Karnataka High Court
Vasudha vs Rakesh B on 5 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF, JANUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL NO. 1266 OF 2017
c/w.
CRIMINAL APPEAL NO. 1878 OF 2017
IN Crl.A.No.1266/2017
BETWEEN:
Vasudha,
D/o. Narasimha B. Naika,
Aged about 31 years,
Residing at 2nd Cross,
Gandhinagara, Kumata,
Uttara Kannada District -581343.
... Appellant
(By Sri. Hareesh Bhandary T., Advocate)
AND:
1. Rakesh B.
Aged about 43 years,
S/o. Kamalaksha Bekal,
Residing at Betkeri,
Vitalavadi Road, Kundapura Kasba village,
Kundapura Taluk -576207
2. State of Karnataka by
C.P.I. of Kundapura circle,
Kundapura Police Station,
Rep.by S.PP High Court Building,
Bengaluru -560 001.
.....Respondents
(By Sri. Sandesh Shetty T., advocate for respondent No.1;
Smt. K.P. Yashodha, HCGP for respondent No.2)
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This Appeal is filed under Section 372 of Code of Criminal
Procedure, praying to allow the appeal and set aside the
judgment and order of acquittal dated 06.05.2017 made in
S.C.No.6/2016 by the Additional District and Sessions Judge,
Udupi (sitting at Kundapura) Kundapura and convict the
accused/respondent for the offence punishable under Section
376 and 417 of IPC in the interest of justice.
IN Crl.A.No.1878/2017
BETWEEN:
State of Karnataka by
C.P.I. of Kundapura circle,
Kundapura Police Station,
Rep.by State Public Prosecutor,
High Court Building,
Bengaluru -560 001.
... Appellant
(By Smt. K.P. yashodha, HCGP)
AND:
Rakesh B.
Aged about 43 years,
S/o. Kamalaksha Bekal,
Residing at Betkeri,
Vitalavadi Road,
Kundapura Kasba village,
Kundapura Taluk -576207
.....Respondent
(By Sri. Sandesh Shetty T., Advocate)
This Appeal is filed under Section 378 (1) and (3) of Code
of Criminal Procedure, praying to grant leave to file an appeal
against the judgment and order of acquittal dated 06.05.2017
passed by the Additional District and Sessions Judge, Udupi
(sitting at Kundapura) Kundapura in S.C.No.6/2016 acquitting
the accused of the offences punishable under Sections 376 and
417 of IPC (b) Set aside the judgment and order of acquittal
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dated 06.05.2017 passed by the Court of Addl. District and
Sessions Judge, Udupi (Sitting at Kundapura), Kundapura in
Sessions Case No.6/2016, acquitting the accused of the
offences punishable under Sections 417 and 376 of IPC (c)
Convict and sentence the respondent-accused for the offences
punishable under Sections 417 and 376 of IPC, in the interest
of justice.
These Criminal Appeals having been heard through
Physical Hearing/Video Conferencing Hearing and reserved for
judgment on 04.12.2023, coming on for pronouncement this
day, Dr.H.B.Prabhakara Sastry J. delivered the following:
COMMON JUDGMENT
The appellant-complainant has filed Criminal Appeal
No.1266/2017 under Section 372 of Code of Criminal
Procedure, 1973 (hereinafter for brevity referred to as
`the Cr.P.C.') and the State has filed Criminal Appeal
No.1878/2017 under Section 378 (1) and (3) of Cr.P.C.,
both challenging the judgment of acquittal dated
06.05.2017 passed by the Additional District & Sessions
Judge, Udupi (sitting at Kundapura) Kundapura
(hereinafter for brevity referred to as the `Sessions
Judge's Court') in S.C.No.6/2016 acquitting the accused of
the offences punishable under Sections 376 and 417 of
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Indian Penal Code, 1860 (hereinafter for brevity referred
to as `IPC').
2. The summary of the case of the prosecution as
stated in the charge sheet is that the accused-respondent
was working as an Assistant Executive Engineer at
Kumata, Hubballi Electricity Supply Company (HESCOM for
short) and was residing in the neighbourhood of the
complainant (henceforth for brevity referred to as 'the
victim'). During that time victim was going to college
pursuing her B.Ed. course in the year 2006-07. The
respondent No.1/accused got acquainted with the victim
and the acquaintance turned into friendship and
friendship into love between each other. It is the case of
the prosecution that the respondent No.1/accused
promised of marrying the victim and gained her confidence
as well as of her parents, siblings, and was visiting the
house of the victim. When the accused and the victim
were so close and friendly, the mother of the victim
passed away and the accused attended the
obsequies ceremony of the deceased. On some occasion
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he has also taken the victim to his place of work and had
introduced her to his staff and colleagues as his would-be
wife. Both the accused and the victim were moving
together freely in the society. It is also the case of the
prosecution that in the year 2009, accused was
transferred to Bantwala and thereafter to Kundapura.
During that period also he was in contact with the victim
and was making telephone calls to her over her cell-phone
and was reiterating his assurance that he is going to marry
her.
Further it is the case of the prosecution that on the
date 09.01.2015 at about 9.00 O'clock in the night, the
accused called the victim over the phone and asked her to
come to Kundapura KSRTC bus stand on 11.01.2015 in the
afternoon. Accordingly, the victim went to Kundapura
KSRTC bus stand on 11.01.2015 at about 2.00 p.m. The
accused picked her up from the bus stand and took her in
a car bearing registration No.KA-20-P-1403 to a secluded
house in a Rubber Plantation called Shedimane in
Kundapura, on the pretext that he had to collect some
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rubber sheets from there. The said house was vacant
without any residents. There were no neighbours at the
close proximity. After entering the house the accused
while with conversation with the victim embraced her and
eventually committed sexual intercourse with her without
her consent. The victim was very specific that she did not
want to have any physical contact with the accused but on
its being committed to her, without her consent, she
started weeping. For which, accused consoled her assuring
of marrying her which made her to believe him. He also
asked her not to disclose about the act to anyone.
After the incident, the accused dropped the victim to
Bhatkala in his car, from there she took a bus to her
native Kumata. After the incident the accused was
behaving normally with the victim for about one and a half
month and was assuring of marrying her after speaking to
his elders. The victim was reminding him about their
marriage since a month prior to filing complaint on
06.06.2015. However, the accused went on giving excuses
that his elders are against their marriage as they both
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belong to different caste and finally stopped visiting or
attending phone calls of the victim. It is only then, the
victim came to know that accused would never perform his
promise of marrying her and that he had given a false
promise of marrying her. Accordingly, she proceeded to
lodge a complaint against him on 06.06.2015 at 6.00 p.m.
The same was registered by the complainant Police Station
in Crime No.33/2015 against the accused for the offences
punishable under Sections 417 and 376 of IPC. After
completing the investigation, the complainant Police have
filed charge sheet against the accused for the offences
punishable under Sections 417 and 376 of IPC.
3. After perusing the materials placed before it
and hearing both side, the Sessions Judge's Court framed
charges against the accused for the offences punishable
under Sections 376 and 417 of IPC. 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 fourteen (14) witnesses as
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PW-1 to PW-14, got produced and marked documents
from Exs.P.1 to P.38(a). From the accused side none of
the witnesses were examined however, three documents
were got marked as exhibits from Exs.D.1 to D.3.
4. After hearing both side, the learned Sessions
Judge's Court by its judgment dated 06.05.2017 acquitted
the accused of the offences punishable under Sections 376
and 417 of IPC. Aggrieved by the same, the victim has
preferred the appeal in Crl.A.No.1266/2017 and State has
preferred the appeal in Crl.A.No.1878/2017.
5. In Crl.A.No.1878/2017 the appellant -State is
represented by the learned High Court Government
Pleader (HCGP for short) and in Crl.A.No.1266/2017 the
appellant and respondent/accused are represented by
their respective learned counsel. The learned High Court
Government Pleader and the learned counsel for the
appellant and learned counsel for respondent (accused) in
both appeals are physically appearing in the Court.
