Karnataka High Court
Devindrappa S/O Pramanna vs The State on 16 June, 2025
Author: V. Srishananda
Bench: V. Srishananda
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NC: 2025:KHC-K:3102
CRL.A No. 200099 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.200099 OF 2019
(374(Cr.PC)/415(BNSS))
BETWEEN:
DEVINDRAPPA S/O PARAMANNA,
AGED ABOUT 30 YEARS, OCC: COOLIE,
R/O KONAL, TQ: SHORAPUR,
DIST: YADGIRI.
...APPELLANT
(BY SRI SHIVAKUMAR MALIPATIL, ADVOCATE)
Digitally signed by AND:
SUMITRA
SHERIGAR
Location: HIGH
COURT OF
KARNATAKA THE STATE,
THROUGH SHORAPUR POLICE STATION,
DIST. YADGIRI,
(CRIME NO.231/2013),
(REPRESENTED BY STATE SPP, HCK,
KALABURAGI-585 107.)
...RESPONDENT
(BY SMT. ARATI PATIL, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT
PASSED BY THE SESSIONS JUDGE, YADGIR, IN S.C.
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NC: 2025:KHC-K:3102
CRL.A No. 200099 of 2019
HC-KAR
NO.75/2014 DATED 29.07.2019 CONVICTING THE APPELLANT
FOR THE OFFENCES PUNISHABLE UNDER /SECTIONS 447, 342,
354, 511 R/W SECTION 376 OF IPC AND APPELLANT BE SET AT
LIBERTY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V. SRISHANANDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE V. SRISHANANDA)
1. Heard learned counsel Sri Shivakumar Malipatil for the appellant-accused and learned High Court Government Pleader Smt. Arati Patil for the respondent-State.
2. The appellant/accused who suffered an order of conviction in S.C. No.75/2014 on 29.07.2019 by the District and Sessions Judge, Yadgir, (for short 'Trial Court'), for the offences punishable under Section 511 read with Section 376 and Sections 342 and 447 of IPC, is before this Court praying to set aside the same.
3. By the impugned judgment and order, the appellant is sentenced as under:
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR "The accused is sentenced to rigorous imprisonment for three and half years and Rs.3,000/- fine in default of payment of fine he shall undergo simple imprisonment for three months for the offence under Section 511 R/w Section 376 of Indian Penal Code.
Further, accused is sentenced to simple imprisonment for six months for the offence under Section 342 of Indian Penal Code.
Further, accused is sentenced to Simple imprisonment for three months for the offence under Section 447 of Indian Penal Code.
A set off be given for the period of stay by accused in Judicial Custody.
All the sentences shall run concurrently."
4. Facts in the nutshell for the disposal of the present appeal are as under:
4.1 On 18.12.2013 a complaint came to be lodged by the complainant at 6.15 p.m., with Shorapur Police Station stating that he is resident of Konal Village of Surpur Taluka and eking out his livelihood by agriculture.
His junior aunt was residing with him. He had given -4- NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR shelter to her and she being the spinster was also deaf and dumb.
4.2 It is further alleged that on 17.12.2013 as usual victim lady had been to agricultural land and was plucking the grown up cotton from the crops. At about 2.00 p.m., taking advantage of loneliness of the victim lady, accused trespassed into the agricultural land of the complainant and tied the hands and legs of the victim lady and tried to commit forcible sexual intercourse with her.
4.3 Per chance, the complainant who carried the lunch box to the land has seen the attempt made by the accused and on seeing the complainant, accused ran away from the spot. After taking the help of the neighbours, the hands and legs which were tied with the rope has been freed and victim lady was rescued. Victim lady explained the incident with the 'sign' language and later on complaint came to be lodged.
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR 4.4 The Police registered the case and after thorough investigation filed the charge-sheet for the offences punishable under Sections 447, 342, 354 of IPC and Section 511 read with Section 376 of IPC.
