State Of Karnataka vs Dadapeer S/O Budansab Khudavand
2021 Latest Caselaw 2332 Kant

                                          CRL.A.NO.100128/2018
                                      C/W CRL.A.NO.100184/2018

                               1

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 23RD DAY OF JUNE, 2021

                          PRESENT

           THE HON'BLE MR. JUSTICE R.DEVDAS

                             AND

           THE HON'BLE MS. JUSTICE J.M.KHAZI

           CRIMINAL APPEAL NO.100128/2018
         C/W CRIMINAL APPEAL NO.100184/2018

Crl.A.No.100128/2018:
Between:
Afrin D/o. Gudusab Naikwadi
Age: 24 Years, Occ: Household,
R/o: Badrapur, Tq: Navalgund, Dist: Dharwad.
                                                   ...Appellant
(By Sri.M.B.Gundawade, Adv.)

And:
1.     Dadapeer S/O Budansab Khudavand
       Age: 28 Years, Occ: Driver,
       R/o Bhadrapur Village, Tq: Navalgund,
       Dist: Dharwad.

2.    State Of Karnataka
      By State Public Prosecutor,
      High Court of Karnataka, Dharwad Bench,
      At Dharwad, Through Annigeri Police Station.
                                                ...Respondents
(By Sri.B.S.Kukanagoudar, Adv. for R1,
Sri.V.M.Banakar, Addl. S.P.P. for R2)

      This criminal appeal is filed by the complainant under
Section 372 Of Cr.P.C., seeking to call for records and to pass
                                           CRL.A.NO.100128/2018
                                      C/W CRL.A.NO.100184/2018

                              2

a judgment and order of conviction for the offences punishable
under Sections 376 and 471 of IPC, by setting aside the
judgment and order of acquittal dated 23.01.2018 passed in
Sessions Case No.71/2017 by the Prl. District and Sessions
Judge, Dharwad and to pass an order awarding rigorous
imprisonment for life prescribed for the offence punishable
under Sections 376, 417 of IPC and to pass an order under
Section 357 of IPC awarding reasonable compensation to the
victim.

CRL.A.NO.100184/2018:
Between:
State of Karnataka,
Rep. by the Police Inspector,
Annigeri Police Station,
Tq. Navalagund, Dist. Dharwad,
Through the Addl. State Public Prosecutor,
Advocate General Office,
High Court of Karnataka,
Dharwad Bench, Dharwad.
                                                   ...Appellant
(By Sri.V.M.Banakar, Addl. S.P.P.)

And:
Dadapeer S/o. Budansab Khudavand
Age: 26 Years, Occ: Driver,
R/O Bhadrapur Village, Tq: Navalgund,
Dist: Dharwad.
                                                 ...Respondent
(By Sri.B.S.Kukanagoudar, Adv.)

      This criminal appeal is filed by the State under Sections
378(1) & (3) of Cr.P.C., seeking to setting aside the judgment
and order of acquittal dated 23.01.2018 passed by the Prl.
Dist. & Sessions Judge, Dharwad in Sessions Case No.71/2017
and etc.

       These criminal appeals having been heard and reserved
for judgment on 09.06.2021, coming on for pronouncement of
judgment this day, J.M.Khazi J., delivered the following:
                                               CRL.A.NO.100128/2018
                                          C/W CRL.A.NO.100184/2018

                              3

                         JUDGMENT

These two appeals are filed against the judgment and

order dated 23.01.2018 in Sessions Case No.71/2017 on

the file of the Principal District and Sessions Judge,

Dharwad. Vide the impugned judgment and order, the

learned Principal District and Sessions Judge has acquitted

the accused for the offences punishable under Sections 376

and 417 of the Indian Penal Code, 1860 ("IPC" for short).

2. Aggrieved by the impugned judgment and order,

the complainant has filed Criminal Appeal

No.100128/2018 under Section 372 of the Code of

Criminal Procedure, 1973 ("Cr.P.C." for short). On the other

hand, the State has filed Criminal Appeal No.100184/2018

under Sections 378(1) and (3) of Cr.P.C.

3. For the sake of convenience, the parties are

referred to their rank before the Trial Court and also the

complainant is referred to as prosecutrix.

CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

4. Since these two appeals are arising out of the

same judgment and order, they are heard together and

disposed of by this common judgment.

5. The allegations against the accused are that on

23.01.2016, the accused took the complainant near

Channammanakere which is situated by the side of

Navalgund Annigeri road and with a promise to marry her,

he had sexual intercourse with her and subsequently

refused to marry her and thereby cheated her and

committed offences punishable under Sections 376 and

417 of IPC.

6. After conducting detailed investigation, the

Investigating Officer has filed charge sheet against the

accused. Charge is framed against the accused for offences

punishable under Sections 376 and 417 of IPC and he has

denied the allegations and claimed to be tried.

7. In support of the prosecution case, 18 witnesses

are examined as P.Ws.1 to 18 and Exs.P-1 to 20 are CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

marked. No material objects are marked for the

prosecution.

8. During the course of his statement under

Section 313 of Cr.P.C., the accused denied the

incriminating material against him. He has not chosen to

lead any evidence on his behalf. No documents are marked

on behalf of the accused.

9. After hearing the arguments, vide the impugned

judgment and order, the learned Sessions Judge has

acquitted the accused of all the charges by holding that the

prosecution has failed to prove the allegations against the

accused beyond reasonable doubt.

10. During the course of their argument, the

learned counsel representing the complainant/prosecutrix

as well as the learned Additional State Public Prosecutor

submitted that the impugned judgment and order is

contrary to law, facts and evidence on record and required

to be reconsidered. They have further submitted that the

learned Trial Judge has failed to appreciate the evidence of CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

the prosecutrix, who has clearly stated that the accused

deceived her and by promising to marry her, extracted her

consent and committed sexual intercourse and

subsequently refused to marry her and thereby committed

the offences alleged against him. They have further

submitted that the parents, brother and some of the

independent witnesses have supported the prosecution

case and the medial evidence is also corroborating the

version of the prosecutrix. With this material, it is a fit case

to convict the accused and pray to allow the appeal and

pass appropriate orders.

11. On the other hand, the learned counsel

representing the accused submitted that having regard to

the fact that at the time of the alleged offences, the

prosecutrix was a major and having regard to the oral and

documentary evidence on record, the prosecution has failed

to prove the allegations against the accused. He submitted

that at the most, it is the case of prosecutrix being a

consenting party and there is no question of extracting her

consent under a promise to marry and that the accused CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

had no intention of fulfilling that promise and prays to

dismiss the appeal.

12. We have heard the learned counsel representing

the appellant i.e., complainant - prosecutrix in Criminal

Appeal No.100128/2018 and the learned Additional State

Public Prosecutor in Criminal Appeal No.100184/2018 as

well as the learned counsel representing the accused and

perused the records.

13. It is not in dispute that as on the date of the

complaint and as well as the alleged incident, the

prosecutrix was a major as claimed in the complaint dated

11.08.2016 which is marked as Ex.P-1, where she has

given her age as 22 years. The Investigating Officer has got

her statement recorded under Section 164 of Cr.P.C. by the

jurisdictional Magistrate on 16.08.2016, wherein also she

has given her age as 22 years.

14. P.W.8 - Smt.Bhuvaneshwari Hiremath is the In-

charge Head Master of the Government Higher Secondary

School where the prosecutrix studied. Based on the entries CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

made in the Admission Register she has issued the extract

of the date of birth of the prosecutrix at Ex.P-6. As per this

document her date of birth is 10.07.1994. According to this

document also, as on the date of the alleged incident, the

prosecutrix was aged 22 years. The evidence of this witness

is not disputed by the defence.

15. Having regard to the fact that as on the date of

the alleged incident, the prosecutrix was a major i.e., aged

22 years and she has alleged that she gave consent to the

accused to have sexual intercourse with her as he had

promised to marry her, with the aid of Section 90 of IPC, it

is for the prosecution to prove that the prosecutrix had

given her consent under a misconception of fact and the

accused had a reason to believe that the prosecutrix had

given the consent under such misconception i.e., under a

belief that the accused is going to marry her. Now it is to be

examined whether prosecution has proved the allegations

against the accused beyond reasonable doubt attracting the

provisions of Sections 376 and 417 of IPC read with Section

90 of IPC.

CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

16. At the earliest available opportunity i.e., during

the course of her complaint at Ex.P-1, the prosecutrix has

stated that since 7 - 8 months, the accused had fallen in

love with her and on 23.01.2016 at 12 noon, he took her

near the Channammanakere and forcibly had sexual

intercourse with her and this was known to her parents

and brother and thinking that he may marry her they kept

quite. It has also come in the evidence that after the first

incident, before the complaint was lodged, thrice the

accused had sexual intercourse with the complainant at

the same place and about 5 - 6 days prior to the filing of

the complaint, when they requested the accused to marry

her, he flatly refused and therefore the complaint is filed.

17. However, during the course of her statement

under Section 164 of Cr.P.C. at Ex.P-5, she has stated that

she came to know the accused about 7 - 8 months back

and they were in love and he had requested her not to

disclose the fact to anyone. With regard to first instance of CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

accused forcibly having sexual intercourse with her, the

prosecutrix has stated that the said incident took place

about three months prior to her filing the complaint and

stated that the accused called her over phone and took her

near Channammanakere and while they were speaking, he

invited her to have sexual intercourse for which she replied

that if he is ready to marry her then she will permit him to

have sex with her and when he replied that he is going to

marry her, she allowed him to have sexual intercourse with

her. Thereafter they returned home. In the said statement,

she has further stated that in these three months period, in

all four times he had sexual intercourse with her in the

same place. So far as refusal of the accused to marry her,

in Ex.P-5 she has stated that about six days prior to the

filing of the complaint, when she requested him to marry

her, he flatly refused.

18. Now coming to her oral testimony before the

Court. In her evidence as P.W.1, the prosecutrix has stated

that about 7 - 8 months prior to the filing of the complaint,

the accused was saying that he is in love with her and that CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

he will marry her and on 23.01.2016 he took her to

Channammanakere and forcibly had sexual intercourse

with her and this was repeated thrice and all the four times

he had forcible sexual intercourse with her. At page 2 of her

evidence, the prosecutrix has again repeated that even

though she repeatedly protested, accused forcibly had

sexual intercourse with her.

19. P.W.1 has been cross-examined by suggesting

that unless and until there is love affair between the boy

and a girl, they will not go to the extent of having sexual

intercourse which the prosecutrix has admitted. In her

cross-examination at page 11, P.W.1 has specifically stated

that prior to 23.01.2016, there was no love affair between

her and the accused. In this regard, she has volunteered

and stated that the accused used to tease her and trouble

her asking her to love him. At para 17 of her evidence, for

the first time, the prosecutrix has introduced the fact and

deposed that accused had given her a cell phone and he

himself had put a sim to the said cell phone and with his

cell phone bearing No.9632987043, he used to call her.

CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

Admittedly, the Investigating Officer could have made some

enquiry regarding the way in which the prosecutrix and the

accused were communicating with each other. The

investigation on this aspect is lacking.

20. Regarding the improvements made by her

during the course of evidence, the prosecutrix has denied

the suggestions that in the complaint or during the course

of her statement under Section 164 of Cr.P.C., she has not

stated that the accused used to tease her or force her to

marry him and that he took her to the place of occurrence

on motorcycle as well as he had sexual intercourse with her

forcibly, while giving her statement before the Investigating

Officer.

21. P.W.13 - Dr.Fouzia Masarath is the Medical

Officer, who has examined the prosecutrix and given the

report at Ex.P-12. As per this document, her hymen was

ruptured but no injuries were found on her person. Since

there were no biological materials found on her clothes, her

clothes were not sent to forensic science laboratory for CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

testing. During the course of her cross-examination, she

has admitted that while jumping, riding cycle and also the

women who does hard work, there is possibility of rupture

of hymen. Corresponding to this, during the course of

cross-examination of the prosecutrix, it is elicited that she

does coolie work like plucking chillies and cotton from the

lands and also she travels in tractors, which involves heavy

physical activity. While cross-examining the prosecutrix as

well as the Medical Officer regarding the heavy work carried

out by the prosecutrix as a land labourer, the defence is

indicating that the possibility of the rupture of hymen of

the prosecutrix is due to these activities. However, through

the evidence of the Medical Officer the prosecution has not

extracted information as to the circumstances in which the

prosecutrix has lost her hymen by suggesting that it may

be due to the accused having sexual intercourse with her.

