Karnataka High Court
Yankappa Anegundi vs The State Of Karnataka on 19 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:1618
CRL.A No. 200077 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200077 OF 2018 (374)
BETWEEN:
YANKAPPA ANEGUNDI
S/O YAMANAPPA ANEGUNDI,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O BHOGAPUR VILLAGE,
TQ. SINDHANUR, DIST. RAICHUR-587108.
...APPELLANT
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
Digitally signed by
SHILPA R THE STATE OF KARNATAKA
TENIHALLI R/BY ADDL. SPP
Location: HIGH HIGH COURT OF KARNATAKA,
COURT OF
KARNATAKA KALABURAGI BENCH-585106.
(THROUGH TURVIHAL P.S.,
DIST. RAICHUR)
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
ADMIT THIS APPEAL, CALL FOR THE RECORDS FROM THE
COURT BELOW AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED: 08.05.2018
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NC: 2024:KHC-K:1618
CRL.A No. 200077 of 2018
AND 10.05.2018 RESPECTIVELY, PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT RAICHUR FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 376 AND 420 OF
IPC AND ACQUIT THE APPELLANT/ACCUSED.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the appellant/accused under Section 374(2) of Cr.P.C. challenging the judgment of conviction dated 08.05.2018 and order of sentence dated 10.05.2018, passed by the learned Principal District and Sessions Judge, Raichur in S.C.No.27/2015, whereby, the learned Sessions Judge has convicted the appellant/accused for the offences punishable under Sections 376 and 420 of the Indian Penal Code, 1860 (for short 'IPC').
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018
3. The brief factual matrix leading to the case are as under:
The victim/complainant is residing along with her mother in the house of her maternal uncle in a tin shed of Bhogapur village as her father has deserted her mother and herself and contracted second marriage and residing in Veerapur village. It is the further case of the prosecution that the complainant used to attend the coolie work and while she was doing coolie work, she came in contact with the accused. The accused used to visit her house oftenly and by assuring her that he would marry her, he used to take money from her on several times and also had a sexual intercourse with her against her will and wish. It is further alleged that the accused has also continued the said sexual relationship with her in her house. According to the prosecution, on 04.01.2014 at 12.00 noon, the accused came to the house of the complainant and insisted the complainant to have physical relationship with him and when she refused on the ground -4- NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 that the accused was searching for another girl to marry, but even then against her wish, he had forcible sexual intercourse with her. It is alleged that the visit of the accused to her house was noticed by the neighbours such as Mukappa, Devappa and Shankrappa. Subsequently, the mother of the complainant asked the accused to marry her daughter i.e., the victim/complainant, but the accused has flatly refused and hence, a complaint came to be lodged in this regard on 15.02.2014 at about 8.30 p.m. and on the basis of the complaint, the crime was registered in Crime No.42/2014 of Turuvihal police station, Raichur district and FIR came to be issued.
4. The victim was sent for medical examination and thereafter, the accused was arrested and subjected to medical examination and initially he was remanded to custody and subsequently, he was enlarged on regular bail. The Investigating Officer has investigated the crime and then he found that there is sufficient material evidence to show that the accused under the false promise -5- NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 of marriage, committed sexual assault on the complainant/victim and submitted a charge sheet for the offences punishable under Sections 420 and 376 of IPC.
5. After submission of the charge sheet, the learned Magistrate has taken cognizance of the offences and matter was committed to the Sessions Court. Then the presence of the accused was secured by issuing summons as he was on bail and he appeared through his counsel. The learned Magistrate before committing the matter has also furnished the prosecution papers to the accused as contemplated under Section 207 of Cr.P.C.
6. The learned Sessions Judge after hearing both the parties has framed charges under Sections 376 and 420 of IPC and same were read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
7. To prove the guilt of the accused, the prosecution has examined in all 15 witnesses as PWs.1 to 15 and also placed reliance on 13 documents marked as -6- NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 Exs.P1 to P13. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused was of total denial. However, he did not lead any oral or documentary evidence in support of his defence.
8. Having heard the arguments and after appreciating the oral and documentary evidence, the learned Sessions Judge has convicted the accused for the offences punishable under Sections 376 and 420 of IPC. After hearing on sentence, he convicted the accused for the offence punishable under Section 376 of IPC and sentenced him to undergo rigorous imprisonment for a period of 10 years with fine of Rs.50,000/- and for the offence under Section 420 of IPC, he sentenced him to undergo rigorous imprisonment for a period of 5 years with fine of Rs.25,000/- with default clause. -7-
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9. Being aggrieved by this judgment of conviction and order of sentence, the appellant/accused is before this Court by way of this appeal under Section 374(2) of Cr.P.C.
10. Heard the arguments advanced by the learned counsel for the appellant/accused and the learned High Court Government Pleader for the respondent - State. Perused the records.
