Sub-
Registrar office and CW.1 was doing job typing work in the
same premises, accused befriended with CW.1. During the
year 2012 the accused used to come to the house No.35
situated at Benniganahalli 2nd Main, 2nd Cross in the building
of one Sunanda where CW1 was residing. The accused used
to come to House No.35 and in the promise of marry CW1 he
had forcefully sexually assaulted CW.1 complainant by
committing sexual intercourse many times in her House
No.35. The accused who had sexual relationship with CW.1
till December 2012 refused to marry CW.1 on the ground that
she belongs to Schedule Caste. After January 2013 the
4 S.C.No:1333/2014
accused stopped to talk with CW.1 and he was stopped to
receive the phone call of CW.1. It is alleged that from the
month of May 2012 till December 2012 the accused who used
to come to the house of CW.1 at 11 PM night had committed
sexual intercourse with her and thereafter in the year 2013
the accused refused to marry her on the ground that she
belongs to Scheduled Caste and thereby the accused cheated
her. Based on the first information statement lodged by CW.1
on 12.10.2013 Bayyappanahalli police registered in Crime No.
272/2013 and sent FIR to the court. Thereafter the PSI
visited the place of incident and conducted the mahazar. The
Investigating Officer/ACP conducted further investigation.
CW.1 victim was subjected for medical examination. The I.O.,
after collecting all the materials on completion of the
investigation has filed the charge sheet against the accused.
4. Accused who obtained anticipatory bail appeared
before the court on 19.2.2015 and released on regular bail.
Charge sheet copies furnished to the accused and thereby the
provision U/Sec.207 of Cr.P.C. is duly complied with.
5 S.C.No:1333/2014
5. On 24.10.2017 charges came to be framed against
the accused, for which the accused pleaded not guilty and
claimed for trial.
6. During trial, the prosecution has examined 11
witnesses as PWs.1 to 11 and documents Ex.P1 to P9 are
marked.
7. On 16.11.2019 the statement of the accused as
required U/Sec.313 of Cr.P.C. is recorded. The accused has
denied all the incriminating evidence. The accused has stated
that "ನನನ ಮಮಲ ಸಸಳಸ
ಳ ಕಮಸಸ ದಖಲಸದರ." The accused has not lead
any defence evidence.
8. I have heard the arguments of the learned Special
Public Prosecutor and the learned counsel for the accused.
9. The learned Special Public Prosecutor submitted
that the evidence of PW1 would clearly establish that the
accused had sexually assaulted her by committing sexual
intercourse in the promise of marriage. She submitted that
PW.5 is the friend of PW.1 has supported the case of the
prosecution. PW.6 is the doctor who examined PW.1 victim
6 S.C.No:1333/2014
has given his opinion report as per Ex.P3. PW.6 has also
deposed about conducting medical examination of accused
and issued Ex.P5 report. She argued that even though PW.2
to PW.4 have turned hostile to the case of the prosecution,
the oral evidence of PW.1, PW.5, PW.6 and remaining official
witnesses. PW.7 Tahasildar, PW.8 Police Constable, PW.9
PSI, PW.10 Police Inspector, PW.11 ACP are sufficient to hold
that the accused has committed the offences punishable u/s
376, 420 of IPC and U/s 3(2)(v) of The Schedule Caste and
Schedule Tribes (Prevention of Atrocities) Act. She submitted
that since the prosecution has established the charges
framed against the accused beyond all reasonable doubt, the
accused is liable to convicted said charges.
10. The learned counsel for the accused submitted
that in this case PW.1 has not deposed the date and time of
the alleged incident. PW.2 to PW.4 have completely turned
hostile to the case of the prosecution. He argued that PW.5 is
the friend of PW.1 is interested witness. He submitted that
there is no corroboration in the oral evidence of PW.1 and
7 S.C.No:1333/2014
PW.2. He argued that PW.1 in her deposition has clearly
stated that she has not revealed about this incident to
anybody. He submitted that when PW.1 herself has deposed
that she was not revealed about this incident to anybody,
under such circumstances there was no occasion to reveal
about the incident to PW.5 also. He argued that PW.1 even
does not know the residential address of the accused and also
about his family background. He submitted that according to
PW.1 her mother and brother were also residing along with
her. But in this case, the mother and brother of PW.1 are not
examined on the side of the prosecution. He argued that
PW.1 has deposed that she has not sustained any abrasion
bite mark or any other injuries. She has deposed that she
was not made any attempt to escape and resist. He argued
that except the oral evidence of PW.1 and PW.5, there are no
other evidence to support the case of the prosecution. He
argued that the oral evidence of PW.5 is unreliable. He
submitted that PW.1 has deposed that she signed the medical
report in the police station. He argued that there is no clear
8 S.C.No:1333/2014
evidence on the side of the prosecution to show that accused
used to go to the house of PW.1 and had sexual intercourse
with her. He argued that there is delay in lodging the
complaint which is not properly explained by the prosecution.
He submitted that even if it is presumed that accused and
PW.1 had physical relation with each other, under such
circumstances also it cannot be held that the accused has
committed offence of cheating and rape. He submitted that
PW.1 is elder than the accused. PW.1 now aged 39 years,
accused is much younger than PW.1. He submitted that even
if we peruse the entire oral evidence of PW.1 there is no
evidence to show that the accused in the promise of marriage
had sexual intercourse with her. He submitted that the
medical evidence is also not helpful to the case of the
prosecution. He submitted that there is no evidence of
deception. He argued that the ingredients of Sec. 376, 420 of
IPC and Sec. 3(2)(v) of SC/ST (POA) Act are not proved by the
evidence of PW.1 to PW.11. The prosecution has failed to
9 S.C.No:1333/2014
establish the charges framed against the accused beyond all
reasonable doubt. He relied upon the following decisions.
