Karnataka High Court
Sri. Timmanna S/O Rangappa Hubballi vs The State Of Karnataka on 6 December, 2024
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CRL.A No. 200027 OF 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 06TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE G. BASAVARAJA
CRIMINAL APPEAL NO.200027 OF 2020
BETWEEN:
SRI. TIMMANNA S/O RANGAPPA HUBBALLI
AGE: 25 YEARS, OCC: LABOURER,
R/O. BANDEBHAVI VILLAGE, TQ: LINGASUGUR,
DIST: RAICHUR - 584101.
...APPELLANT
(BY SRI. MAHANTESH PATIL, ADV.)
AND:
THE STATE OF KARNATAKA
Digitally signed
R/Y ADDL. SPP
by RAMESH HIGH Court OF KARNATAKA
MATHAPATI
Location: HIGH KALABURAGI BENCH - 585106,
COURT OF (THROUGH HUTTI P.S.
KARNATAKA
DIST: RAICHUR).
...RESPONDENT
(BY SRI. MALLIKARJUN SAHUKAR, AGA)
THIS CRL.A IS FILED UNDER SECTION 374 (2) OF
CRIMINAL PROCEDURE CODE, PRAYING TO ADMIT THIS
APPEAL, CALL FOR THE RECORDS FROM THE COURT BELOW
AND SET ASIDE THE JUDGMENT OF CONVICTION DATED:
19.12.2019 AND ORDER OF SENTENCE DATED: 21.12.2019
PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE AT
RAICHUR IN S.C NO.69/2017 FOR THE OFFENCES
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CRL.A No. 200027 OF 2020
PUNISHABLE U/S. 376, 417, 323 AND 341 R/W SEC.34 OF
IPC AND ACQUIT THE APPELLANT/ACCUSED NO.1.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR "PRONOUNCEMENT OF ORDERS" THIS DAY,
THE COURT, PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G. BASAVARAJA
CAV JUDGMENT
This appeal is preferred by the accused-Timmanna S/o:
Rangappa Hubballi against the judgment of conviction dated 19.12.2019 and order of sentence dated 21.12.2019 passed in SC.No.69 2017 by the Principal District and Sessions Judge, at Raichur (for short hereinafter referred to as "trial Court"), convicting and sentencing him for the offence punishable under Sections 376, 417, 323 and 341 read with 34 of Indian Penal Code.
2. Brief facts leading to this case are:
2.1. Hutti Police submitted charge sheet against accused 1 to 3 for the offence punishable under Sections 376, 417, 323 and 341 read with 34 of Indian Penal Code. It is alleged by the prosecution that on 26th November, 2015, at 00.30 hours, when the parents of PW3/CW1 had been to Gurugunta village, the accused induced PW3/CW1 to marry -3- CRL.A No. 200027 OF 2020 her against her will, forcibly took her to the Hillock in front of the village and committed forcible sexual intercourse on her.
Further, it is alleged that when the accused No.1 brought the victim to his house on 10th April, 2016 at 5.30 pm promising to marry her, accused 2 and 3, being the parents of accused No.1, voluntarily caused hurt to the victim by assaulting her with their hands. It is the further alleged that on the aforesaid date, time and place, accused 2 and 3 have also wrongfully restrained the victim and committed the offence punishable under Section 31 read with 34 of Indian Penal Code. Accused were arrested and were remanded to judicial custody.
2.2. On completion of investigation, the Investigating Officer filed charge sheet against the accused and case was committed to jurisdictional Magistrate for trial. The jurisdictional Magistrate took cognizance against the accused for the commission of offence punishable under Sections 376, 417, 323, 341 read with 34 of Indian Penal Coder and registered the case in CC.No.39 of 2017. Thereafter, case was committed the learned District and Sessions Judge under Section 209 of Code of Criminal Procedure and was registered -4- CRL.A No. 200027 OF 2020 as SC.No.69 of 2017. All the accused appeared before the said Court and took bail. On committal of the case before the Sessions Court, the learned Sessions Judge framed charges against the accused No.1 for the offence punishable under Sections 376 and 417 of IPC and as against accused 2 and 3 framed charges for the offence punishable under Sections 323 and 341 read with 34 of Indian Penal Code. Accused denied the charges and claimed to be tried.