4.5 Presence of the accused was secured and charges were framed. Accused pleaded not guilty, therefore, trial was held.
4.6 In order to establish the case of the prosecution, in all eight witnesses were examined as PWs.1 to 8 and eight documents were also placed on record by the prosecution which were exhibited and marked as Exs.P1 to P8. Prosecution also marked MO.1 - Veil worn by the victim lady on the date of the incident and the towel as MO.2.
4.7 On conclusion of recording of evidence, the learned Trial Court recorded the accused statement as is contemplated under Section 313 of Cr.P.C., wherein, -6- NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR accused has denied all the incriminatory materials that were put to him.
4.8 Based on the material evidence on record, arguments were addressed by both the sides. Thereafter, the learned trial Judge on cumulative consideration of the material on record taken note of the fact that the accused tried to commit forcible sexual assault on the victim lady, who has been examined as PW3 with the aid of an interpreter and noted that there were no injuries which would be of sufficient significance to conclude the offence of rape under Section 376 of IPC with the aid of medical report marked as per Ex.P4, thus, convicted the accused as aforesaid and sentenced as referred to supra.
5. Being aggrieved by the same, the accused has preferred this appeal with the following grounds:
"5. That, the impugned judgment convicting the accused by the trial court is illegal and contrary to law, facts and evidence on record.-7-
NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR
6. That, the learned Sessions Judge has not applied judicious mind in considering the evidence of the witnesses.
7. That, the delay in registering the case. The alleged offence is committed on 17-12-2013 at about 2:00PM as per the prosecution story and the complainant is lodged on 18-12-2013 at about 6:15PM after the delay of 24 hours by the PW-1 is brother of the victim and he has admitted in cross examination he is not the eye witness. This material effect in the prosecution story has not been considered which goes to the root of the case. Hence the impugned judgment is not sustainable in the eye of law.
8. That, the evidence of witness PW-5 to 7 are all contradictory to the evidence of victim PW-3. The victim PW-3 is dumb and deaf and her evidence is alleged to have been recorded with the help of interpreter and who is not examined on oath nor administer the oath in the court and his report is not a statement U/sec. 161 of Cr.P.C. and it is recorded mechanically and casually. Hence the lower court has landed in error by considering the doubtful and suspicious evidence which caused miscarriage of justice. Hence impugned judgment is not tenable same is liable to be set-aside.-8-
NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR
9. That, it is important to note that, the victim is examined after six months i.e. on 30-06-2014 by the interpreter and who filed report and the I. O. has stated that, he went to the spot on 19-12-2013 only and he has conducted spot Mahazar and recorded statements of PW-4 but he did not record the statement of the victim on that day only. Only on 27-12-2013 the IO has gone to the village Konal for recording statements of victim PW-3 and till then he was not knowing that, the victim is dumb and deaf the delay is not explained by the IO. Therefore the investigation is not fair and prompt and the lower court has lost sight on this material defect in the prosecution story. Hence the impugned judgment is liable to be set-aside.
10. That, it is important to note that, the complaint is written by the son of the complainant (PW-5) that he states the complaint is written on the say of his father PW-1 not as per the statement of victim. Hence the prosecution story cooked up same cannot be believed.
11. That, the doctor PW-7 said that, there were injuries all over on the right arm and also stated in the report Ex-P-4 that the victim did not give consent for local examination and she has not given history of assault and also stated that the -9- NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR patient has not given consent for viginal examination for collection of the slights and swaps and also stated the opinion cannot be given regarding sexual intercourse as she incapable of performing sexual intercourse. Hence all these are suspicious circumstances and they have not been properly explained by the prosecution to believe the story of prosecution. Hence the impugned judgment is liable to set aside.
12. That, there are material contradiction and omissions in the evidence of the victim and other prosecution witnesses regarding commission of the offence, hence learned Sessions Judge has failed to consider important material and thereby landed error judgment, hence the impugned judgment is not sustainable."