1) Laws (SC) 2018 (4) 174 in Shivashankar @
Shiva vs. State of Karnataka and another wherein
it is held that it is however difficult to hold sexual
intercourse in the course of a relationship which
has continued for 8 years as a 'rape' established in
the face of the complainant own allegation that
they lived together as man and wife.
2) 2004 Criminal Law Journal 569 Ghosa
Ban Singh and etc. vs. State of Bihar to contend
Rape - Allegation that 7 accused persons ravished
informant - Evidence of informant was highly
improbable - There was total absence of
corroboration to her testimony - Absence of any
injury on vulva and vagina also belied case of her
ravishment especially when allegation was that
seven persons ravished her - Medical evidence was
not in conformity with the manner of ravishment
as deposed by the informant - Investigating Officer
was not examined - Defence version of false
implication could not be ruled out in view of fact
that one of accused persons had declined to marry
her - Conviction of accused persons, not proper.
10 S.C.No:1333/2014
3) ILR 2013 KAR 2537 Anjinappa vs. State
of Karnataka, Halavagalu police, Davanagere -
Appeal against judgment of conviction and
sentence - Consensual sex between the
complainant and the accused - Accused forcing
the complainant to have sex with her on the
promise of marriage - Consent to have sex was not
obtained by deception or/fraud - HELD, Offence
under Section 376 was not made out - On facts,
further held, The relationship was not of a man
chasing a woman for satisfying his momentary
lust and thereafter making a promise to marry
and continue to have sex with her. This was a
relationship between two co-workers who were
intimately known to each other in the
circumstances that they had spent time together
for long period and that it is also possible that the
desire to have sex was mutual and consensual.
Hence, given the circumstances of the case, it is
possible to hold in favour of the appellant that
there was consensual sex between the
complainant and the appellant. It is only when
the relationship soured and when the appellant
refused to marry the complainant, a case of rape
has been brought against him - Further held, to
establish that there was a false promise made by
11 S.C.No:1333/2014
the appellant, apart from the testimony of the
complainant the mother of the complainant has
tendered evidence as PW.6 reiterating that after
her daughter became pregnant, she was informed
about the circumstances and in turn she had
broached the subject with the appellant and had
brought the matter before the panchayath and the
appellant who had reiterated his promise to marry
the complainant had resiled and absconded from
the village. In support of these circumstances,
except the say of PW.6, there is no evidence. It
would be quite natural for the mother of the
complainant to support the case of her daughter
who was pregnant with the child of the appellant,
as alleged, in ensuring that appellant marries her
daughter if indeed there was a relationship
between them. Therefore, to place reliance on the
said evidence to hold that a promise to marry had
been made would be difficult - It is otherwise
possible that there was consensual sex between
the appellant and the complainant over a period of
time and it was their carelessness which lead to
the unwanted pregnancy, which forced the
appellant to bring it to the notice of her mother to
take up the matter on her behalf to persuade the
appellant to marry the complainant. This having
12 S.C.No:1333/2014
failed, the complaint has been brought. Therefore,
the claim that the consent was not valid and it
was obtained by making a false promise to marry
and thereafter the complainant having become
pregnant to claim that it was a rape cannot be
sustained.
4) Criminal Appeal No. 508/2008 in C.A.
Lokesh vs. State by Hosakote Police Station.
5) AIR 2019 SC 327.
6) 2019 (4) AKR 13 AIR Online 2019 Kar 635
Penal Code (45 of 1860), S. 376(1) (Prior to 2013
Amendment) - Evidence Act (1 of 1872), S.3 -
Rape - Consensual sex - Accused allegedly
committed rape on prosecutrix aged 20 years
under pretext of marrying her - Contradictions in
statements of prosecutrix regarding incident -
Medical report showing that prosecutrix had no
recent sexual intercourse and also that she is
habituated to sexual intercourse since long -
Statement of prosecutrix that accused had sexual
intercourse with her only once not corroborated by
medical evidence - Fact that prosecutrix raised no
hue and cry during incident showing that sex was
consensual - Age of prosecutrix, not disputed -
Accused entitled to benefit of doubt.
13 S.C.No:1333/2014
11. Upon hearing, the following points arise for my
consideration:-
POINTS
1) Whether the prosecution proves beyond all
reasonable doubt that the accused who
befriended the complainant on the promise
of marry her had forcefully sexually
assaulted CW.1 complainant by
committing sexual intercourse with her
many times in her House No.35, situated
at 2nd Main 2nd Cross, Benniganahalli,
Bangalore between May 2012 to December
2012 and thereby the accused has
committed the offence punishable under
Sec.376 of IPC?
2) Whether the prosecution proves beyond all
reasonable doubt that the accused on the
above said date, time and place in the
promise of marriage sexually assaulted
CW.1/PW1 complainant by committing
sexual intercourse and thereafter accused
refused to marry CW.1 thereby the
accused has committed the offence
punishable under Sec.420 of IPC?
14 S.C.No:1333/2014
3) Whether the prosecution proves beyond all
reasonable doubt that the accused who is
not belongs to Scheduled Caste or
Scheduled Tribe knowing very well that
CW.1 belongs to scheduled caste sexually
assaulted her by committing sexual
intercourse in the promise of marriage and
thereby the accused has committed the
offence punishable under Sec.3(2)(v) of SC
& ST (POA) Act, 1989?
4) What order?
