Karnataka High Court
Mallesh vs The State Of Karnataka on 2 August, 2010
'th.e-said --'tge:h:;f§ie and had fereihie intercourse wi 2. T he proseeutitih case is that the examined as PW -1 had given a COI}1pLE1_ii°i"f; poii_ee'» on 24.12.2005 alleging that waa 3in'ea.friend1yVif-t_er"i:3$ with the appellant and he-gvasdddfoiiowirxgh'on initia} days and thereafter etartfed loving each other. The vietirn.'fw'as%V: cloth shop as a sales girl and__the working as a salesman her case in the complaint have started loving each other have gone for some movies together: It is her.jje.aS'e__AiI: the Complaint that about four months t'heA"':date of giving complaint, the hEtd'vv--...9,.s'K€d her to Come near the ' Ramaiivngeahwar temple and he had taken her behind :3.' th er. "'-eéhexgstarted Crying, he had pacified her saying he would marry her. Thereafter it is her ease that everyday between 7.00 PM and 8.00 PM they dd ""'tiaed to go near the hiiloek at Maiiariinghagar and were for having eomnliiteel the offences punishable Sections 386, 378 and 417 IPC, The nee guilty to the said ehagfgeaplp fjvvfnepehleeaffierV-JlfiheE proeeeutien in order to prove the ease*hae Vgfitlefiqamiineti P'Ns~l to 13 and got marhe'el:"Exs.P4"l._l_tea:.VP~xi.2:V The defence of the appellant lhfiijlialyvvé denial. Thereafter, after heaping and the defence the ileafirled pleased to Convict the and sentenced him aeCordi;nglj,r,.T;"Jyéeing the said order of c0nVietiQn--a11vd'seht4e11c'e;.__fi1iS appeal has been filed. 5 4. the llhe Victim is examined as PW-- l. sfafped thalllshe knows this appellant and he L-Wale hinfille house of one Channappa along with hie»..4pare;1l:s:E'..--fer rent. The appellant was following" her *..when was going to bring Water near the pipe and "«."w.ae""'l.aughing at her. When she was working in the (flfajanana Cloth Shop the appellant was following her (3 and he was' teihng her that he W3} marry her. V V' aleo working in another Cloth shop in " K u say in the Court that the appe1fa.nt1'_ha'ei 11ef5_t"r1.ea:f. the Ramalingeshwar tempie Raiehiuri her behind the said and committed intercourse with her. promised that he would marry hero... 'etated that on everyday "ont§%:afd-3w'ithey used to go to the hilloclh temple and were The said affair eontinfjecf. for months. Thereafter she informedvvV't«hfisv.fa'ct to parents and that her parents as?_;:ed:the_app'ef1«a,:1t.to get married with the victim, It ' ir1vfo1~'rne{iE' to them that only on payment of a sum of E3s.'.i'3Q,OG{¥'[----;A'eI=a Hero Honda vehicle and she plot the eornpla-inant can marry to their son, for which the parentes of the complainant refused since they were Zpfofoff; It is thereafter that the eornpiaint has been filed "'"oefore the poheet In the erosaexarnination it is suggested to her that she was :h;e._ Ramalingeshwar temple Volaunttfarilyl force, She had gone ta thersaid plaee withd-he'? eonsentlfl and not by anybodye force. of geing to the said place in by the appellant. There were side of the path leading§.tQ:Q;e going daily in the eve11in;g'V. that the appellant did not havev .,seXual*::,3lnten:0t1rSew.v'ith her at all. PW-2 l\/Ia11ai:_1m.a-- _dnv1Qtl*Je'tnvv-.Qf PW-1. On coming t0 know from hei"udaught.ef'"tl:ejf'*ha{;e negotiated for the marriage of her daughter' tn the 'appellant. But the appellant had refu5i3edl"tr> mafr'-y.,h_erVdaughter. Hence a complaint was ' :3 the father of PW-l, who has also stated "perVt;f'e.. version at PVv'~2. PW~1l is a signat-Cary to Exla".P--2.:&.a1id P~3 ile. panehanamas in respect of the eee_ne {if occurrence. Pl/V-5 is an acquaintance of PW~l their parents who has held the panehayat in "'"z"eepeet of the relationship af Pwwl with the appellant. He has stated regarding the refusal by the parents of the proposal put forward to_r__trhe :nf2:1r;ria"ge_« it with the Vietirn. PW16 is another vi'_iAIa§§e'r__ the parties. PWJF is the _Hearirnester where Victim had studied'V"i'r:tnd_ the Transfer Certificate birth of 4PW~1 as 01.06.1988
as per the Junior Engineer xvho':..;h}1s of scene of occurrence: Officer who has examined given a certificate to the effect to indicate that the