6. Sri Shivakumar Malipatil, learned counsel, for the appellant/accused reiterating the grounds urged in the appeal memorandum, vehemently contended that based on the evidence of victim lady who is examined as PW3, which is incapable of comprehension before the Trial Court as admittedly victim lady is deaf and dumb, the learned Trial Judge wrongly appreciated the material evidence on
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR record and wrongly convicted the accused resulting in miscarriage of justice.
7. Sri Shivakumar Malipatil would also contend that in the event this Court upholds the conviction, taking note of the fact that victim lady was aged 56 years and the accused was aged 26 years as on the date of the incident, this Court may take a lenient view and by considering the custody period of 01 year, 03 months, 22 days, be treated as period of imprisonment for the proved offence by enhancing the fine amount reasonably.
8. Per contra, learned High Court Government Pleader Sri Jamadar Shahabuddin for the respondent-State supports the impugned judgment.
9. He would further contend that the material evidence recorded by the prosecution, especially, the oral testimony of PW3 is with the help of the interpreter. Therefore, the contentions urged on behalf of the appellant that there is no material evidence on record,
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR which would be enough to maintain the conviction of the proved offence cannot be countenanced in law.
10. He would further contend that admittedly as on the date of incident the victim lady was aged 56 years and accused was 26 years. As such, why would a lady, who is deaf and dumb, aged about 56 years falsely implicate the accused in a matter of this nature is a question that remains unanswered and the silence of the accused at the time of recording his statement is significant in exposing the hollowness in defence that has been taken by the accused and therefore, sought for dismissal of the appeal.
11. Insofar as the alternate submission of the learned counsel for the appellant is concerned, the accused being a person aged 26 years, trying to misuse the pathetic condition of a lady of aged 56 years, who is deaf and dumb and but for the timely intervention of the complainant, accused would have accomplished the act of
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR rape. Therefore, no mercy can be shown to the accused and sought for dismissal of the appeal in toto.
12. After hearing arguments of both the side, this Court perused the material on record meticulously. On such perusal of the material on record the following points would arise for consideration:
1) Whether the material evidence placed on record by the prosecution is sufficient enough to maintain the conviction of the appellant for the offences 447, 342, 354, 511 read with Section 376 of IPC?
2) Whether the impugned judgment is suffering from infirmity and perversity and thus, calls for any interference?
3) Whether the sentence is excessive?
4) What order?
Regarding Point Nos.1 and 2:
13. In the case on hand, it is the oral testimony of the complainant and the victim lady, which assumes the importance.
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14. The complainant has specifically deposed before the Court in line with the complaint averments. He turned hostile to the case of the prosecution insofar as the complaint averments are concerned and therefore, he was treated as partly hostile by the prosecution and confronted with the complaint averments.
15. In such cross-examination by prosecution, the complainant has admitted that he has lodged the complaint after seeing the accused trying to commit the rape on his aunt, taking the advantage of she being the deaf and dumb.
16. One of the panch witnesses is examined as PW2. He did not support the case of the prosecution.
17. PW3 is the victim lady, she has been examined with the help of interpreter and her evidence has been recorded by using the 'sign' language. To that effect there is an endorsement by the learned Trial Judge. The
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR Interpreter, who is Superintendent of Deaf and Dumb School has also signed the same.
18. In her examination-in-chief, PW3 has stated that complainant is her nephew and she is acquainted with the accused and other witnesses. She has deposed that she is a spinster and few years earlier she has been to agricultural land for plucking the cotton, at about 01.00 p.m., taking her loneliness, accused came to the agricultural land and took her to his custody and tied her hands and legs and tried to commit rape on her. When she screamed for the help, the neighbours and complainant came there and on seeing them accused ran away.
19. She has also stated that her mouth was gagged with the help of the Sari. She has identified the accused before the Court so also the veil and the towel seized by the Police as MO.1 and 2.
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR
20. In her cross-examination, no useful material is elicited so as to disbelieve her testimony.
21. Neighbours of the agricultural land by name Ninganna and Basalingayya Shastri are examined as PWs.4 and 5. They have supported the case of the prosecution by deposing that on hearing the screaming of the victim lady they came there and on seeing them accused ran away from the spot.