12. My findings on the above points are as follows:
Point No.1:- In the negative
Point No.2:- In the negative
Point No.3:- In the negative
Point No.4:- As per final order
for the following:-
REASONS
Point No.1 to 3:-
13. Tthese points are taken up together for common
discussion in order to avoid repetition of facts and evidence.
15 S.C.No:1333/2014
14. PW.1 is the complainant and victim. PW.2
Santhosh Kumar is the tenant of the house is the
circumstantial witness. PW.3 Rahul is the tenant of CW.2/
PW2 is also circumstantial witness. PW.4 Devaraju owner of
the building where CW.1 was residing as a tenant. PW.2 to
PW.4 have completely turned hostile to the case of the
prosecution. PW.5 Amaravathi is the friend of PW.1. PW.6
Dr. BM. Nagaraj of Dr. B.R. Ambedkar Hospital examined
PW.1 victim and accused and issued his report as per Ex.P3
and P5. PW.7 Chandramma, Incharge Tahasildar issued
Ex.P6 report regarding the caste of PW.1. PW.8 Nagendra,
Police Constable taken the accused to the Dr. Ambedkar
Medical College Hospital for medical examination. PW.9 B.S.
Ramadevi, PSI registered the case in Crime No.272/2013
based on Ex.P1 complaint lodged by PW.1 and thereafter she
conducted Ex.P2 mahazar. PW.10 K.V. Srinivas, Police
Inspector who conducted further investigation. PW.11 G.B.
Manjunath, ACP who conducted further investigation and on
completion of investigation has filed the charge sheet.
16 S.C.No:1333/2014
15. PW1 has deposed that she has been working as Job
Typist near K.R. Puram Sub-Registrar Office past 15 years.
She states that the accused is working as SDA in Sub-
Registrar office. She belongs to Korama community which
comes under Scheduled Caste, accused belongs to Kshatriya
community which does not comes under Scheduled Caste.
she came to know about the caste of the accused after
lodging the complaint. PW.1 has deposed that she and
accused both originally from Shivamogga. She used to go to
the office of the accused with typed material for office entries.
Hence, friendship developed between her and accused. The
accused used to call her to the village. The accused used to
come to her house at 11 PM. She states that she used to ask
the accused not to come. The accused had come to her
house in the year 2011. She states that she do not
remember the date. At that time her mother and her younger
brother were in the house. She states that her mother and
younger brother had gone to village as they had not adjusted
to the climate. She states that accused came to her house up
17 S.C.No:1333/2014
to December 2012. The accused committed sexual assault
on her by sexual intercourse about 10 to 12 times on
different times. After December 2012 she asked the accused
whether he will marry her. The accused stopped contacted
her. She learnt from the friend of the accused that he is
looking for matrimonial alliances. In her further chief-
examination PW.1 has deposed that accused said that she
belongs to lower caste and so he cannot marry her. Hence,
she felt insulted. On 25.2.2013 she gave complaint before
the Vanitha Sahaya Vani. The accused who came to Vanitha
Sahaya Vani on 1.3.2013, 15.3.2013 and 19.3.2013 did not
admit that he had sexual relationship with her. The accused
contended that he is only her friend. PW.1 has deposed that
on 12.10.2013 she lodged the complaint as per Ex.P1 to the
Byappanahalli police. PW.1 has deposed that the police came
to her house at 12.30 PM and conducted panchanama as per
Ex.P2 in the presence of CW.2 Santhosh, CW.3 Rahul. On
the same day at about 4 PM, the police took her to Dr. B.R.
Ambedkar Hospital for medical examination. She has
18 S.C.No:1333/2014
identified Ex.P3 medical examination report and her
signature at Ex.P3(a) for having taken by the doctor to take
her consent. PW.1 has deposed that on 6.8.2014 she has
given her further statement to the police about the marriage
of the accused.
16. During the course of her cross-examination by the
learned counsel for the accused, PW1 has deposed that she
do not have any documents to show that she is doing Job
Typing work within the premises of K.R. Puram Sub-
Registrar's office. She states that there were 8 staff in K.R.
Puram Sub-Registrar's office. She admitted the suggestion
that there are number shops situated near the K.R. Puram
Sub-Registrar's office. She states that in the building where
she was residing there are three floors containing four
houses. She has admitted the suggestion that there are
number of residential houses nearby her house. PW.1 has
deposed that she has not seen the house of the accused. She
do not know the address of the house of the accused. She
states that in her house her mother and brother were also
19 S.C.No:1333/2014
residing along with her. When question asked her whether
she has revealed about the alleged to anybody, she answered
that she has not revealed about the incident to anybody. She
further deposed that after lodging this complaint, the number
of people of her area came to know about the incident. She
states that she do not know the date and month of the
incident. She has deposed that when the accused came to
her house for the first time she was not informed the police
control room or police station over phone. She was not
informed to her neighbours and friends. She has deposed
that when the accused had sexual intercourse with her for
the first time she has not sustained any injuries and she was
not resisted by biting the accused or by beating the accused.
When question asked her whether she has informed the
parents and brothers of the accused to advise the accused,
she answered that at no point of time she went to the house
of the accused nor informed about this incident to the police
and brother of the accused. She has deposed that at no
point of time the accused took her to the hotel, park, cinema
20 S.C.No:1333/2014
or tour to any place. She states that she has not taken any
photos with the accused. She states that she has not given
any documents to the police to show that she gave complaint
before Vanitha Sahaya Vani. She has deposed that she
lodged the complaint on 12.10.2013 at 12 PM. She states
that the police conducted the mahazar between 12 PM and 1
PM. The police took her to the hospital between 2 PM and 3
PM. She has deposed that the police have taken totally 5
signatures of her in the police station. She has signed the
medical report in the police station. She had signed SC/ST
report. She has denied the suggestion that at no point of
time the accused came to her house and had sexual
intercourse with her. She has denied all other suggestions
made to her.