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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 counsel for the victim (appellant in
Crl.A.No.1266/2017) in his argument submitted that the
evidence of PW-13 - the victim is fully believable. She has
given a complete account of her acquaintance with the
accused and how the accused misused the said
acquaintance with her and on the pretext of marrying her,
which later turned out to be a false promise, he subjected
the victim for multiple sexual intercourses which are the
rapes committed upon her and thus, has committed the
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alleged offence. Evidence of PW-11 who admittedly is the
colleague of the accused corroborates the evidence of
PW-13. His evidence is fully believable and establishes
how the accused cheated the victim. He also submitted
that no women in Indian society falsely claims that she
was subjected to rape. Under the said circumstances, the
evidence of PW-13 that she was subjected to rape by the
accused, which is trustworthy and believable, proves the
guilt of the accused beyond reasonable doubt. However,
the trial Court without appreciating the evidence in its
proper perspective and without even noticing that in the
circumstances of the case, the victim was made to wait
hoping that the accused would marry her, has caused
delay which has sufficiently been explained, has failed to
appreciate the facts in the proper perspective, resultantly,
it proceeded to pass an erroneous judgment. In his
support he relied upon the judgment of Hon'ble Apex
Court in the case of ANURAG SONI Vs. STATE OF
CHHATTISGARH reported in AIR 2019 SC 1857.
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10. Per contra, learned HCGP for the State-
appellant in Crl.A.No.1878/2017 which is also respondent
No.2 in Crl.A.No.1266/2017 in her argument submitted that
it is an admitted fact that the accused and the victim knew
each other since several years prior to the incident. It is not
denied that the accused was visiting the house of the victim
and was acquainted with her parents also. Both the accused
and victim were moving together. As such, the victim had
every reason to believe the words of the accused that he
would marry her. However, the accused taking undue
advantage of the said trust and confidence reposed in him,
had not only subjected her to rape against her consent but
also failed to keep up his promise of marrying her. She
further submitted that the alleged consent of the victim for
subsequent acts of sexual intercourse by the accused were
also with no consent, since her consent was obtained by a
false promise made by the accused. As such, as per Section
114 A of the Evidence Act presumption forms in favour of the
victim.
11. She also stated that though the incident has happened in a
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house called Shedimane in a rubber plantation, there were no
neighbouring houses for a distance about 300 mtrs. as such, the
protest of the victim on 11.01.2015, when the accused subjected
her to the rape, could not get any help from any person.
12. She further stated that the victim as a
complainant has explained the alleged delay caused in
filing the complaint. The cause shown by her for the delay
is fully convincing and cannot be doubted. However, the
Sessions Judge's Court without appreciating the evidence
placed before it, in its proper perspective, has proceeded
to pass erroneous judgment which warrants interference
at the hands of this Court. In support of her argument
learned HCGP relied upon the judgment of Hon'ble Apex
Court in the case of KARTI ALLIAS KARTHICK VS. STATE
REPRESENTED BY INSPECTOR OF POLICE, TAMIL NADU
reported in (2013) 12 SCC 710.
13. Learned counsel for the accused/respondent in
both the appeals in his argument submitted that though
he would not deny that the accused and victim were
known to each other since few years and that they were
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meeting quite often, but, he would strongly deny that
there was any act of rape by the accused upon the victim.
If at all, any sexual intercourse between them has been
established, the same is with the consent by each of them
against the other. As such, the very conduct of PW-13 as a
consented party is highly suspicious and doubtful. Thus, it
is not safe to believe her version.
Learned counsel further submitted that there is a
delay of four (4) months twenty five (25) days in filing the
complaint which has not been properly explained by the
prosecution. The evidence of PW-11- Babanna Poojari is
not believable, because, admittedly as a subordinate to the
accused, in the employment, he was served with two memos
issued to him by the accused. He also submitted that evidence
of PWs-1, 3 and 6 shows that in the alleged house in a rubber
plantation at Shedimane, where the first incident was said
to have taken place was not a vacant house, but, it was
occupied by the workers. Therefore, in the instant case,
committing the act of rape upon the victim in the said
house is not possible. Learned counsel submitted that it is
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considering these aspects, the trial Court has rightly
disbelieved the case of the prosecution and acquitted the
accused. As such, the impugned judgment does not
warrant any interference at the hands of this Court. In his
support he relied upon a judgment of Hon'ble Apex Court
in the case of G.V. RAO Vs. LHV PRASAD AND OTHERS
reported in (2000) 3 SCC 693.
14. After hearing the learned counsels from both
side, the points that arise for our consideration in this
appeal are:
(i) Whether the prosecution has proved
beyond reasonable doubt that on the date
11.01.2015 at about 3.00 p.m. in the
house of PW-1(CW-6) Joes Cherian
situated in the rubber plantation at 9th
Milestone, at Albady village, Kundapura
Taluk within the limits of complainant
police station the accused committed rape
of the victim (PW-13) and thereby
committed an offence punishable under
Section 376 of IPC?
(ii) Whether the prosecution has proved
beyond reasonable doubt on the date,
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time and place mentioned in point No.1
above, the accused after committing rape
on PW-13 (CW-1) the victim, made a false
and dishonest promise to the victim
stating that he would marry her and that
she should not reveal about the incident to
anyone including giving any complaint and
succeeded in the victim not disclosing the
incident immediately or to proceed lodging
any police complaint against him and
further repeating his dishonest promise
that he would marry the victim
fraudulently induced her in consenting to
be in association with him and the accused
having subsequent sexual intercourse with
her, which consent she would not have
given, if, she was not so deceived and the
said act of the accused has caused harm
to the victim both in her body, mind and
her reputation and thereby has committed
an offence punishable under Section 417
of IPC?
(iii) Whether the judgment of acquittal under
appeal warrants any interference at the
hands of this Court?
15. Before proceeding further in analysing the
evidence led in the matter, it is to be borne in mind that it
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is an appeal against the judgment of acquittal of accused
for the offences punishable under Sections 376 and 417 of
the IPC. Therefore, the accused has primarily the double
benefit. Firstly, the presumption under law is that, unless
his guilt is proved, the accused has to be treated as an
innocent person in the alleged crime. Secondly, the
accused has already been 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
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presumption of innocence is available to him under
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,
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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 and also in the case of Roopwanti Vs. State of
Haryana and others reported in AIR 2023 SUPREME
COURT 1199.
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It is keeping in mind the above principles laid down
by the Hon'ble Apex Court, we proceed to analyse the
evidence placed by the prosecution in this matter.
16. Among the fourteen (14) witnesses examined
by the prosecution in order to prove the alleged guilt
against the accused the material and most important
witness is PW-13 (CW-1) the victim. The said witness in
her evidence has stated that she has been residing in her
house at Kumata along with her father, two sisters by
name Shyamala and Deepa and one elder brother. Her
father is a retired teacher and she has lost her mother in
the year 2013. She is a B.A. B.Ed. graduate. The accused
was working as an Assistant Executive Engineer in
HESCOM at Kumata in the year 2006-07 and he was
residing near her house, at which time, she was pursuing
her B.Ed. graduation. At the act of accused drawing her
attention towards him friendship developed between them.
In the year 2009 accused was transferred to other
branch at a place called Bantwala. In the meantime, the
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accused was contacting her over the cell-phone and close
intimacy had developed between them. The accused had
also promised that he would marry her. About three or
four months thereafter, the accused was once again
transferred to Kundapura. Even after he transferred to
Kundapura the accused continued his contact with her and
contacted her over cell-phone and also asking her to come
to either Bhatkala or to Kundapura. The accused while at
Kumata was calling her from cell-phone No.9448149914
and after his transfer to Kundapura he was talking to her
from a contact No.9448289500.
17. PW-13 has further stated that while the accused
was at Kumata, Bantwala and Kundapura he was quite
often visiting her house at Kumata. One month prior to
she lodging complaint against the accused, he was often
promising her that he would marry her. He had even
participated in the obsequies ceremony of her mother and
participated in all religious and family rituals. On that
occasion, along with him, his colleague by name Babanna
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Poojari has also participated in obsequies ceremony. The
marriage proposal given by the accused was accepted by
her.
18. About the incident, PW-13 has stated that on
the date 09.05.2015 at about 9.00 p.m. the accused from
his cell-phone No.9448289440 contacted her to her cell-
phone No.8277516173 and asked her to come to
Government Bus Stand at Kundapura at 2.00 p.m. on the
date 11.01.2015. Accordingly, she went to the said bus
stand at Kundapura on 11.01.2015. The accused having
gone there in a white colour Swift Motorcar with
registration No. KA-20-P-1403 took her in his Car to a
place called Shedimane to a rubber plantation stating that
he has to collect some rubber sheets which are put up for
drying in the said place. By 3.00 p.m. when they went to a
house at Shedimane, none were there in the said house.
