Kuberappa S/O. Mahadevappa Kari vs The State Of Karnataka
2021 Latest Caselaw 5628 Kant

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

 DATED THIS THE 07TH DAY OF DECEMBER, 2021

                          BEFORE

         THE HON'BLE MRS.JUSTICE M.G.UMA

                  CRL.A.NO.2928/2012

BETWEEN :

KUBERAPPA S/O MAHADEVAPPA KARI,
AGE : 24 YEARS, OCC: AGRCULTURE,
R/O KARIYAVAR ONI, LAKKAUNDI,
TQ. DIST.GADAG.
                                          ... APPELLANT

(BY     SRI BASAVARAJ INDI, ADV.
        SRI SRINIVAS B.NAIK, ADV., &
        SRI K.L.PATIL, ADV)

AND :

THE STATE OF KARANTAKA,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD.
                                        ... RESPONDENT
(BY SRI PRAVEEN K.UPPAR HCGP)

      THIS APPEAL IS FILED UNDER SECTION 374(2) OF THE
CODE OF CRIMINAL PROCEDURE, PRAYING THIS COURT TO
SET ASIDE THE HON'BLE SESSIONS JUDGE, GADAG IN
S.C.NO.82/2010 AND ACQUIT THE ACCUSED OF THE OFFENCE
PUNISHABLE UNDER SECTION 376 & 420 OF IPC IN THE
INTEREST OF JUSTICE AND EQUITY.

      THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                  2




                           : JUDGMENT :

The appellant-accused is before this Court

challenging the judgment of conviction and

order of sentence dated 08.11.2012 passed in

S.C.82/2010 by the District and Sessions Court

at Gadag ("the Trial Court" for short), for the

offence punishable under Section 376 of IPC and

sentencing him to undergo rigorous

imprisonment for a period of seven years and to

pay fine of Rs.50,000/- and in default to pay

fine to undergo simple imprisonment for a

period of six months.

2. Brief facts of the case are that the

victim lodged the first information before Gadag

Rural Police on 12.12.2008 stating that the

accused is related to her and when she had gone

to forest area to collect firewood, the accused

came from behind, caught hold of her and

committed sexual assault. After committing the

offence the accused had ran away. When the

accused was questioned by the mother of the

victim he requested not to reveal this fact to

anybody and he promised to marry the victim.

But however, subsequently he refused to marry

the victim. In the meantime, the victim

conceived and even after knowing the fact, he

refused to marry her. Therefore, the informant

requested the police to register the case and to

initiate legal action against him. Accordingly the

FIR in Crime No.342/2008 of Gadag Rural Police

Station, is registered for the offence punishable

under Sections 376 and 420 of IPC and the

investigation was undertaken. After

investigation the charge sheet was came to be

filed for the above said offences.

3. Learned magistrate took cognizance of

the offence and committed the matter to the

Sessions Court. The accused appeared before

the Trial Court and pleaded not guilty for the

offences alleged against him. The prosecution

examined PWs.1 to 15 and got marked Exs.P.1

to 17 in support of his contention. The Trial

Court after taking into consideration all these

materials on record came to the conclusion that

the prosecution is successful in proving the guilt

of the accused beyond reasonable doubt and

convicted the accused.

4. Being aggrieved by the judgment of

conviction and order of sentenced passed by the

Trial Court, the accused is before this Court.

5. Heard Sri Basavaraj Indi learned

counsel for the appellant and Sri Praveen

K.Uppar, learned High Court Government

Pleader for respondent-State.

6. Learned counsel for the appellant

submitted that, there is inordinate delay in

lodging the complaint. There was motive and ill-

will to file the first information. The police

constable belonging to the family of the

informant took special interest in filing the first

information and also in filing the charge sheet.

Section 376 of IPC is not all attracted. The

victim was aged 22 years at the time of incident

and at the most it may be a consensual act.

There are material contradictions in the

evidence of prosecution witnesses which go the

root of the matter. Therefore, the accused is

entitled to be acquitted and hence he prays for

allowing the appeal.

7. Per contra, learned High Court

Government Pleader opposing the submissions

made by the learned counsel for the appellant

submitted that, the victim herself lodged the

first information against the accused specifically

stating about the commission of the offence.