17. PW2 Santhosh Kumar has deposed that he was
residing at Benniganahalli till July 2018. The complainant
was residing in 2nd floor of the same building on rental basis.
He states that the police who came near his house asked him
to sign on document saying that the signature is requires to
21 S.C.No:1333/2014
show that the police visited near his house. Hence, he has
signed one document. He has deposed that the police have
not conducted any mahazar in his presence. Having turned
hostile to the case of the prosecution, learned Special Public
Prosecutor cross-examined PW.2 in detail. During the course
of cross-examination of PW2 has denied the entire contents
of the document Ex.P2 panchanama. Nothing is elicited from
the mouth of PW.2 to support the case of the prosecution.
18. PW3 Rahul has deposed that he is residing in the
house of PW.2 on rental basis. He do not know the
complainant of this case. In his presence the police have not
conducted the mahazar. He states that at about 4 years back
Bayyappanahalli police took his signature on Ex.P2 near his
house. He do not know the contents of Ex.P2. Having turned
hostile to the case of the prosecution, learned Special Public
Prosecutor cross-examined PW.3 in length. During the course
of his cross-examination PW.3 has denied the entire contents
of the document Ex.P2 mahazar.
22 S.C.No:1333/2014
19. PW.4 Devaraju has deposed that he is having a
building at Benniganahalli. He has given one house to PW.1
in the year 2013 for rent. In that house PW.1 and her brother
were residing. He do not know the accused. He do not know
the caste of PW.1. He do not know anything about this case.
He has not given statement before the police. Since PW.4 has
turned hostile to the case of the prosecution, learned Special
Public Prosecutor cross-examined him in detail. During the
course of his cross-examination PW.4 has denied all the
suggestions made to him. He has denied of giving any
statement before the police as per Ex.P4. During the course
of cross-examination by the learned counsel for the accused
PW.4 has admitted the suggestion that he has not seen the
accused any point of time. He has denied the suggestion that
PW.1 was not residing in his house as a tenant. PW.4 has
deposed that PW.1 was residing in his house on rent for one
year. PW.4 has denied all other suggestions made to him.
20. PW5 Amaravathi has deposed that PW1 belongs to
Korama caste and accused belongs to Arasu caste. PW.1 was
23 S.C.No:1333/2014
working as Job Typist in K.R. Puram Sub-Registrar Office.
Accused was working as clerk in Sub-Registrar's office. PW.5
deposed that as the accused and PW.1 were working in K.R.
Puram Sub-Registrar Office they acquainted with each other
and became friends. PW.5 has deposed that accused and
PW.1 were loving each other and had physical relationship.
She states that one day, when she enquired with the accused,
the accused told her that he had physical relationship with
PW.1 and he will marry PW.1. She states that one day
accused brought his brother Jagadish to Vanitha Sahaya Vani
in order to talk about relationship between the accused and
PW.1. She has deposed that in the guise of promising marry
with PW.1 accused had sexual intercourse with her.
Thereafter he refused to marry PW.1 on the ground that she
belongs to Korama caste. For that reason PW.1 lodged the
complaint to the Mahila Sahaya Vani. Accused and his
brother who came to Mahila Sahaya Vani sought some time
for marriage. PW.5 has deposed that the accused by
promising PW.1 that he will marry her had sexual intercourse
24 S.C.No:1333/2014
with her and thereafter by refusing marry PW.1 accused
deceived PW.1. During the course of her cross-examination
by the learned counsel for the accused PW.5 has admitted the
suggestion that she is the friend of PW.1. She has deposed
that her house is situated at the distance of 50 meters from
the house of PW.1. She has deposed that she was not told
the mother of PW.1 that the accused coming to the house of
PW.1 but she has told the brother of PW.1 that some person
coming to the house of the PW.1. She has deposed that she
has not seen the house of the accused. She has admitted the
suggestion that PW.1 coming along with her to all the offices
such as Police Commissioner's office, DIG office. They have
not given any complaint to the Police Commissioner. PW.5
has denied all other suggestions made to her. She has
deposed that she has given statement before PSI on
12.10.2013.
21. PW.6 Dr. B.M. Nagaraj has deposed that on
12.10.2013 PW.1 was brought by WPC No. 10156 Umme
Salma to the Dr. B.R. Ambedkar Hospital. He has examined
25 S.C.No:1333/2014
PW.1 between 6 PM and 7 PM in the presence of lady doctor
Gynecologist. PW.6 has deposed that on genital examination
it was admitting two fingers. The hymen was not intact.
PW.6 has given opinion that even though there is no evidence
of recent sexual intercourse within 4 days but there is
evidence of previous sexual intercourse. He has issued his
report as per Ex.P3. PW.6 has deposed that victim has given
history that one clerk by name Narayana working in K.R.
Puram Sub-Registrar office had sexual intercourse with her in
the promise of marriage. PW.6 further deposed that on
19.12.2017 he examined the accused and issued Ex.P5
report. During the course of cross-examination by the
learned counsel for the accused PW.6 has deposed that he
cannot say the date on which PW.1 had sexual intercourse.
He has denied the suggestion that on the say of PW.1
complainant he has issued false Ex.P3 report.