The accused after shifting the dried rubber sheets from the
adjacent shed to the house and while talking to her all of a
sudden held her firmly and embracing her started
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kissing her. In the deposition sheet it is recorded by the
Sessions Judge's Court that at that time, the witness was
weeping and took sometime to continue her evidence.
19. PW-13 has further stated in her evidence that
thereafter the accused started pressing her chest with his
hands despite the protest made by her. In spite of her
protest, he undressed her and threw her on the ground
and subjected her to the rape (the witness has explained
the act of rape). Since the accused was stronger than her,
she could not get away from him. When she started
weeping at the act of the accused, he made her to believe
stating that he would marry her. She believed him and
then she wore her dress back so also the accused. Later,
the accused in the very same motorcar brought her back
to Government bus stand at Bhatkala and dropped her. In
a bus she returned to her home.
20. PW-13 has further stated that after the above
incident accused continued to behave with her in the usual
manner and was also talking to her by calling her over the
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telephone and visiting her. At all times she was enquiring
about their marriage, for which, he was promising that he
will enquire with his mother and his family members and
let her know. Later, for her repeated enquiry accused told
her that since he belonged to a community called
'Sheregar' and the victim belonged to a community called
'Namdhari' his mother, elder brother and sister-in-law are
objecting for their proposed marriage.
PW-13 stated that since 1½ months prior to she
lodging a complaint as per Ex.P.10 accused started
rejecting her telephone calls. It is thereafter, she after
informing the matter in her house and taking a decision,
has lodged a complaint against him with the complainant
Police Station on 06.06.2015 in the evening as per
Ex.P.10. Witness has identified the complaint and her
signature therein.
21. PW-13 further stated that after lodging
complaint on 07.06.2015 they came to Kundapura on
08.06.2015. The police drew a scene of offence
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panchanama as per Ex.P.2 and a rough sketch as per
Ex.P.3 and they also took a photograph, which the witness
has identified as Ex.P.4. PW-13 further stated that on the
date 17.06.2015 the Investigating Officer produced her
before the Magistrate who recorded her statement, which
the witness has identified as Ex.P.13. She identified
accused in the Court as the one who by inducing her,
made her to believe him that he will marry her had
subjected her to rape. PW-13 also stated that the
Investigating Officer had sent her for medical examination
to the Government Hospital at Kundapura, where the
Doctor medically examined her. She stated that since the
accused had made her to believe that he would marry her
she did not lodge complaint immediately after the incident
of rape. The witness further stated in the Court that sister-
in-law of the accused by name Sushma was messaging
her. The elder brother of the accused by name Nandeesh
was sending her threat messages. They were also giving
several missed calls to her phone but were not receiving
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the return calls. In that connection, she has informed the
police who had filed a FIR.
She also stated that even during the pendency of the
matter, in the Sessions Judge's Court, on 04.07.2016,
while she was going to the Court a person coming on a
motorcycle threatened her that she should not give
evidence against the accused. In that regard, she has
lodged a police complaint. She has marked three
photographs of the messages said to have been received
by her over the cell-phone at Exs.P.14, P.15 and P.16.
Similarly, two photographs to show that she received few
calls from cell-phone No.9480692279 at Exs.P.17 and
P.18. She also marked two photographs at Exs.P.19 and
P.20 stating that they were the photos of the messages
received by her from cell-phone No.8867005999. Marking
nine photographs from Exs.P.21 to P.29 the witness stated
that they were the messages received by her from cell-
phone No.9845061796. Similarly, marking one more photo
at Ex.P.30 witness stated that it shows the call and the
message received from Sushma from the cell-phone
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No.9901552657. She got produced a photocopy of Bank
passbook of Syndicate Bank at Ex.P.31. Copy of FIR in
Crime No.227/2016 of Kundapura Police Station at
Ex.P.32. The endorsement said to have been issued by
Station House Officer of Kundapura Police Station at
Ex.P.33. The endorsement given by Kundapura Police to
her application under RTI Act at Ex.P.34. Stating that it is
a document of registration with respect to two wheeler
bearing registration No.KA-19-K-7394 belonging to the
brother of the accused, the witness marked a document at
Ex.P.35. A copy of the application said to have been given
by one Sri.Babanna Poojari (PW-11) to the Circle Police
Inspector, Kundapura, the witness has got it marked at
Ex.P.36. A copy of the statement said to be of one
Sri. Janardhana Markodu before the police was marked at
Ex.P.37.
22. PW-13 was subjected to a detailed cross-
examination from the accused side. In her cross-
examination though it was attempted to elicit the date of
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inception of friendship between the witness and the
accused and the absence of any document to show their
alleged friendship and love affair, however, it was not
denied in her cross-examination that accused and PW-13
were known to each other much prior to the alleged
incident. She denied the suggestion that accused had not
promised that he would marry her.
23. About the place of the alleged incident of rape
on 11.01.2015, more details were elicited in the cross-
examination of the witness from the accused side. The
witness stated that they went to the said home which was
locked, however, the accused himself opened the said
lock. The witness has given the description of the position
of the rooms, bathroom, kitchen etc., in the said house.
She stated that it was only at a distance of 300 mtrs.
away from the said house there were the other houses.
She denied that people used to walk adjacent to the said
house. She denied a suggestion that a family was residing
in the house where the incident took place. She denied a
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suggestion that since the family members of the accused
refusing the marriage proposal of herself with the accused,
she making use of her acquaintance with the accused has
filed a false complaint as per Ex.P.10. She gave more
details about her travel from Kundapura to Shedimane on
the date of alleged incident. She stated that after the
incident, on the said day, she had not revealed about the
same either to her father or to her sister. She denied that
she had not gone to house at Shedimane and no incident
of rape taken place there. She stated that after an attempt
of settlement in Kundapura Police Station on 07.11.2015,
she had got issued a public notice in Udayavani Kannada
Newspaper dated 25.04.2016 stating that accused should
not marry any other girl. The said paper publication shown
to her from the accused side, was identified by her and it
was marked as Ex.D.3. She denied a suggestion that since
the accused was in a good post, it is for her safety, she
proposed to marry him and as the accused refused the
same she has filed a false complaint.
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24. PW-9 (CW-2) Narasimha B. Nayaka in his
evidence has stated that he is a retired Teacher and father
of the victim, who is his elder daughter and followed by
her he has two more daughters. He has a son by name
Vinayaka. All of them are residing together. He is a
widower and his wife Savithri is dead. His first daughter
i.e., the victim is a B.A. B.Ed. graduate. The accused was
working in Kumata branch of HESCOM an electricity
company as an Assistant Executive Engineer in the year
2006-07. Accused was residing near a house of these
people in Kumata. Accused was in Kumata for about 3 to 4
years from the year 2006. At that time the victim was
pursuing her B.Ed. studies and going to college. He stated
that in the year 2006-07 PW-13 told to him that the
accused was loving her, and accused was also visiting their
house. At that time, Savithri (wife of this witness) was
alive. Somewhere in the year 2008-09 the accused
transferred from Kumata to Kundapura due to
departmental transfers.
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25. PW-9 further stated in his evidence that when
his wife Savithri died in the year 2013 it was informed to
the accused who was in Kundapura. Then, after hearing
the same, the accused came to Kumata from Kundapura
and participated in the funeral and undertook the rituals,
obsequies ceremony as per the family custom. Accused
was calling the victim over the phone and taking her
outside for roaming. However, he was not objecting to the
same since, the accused had told that he would marry her.
Till about the year 2015 the accused and the victim were
had intimacy and roaming together. Though he had
informed his daughter that it was not correct to move with
the accused in such a manner, however, she stated that
accused had promised her that he would marry her. The
witness stated that from May 2015 the accused stopped
contacting the victim over the phone and also
meeting her. He enquired his daughter about the same,
then his daughter (victim) told him that as asked by the
accused she had been to Kundapura on 11.01.2015
and the accused had taken her to a house at
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Shedimane in a rubber plantation and subjected her to
rape. When she started crying, after the incident, the
accused promised that he would marry her and she should
not reveal to anybody about the incident. As such, the
incident was not revealed to him till May 2015. When the
accused was attempted to contact over the phones he was
not receiving the telephone calls and from his mobile
response was coming as switched off. As such, the witness
stated that on the date 06.06.2015 his daughter (CW-1)
lodged a complaint with the police accusing that the
accused has subjected her to rape and has given false
promise that he would marry her and has cheated her. The
witness also stated that CW-5 (PW-11) was working in
MESCOM at Kundapura and he was going to their house along
with the accused. Witness identified the accused in the Court.