Moreover in the absence of any biological material

pertaining to the accused, such as semen stains and

spermatozoa on the person of the prosecutrix or her

clothes, there is no material to connect the accused to the CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

alleged crime as well as the loss of hymen by the

prosecutrix is on account of the accused having sexual

intercourse with her.

22. Moreover the oral and documentary evidence

placed on record by the prosecution is quite contrary to the

case putforth by it that the prosecutrix has consented to

have sexual intercourse with the accused on account of his

promise that he is going to marry her and she gave that

consent under a misconception of fact. Having regard to the

fact that the prosecutrix was a major as on the date of the

alleged incident, the case of the prosecution could be

attracted only under Section 90 of IPC, wherein it is for the

prosecution to prove that right from the beginning, accused

had no intention of marrying prosecutrix, but he extracted

her consent for having sexual intercourse by making a false

promise of marrying and prosecutrix and that she gave her

consent under a misconception of the said promise.

23. If at all the prosecutrix has given her consent in

a misconception of fact, then the question of accused using CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

force against her could not arise. If the case of the

prosecution that accused had forcible sexual intercourse is

to be accepted, then the question of the prosecutrix giving

her consent under a misconception would not arise. These

two aspects are contrary to each other and they are

mutually destructive.

24. In support of the case of the prosecution, the

learned Additional State Public Prosecutor has relied upon

the decision in the matter of Anurag Soni Vs. State of

Chhattisgarh reported in AIR 2019 SC 1857, wherein it

is held that whether the prosecutrix has given her consent

for physical relationship with the accused, based on a false

promise of marriage it amounts to consent on

misconception of fact and as such, accused is liable to be

convicted. However, in the present case, the prosecution

has failed to establish that there was promise by the

accused to marry the prosecutrix and as such, she gave her

consent based on such promise. On the other hand, the

prosecution case is highly inconsistent wherein at one

breathe the prosecutrix claim that accused had promised to CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

marry her and at the other breathe she says that accused

forcibly had sexual intercourse with her and after the first

incident, on three more occasions, accused took her to the

same place and had forcible sexual intercourse with her.

The facts and circumstances of the present case are totally

different from the facts based on which the above decision

the Hon'ble Apex Court was rendered. Therefore, this

decision is not applicable to the case on hand.

25. On the other hand, the learned counsel

representing the accused has relied upon the decisions in

the matter of Sonu @ Subhash Kumar Vs. State of Uttar

Pradesh and another reported in 2021 AIAR (Criminal)

409 and in the matter of Uday Vs. State of Karnataka

reported in (2003) 4 SCC 46, wherein it is held that

whether the prosecutrix is a major and consenting party,

the provisions of Section 376 of IPC is not attracted. These

two decisions are aptly applicable to the case on hand.

26. The learned counsel representing the accused

has also relied upon the decision of the Hon'ble Apex Court CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

in the matter of Anwar Ali and another Vs. The State of

Himachal Pradesh reported in 2021 AIAR (Criminal) 80,

wherein it is held that in case of an appeal against

acquittal, where two views are possible, the Appellate Court

should not ordinarily set aside a judgment of acquittal and

the benefit of it shall go to the accused. In the present case,

the prosecution has failed to prove the allegations against

the accused and there is no question of interfering with the

impugned judgment and order.

27. Taking into consideration these aspects and

also relying upon the decisions of the Hon'ble Supreme

Court, the Trial Court has rightly held that the prosecution

has failed to prove the charges against the accused beyond

reasonable doubt. The conclusions arrived at by the

prosecution is consistent with the evidence placed on

record and we find no perversity and this is not a fit case to

interfere with the conclusions arrived at by the Trial Court.

CRL.A.NO.100128/2018 C/W CRL.A.NO.100184/2018

Consequently, both the appeals filed by the

complainant/prosecutrix as well as the State fails and they

stand dismissed.

Sd/-

JUDGE

Sd/-

JUDGE Rsh