11. The learned counsel for the appellant would contend that the complainant/victim and accused are relatives with each other and the relationship between them is by way of consensual sex and there is no evidence regarding promise of marriage and under the pretext of the same, there is any sexual assault. He would contend that except PW.1/victim, all other witnesses are only the hearsay witnesses and the medical evidence does not assist the prosecution regarding sexual assault against the will of the victim and the evidence of the victim is inconsistent and contrary. He would also assert that the -8- NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 evidence of the victim and the evidence of other witnesses including the mother of the victim disclose that the complaint was lodged only when the accused has refused to marry the victim and there is no evidence to substantiate that under the false promise of marriage, the relationship came to be developed. Hence, he would contend that the learned Sessions Judge has failed to appreciate any of these aspects and in a mechanical way convicted the accused only on the basis of the self serving testimony of the victim/complainant. As such, he would contend that the judgment of conviction and order of sentence is perverse and erroneous and sought for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence.
12. Per contra, the learned High Court Government Pleader for the respondent/State would contend that the evidence clearly disclose that the sexual intercourse is under the false promise of marriage and it attracts the offence under Section 376 of IPC. He would also submit -9- NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 that the victim/complainant, her mother and other neighbors have supported the case of the prosecution and there is sufficient material evidence which was properly appreciated by the learned Sessions Judge. Hence, he would contend that the judgment of conviction and order of sentence does not suffer from any perversity so as to call for interference by this Court. As such, he would seek for dismissal of the appeal.
13. Having heard the arguments and perusing the oral and documentary evidence placed on record, now the following point would arise for consideration:
"Whether the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Raichur in S.C.No.27/2015 dated 08.05.2018 is perverse, arbitrary and erroneous so as to call for any interference by this Court?"
14. This complaint was lodged on 15.02.2014 evening at 08-30 p.m. The victim is aged bout 21 years
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 while lodging the complaint and her allegations disclose that the accused was known to her since one year, as they came in contact while attending the coolie work and under the guise of marriage, he used to take certain amount from her and used to have sexual relationship with her against her will. She further asserted that on 04.01.2014 at 12-00 O' clock, when she was in her house, the accused came there and asked her to sleep with him and when she refused on the ground that as he is already in search of a different bride, the accused against her will, had forcible intercourse with her and hence, she alleges that a complaint came to be lodged.
15. At the outset, the allegations made in the complaint disclose that the last physical relationship was on 04.01.2014 and on that day, the accused against the will of the complainant had forcible sexual intercourse with her. But interestingly, the complaint was lodged on 15.02.2014 i.e., after 1 ½ moths later on. The explanation offered was that when the matter was
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 exposed to the neighbours and when her mother tried to negotiate and convince the accused to marry the complainant who refused, a complaint came to be lodged.
16. At the outset, in the instant case, except the evidence of the complainant, there is no other material evidence and all the other witnesses are the only hearsay witnesses including the mother of the complainant/P.W.3/Kattemma. Hence, the entire case rests on the evidence of the complainant. The complainant/victim was examined herself as P.W.1. In her evidence, she claimed that she had been to the land of the accused for coolie work and at that time, she came in contact with the accused. She has also deposed that the accused asked her to have physical relationship and she refused, but against her will, the accused had raped her. Her further evidence discloses that 3 ½ years earlier, at 12-00 in the noon again the accused had forcible intercourse against her will. Her examination-in-chief discloses that initially physical relationship was developed
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 about 3 ½ years earlier and she never asserted that the accused under the promise of marriage, had physical relationship with her. Her further evidence discloses that after this incident, he started to see bride for marriage and this version discloses that the accused never promised the complainant initially while developing the relationship regarding he marrying her and there is no evidence of giving false promise of marriage so as to attract the provisions of Section 420 of IPC.
17. Further, the evidence of the complainant discloses that about one year back at 12-00 noon, the accused came to her house and asked her to sleep with him and then, she refused on the ground that he is in search of other bride and then, again the accused against her will had physical intercourse with her and went away. She further deposed that then, she brought it to the notice of her mother and then, her parents requested the accused to marry her and as he refused, this complaint came to be lodged. The entire evidence of the
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 complainant discloses that initially the physical relationship is against her will. But the allegations of the complainant disclose that after initial physical relationship, since 3 ½ years earlier they had continued physical relationship regularly and one year earlier, there was a physical relationship in spite of oppose by the complainant. The conduct of the complainant all along discloses that initially she never insisted for her marriage with the accused and she never asserted that the accused developed relationship with her under the false promise of marriage. Even it is not her case that they are in love with each other.