Nothing much could be elicited in the cross-
examination of PW-9 from the accused side, which could
shake the credibility of the evidence given by him in his
examination-in-chief. It was attempted to know the day
and month when the victim was said to be in friendship with
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the accused specifically, so also the exact date when the
accused was said to have given promise to the victim that
he would marry her. The witness could not give a specific
month, day or date. However, he stated that it was in his
presence, the accused has stated that he would marry PW-
13. He denied a suggestion that his family made a
marriage proposal of PW-13-the victim, with the accused
and since accused rejected the proposal as they belong to
different caste, as a retaliation a compliant as per Ex.P.10
was lodged through PW-13 against the accused.
26. PW-10 (CW-3) Shyamala the another sister of
PW-13 and the daughter of PW-9 has stated that while
accused was working in electricity company (MESCOM) at
Kumata in the year 2006-07 as an Assistant Executive
Engineer, was residing near to the house of this witness.
The accused was there at Kumata for about three to four
years. At that time, her sister PW-13 (CW-1) was pursuing
her B.Ed course. The road leading to her college was in front of
the office where the accused was working. The accused
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started talking to her sister and developed friendship with
her. Obtaining the cell-phone number of her sister
8777516673 the accused was calling her sister very often.
Both of them were roaming together. In the year 2006-07,
when enquired accused had promised her that he would
marry her. The said relationship continued up to the year
2015.
27. The witness further stated that her sister PW-13
(CW-1) further told to her and her father that accused had
called her to come to Kundapura. Accordingly, she had
been to Kundapura on 11.01.2015. The accused having
taken her in a Maruti Suzuki Swift car to a house in the
rubber plantation called Shedimane had subjected her to
rape. After the incident of rape, while her sister was
crying, the accused promised her that he would marry her
and asked her not to disclose about the incident before
anyone. The said detail about the incident was given to
her by her father and by her sister in May 2015.
Thereafter, when enquired, since the accused refused to
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marry her sister a police complaint was lodged by her
sister. The witness has identified the accused in the Court.
She was subjected to a short cross-examination, wherein,
denial suggestions were made to her about the alleged
love affair between the accused and the victim, which was
not admitted as true by her.
28. The another witness in the series who could
speak about the acquaintance of the accused with the
victim of the alleged incident is PW-11 (CW-5) - Babanna
Poojari. The said witness in his evidence has stated that he
is a Junior Engineer at MESCOM. In the year 2010 the
accused came on transfer to Kundapura as his Higher
Officer. Once the accused had brought the victim (CW-1)
to their office and introduced her to him stating that he
(accused) is going to marry her. The accused and CW-1
were roaming together, both of them had been to his
house for a tea. When the mother of the victim died, the
accused had taken him along with him to the house of
CW-1 (victim) at Kumata. PW-11 further stated that
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thereafter one evening CW-1 (victim) telephoned him
stating that on the date 11.01.2015 the accused had
called her to Kundapura and getting her there he took her
to Albady village and cheating her had sexual intercourse
with her and cheated her by not keeping his promise that
he would marry her. He also came to know that in that
regard CW-1 had lodged a complaint. Stating that accused
was his colleague he had identified the accused in the
Court. He stated that police had recorded his statement.
29. In the cross-examination of PW-11 it was
elicited that while he was working in Gopadi branch the
accused was his superior. The said accused had issued two
notices to him for alleged dereliction of duty as per
Exs.D.1 and D.2. He denied the suggestion that because of
the enmities between him and the accused, he is giving
false evidence against the accused.
30. From the evidence of the above witnesses it
stands established that the accused in the year 2006-07
was working as an Assistant Executive Engineer in the
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Electricity Department at Kumata and was residing near
the house of the victim. It is also not denied from the
accused side that the accused and the victim were known
to each other and friendship developed between them. The
evidence of PWs-13, 9 and 10 further go to show that the
accused was frequently visiting the house of the victim, as
such, he was known to the family of the victim. The
evidence of these witnesses on this aspect has not been
denied in their cross-examination. The evidence of PWs-9
and 13 that in the funeral and obsequies ceremony of the
mother of the victim the accused had also participated and
conducted some rituals as per the customs of the victim,
also not been specifically denied from the accused side.
The evidence of PW-11 that the accused had brought the
victim to his office at Kundapura and introduced the victim
as his would-be wife and that both the accused and the
victim were roaming, has not been denied in the cross
examination of PW-11. The evidence of PW-11 that
accused had taken him also along with him to attend the
funeral and obsequies ceremony of the mother of the
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victim, has not been specifically denied in his cross-
examination. Similarly, the evidence of PWs-9, 10 and 13
that accused was roaming with PW-13 for quite a long
time since 2006-07 up to 2015, has not been specifically
denied in the cross-examination of those witnesses. Thus,
it stands proved that accused and the victim were known
to each other and their friendship had even gone to the
extent of both accused and victim roaming together for
several years.
About the incident said to have taken place on
11.01.2015 is concerned, the evidence of PWs-9, 10 and
11 are only a hearsay. The evidence of PW-13 alone is
material evidence about the said incident.
31. According to PW-13-the victim, the accused
subjecting her to rape on 11.01.2015 took pace in a house
belonging to one Sri. Joes Cherian situated in the rubber
plantation called Shedimane of Albadi village, Kundapura
Taluk at about 3.00 p.m. It was elicited in her cross-
examination from the accused side that when the accused
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took her to the said house Shedimane, it was locked and it
was the accused who opened the lock. The said Joes
Cherian was examined as PW-1 (CW-6). The said witness
in his evidence stated that the accused is his friend who
frequently visits his house. The witness stated that he has
a house in his rubber plantation at Albady village. He
pleaded his ignorance about the acquaintance between the
accused and victim and they roaming together. He also
pleaded his ignorance that the accused and the victim
were meeting quite often in the said house in a rubber
plantation at Albady. He pleaded his ignorance about
accused having sexual intercourse with the victim in the
said house. Since he did not support the case of the
prosecution as expected by it, he was treated as hostile
and the prosecution was permitted to cross-examine him
further. He denied a suggestion made by the prosecution
that he had given a statement before the police as per
Ex.P.1. In his cross-examination from the accused side the
witness stated that the said house in the rubber plantation
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through out the year a worker and his wife reside as
tenant.
32. PW-2(CW-7) Sudheer Bhat has stated that the
scene of offence panchanama and a rough sketch of the
spot was drawn in his presence by the complainant police
which document he has identified as Exs.P.2 and P.3
respectively, stating that at that particular point of time a
photograph was also taken. The witness has identified the
photograph as Ex.P.4 and his presence in the said
photograph. He stated that the said spot was shown by
the victim.
33.One Sri. H. Gopala Nayaka PW-3 (CW-8) though was
examined by the prosecution projecting him as a pancha
for the scene of offence panchanama Ex.P.2, however, the
said witness did not support the case of the prosecution.
Except stating that the police had visited his house and
after taking him to a shed at rubber plantation had verified
the place and took photograph. He pleaded his total
ignorance about drawing of scene of offence panchanama.
After treating him as hostile, though prosecution
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attempted to get his support, however, the witness did not
support the case of the prosecution any further. This
witness also in his cross-examination from the accused
side stated that in the house of PW-1 situated at rubber
plantation, the family of worker who does rubber tapping
is residing.
34. PW-6(CW-11) Nagendra, Panchayat Development
Officer of Belve village stated that at the request of
Investigating Officer he has verified the documents with
respect to the place of offence which is a house in
Shedimane, Albadi village in the rubber plantation and
issued a certificate stating that the said house stands in
the name of one Sri. Joes Cherian. The witness has
identified the said certificate at Ex.P.8. In his cross-
examination from the accused side he stated that the said
house is a residential house in an agricultural land and
according to his information labour doing rubber tapping
are residing in the said house.
35.The above evidence of PWs-1, 2 and 6 proves that
one Sri. Joes Cherian is the friend of the accused and said
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Joes Cherian owns a house in the rubber plantation at
Shedimane, Albady village. It is the very same house
which the victim is stated that the incident dated
11.01.2015 took place. According to PW-2 it was the
victim who shown the said house for drawing the scene of
offence panchanama as per Ex.P.3. Thus, the place of
alleged offence dated 11.01.2015 stands proved as the
house of PW-1 in rubber plantation at Shedimane at
Albady village within the limits of complainant police
station.