22. PW.7 Chandramma has deposed that from May
2014 to January 2015 she was working as Incharge
Tahasildar Grade-II. She received the requisition from
26 S.C.No:1333/2014
Bayyappanahalli Police station who sought for the caste
certificate of victim and accused. Hence, after receiving the
report from Revenue Inspector and Deputy Tahasildar on the
basis of report she has issued her report as per Ex.P6 stating
that victim is belongs to Korama caste comes under
Scheduled Caste and accused belongs to Kshathriya caste
comes under General Category. During the course of her
cross-examination by the learned counsel for the accused
PW.7 admitted the suggestion that she has not received any
school TC of the victim and accused. She has not personally
visited to the house of accused and victim. She has denied
the suggestion that without looking into any report she has
issued false report.
23. PW.8 Nagendra, Police Constable has deposed that
on 19.12.2013 as per the order of SHO., he has taken the
accused to Ambedkar Medical College Hospital for medical
examination and also signed on Ex.P5 medical report. During
the course of his cross-examination nothing is elicited from
his mouth to discard his version.
27 S.C.No:1333/2014
24. PW.9 B.S. Ramadevi, PSI has deposed that on
12.10.2013 at 12.10 PM she registered the case in Crime No.
272/2013 based on Ex.P1 complaint lodged by the
complainant and thereafter she sent Ex.P7 FIR to the court.
On the same day she visited to the House No.35 of the
complainant situated at Benniganahalli and conducted
mahazar as per Ex.P2 between 12.30 PM and 1.15 PM in the
presence of panchas Santhosh Kumar and Rahul. Thereafter
she has given the case file to CW.14 for further investigation.
During the course of her cross-examination by the learned
counsel for the accused PW.9 has deposed that she do not
know about who was written Ex.P1 complaint. She has
admitted the suggestion that in Ex.P7 FIR column No.13, it is
mentioned that the FIR was sent to the court on 15.10.2013.
She has deposed that she cannot say the reason for 3 days
delay in sending the FIR to the court. She has denied all
other suggestions made to her.
28 S.C.No:1333/2014
25. PW.10 K.V. Srinivas, Police Inspector has deposed
that on 13.10.2013 he took up the case file from CW.13
(PW.9) for further investigation. On 19.12.2013 the accused
appeared before him and produced copy of anticipatory bail
order. He arrested the accused and sent the accused along
with Police Constable to the Dr. B.R. Ambedkar Hospital for
medical examination. He released the accused on bail. On
10.12.2013 he has received Ex.P3 medical report of the
victim. On 7.3.2014 he received the Ex.P5 medical report of
the accused on 8.5.2014 he sent requisition to the Tahasildar
to obtain caste certificate of petitioner and accused. On
5.8.2014 he has handed over the case file to ACP for further
investigation. During the course of his cross-examination by
the defence he has denied all the suggestions made to him.
26. PW.11 G.B. Manjunath, ACP has deposed that on
5.8.2014 he took up the case file from CW.14 (PW.10) for
further investigation. He has received Ex.P8 DCP Order on
6.8.2014. He has recorded further statement of the
complainant. He has recorded the statement of CW.5
29 S.C.No:1333/2014
Devaraju, CW.4 Geetha. On 8.8.2014 he has recorded the
statement of CW.6 Amaravathi, CW.7 Pushpavathi, CW.8
Savithri. On 13.9.2014 he received Ex.P6 report of the
Tahasildar regarding the caste of PW.1 and accused. He has
deposed that he sent Ex.P9 requisition to the court in order to
add sections of SC/ST (Prevention of Atrocities) Act. He on
completion of investigation has filed the charge sheet against
the accused. During the course of his cross-examination by
the defence PW.11 has deposed that he has took up further
investigation after lapse of 10 months from the date of
complaint. During the course of cross-examination of PW.11
learned counsel for the accused confronted him the statement
of CW.6 (PW.5) then he answered that PW.5 has not given
statement as deposed by her before the court.
26. Based upon the above evidence it is to be seen if the
prosecution has established the charges against the accused
beyond all reasonable doubt.
30 S.C.No:1333/2014
27. Regarding the caste of PW1 and accused during the
course of cross-examination of PW1 the accused has not
seriously disputed about her caste. In other words, no
question or suggestions asked her to deny her examination-
in-chief version that she belongs to Korama community
comes under Scheduled caste and accused belongs to
Kshathriya community which do not comes under Scheduled
Caste or Scheduled Tribe. The oral evidence of PW.1 is
supported by the oral evidence of PW.7 who issued Ex.P6
report regarding the caste of PW.1 and accused. During the
course of cross-examination PW.7 nothing is elicited from her
mouth to discard her chief-examination version and the
document Ex.P6 report regarding the caste of accused and
PW.1. PW.5 has also deposed that PW.1 belongs to Korama
caste. The oral evidence of PW.1, PW.5, PW.7 which is
supported by the document Ex.P6 is sufficient to hold that
PW.1 belongs to Korama caste comes under Scheduled Caste
and accused do not belongs to Scheduled Caste or Scheduled
Tribe.
31 S.C.No:1333/2014
28. In this case, the Investigating Officer has not made
any effort to get record statement of PW.1 through Magistrate
as required u/s 164 Cr.P.C. PW.9 PSI has registered the case.
PW.10 Police Sub-Inspector who conducted the further
investigation and PW.11 ACP who has filed the charge sheet
have not made any efforts to arrange to record 164 Cr.P.C.,
statement of PW.1.