18. In her cross-examination, she denies that the accused is related to her, but the evidence of other witnesses including that of her mother, clearly disclose that the accused is related to the complainant. It is elicited that the village is a small village and there are number of houses adjoining the house of the victim/complainant. In the cross-examination, she admitted that she used to
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 attend the coolie in the lands of others and since one year prior to lodging of the complaint, she had regularly physical relationship with the accused. She has also admitted that they used to have physical relationship in her house itself. She further deposed that she had brought it to the notice of her mother and other neighbors, but they did not advise her in this regard. This part of the cross-examination for better appreciation is reproduced her:
"10. £Á£ÀÄ PÀÆ° PÉ®¸ÀPÌÉ ¨ÉÃgÉAiÀĪÀgÀ d«ÄãÀÄUÀ½UÉ ºÉÆÃUÀÄvÉÃÛ £É C£ÀÄߪÀzÀÄ ¤d. ¦ügÁå¢ PÉÆqÀĪÀQAÌ vÀ MAzÀÄ ªÀµðÀ zÀ ¥ÀƪÀðzÀ°è £À£U À É ªÀÄvÀÄÛ DgÉÆævÀ¤UÉ zÉÊ»PÀ ¸ÀA¥ÀPðÀ EvÀÄ.Û £Á«§âgÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°èAiÉÄà zÉÊ»PÀ ¸ÀA¥ÀPðÀ ºÉÆAzÀÄwÛzª ÝÉ ÅÀ . DgÉÆæAiÉÆAzÉUÉ zÉÊ»PÀ ¸ÀA¥ÀPÀð ¨É¼¹ É zÁV¤AzÀ F «µÀAiÀÄ ZÁ¸ÁB 2 ±ÀAPÀgU À ËqÀ, ZÁ¸ÁB 4 ªÀÄÆPÀ¥Àà ªÀÄvÀÄÛ ZÁ¸ÁB 3 zÉêÀªÄÀ ä EªÀjUÉ ºÉüÀÄvÁÛ EzÉ.Ý C ¸ÀªÀÄAiÀÄPÉÌ CªÀgÀÄ £À£U À É AiÀiÁªÀÅzÉà «µÀAiÀÄzÀ §UÉÎ ¸À®ºÉ PÉÆnÖ®.è "
19. Her further cross-examination discloses that about one year back, the accused tried to marry one Shivamma of Mannapur village and even then, the accused used to approach her for his physical relationship and she
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 further asserted that even against her oppose, he used to regularly visit her and in spite of seeing a bride for 6-7 months, he regularly had physical relationship with her. This cross-examination in paragraph No.11 clearly establish that all along the complainant and the accused had physical relationship and initially there was no promise of marriage. Even after the accused was in search of bride, they continued physical relationship for a long period and though it was brought to the notice of neighbors and Devamma, they did not advise her anything. Hence, it is evident that the physical relationship between the accused and the complainant was a consensual physical relationship and not under the false promise of marriage as asserted now. The complainant in her further cross- examination, in paragraph No.13 has gone to the extent by saying that if the accused married her, she would not have lodged the complaint.
20. The evidence of P.W.1 does not inspire the confidence of the Court to show that the accused under
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 the false compromise of marriage, developed physical relationship with the complainant. But the evidence discloses that the complainant subsequently insisted the accused to marry her and when he refused, she lodged a complaint. The evidence of the complainant clearly establish that initially she voluntarily developed relationship with the accused and later on she insisted him to marry her for which he refused.
21. P.W.2 is the uncle of the victim/complainant in whose house, the victim was residing, but his evidence discloses that he is the hearsay witness and his cross- examination reveals that his son is a Panchayat member and as the accused refused to marry her, they thought that if the criminal case lodged against him, he would marry the complainant/victim and under this presumption, a complaint was lodged. His evidence does not establish that the accused has developed any relationship with the victim under the false promise of marriage.
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22. P.W.3 Kattemma is the mother of the victim/complainant and she claims that the accused had physical relationship with her daughter under the guise of false promise, but the said fact itself is not stated by the victim/complainant/P.W.1. She is not an eyewitness and she got information only from her daughter. In the cross- examination she has gone to the extent of staying that the accused and her daughter were in love with each other. It is a new story invented by this witness, as the said fact was never asserted by the complainant/victim herself. Her evidence also discloses only in order to compel the accused to marry her daughter, this complaint was lodged, as the accused has refused to marry her. Her evidence also does not establish that under false promise, the accused developed physical relationship with the complainant.
23. P.W.4 Khasimasab and P.W.9 Durgappa are the two spot mahazar witnesses, but both these witnesses have turned hostile and denied preparation of spot
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 mahazar in their presence on 16.02.2014. But considering the nature of the offences, the hostility of these witnesses do not have relevancy.
24. P.W.5 Smt. Devamma and P.W.6 Sri Mukappa are two neighbouring witnesses and their evidence simply disclose that the accused used to visit the house of the victim and they got knowledge from the victim regarding physical relationship. They are the hearsay witnesses and their evidence do not assist the prosecution that the accused committed rape on the victim under the false promise of marriage.