36. The learned counsel for the accused/respondent
in his argument vehemently contended that PWs-1, 3 and
6 have stated that workers of rubber plantation reside in
the said house. Thus, the question of accused taking the
victim to the said house and subjecting her to rape does
not arise.
37. No doubt PWs-1, 3 and 6 have stated about the
said house of PW-1 being occupied by some occupant,
however, it is to be noticed that none of these
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witnesses stated as to since how long that house was
occupied by any workers in the rubber plantation or any
family of the labour of the rubber plantation. As such, in
the absence of any specific detail about the same it cannot
be taken that as on the date of incident i.e., on
11.01.2015 the said house was occupied by some
occupants, as such, it was under lock and key.
38. The above inference gains support for the
reasons that even though PW-1 has stated that the worker
(coolie) with his wife are residing in the said house as a
tenant, but, he has not given any details of said worker
and the tenancy. Had really the said house was occupied
by the tenant, then, PW-1 should have necessarily had
documents of tenancy including rental agreement, rent
receipt etc., and produced the same before the
Investigating Officer or in the Court. However, he has not
produced any documents nor even given any details about
the alleged tenancy. PW-3 has stated that a worker's
family resides there. The say of PW-1 that the alleged
residence of single worker with his wife, whereas,
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according to PW-3 it is workers which is more than one
and their family in the house. Thus, there is discrepancy
between the evidence of PW-1 and 3 about the alleged
residence of some worker or workers in the said house.
Further, the say of PW-6 also that coolie workers stay in
the said house, however, he has stated that it is only an
information to him. As such, the witness himself is not
quite sure about the residence of any worker and/or their
family in the said house.
39. Thus, when none of these witnesses have given
any details about the alleged residence of the said house
and also since how long they are residing in the said house
and more importantly, since the evidence of PW-3, that it
was the accused who opened the lock of the door of the
said house and the evidence of PW-1 that the accused was
his friend, who quite often visited him, would clearly go to
show that the said house Shedimane was not occupied as
on the date of alleged incident, which was 11.01.2015 and
accused being a close friend of PW-1 and visiting him quite
often, had a key of the said house on the said day to
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enable him to open the lock of the house and enter. As
such, the evidence of PW-13 that she was taken to the
said house and the said house was vacant and unoccupied
on the said day requires to be believed.
40. About the incident of alleged rape, the victim
has stated that after they entered the house in the rubber
plantation at Shedimane, while talking to her the accused
all of a sudden embraced her and holding her firmly
started kissing her. It is thereafter he started pressing her
chest with his hands and despite her protest he undressed
her and made her to fall on the ground and committed
rape on her. The witness has given the details of the act of
the alleged rape said to have been committed by the
accused. She stated that it is only thereafter, when she
started weeping, the accused promised her that he would
marry her and made her to believe the same. Stating so,
the witness has made it clear that at the act of the
accused was not accepted by her and she had not
consented for his act of having sexual intercourse with
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her. She also has clearly stated that the promise of the
accused that he would marry her was only after the
accused raping her and after she started weeping after the
incident. Thus, it is in the evidence of the victim that she
had neither directly or indirectly or actively or passively
given her consent for accused having sexual intercourse
with her.
41. In the cross-examination of PW-13 it was not
denied that the accused had sexual intercourse with the
victim. On the other hand, at various places suggestions
were made to the witness which can be termed as
admission suggesting from the accused side that he had
sexual intercourse with the victim. Some of them are
reproduced here below:
"at page 11 of the cross-examination -
• It is not true to suggest that I did not
scream when the incident occurred on
the said day.
• It is not true to suggest that I did not
protest when the incident occurred."
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Thus, a mere simple suggestion made to PW-13
denying the alleged incident is not in any way affect the
credibility of the evidence of PW-13 for the alleged act of
rape said to have been committed by the accused. The
evidence of PW-9 - the father, PW-10 - another sister of
the victim also go to show that the intimacy between the
accused and the victim were known to them and believing
the accused they were not objecting the victim for
roaming with the accused quite often. This evidence of
PWs-9 and 10, as well the evidence of PW-13 though go to
show that the victim and the accused were quite intimate
and were roaming together, but, that cannot be a passport
for the accused committing sexual intercourse against the
victim, nor can it be taken that the victim consented to the
act of the accused in subjecting her to sexual intercourse.
42. PW-9 and PW-10 have also stated the
revealation of the accused committing rape upon her by
the victim to them off-late, only after May 2015 when the
accused stopped talking to the victim over the phone and
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meeting her and on the specific enquiry of PWs-9 and 10
with the victim. In that regard, both of them have stated
that it is only thereafter the victim revealed to them about
the accused subjecting her to rape on 11.01.2015 when
she had been to Kundapura to meet the accused and at his
request. Both of them have also stated that the victim also
told them that after the incident, the accused promised
that he is marrying her and had requested her not to
reveal about the incident before anybody, as such, she
has not disclosed the same to them. Therefore, nothing
uncommon can be found in the act of the victim in not
disclosing about the incident at the earliest point of time,
even before her father and her sister. It is not expected
that a matured girl would reveal this kind of act even to
her family members immediately, when she having every
reason of believing the accused and his promise that he is
going to marry her. Under the said circumstance, the
evidence of PW-13-the victim alone is sufficient to hold
that the accused has committed rape upon her on
11.01.2015 against her will or consent.
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43. Our Hon'ble Apex Court, in the case of STATE
OF PUNJAB VS. GURMIT SINGH AND OTHERS reported in
(1996) 2 Supreme Court Cases 384, was pleased to
observe in paragraph 8 of its judgment as below:
" ..... ....The testimony of the victim in such
cases is vital and unless there are compelling
reasons which necessitate looking for
corroboration of her statement, the Courts
should find no difficulty to act on the
testimony of a victim of sexual assault alone
to convict an accused where her testimony
inspires confidence and is found to be reliable.
Seeking corroboration of her statement before
relying upon the same, as a rule, in such
cases amounts to adding insult to injury. Why
should the evidence of a girl or a woman who
complains of rape or sexual molestation, be
viewed with doubt, disbelief or suspicion? The
Court while appreciating the evidence of a
prosecutrix may look for some assurance of
her statement to satisfy its judicial
conscience, since she is a witness who is
interested in the outcome of the charge
levelled by her, but there is no requirement of
law to insist upon corroboration of her
statement to base conviction of an accused.
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The evidence of a victim of sexual assault
stands almost on a par with the evidence of
an injured witness and to an extent is even
more reliable. Just as a witness who has
sustained some injury in the occurrence,
which is not found to be self inflicted, is
considered to be a good witness in the sense
that he is least likely to shield the real culprit,
the evidence of a victim of a sexual offence is
entitled to great weight, absence of
corroboration notwithstanding. Corroborative
evidence is not an imperative component of
judicial credence in every case of rape.
Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is
not a requirement of law but a guidance of
prudence under given circumstances. It must
not be over-looked that a woman or a girl
subjected to sexual assault is not an
accomplice to the crime but is a victim of
another person's lust and it is improper and
undesirable to test her evidence with a certain
amount of suspicion, treating her as if she
were an accomplice. Inferences have to be
drawn from a given set of facts and
circumstances with realistic diversity and not
dead uniformity lest that type of rigidity in the
shape of rule of law is introduced through a
new form of testimonial tyranny making
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justice a casualty. Courts cannot cling to a
fossil formula and insist upon corroboration
even if, taken as a whole, the case spoken of
by the victim of sex crime strikes the judicial
mind as probable."
44. In the case of Moti Lal vs. State of Madhya
Pradesh reported in (2008) 11 Supreme Court Cases 20,
which was a case involving offences punishable under
Sections 375, 376 and 450 of the IPC, the question of
conviction on the sole testimony of prosecutrix for the
alleged offences was involved. The medical evidence was
not helpful to the prosecution. The Hon'ble Apex Court in
paragraph 12 of its judgment reiterated its observation
made in its previous judgment in the case of OM PRAKASH
VS. STATE OF UTTAR PRADESH reported in (2006) 9
Supreme Court Cases 787, wherein it was observed that
it is a settled law that the victim of sexual assault is not
treated as accomplice and as such her evidence does not
require corroboration from any other evidence including
the evidence of the Doctor. In a given case, even if the
doctor who examined the victim does not find sign of rape,
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it is no ground to disbelieve the sole testimony of
prosecutrix. In a normal course, a victim of sexual assault
does not like to disclose such offence even before her
family members, much less before the public or before the
Police. The Indian women have a tendency to conceal such
offence because it involves her prestige as well as the
prestige of her family.