PW.3 is the mother with whom victim narrated

the incident at the first instance. Victim is

examined as PW.8 and she withstood the cross-

examination. PW.9 is the doctor who conducted

medical examination of the victim and issued

the medical certificate as per Ex.P.9. PW.10 is

the Gynecologist who examined the victim and

issued the medical certificate as per Ex.P.10. As

per this document the victim was pregnant by

24 weeks. PW.14 is the Investigating Officer

who carried on the investigation and collected

the DNA report which is as per Ex.P.16. Ex.P.16

supports the contention of the prosecution that

the accused is the biological father of the child

which was begotten by the victim on

06.03.2009. The blood samples were drawn for

the purpose of DNA with the permission of the

learned Magistrate. From all these materials it is

clear that, the accused has committed the

offence of rape. When DNA report supports the

contention of the prosecution, the only question

that is to be decided is as to whether the act in

question was with or without the consent of the

victim. When the victim categorically deposed

before the Court on oath that she was ravished

by the accused and when there is nothing to

disbelieve her version, the same is to be

accepted. Under such circumstances, the Trial

Court has rightly formed an opinion regarding

commission of the offence punishable under

Section 376 of IPC, even though the accused is

acquitted for the offence punishable under

Section 420 of IPC. There is no illegality or

infirmity in the judgment of conviction passed

by the Trial Court. Hence, he prays for dismissal

of the appeal as devoid of merits.

8. Perused the materials on record

including the impugned judgment passed by the

Trial Court.

9. On rival contentions of the parties, the

point that would arise for consideration of this

Court is as follows:

Whether the impugned judgment of conviction dated 08.11.2012 passed

in S.C.82/2010 by the Trial Court calls for any interference by this Court?

10. My answer to the above point is in the

'affirmative' for the following reasons.

: REASONS :

11. It is the specific contention of the

prosecution that the accused committed rape on

the victim on 27.10.2008 at about 10.00 a.m.,

when the victim was went to the nearby forest.

The charge framed against the accused for the

offence under Section 376 of IPC reads as

under:

"¤ÃªÀÅ ¢£ÁAPÀ: 27.10.2008 gÀAzÀÄ ªÀÄÄAeÁ£É 10 UÀAmÉUÉ ¸ÀĪÀiÁjUÉ UÀzÀUÀ UÁæ«ÄÃt ¥ÉÆð¸À oÁuÁ ºÀ¢Ý ¥ÉÊQ ¸ÀA¨sÁ¥ÀÆgÀ UÁæªÀÄzÀ dªÀżÀ ¨ÉAZï ªÀiÁzÀgÀ CqÀ« d«ÄãÀÄ j. ¸À. £ÀA.85£Éà eÁ° ¨É¼ÉzÀ PÁqÀÄ d«ÄãÀzÀ°è PÀĪÀiÁj ªÀÄ®èªÀé vÀAzÉ ¤Ã®¥Àà PÀj, ªÀAiÀiÁ:16 ªÀµÀð EªÀ¼ÉÆA¢UÉ CªÀ¼À EZÉÒAiÀÄ «gÀÄzÀÞªÁV CªÀ¼À ¸ÀªÀÄäw E®èzÉAiÉÄà CªÀ¼À ¨Á¬ÄAiÀÄ£ÀÄß UÀnÖAiÀiÁV »rzÀÄ, £É®PÉÌ PÉqÀ«, ºÀoÁvï ¸ÀA¨sÉÆÃUÀ ªÀiÁr D ªÀÄÆ®PÀ ¨sÁgÀvÀ zÀAqÀ ¸ÀA»vÉ 376 ¥ÀæPÀgÀtzÀ ªÉÄÃgÉUÉ zÀAqÀ¤ÃAiÀĪÁzÀ C¥ÀgÁzsÀªÀ£ÀÄß F ¸ÉµÉ£ïì £ÁåAiÀiÁ®AiÀÄzÀ ¸ÀÄeÁÕ£ÀzÉƼÀUÉ ªÀiÁrgÀÄ«j."

12. To prove this charge, the prosecution

examined several witnesses. PW.8 is the victim.

She never refers to the date of incident as she

is not very much convergent with the date etc.

She being a village rustic gives approximate

time at which the incident had occurred. In the

first information which is as per Ex.P.8 lodged

on 12.12.2008, it is stated that about 2 months

earlier to the said date that was on the previous

day of new-moon day, preceeding Mahanavami,

the accused committed the offence. When she

was examined before the Court, she states that

the incident had taken place on Ganesha

Chaturti day. While filing the charge sheet the

prosecution specifically stated that the incident

had taken place on 27.10.2008 and accordingly

the charge was came to be framed.

13. It is pertinent to note that PW.10 is

the Medical Officer who examined the victim and

gave the medical certificate. She states that she

examined the victim on 15.12.2008 and by that

time the victim was 21 weeks & 13 days

pregnant, which naturally takes us to the month

of July, 2008. Moreover in the evidence of

PW.14, the Investigating Officer states that on

06.03.2009 the victim delivered a female child

and the DNA profile proves that the accused is

the biological father of the child. With this

background in mind, I have to consider as to

whether the prosecution is successful in proving

the guilt of the accused beyond reasonable

doubt.