3. In order to prove the charges levelled against the accused, the prosecution, in total, examined 21 witnesses as PWs1 to 21 so also got marked 26 documents as Exhibits P1 to P26. No material objects were marked on behalf of prosecution. After conclusion of prosecution side evidence, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused as contemplated under Section 313 of Cr.PC, however, the accused denied the same. The accused did not choose to examine any witnesses on their behalf nor got marked any document. The defence of the accused was one of total denial and that of false implication.
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CRL.A No. 200027 OF 2020
4. After assessment of the oral and documentary evidence and also upon hearing the learned counsel appearing for the parties, the learned Sessions Judge acquitted the accused 2 and 3 for the alleged commission of offence punishable under Sections 341, 417 and 323 read with 34 of IPC and convicted accused No.1 for the offence punishable under Sections 376, 341, 417 and 323 read with 34 of IPC and sentenced accused No.1 to undergo rigorous imprisonment for 7 years and to pay fine of Rs.1,00,000/-, in default of payment of fine, he shall undergo simple imprisonment for two years for the offence punishable under Section 376 of IPC. Further, accused No.1 is sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.500/-, in default of payment of fine he shall undergo simple imprisonment for 15 days for the offence punishable under Section 341 of IPC. Further, accused No.1 is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-, in default of payment of fine, he shall undergo simple imprisonment for 15 days for the offence punishable under Section 417 of IPC. Further, accused No.1 is also sentenced to undergo simple imprisonment for six -6- CRL.A No. 200027 OF 2020 months and to pay a fine of Rs.1,000/-, in default of payment of fine, he shall undergo simple imprisonment for one month for the offence punishable under Section 323 of IPC.
5. The said judgment of conviction and order on sentence is challenged in this appeal by the appellant/accused No.1.
6. I have heard the learned Counsel Sri. Mahantesh Patil, appearing for appellant/accused, so also, Sri Mallikarjun Sahukar, learned Addl. Government Advocate appearing for the respondent-State.
7. Learned counsel for the appellant would submit that the judgment of conviction and order on sentence passed by the trial Court is contrary to law and facts of the case, and against the settled principles of law. The trial Court has committed error in convicting the appellant without properly appreciating the evidence in its right perspective. He submits that looking into the statement and evidence of PW3-victim, it is evident that the accused and victim were in love with each other and accused used to visit the house of victim. The victim, though was aware about the consequences by her -7- CRL.A No. 200027 OF 2020 conduct and active deliberation, consented for sex. Under these circumstances, the ingredients of Section 375 would not attract. The learned Counsel would further submit that prosecution has failed to prove that consent was given under misconception of fact. The evidence of prosecution, particularly the cross-examination of the victim, suggests that the victim knew that her marriage with the accused was not possible on account of subsistence of her marriage. The accused took her to his house for three days with an intention to marry her and due to resistance by elders, they got separated. Under aforesaid circumstances, the promise to marry with respect to future uncertain date, would not amount to misconception of fact. During the subsistence of first marriage of the victim, contracting a second marriage is also an offence under Section 494 of Indian Penal Code. Moreover, upon examination of victim by the Doctor PW10 and Exhibit P22, no injuries were found on the victim. The learned Counsel for the appellant submits that under these circumstances, prosecution has failed to prove forcible sexual intercourse by the appellant/accused No.1. It is the submission of the learned counsel that the trial Court failed to -8- CRL.A No. 200027 OF 2020 draw proper inference in this regard. It is his submission that the learned Sessions Judge ignored the statement of victim recorded under Section 164 of Code of Criminal Procedure. The learned Judge discarded the statement of victim in order to cause prejudice to the accused. The non-consideration of earlier statement of the victim and her cross-examination has seriously prejudiced the right of the