45. Our Hon'ble Apex Court in the case of PHOOL
SINGH VS. STATE OF MADHYA PRADESH reported in
(2022) 2 Supreme Court Cases 74, has summarised the
principles as to when the sole testimony of the
victim/prosecutrix be taken as a basis for conviction even
in the absence of corroboration. The Hon'ble Apex Court
relying upon its previous judgment in the case of STATE
OF PUNJAB VS. GURMIT SINGH AND OTHERS reported in
(1996) 2 Supreme Court Cases 384 and analysing the
facts before it, observed that the prosecutrix in the case
before it had fully supported the case of the prosecution
and she had been consistent right from the very
beginning, nothing had been specifically pointed out as to
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why the sole testimony of the prosecutrix should not be
believed. The Court further observed that in the case
before it, even after thorough cross-examination, she had
withstood by what she had stated and had fully supported
the case of the prosecution. With this the Hon'ble Apex
Court observed that they see no reason to doubt the
credibility and/or the trustworthiness of the prosecutrix.
46. In the instant case, as observed above, since
the incident has occurred inside the house at a rubber
plantation and the accused being a known person to the
victim, it cannot be accepted that there would be any eye
witness or any other witnesses to corroborate the evidence
of victim (P-13). Her evidence which is consistent
throughout, is reliable, believable and trustworthy to prove
the incident of rape and the alleged guilt of the accused in
subjecting her to rape. The medical evidence of PW-4
(CW-13) Dr. Chandra Marakala shows that even before the
doctor, the history was given as a sexual intercourse
committed by the accused - Rakesh with a promise that he
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would marry her. The Doctor, no doubt, did not find any
injuries on the private organ of the victim showing any
signs of rape. However, she stated that after the incident
of nearly six months it is not possible to confirm the act of
rape. In that regard, she has identified her opinion given
at Ex.P.5. She also stated that since the Investigating
Officer wanted a clear medical opinion she has given an
opinion stating that as observed by her it can only be
confirmed that the victim might have been undergone
sexual intercourse earlier. Ever-since six months time has
been lapsed after the alleged incident, no evidence has
been left out to categorically say that she was subjected to
sexual intercourse. The said opinion she has marked at
Ex.P.6. This witness was not cross-examined from the
accused side. Thus, the medical opinion also does not rule
out any possibility of the rape upon the victim but has not
specifically confirmed the incident of rape since,
admittedly, the victim was examined by the doctor nearly
six months after the incident. Therefore, the medical
report though not directly corroborate the case of the
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prosecution, however, would show that there is nothing to
doubt that victim was subjected to sexual intercourse
earlier.
47. PW-5(CW-12) Dr. Savita who stated that as a
Medical Officer at Government Hospital, on 07.06.2016
has opined that there is nothing to suggest that the
accused was not capable of performing sexual act and also
there is nothing to suggest that the accused was impotent.
The said un-denied evidence of PW-5 shows that accused,
as a male, was not incapable of having sexual intercourse.
Thus, the evidence of none else than the victim and
several admissions made in her cross-examination from
the accused side about the accused having sexual
intercourse with her and the evidence of PWs-9 and 10
and also the medical evidence corroborates each other and
establishes that on the date 11.01.2015 in a house at
rubber plantation called Shedimane at Albady village, the
accused had committed rape upon the victim.
48. In the above circumstance, the non-supporting of
PW-7(CW-9) Surendra, PW-8 (CW-10) K. Arun Kumar who
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were projected as panchas for car seizure panchanama at
Ex.P.9 would not weaken the case of the prosecution in
any manner.
49. It is also for the reason that the evidence of
prosecution witnesses, more particularly, that of PW-13
that accused was owning a car bearing registration
No. KA-20-P-1403 has not been specifically denied in her
cross-examination. As such also, one more attempt made
by the learned counsel for the accused-respondent, to
show the case of the prosecution is not free of doubt, as
such, it is not believable, would not succeed. On the
contrary, as observed above, the prosecution could able to
establish that the victim was subjected to an act of rape
by the accused.
50. The accused is also charged for the offence
punishable under Section 417 of the IPC. It is also the
allegation of the complainant that accused made a false
and dishonest promise to the victim stating that he would
marry her and that she should not reveal about the
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incident to anyone including giving any complaint and
succeeded in the victim not disclosing the incident
immediately or to proceed lodging any police complaint
against him. Further, repeating his dishonest promise that
he would marry the victim, the accused fraudulently
induced her in consenting to be in association with him
and having subsequent sexual intercourse with her, which
consent she would not have given, if, she were not so
deceived. As such, the accused has caused harm to the
victim both in her body, mind and her reputation and
thereby committed an offence punishable under Section
417 of IPC.
51. In order to prove the said charge punishable
under Section 417 of IPC it is once again the evidence of
PWs-9, 10 and 11 and PW-13 are very material and
relevant. As analysed above, all these witnesses have
clearly in their evidence stated that accused had promised
that he would marry the victim. As the father of the victim
PW-9 has stated that after developing intimacy with his
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daughter (victim) accused was taking her outside for
roaming for which he (this witness) was not objecting
since, the accused was stating that he is going to marry
her. This act of the accused continued up to the year
2015. PW-9, as a father of the victim, has also stated that
he told the victim that it is not correct to move with the
accused. For which, she stated that the accused is going to
marry her and after enquiring the accused she told him
(PW-9) that accused had told her he would discuss with
his mother and would marry her. PW-9 has also stated
that after the incident of rape also the accused promised
his daughter (PW-13) that he would marry her and that
she should not disclose about the incident (of rape) before
anyone. PW-9 has stated that the accused thus has made
his daughter (PW-13) to believe him that he (accused)
would marry her and committed rape upon her.
In his cross-examination also PW-9 reiterated about
the false promise said to have been made by the accused
and also stated that the said promise that accused would
marry the victim was made in his presence also. PW-10,
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the another sister of the victim, also in her evidence has
reiterated about the accused promising her sister (PW-13)
that he is going to marry her and misusing the intimacy
with her sister of subjecting her to rape.
52. More particularly, PW-11, the colleague cum
subordinate of the accused, has stated that the accused
having brought the victim with him to his office at
Kundapura had introduced the victim to his colleagues,
including to him (this witness), stating that she was his
would-be wife. The witness also stated that accused and
the victim were moving together and they had visited his
house also for having tea. His evidence that at the death
of mother of the victim the accused while going to Kumata
to the house of the victim had also taken PW-11 with him
is corroborated by the evidence of PW-9 and PW-13.
Therefore, the accused giving promise to PW-13-the victim
stands established by the above evidence.
53. Learned counsel for the accused - respondent in
his argument submitted that PW-11 was served with two
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notices by the accused about the dereliction of the duty as
per Ex.D.1 and D.2. As such, with the said grudge PW-11
has falsely deposed against the accused. PW-11 has
admitted that two notices as per Ex.D.1 and D.2 were
given to him, however, merely because two notices were
said to have been given by the accused to PW-11, by that
itself it cannot be inferred that PW-11 had any grudge
against the accused, as such, his evidence is not safe to
believe.
54. On the other hand, it can be analysed in the
manner that undisputedly the accused was in a superior
position to that of PW-11 who was his sub-ordinate. That
being the case, accused being in the dominating position
to that of PW-11, the possibility of accused taking undue
advantage of his position is more probable than PW-11
taking the risk of attracting more ruth of his superior by
giving false evidence against him. Normally, a sub-ordinate in
hierarchy would not venture to take such risk. Still, PW-11 has
proceeded to state that accused had introduced the victim
to him and several colleagues in the office as his
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would-be wife. Had really PW-11 intended to give false
evidence against the accused, then, PW-11 would have
stated more against the accused including stating that he
had personal knowledge of accused taking the victim to a
lonely house in rubber plantation at Shedimane. However,
PW-11 had confined his evidence only in stating that accused
was moving along with the victim and had introduced the
victim as the one with whom he is intending to marry.
Therefore, it stands proved that accused had promised the
victim that he is going to marry her.
55. The next question would be whether the said
promise of the accused was his deceitful act attracting the
offence punishable under Section 417 of IPC.