14. As per the charge framed against the

accused it is not the contention of the

prosecution that the accused has committed

such offence repeatedly or even earlier to

27.10.2008. Learned High Court Government

Pleader drawn my attention to the later part of

the charge framed for the offence punishable

under Section 420 of IPC, wherein there is

reference to commission of similar offence for 5

or 6 times earlier to 27.10.2008. But

unfortunately no such charge is framed for the

offence punishable under Section 376 of IPC

Admittedly, the accused is already acquitted for

the offence punishable under Section 420 of IPC

and the prosecution cannot take advantage of

the charge that was framed for the said offence

for which the accused is already acquitted. As

per the charge the accused committed the

offence punishable under Section 376 of IPC on

27.10.2008. The materials placed before the

Court show that he victim the delivered the child

on 06.03.2009 i.e., within 5 months, which is

most improbable. There is no explanation

whatsoever, either in the evidence of any of the

prosecution witness or in the impugned

judgment of conviction passed by the Trial

Court.

15. Even though the DNA report which is

as per Ex.P.16 supports the contention of the

prosecution that the accused is the biological

father of the child, the prosecution is required

to prove the charge against the accused,

according to which the accused committed the

offence of rape on 27.10.2008 which is not even

probablised by the prosecution. Therefore, even

the DNA report Ex.P.16 is not helpful to the

prosecution. Neither the prosecution nor the

trial Court took note of the charge framed

against the accused while leading the evidence,

while answering the charge and while holding

that the accused is guilty of the said offence.

The inconsistency in the case made out by the

prosecution is apparent and it goes to the root

of the matter. Even though I am not inclined to

accept the contention taken by the learned

counsel for the appellant regarding delay in

lodging the first information, the ill-will or

motive to file the false complaint, that the

ingredients Section 376 of IPC are not attracted

and that there are material contradictions in the

evidence of the prosecution witnesses, the

discussion held above regarding the

inconsistency in the evidence that was led

before the Court, when considered in the light of

the charge that is framed against the accused,

the accused is entitled for benefit of doubt and

is to be acquitted.

16. Section 211 of Cr.P.C deals with

framing of charges and its contents. Form No.32

I Schedule-II appended to the Cr.P.C requires

details of each offence to be stated with

reference to the particular accused who said to

have committed to the offence. The charge shall

contain the necessary details of the offence

including the date, time and place where the

offence is committed, the person who committed

the offence and the person against whom such

offence is committed. The charge is required to

be framed to safeguard the valuable rights of

the accused and to have a fair trial in criminal

cases. Proper framing of the charge ensure that

no prejudice would be caused to the accused in

raising the defence and defending his cause. By

framing the charge, the trial Court will notify

the accused as to the nature of the accusation

made against him.

17. In the present case, the charge

framed against the accused for the offence

punishable under Section 376 of IPC discloses

that a specific charge is framed by the Trial

Court mentioning the date, time and place of

commission of the specific offence against the

victim which is punishable under Section 376 of

IPC. It is the specific contention of the

prosecution that only due to the act of rape

committed by the accused on the victim on the

date, time and place mentioned in the charge,

the victim became pregnant and delivered the

child. The DNA report states that the accused is

the biological father of the child. If the said

date, time and place as stated in the charge are

taken into consideration in the light of the fact

that the victim delivered a child on 06.03.2009

the charge framed against the accused is not

even probablized. The Trial Court entirely

proceeded with the assumption that the accused

had committed the offence of rape not only on

27.10.2008 but even earlier to the said date and

proceeded to convict the accused. But the

charge extracted above, discloses that no such

charge was framed against the accused.

Therefore, on this technical ground, the accused

is to be acquitted extending the benefit of

doubt. The prosecution and the Court should

have been diligent while holding trial. It is a

classic case of framing charges, leading/

recording the evidence mechanically, with out

reference to the charge and proceeding to

dispose of the case without application of mind.

Since the incident is of the year 2008, I do not

propose to remand the matter for fresh

consideration after framing proper charge as the

same would cause injustice to the accused.

18. Hence, I answer the above point in the

'affirmative' and accordingly proceed to pass the

following:

: ORDER :

             The     above     appeal      is    hereby
     allowed.

             The      impugned          judgment     of

conviction and order of sentence dated 08.11.2012 passed in S.C.No.82/2010 by the Trial Court for the offence punishable under Section 376 of the Indian Penal Code is hereby set aside.

The accused is hereby acquitted for offences alleged against him.

Sd/-

JUDGE EM