22. In their cross-examination also there is no useful material is elicited which would probablise the defence theory and dismantle the case of the prosecution.
23. PW6 is another witness who has turned hostile to the case of the prosecution.
24. The Medical Officer, by name Dr. Saroja, who examined the victim lady has deposed as PW7. She has deposed that she has examined the victim lady and issued Medical Report vide Ex.P4.
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25. In her cross-examination it was elicited that she did not seize any clothes as there was no stains on the clothes. It is also admitted by her that the victim lady might have attained mano-pause stage about 5 to 6 years earlier to the incident. She admits that she has not mentioned colour and age of the contusion wound in Ex.P4.
26. The Investigating Officer is examined as PW8, whose evidence is not controverted in detail, except suggesting that he has filed a false charge-sheet against the accused.
27. Above evidence on record is sought to be re- appreciated by the counsel for the appellant. On re- appreciation of the aforesaid evidence with close scrutiny would make it clear that admittedly accused was aged 26 years and his presence in the agricultural on the day of incident is established not only from the oral testimony of the victim lady, but also by complainant, PWs.4 and 5.
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28. Why accused was present in the agricultural land of the complainant is a question that needs to be answered by the accused. Further, complainant and PW4 have rescued the victim lady and freed her hands and legs. Admittedly, on enquiry, victim lady in the 'sign' language explained that the accused tried to commit rape on her.
29. The medical evidence and the oral testimony of the victim lady are sufficient enough to establish that it was a case of attempted rape.
30. Therefore, the learned Trial Judge has rightly convicted the accused for the offence under Section 376 read with Section 511 of IPC and imposed the punishment of three and half years imprisonment and Rs.3,000/- fine.
31. In the absence of any previous enmity or animosity with the accused, why would the complainant, the victim lady and PW4 would depose falsely before the
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR Court against the accused is a question that remains unanswered on behalf of the accused.
32. Taking note of these aspects, in the matter, especially, the victim lady being deaf and dumb, this Court is of the considered opinion that falsely implication of the accused in the incident cannot be countenanced in law though argued with vehemence on behalf of the appellant/accused.
33. Thus, viewed from any angle this Court does not find any infirmity or perversity in the finding recorded by the learned Trial Judge in the impugned judgment. Accordingly, point No.1 is answered in the affirmative and point No.2 in the negative.
Regarding point No.3:
34. Since, he accused is the first time offender and was aged 26 years and has already spent one year three months twenty two days in the custody cumulatively at
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR the time of trial and after the conviction, by enhancing the fine amount in a sum of Rs.50,000/- if the custody period already undergone is taken as a period of imprisonment ends of justice would met in the facts and circumstance of the case. Accordingly, point No.3 is answered partly in the affirmative.
Regarding Point No.4:
35. In view finding of this Court on point Nos.1 to 3 as above, the following:
ORDER i. The appeal allowed in part.
ii. While maintaining the conviction for the offences for the offences punishable under Sections 511 read with 376 of IPC and Sections 342 and 447 of IPC the custody period of one year three months twenty two days is treated as period of imprisonment for the proved offences by enhancing the fine amount in a sum of Rs.50,000/-. In total, (Rs.50,000 + Rs.3,000) = Rs.53,000/-.
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NC: 2025:KHC-K:3102 CRL.A No. 200099 of 2019 HC-KAR iii. Time is granted till 20.07.2025 for the payment of enhanced fine amount.
iv. Failure of pay the enhanced fine amount would automatically result in the sentence ordered by the Trial Judge in the impugned judgment.
v. Out of the fine amount recovered, a sum of Rs.40,000/- is ordered to be payable to PW3 on due identification and balance sum to be appropriated towards defraying expenses of State.
Office is directed to return the Trial Court Records with copy of this judgment forthwith, for issue of modified conviction warrant.
Sd/-
(V. SRISHANANDA) JUDGE SBS List No.: 1 Sl No.: 57 CT: AK