accused. There is an inordinate delay of seven months in lodging the complaint and registering the case. There is no explanation for the said delay. The allegations in the complaint are doubtful facts surrounded by the prosecution case. He further submits that as per medical evidence, there is no sign of recent sexual intercourse on victim. The long relationship between the accused and victim was also consensual. The victim has suppressed the material fact as to subsistence of marriage at the time of filing of First Information Report. Only during the cross-examination, victim revealed as to her marriage which was still in subsistence. By suppressing the material fact, the victim has lodged false complaint against the accused. The Investigating Officer has also not disclosed anything in the charge-sheet as to the marriage of the victim prior to the -9- CRL.A No. 200027 OF 2020 alleged incident and the marriage between the victim and her first husband is still in existence. She has not obtained decree of divorce from the competent Court. However, she has deposed that the accused had sexual intercourse with her promising to marry her. The charge sheet submitted by the investigating officer is not sustainable in law. The trial Court has failed to appreciate the evidence on record in accordance with law and facts. On all these grounds, he sought to allow the appeal. To substantiate his argument, the learned counsel relied upon the judgments of Hon'ble Apex Court in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA reported in AIR 2019 SC 4010 and in the case of MAHESH DAMU KHARI v. STATE OF MAHARASHTRA AND OTHERS rendered in SLP(Cri.) No.4326 of 2018 decided on 26th November, 2024.
8. On the other hand, learned Additional Government Advocate, would support the judgment of conviction and order on sentence passed by the trial Court and sought for dismissal of the appeal.
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CRL.A No. 200027 OF 2020
9. Having heard the arguments and examination of material placed before this Court, the following points would arise for my consideration:
1. Whether the impugned judgment passed by the trial Court is perverse, illegal and calls for interference?
2. What order?
My answer to the above points are:
Point No.1: in the affirmative;
Point No.2: as per final order.
Regarding Point No.1:
10. I have examined the material placed before this Court. The case of the prosecution is, Hutti police submitted charge sheet against the accused 1 to 3 for the offence punishable under Sections 376, 417, 323 and 341 read with 34 of Indian Penal Code. It is alleged by the prosecution that on 26th November, 2015, at 00.30 hours, when the parents of PW3/CW1 were not at house, the accused induced PW3/CW1 to marry her and against her will, forcibly took her to the Hillock and forcibly committed sexual intercourse on her.
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CRL.A No. 200027 OF 2020 Further, it is alleged that when the accused No.1 brought the victim to his house on 10th April, 2016 promising to marry her, accused 2 and 3 parents of accused No.1, voluntarily caused hurt to the victim by assaulting her with their hands. It is further alleged that on the aforesaid date, time and place, the accused 2 and 3 have also wrongfully restrained the victim and committed the offence punishable under Section 341 read with 34 of IPC. Thus accused committed offence punishable under Sections 376, 417, 323, 341 read with 34 of Indian Penal Code.
11. No charge sheet is filed against the accused for commission of offence under Sections 341 and 323 of Indian Penal Code. The Charge sheet filed against accused No1. is only for commission of offence punishable under Sections 376 and 417 of Indian Penal Code. Charge sheet is filed against accused 2 and 3 for commission of offence under Sections 341 and 323 read with Section 34 of Indian Penal Code. Charges framed against accused No.1 is for commission of offence punishable under Section 376 and 417 of Indian Penal Code. However, the trial Court has convicted the accused for commission of offence punishable under Sections 341 and 323
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CRL.A No. 200027 OF 2020 of Indian Penal Code though no charge sheet is filed against the accused No.1 for the said offence and no charge is framed for commission of offence punishable under Sections 341 and 323 Indian Penal Code. Hence, the judgment of conviction and order on sentence for commission of offence under Sections 341 and 323 of Indian Penal Code against accused No.1, is not sustainable under law.