29. It is the evidence of PW.1 is that she was working
as Job Typist near K.R. Puram Sub-Registrar' office, the
accused was working as SDA in K.R. Puram Sub-Registrar
office. PW.1 has deposed that as she used to go to the
accused with the typed materials for office entries friendship
developed between her and accused. Thereafter the accused
used to come to her house at about 11 PM. PW.1 has
deposed that the accused had come to her house in the year
2011 and he came to her house up to December 2012. It is
pertinent to note that in the chief-examination of PW.1 she
has not deposed anything about the accused started to
commit sexual intercourse with her in the promise of
32 S.C.No:1333/2014
marriage. PW.1 has simply deposed that the accused had
come to her house in the year 2011 and he came to her house
up to 2012 and committed sexual assault on her by sexual
intercourse about 10-12 months on different times. It is the
evidence of PW.1 is that after December 2012 she asked the
accused whether he will marry her then the accused stopped
contacting her and she learnt from the friend of the accused
that he is looking for matrimonial alliances. On perusal of
the entire oral evidence of PW.1, PW.1 has not deposed
anything about the accused from the inception made promise
her that he will marry her and in the promise of marriage he
had sexual intercourse with her. It is the evidence of PW.1 is
that the friendship was developed between her and accused
and thereafter the accused used to come to her house at
about 11 PM in the year 2011 and 2012 and had sexual
intercourse with her.
30. PW.1 in her examination-in-chief has deposed that
on 25.2.2013 she gave complaint before the Vanitha Sahaya
Vani and thereafter the accused came to Vanitha Sahaya Vani
33 S.C.No:1333/2014
on 1.3.2013, 15.3.2013 and 19.3.2013 and the accused did
not admit that he had any sexual relationship with her.
According to PW.1 the accused in the Vanitha Sahaya Vani
also taken a contention that he is only friend of her. PW.1 in
her examination-in-chief itself has deposed that the accused
who came to Vanitha Sahaya Vani on 1.3.2013, 15.3.2013
and 19.3.2013 did not admit that he had sexual relationship
with her. PW.1 has deposed that she has lodged the
complaint against the accused on 12.10.2013. PW.9 PSI
registered the case has deposed that she received Ex.P1
complaint on 12.10.2013 and based on the same, she
registered the case in Crime No. 272/2013. If at all the
accused was refused that he had sexual relationship with
PW.1 in the month of March 2013 itself why there is delay in
lodging the complaint and PW.1 waited till October 2013 to
lodge the complaint against the accused is not explained.
31. PW.1 has deposed that the accused came to her
house up to December 2012 thereafter he did not come to her
house. PW.6 Doctor who examined PW.1 on 12.10.2013
34 S.C.No:1333/2014
issued Ex.P3 medical report opining that there is no evidence
of recent sexual intercourse within 4 days but there is
evidence of previous sexual intercourse. PW.1 herself
deposed that the accused came to her house till December
2012 and thereafter accused did not come to her house. It is
not the evidence of PW.1 is that even after December 2012 the
accused had contact with her. Under such circumstances the
oral evidence of PW.6 Doctor who deposed about the evidence
of previous sexual intercourse looses its importance. More
than that PW.6 in his cross-examination has deposed that he
cannot say how much days prior to examination of PW.1 she
had sexual intercourse.
32. In this case, except PW.1 and PW5 no other
independent witnesses have supported the case of the
prosecution. PW1 in her cross-examination has clearly
deposed that she was not disclosed about the incident to
anybody. PW1 has deposed that the people of her area came
to know about the incident only after lodging the complaint by her.
On perusal of the oral evidence of PW1 it shows that she was not
35 S.C.No:1333/2014
disclosed about the incident to anybody. It is not the
evidence of PW.1 is that when the accused coming to her
house any other persons seen the accused. PW.2 to PW.4
have completely turned hostile to the case of the prosecution
by stating that they have not seen the accused. PW.2 to PW.4
have deposed that they do not know anything about the
incident. Admittedly, PW.4 is the owner of the building where
PW.1 was residing on rent. PW.2 and PW.3 who were residing
in the same building. But PW.2 to PW.4 have not supported
the case of the prosecution. PW.5 Amaravathi friend of PW.1.
PW.5 has also not deposed the date when she was seen the
accused. PW.1 in her oral evidence has not stated anything
she disclosed about this incident to anybody. It has come in
the evidence of PW.1 is that her mother and her brother were
also residing along with her. In this case, the prosecution has
not examined the mother and brother of PW.1. The learned
counsel for the accused submitted that even for the sake of
arguments, it is presumed that accused befriended with CW.1
and had sexual intercourse, there is no evidence to show that
36 S.C.No:1333/2014
the accused in the promise of marriage had sexual
intercourse with PW.1. He argued that PW.1 is major and she
and accused developed friendship. The learned counsel for
the accused relied upon the decision of our Hon'ble High
Court reported in ILR 2013 Karnataka 2537 in Anjinappa vs.
State of Karnataka to contend that when there is relationship
between two co-worker who were intimately known to each
other in the circumstances that they had spent time together
for long period and that it is also possible that the desire to
have sex was mutual and consensual. Hence, given the
circumstances of the case, it is possible to hold in favour of
the appellant that there was consensual sex between the
complainant and accused. He relied upon the judgment of
Hon'ble Supreme Court reported in Laws (SC) 2018 4 174 in
Shivshankar @ Shiva and another wherein it is held that it is
however difficult to hold sexual intercourse in the course of a
relationship which has continued for 8 years as "rape"
especially in the face of the complaints no allegation that they
lived together as man and wife.
37 S.C.No:1333/2014
33. He also relied upon the decision of our Hon'ble High
Court of in 2004 Crl.L.J. 569 Jharkhand High Court to
contend Rape - Allegation that 7 accused persons ravished
informant - Evidence of informant was highly improbable -
There was total absence of corroboration to her testimony -
Absence of any injury on vulva and vagina also belied case of
her ravishment especially when allegation was that seven
persons ravished her - Medical evidence was not in
conformity with the manner of ravishment as deposed by the
informant - Investigating Officer was not examined - Defence
version of false implication could not be ruled out in view of
fact that one of accused persons had declined to marry her -
Conviction of accused persons, not proper.