25. P.W.7 Siddappa is the PDO who deposed that the house No.342 at Bhogapur village is standing in the name of Yankappa S/o Govindappa, wherein the victim was residing, but what is the base for this witness to say that the victim is residing in the said house is not at all explained and the owner of the house Yankappa was not examined in the instant case to substantiate the
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 contention that he has allowed the victim to stay in the house.
26. P.W.8 Dr.Ramya who has examined the accused and certified that there is no evidence to show that he is incapable of doing any act of sexual intercourse and in this regard, she has issued Ex.P.6. It is not the case of the defence that the accused is important.
27. P.W.10 has deposed regarding drawing sketch of the scene of offence, but there is no evidence to show that the victim was residing in the said house as the owner Yankappa was not examined to prove that he had allowed the victim to stay in the said house.
28. P.W.11 Dr. K.S.Rajkumar and P.W.13 Dr. Ashok deposed regarding examining the victim and their evidence simply disclose that the victim had regular intercourse, but she had no external injuries on her body including private parts. Hymen was not intact. The evidence simply disclose that the victim was regularly
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 having intercourse, but that does not disclose that she had intercourse with the accused only, as no semen stains were found and she was examined only 1 ½ months subsequent to last alleged intercourse.
29. P.W.12 and P.W.14 are the Investigating Officer and they have deposed regarding investigation done by them.
30. In the instant case, the prosecution first required to prove the fact that the victim was residing in the house belonging to one Yankappa bearing Panchayat No.342 at Bhogapur village, but the said Yankappa was not examined. Further, the entire case of the prosecution is based on the evidence of the victim, but the evidence of the victim discloses that there was no promise of marriage while accused and the victim developed physical relationship amongst themselves. Her evidence discloses that she insisted marriage with the accused only when he started searching for a bride. Hence, the contention of the prosecution that the under false promise, the victim was
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 raped cannot be accepted and on the contrary, it is evident from the evidence of the complainant that all along the victim and the accused had physical relationship regularly. Even after maintaining physical relationship for more than one year, no complaint was lodged and subsequently, after 1 ½ years or 2 years later on, a complaint was lodged making allegation of false marriage. The evidence lead by the prosecution do not inspire confidence of the Court regarding the offences under Sections 376 and 420 of IPC. The complainant/victim never claimed that the accused insisted sexual favour under the false promise of marriage nor asserted that they were in love with each other and under the false promise, he maintained the physical relationship. The evidence of the complainant discloses that she voluntarily maintained sexual relationship. That the complainant only when accused was in search of a bride, she started insisting for marriage. There is delay in lodging the complaint also and the medical evidence simply asserts that there was a physical relationship between the parties, but it does not
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 disclose any forcible intercourse. Looking to these facts and circumstances, it is evident that the prosecution has failed to substantiate the contention that the accused under the false promise of marriage, committed rape on the complainant and later on, by refusing to marry the complainant, cheated her. The ingredients of the offences under Sections 376 and 420 of IPC are not substantiated by the prosecution.
31. The learned Sessions Judge failed to appreciate any of these aspects in proper perspective and in a mechanical way on a self-interested testimony of the complainant proceeded to convict the accused. He did not even appreciate the examination-in-chief itself, wherein she never asserted that physical relationship was developed under the false promise of marriage. The entire approach of the learned Sessions Judge is perverse, and arbitrary which has resulted in miscarriage of justice. When it is a consensual sexual relationship, the offences under Sections 376 or 420 of IPC cannot be made
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 applicable. The judgment of conviction and order of sentence passed by the learned Principal Sessions Judge suffers from perversity and arbitrariness. The other view of innocence of the accused is also possible considering the evidence on record and when two views are possible, the Court is required to take the view favourable to the accused. But in the instant case, the learned Sessions Judge has taken a contrary stand which is not appropriate. Considering these facts and circumstances, the impugned judgment of conviction and order of sentence calls for interference. Hence, the point under consideration needs to be answered in the Affirmative and accordingly, I proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The impugned judgment of conviction dated 08.05.2018 and order of sentence dated 10.05.2018 passed by the learned Principal District and Sessions Judge, Raichur in
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NC: 2024:KHC-K:1618 CRL.A No. 200077 of 2018 S.C.No.27/2015 convicting and sentencing the accused for the offences under Sections 376 and 420 of Indian Penal Code is set aside.
iii) The Accused/Appellant stands acquitted for the offences under Section 376 and 420 of Indian Penal Code and he is set at liberty forthwith.
iv) The bail bonds executed by the accused shall stand cancelled.
v) The fine amount, if any, deposited by the accused shall be refunded to him.
Sd/-
JUDGE SRT/RSP List No.: 1 Sl No.: 14