12. With regard to offence under Section 376 and 417 of Indian Penal Code is concerned, it is the case of prosecution that the victim was acquainted with accused No.1-Thimmanna and they were in love with each other and the accused No.1 has assured of marrying her. On 25th November, 2015 her parents had been to Gurugunta village to visit their daughter. On 26th November, 2015, accused No.1 knowing fully well that in her house no others were there, came at 12.30 am and promising to marry her insisted her to sleep with him to which she told that first he should marry her. Despite her resistance, by assuring of marrying her, the accused No.1 forcibly had sexual intercourse with the her. A few days thereafter, when the victim asked the accused No.1 to marry her, he assured that he will marry her and will not
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CRL.A No. 200027 OF 2020 marry another girl and asked her to wait for some days and continued to have sexual intercourse with her repeatedly. On 08th April, 2016 at about 5.30 pm, accused No.1 came to her and assured of marrying her and took her to his house. In the house of accused No.1, his parents told that they intend to perform marriage of their son with another girl and also had beaten her and pushed her out of the house. Then the accused No.1 told the victim that his parents are not inclined to perform the marriage with victim and had refused to marry her. Hence, victim lodged complaint to police. After investigation, the Investigating Officer submitted charge sheet against accused No.1 under Section 376 of Indian Penal Code.
13. At this juncture, it is relevant refer to the provisions of Sections 375 and Section 90 of the Indian Penal Code. The same is extracted hereunder:
"Section 375: A man is said to commit "rape" if he--
1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
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CRL.A No. 200027 OF 2020 urethra or anus of a woman or makes her to do so with him or any other person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under eighteen years of age.
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7. When she is unable to communicate consent.
Explanations:
1. For the purposes of this section, "vagina" shall also include labia majora.
2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exceptions:
1. A medical procedure or intervention shall not constitute rape.
2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Section 90 of Indian Penal Code reads thus:
"90. Consent known to be given under fear or misconception.--
A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.-- if the consent is given by a person who, from unsoundness of mind, or
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CRL.A No. 200027 OF 2020 intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.-- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
14. Before appreciation of evidence on record, it is appropriate to mention here as to the decision of the Hon'ble Supreme Court in the case of PRAMOD SURYABHAN PAWAR (supra), wherein at paragraphs 12, 16 and 18 of the judgment, it is observed thus:
"12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Sonar which was a case involving the invoking of the jurisdiction under Section 482, this Court observed:
"15. ... An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of." This understanding was also emphasised in the decision of this Court in Kaini Rajan V. State of Kerala:
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"12. ... "Consent", for the purpose of
Section 375, requires voluntary
participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and asset. Whether there was (2013) 9 SCC 113 consent or not, is to be ascertained only on a careful study of all relevant circumstances."
13 to 14. xxx xxx xxx
16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:
"21. ... 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
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CRL.A No. 200027 OF 2020 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...."
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."
(Emphasis supplied)
17. xxx xxx xxx
18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being
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CRL.A No. 200027 OF 2020 adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
15. It is also relevant to refer to the judgment of the Hon'ble Supreme Court in the case of MAHESH DAMU KHARI (supra), wherein at paragraphs 22, 27 and 31, it is observed thus:
"22. In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.
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CRL.A No. 200027 OF 2020 23 to 26. xxx xxx xxx
27. Thus, from the above it appears that it is more of an extra-marital affair during the aforesaid period without any insistence by the complainant for getting married to the appellant. The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one. In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact.
28 to 30. xxx xxx xxx
31. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful."