34. He also relied upon the decision of our Hon'ble High
Court in Criminal Appeal No. 508/2008 in C.A. Lokesh vs.
State by Hosakote Police Station. The decision reported in
AIR 2019 SC 327 in Dr. Dhruvaram Murlidhar Sonar Vs.
State of Maharashtra and others to contend that
Acknowledged consensual physical relationship between
38 S.C.No:1333/2014
parties would not constitute offence of rape. He relied upon
the judgment of Hon'ble High Court in Criminal Appeal No.
1165 /2019 in Pramod Suryabhan Pawar vs. State of
Maharashtra and another wherein it is held that the
allegations in the FIR belie the case that she was deceived by
the appellants promise of marriage.
35. The learned counsel for the accused also relied
upon the decision reported in AIR 2019 (4) AKR 13 in State of
Karnataka vs. Anis Abdulla to contend that Penal Code (45 of
1860), S. 376(1) (Prior to 2013 Amendment) - Evidence Act (1
of 1872), S.3 - Rape - Consensual sex - Accused allegedly
committed rape on prosecutrix aged 20 years under pretext of
marrying her - Contradictions in statements of prosecutrix
regarding incident - Medical report showing that prosecutrix
had no recent sexual intercourse and also that she is
habituated to sexual intercourse since long - Statement of
prosecutrix that accused had sexual intercourse with her only
once not corroborated by medical evidence - Fact that
prosecutrix raised no hue and cry during incident showing
39 S.C.No:1333/2014
that sex was consensual - Age of prosecutrix, not disputed -
Accused entitled to benefit of doubt.
36. It is settled principle of law is 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 gives consent for
sexual intercourse and on such an assurance by the accused
that he would marry her such a consent can be said to be
consent obtained on a misconception of facts as per Sec. 90 of
IPC in such a case such consent would not excuse the
offender and such an offender can be said to have committed
the rape as defined u/s 375 of IPC. The Hon'ble Supreme
Court in para No.12 of the judgment reported in AIR 2019 SC
1857 held as such.
37. Applying the law laid down by the aforesaid
decisions to the present case, what is emerging from the
evidence of PW.1 is that she and accused developed
friendship and that the accused used to come to her house in
40 S.C.No:1333/2014
the year 2011 and 2012 up to December 2012. But PW.1 has
not deposed anything about the accused from the beginning
itself promised her that he will marry her. In the chief-
examination of PW.1 she has not deposed anything about the
date and time of the alleged sexual intercourse. PW1 simply
deposed that the accused committed sexual assault on her by
sexual intercourse about 10 to 12 times at different times.
PW.1 has not deposed even the day of the week, date or
month of the alleged sexual intercourse. PW.1 in her cross-
examination stated that at no point of time she went along
with accused to hotel, park, cinema or tour. She has deposed
that she has not sustained any injuries and her clothes were
not torn. She has not given phone number to the police. In
this case, the Investigation Officer has not collected CDR to
show that PW.1 and accused had phone contact. It is the
evidence of PW.1 is that accused used to come to her house in
the year 2011 and 2012. None of the witnesses except PW.5
have deposed that accused coming to the house of PW.1.
Even PW.5 has not deposed anything about the date, time
41 S.C.No:1333/2014
and place to say when she was seen the accused near the
house of PW.1. The oral evidence of PW.5 is not corroborating
with the 161 Cr.P.C., statement given by her before the police.
PW.1 has not deposed anything about she narrated about this
incident to anybody. PW.1 has deposed that only after
lodging the complaint by her to the police the people of her
area came to know about this incident. Since PW.1 has not
deposed anything about accused in the promise of marriage
had sexual intercourse with her under such circumstances it
cannot be held that the accused committed forceful sexual
intercourse with her. The oral evidence of PW.1 and PW.5 who
have not deposed about the date, month of the incident
creates doubt about their version. PW.1 has lodged Ex.P1
complaint to the police on 12.10.2013. According to PW.1,
the accused stopped contacting her after December 2012.
There is no cogent evidence on the side of the prosecution to
show the reason for delay in lodging the complaint. On
perusal of oral evidence of PW.1 and PW.5 there is no cogent
evidence to show that the accused intend to deceive PW.1
42 S.C.No:1333/2014
from inception. The oral evidence of PW.1 and PW.5 is not
sufficient to hold that the accused has committed offences
punishable u/s 376, 420 of IPC. PW.7, PW.8 and PW.11 are
the official witnesses. PW.9 has admitted the suggestion that
she has sent Ex.P7 FIR to the court on 15.10.2013. There is
3 days delay in sending FIR to the court after registration of
case on 12.10.2013. The delay in sending the FIR to the
court is also not properly explained by the prosecution. There
is not only delay in lodging the complaint by PW.1 but there is
also delay in sending the FIR to the court. PW.1 has deposed
that the police drawn the mahazar in her house between 12
PM and 1 PM. PW.9 has deposed that she registered the case
at 12.10 PM and thereafter conducted panchanama as per
Ex.P2 between 12.30 PM and 1.15 PM. The oral evidence of
PW.1 is not corroborating with the oral evidence of PW.9 with
regarding to the document Ex.P2 panchanama.
38. With regarding to Section 3(2)(v) of SC/ST (POA) Act
PW.1 has deposed that the accused said that she belongs to
lower caste and so he cannot marry her. PW.1 has not
43 S.C.No:1333/2014
deposed anything about the accused knows about her caste.