56. In Anurag Soni case (supra) relied upon by the
learned counsel for the victim, the Hon'ble Apex Court was
pleased to refer to its previous judgment in DEEPAK
GULATI VS. STATE OF HARYANA reported in (2013) 7
SCC 675 wherein it had observed as below:
"21. Consent may be express or implied,
coerced or misguided, obtained willingly or
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through deceit. Consent is an act of reason,
accompanied by deliberation, the mind
weighing, as in a balance, the good and evil on
each side. There is a clear distinction between
rape and consensual sex and in a case like this,
the court must very carefully examine whether
the accused had actually wanted to marry the
victim, or had mala fide motives, and had
made a false promise to this effect only to
satisfy his lust, as the latter falls within the
ambit of cheating or deception. There is a
distinction between the mere breach of a
promise, and not fulfilling a false promise.
Thus, the court must examine whether there
was made, at an early stage a false promise of
marriage by the accused; and whether the
consent involved was given after wholly
understanding the nature and consequences of
sexual indulgence. There may be a case where
the prosecutrix agrees to have sexual
intercourse on account of her love and passion
for the accused, and not solely on account of
misrepresentation made to her by the accused,
or where an accused on account of
circumstances which he could not have
foreseen, or which were beyond his control,
was unable to marry her, despite having every
intention to do so. Such cases must be treated
differently. An accused can be convicted for
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rape only if the court reaches a conclusion that
the intention of the accused was mala fide, and
that he had clandestine motives.
24. Hence, it is evident that there must be
adequate evidence to show that at the relevant
time i.e., at the initial stage itself, the accused
had no intention whatsoever, of keeping his
promise to marry the victim. There may, of
course, be circumstances, when a person
having the best of intentions is unable to marry
the victim owing to various unavoidable
circumstances. The "failure to keep a promise
made with respect to a future uncertain date,
due to reasons that are not very clear from the
evidence available, does not always amount to
misconception of fact. In order to come within
the meaning of the term "misconception of
fact", the fact must have an immediate
relevance". Section 90 IPC cannot be called
into aid in such a situation, to pardon the act of
a girl in entirety, and fasten criminal liability on
the other, unless the court is assured of the
fact that from the very beginning, the accused
had never really intended to marry her."
There is a clear distinction between rape and
consensual sex. In a case like this the Court must very
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carefully examine whether the complainant had actually
wanted to marry the victim or had mala fide motives and
had made a false promise to this effect only to satisfy his
lust, as the later falls within the ambit of cheating or
deception. There is also a distinction between mere breach
of a promise and not fulfilling a false promise.
57. Further in the same case the Hon'ble Apex Court
at paragraph 12 of its judgment was pleased to observe as
below:
"12. 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 of
the 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 of the IPC
and can be convicted for the offence under
Section 376 of the IPC."
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58. In the instant case a careful analysis of
evidences of PWs-9, 10 and PW-13 would go to show that
accused was repeatedly telling that he is going to marry
the victim, as such, none of the family members of PW-13
including herself, objected for accused taking leniency with
the victim and both victim and the accused moving around
together. Still PW-9 as a responsible father of PW-13
(victim) advised her that it was not correct to move along
with the accused which was in practice for a long time. To
that, as PW-9 has stated, his daughter (victim) again
consulted the accused who reiterated his statement that
he is going to marry her which she honestly believed. Even
after the incident of rape on 11.01.2015 also, PW-13 has
stated that she was once again made to believe the words
of the accused that he is going to marry her. Ultimately,
the fact remains that the accused had not married the
victim, rather by making suggestion to PWs-9 and 13 he
has shown his defence that it was from the victim side a
proposal was made for a marriage of the victim with the
accused, however, due to the difference in their casts the
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accused rejected the said proposal, as such, a false
complaint has been lodged.
PWs-9 and 13 have not admitted the said suggestion
as true. By making such suggestion to PWs-9 and 13 the
accused has shown that he was never intended to marry
the victim.
59. When the accused and the victim developed
friendship between them, both of them were matured in
their mind. Accused was already working as Assistant
Executive Engineer in an electricity supply company and
the victim was pursuing her B.Ed. graduation. Therefore,
both of them being matured in their age, with sufficient
worldly knowledge, were capable of taking decision on
their own. Under the said circumstance, the accused
expecting the consent of any of his family members for the
proposed marriage with the victim does not arise. The
alleged difference in the caste was not a subsequent
development that has crept in the matter. By birth, and
since the day one of their friendship with each other, both
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the accused and the victim knew about their respective
castes. As such also, the accused as an educated person
having worldly knowledge could have anticipated any
resistance from his family for his marriage with the victim.
Since the accused did not whisper anything about his
alleged inability to perform his promise to marry the
victim, until he subjected her to rape and for few months
thereafter, would only go to show that from the inception
the accused had no intention to marry the victim and his
only desire was to misuse the victim and have sexual
intercourse with her. It is after his lust for sex was fulfilled
he started avoiding the victim.
60. Though the victim as PW-13 has produced
photographs of several exchange of the messages
between her and the accused and got them marked from
Ex.P.14 to Ex.P.29, however, even without those
documents the very trustworthy and believable evidence
of PWs-9, 10 and 13 and suggestions made in the cross-
examination of PW-9 would clearly go to show that
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accused had no intention of performing his promise from
the inception.
61. On the other hand, the victim honestly believed
him and even restrained herself from disclosing the act of
rape upon her by the accused and waited for the accused
to marry her for few months, it is only after she was
confirmed that the accused is not marrying her, she
proceeded to lodge the complaint.
62. The learned counsel for the accused/respondent
in his argument relied upon the judgment in G.V. Rao's
case (supra). In the said case the Hon'ble Apex Court had
an occasion to analyse the Section 415 of IPC and proceed
to observe that Section 415 of IPC has two parts. While in
the first part, the person must "dishonestly" or
"fraudulently" induce the complainant to deliver any
property; the second need not necessarily relate to
property. In the second part, the person should
intentionally induce the complainant to do or omit to do a
thing. That is to say, in the first part, inducement must be
dishonest or fraudulent. In the second part, the
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inducement should be intentional. A guilty intention is an
essential ingredient of the offence of cheating. In order,
therefore, to secure conviction of a person for the offence
of cheating, "mens rea" on the part of that person, must
be established.
63. In the instant case as analysed above, the
accused induced the victim for forbearing from
approaching the police or disclose before anybody about
the act of rape dated 11.01.2015. Thus he succeeded in
ensuring that the victim concealed the fact of she being
subjected to rape within herself without disclosing the
same to her father and to her sister. His promise to marry
the victim has by virtue of the analysis made above
proved to be a false promise from its inception. Thus, the
act of the accused becomes an act of cheating even
according to the judgment in G.V. Rao's case (supra)
relied upon by the learned counsel for the accused -
respondent. Thus, the prosecution could able to prove
beyond reasonable doubt that the accused has cheated the
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victim and thus, has committed the offence punishable under Section
417 of IPC.
64. One more point of the argument of the learned
counsel for the accused - respondent, as well the observation
made by the Sessions Judge's Court in its impugned
judgment to disbelieve the case of the prosecution is the
delay in lodging the complaint by the victim about the
incident. The act of rape has taken place on 11.01.2015,
admittedly, the complaint came to be lodged by PW-13
only on 06.06.2015. Thus, there is a long delay of nearly
five (5) months in lodging the complaint.
65. Learned counsel for the accused-respondent submitted
that said delay creates a serious doubt in the case of the
prosecution and goes to the root of the case of the prosecution
and makes it unsafe to believe.
66. Similarly, the Sessions Judge's Court also in its
impugned judgment has noticed the delay and proceeded to
disbelieve the case of the prosecution even on the point of delay
also.
67. No doubt, normally a delay in lodging police complaint with respect
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to a criminal offence would create a doubt in the mind of
the Court to believe the case of the prosecution. However,
if, the delay is properly explained with convincing reasons,
the same would not be an obstacle for the prosecution to
prove its case.
68. In the instant case, at the very first instance, in
her complaint, which is at Ex.P.10, the victim has shown
the reason for the delay in lodging the complaint. She has
specifically stated that since the accused was repeatedly
promising her that he is going to marry her, she was
patiently waiting all along for him to marry her. It is only
after the accused started avoiding her and not receiving
her telephone calls, since a month prior to she lodging
complaint, she was confirmed that accused had no
intention to marry her and that he had given a false
promise. The complainant as PW-13 has reiterated the
same in her evidence. She has shown through her
evidence that having been established a close friendship
with the accused and was loving him, she was believing
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his words that he would marry her one day or the other.