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16. Recently, the Hon'ble Supreme Court, in the case of MS. X v. MR.A. AND OTHERS reported in 2024 SCC ONLINE SC 316, at paragraphs 13, 15 and 16 of the judgment, has observed thus:
"13. Regarding the seizure of weapons/articles, the trial Court noted at para 19 that the complainant (PW-1) admitted in his cross-examination that the police had shown him the weapons of offence on the date of incident itself. However, as per the Investigating Officer (PW-27), the weapons were shown to have been recovered on 1st October, 2001 and, therefore, evidence of complainant (PW1) totally contradicted the claim of the Investigating Officer (PW-27) that he had seized the weapons in furtherance of the disclosure statements of the accused.
14. xxx xxx xxx
15. The State preferred an appeal under Section 378(1) read with 378(3) CrPC challenging the acquittal of the accused. The learned Division Bench of High Court of Karnataka partly allowed the said appeal vide judgment dated 14th September, 2009 and while reversing the acquittal of the accused A-1, A-2 and A-3 as recorded by the trial Court, convicted and sentenced them as above. The appeal against A-4 stood abated on account of his death. The appeal against A-5 and A-6 was dismissed upholding their acquittal.
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16. The instant appeal has been instituted at the instance of the accused appellants (A1, A-2 and A-3) for assailing the judgment dated 14th September, 2009 rendered by the learned Division Bench of the High Court of Karnataka, Circuit Bench, Gulbarga whereby the acquittal of the appellants has been reversed and they have been convicted and sentenced to suffer life imprisonment."
17. In the case on hand, the material witness PW3- victim, has deposed in her evidence that on 25th November, 2015 when her parents had been to Gurugunta village to visit her younger sister, accused No.1 came to her house at about 12.30 am, and at that time, her younger brother, younger sister were there and they were sleeping in another room and she was sleeping in the separate room. The accused No.1 told her that he was in love with her and he intends to marry her. In spite of she telling that her parents are not there and they would scold her, the accused not heeding to her words, dragged her and took her to hillock. There he removed her clothes and despite her resistance, he committed sexual intercourse on her. Thereafter, he used to visit her house frequently. Later she narrated the facts to her parents that accused No.1 had assured to marry her and with that
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CRL.A No. 200027 OF 2020 assurance she had become pregnant and he took her to his house. There she stayed for three days. The parents of accused No.1 have beaten her up and had driven her out of the house stating that they don't require her and they intend to perform the marriage of their son with another girl. In this regard, Hanumayya, Durgappa, Siddappa of the village held Panchayat and parents of accused No.1 told that after a month, they would perform the marriage. Even thereafter, when they did not agree to perform her marriage with accused No.1, the victim had lodged complaint. The victim has further deposed that Police took her to Raichur Government Hospital. After test, Doctors told that she was three months pregnant. Thereafter, Police took her to Lingsugur Court and there the Magistrate recorded her statement and she has narrated all the facts before the Magistrate as to accused No.1 taking her to hillock and committing rape on her promising to marry her. Thereafter, he continued to visit her house, so also as to the the fact of she narrating the facts to her parents as to accused No.1 taking her to his house where the parents of accused No.1 had beaten up and driven her out. She has further deposed
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CRL.A No. 200027 OF 2020 as to the spot mahazar conducted by the police, where photos are also taken. Thereafter, accused did not marry her and subsequently he has married another girl. Thereafter, she delivered a female child and it was named Spoorti. She is the daughter of accused No.1 born to her. Police have also recorded the statement of father of the victim.
18. During the cross-examination of PW3, she has clearly deposed that she was given in marriage to Eranna of Jalahalli Madangaddi and her husband deserted her and she has not taken divorce before the competent Court. She has further deposed that after her marriage she settled in her husband's house four about four years. Her husband deserted her and she had taken shelter in her parents house for the past two years. She and accused No.1 were in love and accused No.1 used to visit her house. She has also deposed that everyday she used to lock the door from inside before going to sleep. This admission made by the PW3- victim reveals that she was already married and her husband deserted her and she has not obtained decree of divorce from the competent Court. But neither in the complaint nor in the statement made before the Magistrate under Section 164 of
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CRL.A No. 200027 OF 2020 Code of Criminal Procedure, she has stated about her marriage. For the first time before the Court she has disclosed about the fact of her subsisting marriage. The Investigating Officer has not disclosed this fact. Without any proper investigation, the Investigating Officer has submitted the charge sheet against the accused No.1. Admittedly, accused No.1 had loved victim, who was major at the time of alleged commission of offence. It is the case of the prosecution that the accused No.1 had sexual intercourse with victim by making false promise that he will marry her.