It is settled principle of law is that in order to attract Sec. 3(2)
(v) of SC/ST (POA) Act sine quo non that the accused must
know the caste of the victim and knowing very well that the
victim belongs to Scheduled Caste or Scheduled Tribe, the
accused committed the offences. In the present case, on
perusal of the oral evidence of PW.1 there is no cogent
evidence to show that the accused knows about the caste of
PW.1 and the accused knowing very well that PW.1 belongs to
Scheduled Caste committed sexual assault on her. PW.1 has
deposed that she has not seen the house of the accused.
PW.1 has deposed that she do not know the residential
address of the accused. Under such circumstances it is very
difficult to believe the oral evidence of PW.1 that accused
developed friendship with her and used to come to her house
and committed sexual assault on her by sexual intercourse
on several times. The oral evidence of PW.10 and PW.11 are
formal in nature. In this case there is no Scientific Officers
evidence to show that the accused had sexual intercourse
44 S.C.No:1333/2014
with PW.1. No doubt it is settled principle of law is that
corroboration is not sine quo non for conviction of 'rape'. In
this case, the oral evidence of PW.1 and PW.5 does not
inspiring confidence and not believable that the accused
committed sexual assault on PW.1 in the promise of marriage.
The oral evidence of PW.1 shows that she was loving the
accused. There is no cogent evidence on the side of the
prosecution to show that from the inception the accused had
intention to deceive PW.1 in promise of marriage. The oral
evidence of PW.1 and PW5 is not sufficient to hold that the
accused has committed the offence punishable u/s 376, 420
of IPC and u/s 3(2)(v) of The Scheduled Caste & Scheduled
Tribes (Prevention of Atrocities) Act. PW.2 to PW.4 have
completely turned hostile to the case of the prosecution and
remaining witnesses PW.6, PW.7 to PW.11 are all official
witnesses. The oral evidence of PW.1 and PW.5 are not
inspiring confidence and are not believable. Neither PW.1 nor
PW.5 have deposed anything about the date, time and month
of the alleged incident. The omnibus statement of PW.1 that
45 S.C.No:1333/2014
the accused in the year 2011 and 2012 came to her house
and had committed sexual assault by sexual intercourse
about 10 to 12 times at different times is not believable. The
prosecution has failed to prove the case against the accused
for the offence punishable u/s 376, 420 of IPC and u/s 3(2)(v)
of The Scheduled Caste & Scheduled Tribes (Prevention of
Atrocities) Act beyond all reasonable doubt. The benefit of
doubt shall be given to the accused. The prosecution has
failed to bring home the guilt of the accused beyond all
reasonable doubt. Hence I answered point No.1 to 3 in the
affirmative.
Point No:4:
39. In view of my findings on point Nos.1 to 3 and for the
foregoing reasons and discussion, I proceed to pass the
following:
46 S.C.No:1333/2014
ORDER
Acting U/Sec.235(2) of Cr.P.C., the accused Narayana is hereby acquitted for the offences punishable under Sections 376, 420 of IPC and U/Sec.3(2)(v) of The Schedule Caste & Schedule Tribes (Prevention of Atrocities) Act.
The bail bond of the accused and his surety stand cancelled. However the bail bond executed in compliance of Sec. 437A of Cr.P.C., shall be in force till statutory period.
(Dictated to the Judgment Writer, transcribed by him, transcript corrected, signed and then pronounced by me in open court on this the 20th day of December 2018) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
A NN E X U R E
1. Witnesses examined for the prosecution:
PW1 Victim
PW2 Santhosh Kumar
PW3 Rahul
PW4 Devaraju
PW5 Amaravati
47 S.C.No:1333/2014
PW6 Dr. B.M.Nagaraj
PW7 Chandramma
PW8 Nagendra
PW9 B.S.Ramadevi
PW10 K.V.Srinivas
PW11 G.B.Manjunath
2.Documents exhibited for the prosecution :
Ex.P1 Complaint
Ex.P1(a) Signature of PW.1
Ex.P1(b) Signature of PW.9
Ex.P2 Mahazar
Ex.P2(a) Signature of PW.1
Ex.P2(b) Signature of PW.2
Ex.P2(c) Signature of PW.3
Ex.P2(d) Signature of PW.9
Ex.P3 Medical examination report of
complainant
Ex.P3(a) Signature of PW.1
Ex.P3(b) & Signature of PW.6
(c)
Ex.P3(d) Signature of PW.10
Ex.P4 Statement of PW.4
Ex.P5 Medical Examination Report of accused
Ex.P5(a) Signature of PW.6
Ex.P5(b) Signature of PW.10
Ex.P6 Report of PW.7 regarding caste of PW.1
and accused
Ex.P6(a) Signature of PW.7
Ex.P6(b) Signature of PW.11
Ex.P7 F.I.R
Ex.P7(a) Signature of PW.9
Ex.P8 Order of DCP
Ex.P8(a) Signature of PW.11
Ex.P9 Requisition sent by PW.1 to the court
Ex.P9(a) Signature of PW.11
48 S.C.No:1333/2014
3. Witnesses examined for the defence:
NIL
4. Documents marked for the defence:
NIL
5.List of material objects :
NIL (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.49 S.C.No:1333/2014
Judgment pronounced in open court vide separate detailed ORDER Acting U/Sec.235(2) of Cr.P.C., the accused Narayana is hereby convicted for the offences punishable under Sections 376, 420 of IPC and U/Sec.3(2)(v) of The Schedule Caste & Schedule Tribes (Prevention of Atrocities) Act.
The bail bond of the accused and his surety stand cancelled. However the bail bond executed in compliance of Sec. 437A of Cr.P.C., shall be in force till statutory period.
(MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.