appe11ant"*«i%s'~ not position to Commit sexual in:ij_ereoin's_e. P'\»V~..1{) is the Medical Officer who has ' fvictim and she has stated that the Victim 'ishuserito'-theeet ef sexual intercourse and that there is no"'*--eviderrvee in the person of victim that she has been tsuhjeeted to forcible intercourse. She has further stated Vthjat there were no injuries found in the person of the t V' ""'é>iet,irrr at the time when she examined PW--t. PW-11 is ye 9 the Peliee Constable who has earrieel the F'.l.Rl. the the CJM Court. P\V--l2 is the P.S.l. who has register.£§Cl»_li:he F.l.R. and sent the same to the Court victim to the hospital for e:x:ami11a*:.ien..'_'Hl5W.-5I,l'f%l"is}_theKl Inspector of Police who has eoneiueiedl the ivf1:restig_at_i.e'h. and has filed the charge the It" V is from the ew'ideneeVef.V_all t.l'iesei_::l<,x.?l'E";1:esse's'thatjthe Trial Court has found the aphpella-ml' "the offences and sentenced him,' learned counsel for the appellant, ' $ha1'a,-'nabasappa K. Babshetty, learned Fligh_CeuftV.:Ge§efnment Pleader for the State. The leafheil Counsel for the appellant submits thatl'e#§"V.a'V§*eadihg ef the eernplaim: l*'.l,R.; it is clear that the had voluntarily accompanied the appellant ..a,t1__(:l regularly going with the appellant and was "'._subjeeted to sexual intercourse and at no point of time {here was force used against her. Hence offence urxcler Section 376 is not attracted, It has been .hrot;ghtI'~o'at iii 9 the evidence of PW--l that she the place Where the appellant hajxfirig' '~ intercourse with her. He has'-.furth'er_V sluhrrilitted that V' offence under Section.' 366p..i-'E'P--(f;--.isppglsolllnot attracted? since there is no elerricht. or deceit exercised by the appelliarzt» in pps.ec§liifiri§lV.'the presence of the victimpwtlo o:ccii:'i'ehce. Under the "'that}vthe order of conviction passeji'lay"'th:e dodge is liable to be set asidv§'7~_Iele'_ ruling of Supreme Court reported 'in.._'i 979 -cR.t.L.«a'; 867. HCGP submits that the evidence of the §?j.c.tiri:,, also.. the complaint very clearly indicates that 'liwas mentally and physically forced to COmIYiitl'S€Xual intercourse and the appellant had lured come to the place where the offence is committed. lie further submits that there is a charge under Section % complainant as per the eornplaint itself :i:a'::«--.':,m_[j asking of the appellant she had gone to the Rarnalingeshwar temple where thcefivalie§e'd---rape taken place. It is her case that though she'i3}'a:,iraped the first instance she did nor did she avoid the appellant' hirnufrorn the next day onwards. prosecution evidence that first intercourse the Victiritx the appellant everyday contirilnonslgrlforli months. It has to be seen the Victim indicates that she had gonelltolthe p__lac.el urliere the alleged intercourse has happened out "of«_he_r.vown free will and not by any force ind.nceinentt_ by the appellant. Hence, I am of the opinion't§iat'p;;t'he offence under Section 326 PC is not the appellant is entitled for an order of acqnittal in so far as Section 376 UPC is concerned. So the conviction for offence under Section 366 IPC " "is concerned, it is seen that the said offence impiies the use of force or coercion for the purpose of {:.on;»;nitt:ng. itiieit intercourse. The faets of the case detneot K V' the ingredients of Section 366 I'Pt3V['hee'auae.tt'iée Vvietirn. had admitted in her cross~exarn:'.nation gone to the place where._h'the alleged iVntei'edurse"' happened on her own free t'th~erejfore the ingredients of Sectioly,/QB, in this case. In that Vi€VV:Q{':{[h.€ xopinion that the conviction' 'L1n'd_e:tfSection 366 IPC is also not s1;S.t.avinah'1"e:j.:xigo under Section 417 is COHC€:1ft1€(i; Sessions Judge himself has is entitled for acquittal for theegsaid sectionvthavvinng regard to the facts of the case. The notmtiéled any appeal Challenging the said "ot;""acqnit'ta1. In that View of the matter, en a re apjisreo-iatiojh of the evidence on record, I hold that the proseeution has not proved the ease against the "'appe11ant beyond reasonable doubt and therefore the E4 appellant is emlitled for an OI'd.€i" of acquittal Hence, I pass the following order:
Appeal is allowed Or<fi'er7._efl sentence passed against fli*eVrappellan_t'fete-.:tlie'"'effeiiees"'V punishable under Seetiens ll»'G.isv"§set aside and the appellant o:f::.ii::h_e:.v1effences levelled against him? by the appellant is Cancell55;l<'V1.'i:::""wfiifile-. deposited shall be refuniilelcl to ill l * Sfi/is ESEGE ' Swlsi " A