19. Section 494 of Indian Penal Code contemplates that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 17 of the Hindu Marriage Act, 1955 contemplates that any marriage between two Hindus solemnized after the commencement of this Act is void, if at the date of such marriage, either party had a husband or wife living; and the provisions of Sections 494 and 495 of the
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CRL.A No. 200027 OF 2020 Indian Penal Code (45 of 1860), shall apply accordingly. However, during the subsistence of the first marriage, the victim was forced by accused No.1 to marry her, which is an offence under Section 494 of the Indian Penal Code. If PW3 has disclosed this fact before the Investigating Officer or had the Investigating Officer collected the information as to her subsisting marriage with another person, he would not have filed charge sheet against the accused No.1 for alleged commission of offence. The victim being a married woman, the question of promise of marrying her during the subsistence of her legal marriage with a legally wedded husband without obtaining decree of divorce from the competent Court in accordance with law, does not arise.
20. With regard to medical evidence, Exhibit P23 is the final opinion given by the S.R. OBG Department, RIMS, Raichur, which reveals that the victim was exposed to sexual intercourse but there is no evidence of force as suggested and no external injuries in and around the genital area. Accordingly, prosecution has failed to prove the case as to the act of accused No.1 committing rape forcibly.
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21. The case of prosecution is also contrary to evidence of PW3 and she has clearly deposed that she was in love with the accused and the accused used to visit her house and used to have sexual intercourse with her repeatedly. The material placed before this Court reveals that the accused had sexual intercourse with the consent of victim. Accordingly, prosecution has failed to place essential ingredients to attract the provisions of Section 375 of Indian Penal Code as stated sputa. Therefore, the prosecution has failed to prove the guilt of the accused for commission of offence punishable under Section 376 of Indian Penal Code. Therefore, the essential ingredient of Section 375 of Indian Penal Code to prove the guilt of the accused under Section 376 of Indian Penal Code, does not arise.
22. With regard to alleged false promise made by the accused is concerned, as already stated, victim is a married woman and her marriage is still in subsistence and during the subsistence of marriage, the question of making false assurance to marry her does not arise. Even if the victim had allowed the accused No.1 to marry her, it would amount to offence under Section 494 of Indian Penal Code.
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23. The conduct of the complainant clearly shows that she is a matured woman and is capable of understanding the consequences of her act and she was fully aware of the relationship she was maintaining with the accused, being a married woman. Considering the facts and circumstances of the case and keeping in mind the observation made by the Hon'ble Apex Court in the aforesaid judgments, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The trial Court has not properly appreciated the evidence on record in its proper perspective and in accordance with law and facts. Accordingly, the appellant has made out grounds to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court. Hence, I answer point No.1 in the affirmative.
Regarding Point No.2:
24. For the reasons aforestated, I proceed to pass the following:
ORDER
i) Appeal is allowed;
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CRL.A No. 200027 OF 2020
ii) Judgment of conviction dated 19.12.2019 and order on sentence dated 21.12.2019 passed in SC.No.69 of 2017 by the Principal District and Sessions Judge, at Raichur is set aside;
iii) Accused No.1-Timmanna S/o Rangappa Hubballi, is acquitted of commission of offence under Sections 376, 341, 417 and 323 of Indian Penal code;
iv) Fine amount if any in deposit, shall be returned to the accused in accordance with law.
Registry to send the copy of this judgment along with trial Court records to the concerned Court.
Sd/-
(G. BASAVARAJA) JUDGE MSR/lnn CT: PS