She has stated that repeatedly she was asking the
accused to marry her, however, accused was postponing
stating that definitely he is going to marry her. She
believed him and waited for him to marry. She stated in
specific words that since the accused had made her to
believe that he would marry her she did not lodge the
complaint immediately after the occurrence of the
incident. The said statement of PW-13 stands corroborated
through the evidence of PW-9 and PW-10 also.
69. The evidence of PW-11 also go to show that the
accused was introducing the victim to others, including to
PW-11, as his would-be wife. Therefore, PW-13 had all the
reason to believe the accused and wait for him to marry
her for nearly five months after the incident of rape.
70. In a similar circumstance our Hon'ble Apex Court in
Karti's case (supra), which is relied upon by the learned
HCGP in her argument, was proceeded to hold that there
was no delay in lodging the complaint. In the Karti's case
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(supra) also the proven fact revealed that the accused was
the appellant before the Hon'ble Apex Court had developed
friendship with the victim and against her will and consent
had subjected her to sexual intercourse. He told the victim
not to reveal the incident to anyone on the assurance that
he would marry her. He had allegedly promised her
marriage by placing his hand on her head. Believing the
promise made by the accused the prosecutrix did not
reveal the occurrence to anyone. After the first occurrence
the accused and prosecutrix were repeatedly engaged in
consensual sex at different places.
71. During the entire interregnum appellant sworn that
he would marry her. Later, however accused refused to
marry her. Consequent upon the refusal, the prosecutrix
allegedly divulged the entire factual position to her brother
and other family members. A panchayat was held in the
presence of village elders for settling the dispute. The
panchayat made efforts to persuade the accused to marry
the prosecutrix to which he refused. It is only thereafter at
the advise of the elders in the village the prosecutrix lodged
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the complaint. After the trial the accused was convicted
under Sections 376 and 417 of IPC.
The Hon'ble Apex Court on the point of delay
observed that there was no delay whatsoever at the hands
of prosecutrix. As long as commitment of marriage
subsisted, the relationship between the parties could not
be described as constituting offence of rape under Section
376. It is only after appellant declined to marry
prosecutrix, that a different dimension came to the type of
physical relationship, which had legitimately continued
over past six months. Things changed when appellant
declined to marry the prosecutrix. After promised alliance
was declined the prosecutrix without any delay disclosed
entire episode to her immediate family. Without any
further delay the brother and father of the prosecutrix
approached village elders who made efforts to settle the
issue amicably. It is only on refusal of appellant to marry
prosecutrix the question of making criminal complaint
arose.
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Under the said circumstance, the Hon'ble Apex Court
observed that it was not possible for them to hold that any
doubt can be said to have been created in the version of
the prosecution, merely on the count of delay in the
registration of FIR.
72. In the case on hand also, as analysed above,
the victim went on believing the promise that was being
made by the accused repeatedly that he is going to marry
her and it is on the specific promise made by the accused
that he would marry her as such she should not disclose
about the incident of sexual intercourse dated 11.01.2015
to anyone, the victim did not disclose the same even to
her father and sister till she came to know that accused is
not ready to marry her. As analysed above, the very
defence taken by the accused that due to the difference in
the caste, the family of the accused refused to get the
victim in marriage to the accused was not any subsequent
development.
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73. On the other hand, as observed above, since
the day one of their friendship accused and the victim
were aware of their caste and possible shadow of the caste
falling on their future marriage. As has come out in the
evidence of PW-9, the father of the victim, they had no
objection for the marriage between the accused and the
victim, whereas, the objection was from the accused side,
only after the accused satisfied his lust of sex with the
victim. It is only then the victim realized that the
accused's promise was fraudulent from the inception and
he had never intended to marry her. This made her to
approach the police with her complaint with delay.
However, this aspect was not appreciated by the trial court
in its proper perspective. On the other hand, it considered
the delay in calendar days but not the cause for the delay.
Consequently, it proceeded to hold that the prosecution
could not able to prove the guilt against the accused.
Since, the said judgment now proved to be erroneous and
the prosecution could able to prove the charges levelled
against the accused beyond reasonable doubt, the
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impugned judgment warrants interference at the hands of
this Court.
Accordingly, we proceed to pass the following:
ORDER
i. The Criminal Appeal No.1266/2017 and Criminal Appeal No.1878/2017 stand allowed.
ii. The judgment in Sessions Case No.6/2016 dated 06.05.2017 passed by the Additional District and Sessions Judge, Udupi (sitting at Kundapura), Kundapura acquitting the accused of the offences punishable under Sections 376 and 417 of the Indian Penal Code, 1860, stands set aside; iii. The accused Rakesh B., son of Kamalaksha Bekal, aged about 43 years, resident at Betkeri, Vitalavadi
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Crl.A.No.1878/2017Road, Kundapura Kasba Village, Kundapura Taluk, is convicted for the offence punishable under Sections 376 and 417 of Indian Penal Code, 1860. To hear on sentence, the matter is passed over.
Sd/-
JUDGE Sd/-
JUDGE BVK
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Crl.A.No.1878/2017Dr. HBPSJ & UMBAJ:
05.01.2024 HEARING ON SENTENCE
74. Heard the submission of the learned counsel for respondent No.1 and the learned HCGP for respondent No.2 on the quantum of sentence.
75. Learned counsel for the accused/respondent No.1 submits that the accused/respondent No.1 is a family holder with wife and children who are dependent upon him. He is a public servant having reputation in the society. The incident is also more than eight years old incident as on date, as such, the Court may take a lenient view in the matter.
76. Per contra, learned counsel for the victim and learned HCGP for the State in their submissions submitted that the offence committed by the accused is very heinous. The accused being himself a literate and having the knowledge of worldly affairs has not only given false promise to the victim, cheated her but also committed
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Crl.A.No.1878/2017rape upon her, thus subjected her to a constant mental turmoil spoiling her future life. As such, maximum punishment prescribed under law be ordered against the accused.
77. It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.
78. The circumstance of the case would go to show that both the accused and the prosecutrix were educated at the time of the offence. The accused was in a responsible position in the society and working as an Assistant Executive Engineer in an Electricity supply company. As such, it was expected of him to exercise some restraint on his sexual urge before subjecting the victim to rape. Merely he having a family would not be a ground to seek most liberal view in the quantum of sentence. Under the proven facts and circumstances of the case, the accused is not entitled for the benefit under the Probation of Offenders Act, 1958.
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79. Hence after considering the mitigating factor canvassed on behalf of the accused and taking into consideration the facts and circumstances of the case, we proceed to pass the following order on sentence.
ORDER ON SENTENCE
1. The accused/respondent No.1- Rakesh B., son of Kamalaksha Bekal, aged about 43 years, resident at Betkeri, Vitalavadi Road, Kundapura Kasba Village, Kundapura Taluk, is sentenced to undergo seven (7) years Rigorous Imprisonment and to pay a fine of `50,000/- (Rupees Fifty Thousand Only), and in default of payment of fine, to undergo an additional rigorous imprisonment for six (6) months for the offence punishable under Section 376 of the Indian Penal Code, 1860.
2. The accused/respondent No.1 is sentenced to undergo for six (6) months
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Crl.A.No.1878/2017rigorous imprisonment for the offence punishable under Section 417 of the Indian Penal Code, 1860.
3. Both sentences to run concurrently.
4. Out of the fine amount, deposited, if any, by the accused, a sum of `45,000/- be paid to the victim (PW-13), as victim's compensation under Section 357 of the Code of Criminal Procedure, 1973. The remaining sum of `5,000/- be paid to the State;
5. The victim (PW-13) is also entitled for compensation under Section 357A of the Code of Criminal Procedure, 1973;
6. The District Legal Services Authority, Udupi, is directed to decide the quantum of compensation payable to the victim (PW-13) under the Scheme under Section
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Crl.A.No.1878/2017357A of the Code of Criminal Procedure, 1973, and to take appropriate steps for compensating the victim (PW-13) under the Scheme at the earliest, but not beyond a period of six months from the date of receipt of a copy of this judgment.
7. The accused/respondent No.1 - Rakesh B., S/o. Kamalaksha Bekal, Aged about 43 years, Residing at Betkeri, Vitalavadi Road, Kundapura Kasba Village, Kundapura Taluk, shall surrender before the learned Sessions Judge's Court, within forty five (45) days from today and serve the sentence;
8. The respondent No.1 (accused) is entitled for the benefit of set-off for the period, if any, undergone by him in Judicial Custody in the matter, under Section 428 of the Code of Criminal Procedure, 1973;
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9. A free copy of this judgment be furnished to the accused, immediately by the Registry.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE BVK