Shankar @ J.B.Roopesh vs The State
2022 Latest Caselaw 4855 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF MARCH, 2022

                         BEFORE:

       THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.163 OF 2018


BETWEEN:

SHANKAR @ J.B. ROOPESH,
S/O. BASAVARAJU @ MOGAIAH,
AGED ABOUT 26 YEARS,
R/O. JOMPANAHALLI VILLAGE,
H.D. KOTE TALUK,
MYSURU DISTRICT.                           ... APPELLANT

[BY SRI. ABUBACKER SHAFI, ADVOCATE]

AND:

THE STATE
BY H.D. KOTE POLICE STATION,
REPRESENTED BY S.P.P.,
HIGH COURT BUILDINGS,
BENGALURU - 560 001.                     ... RESPONDENT

[BY SRI. R.D. RENUKARADHYA, HCGP]


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
AND ORDER DATED 28.11.2017 AND SENTENCE DATED
29.11.2017 PASSED BY THE VII ADDITIONAL SESSIONS JUDGE,
MYSURU,       IN      S.C.NO.265/2014-CONVICTING    THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 417, 376 AND 506 OF IPC.

      THIS CRIMINAL APPEAL COMING ON FOR DICTATING
JUDGMENT, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

This appeal is preferred by the accused against the

Judgment and Order dated 28 / 29.11.2017 passed by

the Court of VII Additional Sessions Judge, Mysuru, in

S.C.No.265/2014, convicting and sentencing him for

offences punishable under Sections 417, 376 and 506 of

IPC.

i. For the offence punishable under Section 417

of IPC, the accused has been sentenced to undergo

simple imprisonment for a period of one year and to pay

fine of Rs.5,000/- and in default, to undergo simple

imprisonment for a period of three months.

ii. For the offence punishable under Section 376

of IPC, the accused has been sentenced to undergo

Rigorous Imprisonment for a period of 12 years and to

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

Rigorous Imprisonment for a period of two years.

iii. For the offence punishable under Section 506

of IPC, the accused has been sentenced to undergo

simple imprisonment for a period of one year and to pay

fine of Rs.5,000/- and in default, to undergo simple

imprisonment for a period of three months.

2. I have heard the learned counsel for appellant

and the learned HCGP for respondent / State and

perused the material on record.

3. Brief facts of the prosecution case are that the

prosecutrix (PW.1) is a resident of Hommaragalli,

H.D.Kote Taluk. The accused is a resident of

Jompanahalli village, H.D.Kote. He often visited the

house of his relative by name Kempamma in

Hommaragalli village and at that time he used to take

the prosecutrix to his house where she used to work and

also in his lands. She used to stay in his house for about

15 days and whenever required, the accused used to

take her to his house and drop her back to her village.

When the prosecutrix used to stay in his house, he tried

to have close intimacy with her but she told him that she

is elder to him and therefore, physical intimacy would

not be proper for which the accused replied that many

boys have married the girls who are elder to them. One

day when the prosecutrix was alone in her house, the

accused went to her house and closed the door. When

she tried to shout for help, he closed her mouth and

committed forcible sexual intercourse on her. Then, he

consoled her by promising that he would marry her and

told her not to inform the incident to others. Thereafter,

for about four years, on many occasions he had sexual

intercourse with her assuring her that he would marry

her. At one point of time, when the prosecutrix informed

the accused that she is three months pregnant, he gave

3-4 tablets to terminate the pregnancy, but it was of no

use. Thereafter, the accused did not turn up and when

she contacted over phone, he demanded money to marry

her and also threatened her with dire consequences, if

she reveal the matter to others. On 08.11.2012, the

prosecutrix gave birth to a female baby. The accused

failed to attend the panchayat and therefore, a complaint

was given to Mahila Sahaya Vani. Prosecutrix was given

shelter in Shaktidhama, Mysuru, and with the help of

Women's Organization, a complaint was lodged against

the accused.

4. It is contended by the learned counsel for

appellant that admittedly the prosecutrix is much older

than the accused. Even according to her, there was

physical relationship for about four years. The complaint

is lodged at the instance of the members of Mahila

Sahaya Vani. He contends that even if the entire case of

the prosecution is accepted, there is no case made out

for the offence punishable under Section 376 of IPC since

the ingredients of the said offence are not made out. He

further contends that the Trial Court without properly

appreciating the various pronouncements of the Apex

Court in a case of this nature has erroneously convicted

the accused and the same has resulted in miscarriage of

justice. He therefore, seeks to set aside the impugned

Judgment of Conviction and Order of Sentence. In

support of his contention, he has placed reliance on the

following judgments:

1. Maheshwar Tigga v. State Of Jharkhand (2020) AIR (SC) 4535.

2. Tilak Raj v. State Of Himachal Pradesh (2016) 4 SCC 140

3. Deelip Singh alias Dilip Kumar v. State of Bihar (2005) 1 SCC 88

4. Uday v. State of Karnataka AIR 2003 SC 1639

5. Per contra, the learned HCGP has contended

that the prosecutrix has categorically stated that the

accused has committed forcible sexual intercourse on her

and then continued the said act with a promise of

marriage. He contends that the evidence of the

prosecutrix is supported by other circumstantial

evidence. He contends that the prosecutrix has given

birth to a female baby and the DNA report also supports

the case of prosecution. He contends that the accused

has threatened her not to disclose the incident to others

and after she gave birth to a baby, he failed to attend

the panchayat and thereby cheated her. He contends

that the prosecution has been able to establish the guilt

of the accused for the charged offences beyond all

reasonable doubt and therefore, the Trial Court has

rightly convicted and sentenced him and there are no

grounds made out to reverse the findings recorded by

the Trial court. Accordingly, he has sought for dismissal

of the appeal. In support his submissions, the learned

HCGP has placed reliance on the following decision:

Anurag Soni vs The State Of Chhattisgarh AIR 2019 SC 1857

6. To establish the guilt of the accused, the

prosecution has got examined 15 witnesses PWs.1 to 15

and got marked Exs.P1 to P24.

7. After appreciating the oral and documentary

evidence on record, the Trial Court at para-54 has come

to the following conclusion:

"54. The fact that the victim was visiting the house of accused and worked in his house and at some times she used to overstay for 10-15 days is proved. The fact that accused visited the house of the Prosecutrix, mostly when she was alone is also forthcoming from the material on record. The fact that Prosecutrix became pregnant and thereafter gave birth to a female baby in Cheluvamba Hospital, Mysuru is not in serious dispute. The plea taken by the accused that he had not fathered the child has to be rejected in view of Ex.P.4/DNA examination Report. It is proved by the prosecution that the victim, who is unmarried, became pregnant due to the intimate relationship with the accused. The plea put forth by the defence of false accusation is rejected and as pointed above, this is a case where her consent for sexual intercourse was obtained under misconception of fact that he would marry her and thus made her pregnant. The Police have also conducted effective investigation and no lapses were pointed out by the defence counsel. Even if there are some

lapses/omissions, they should be trivial in nature. There is clinching evidence on record to show that the Prosecutrix was ravished by the accused and he had also threatened her with dire consequences if she revealed the incident to others. Thereafter, when the Prosecutrix had delivered baby in the hospital and when his family members went to his house seeking justice, he had fled the Village and had not married the victim as per his earlier promise. No Explanation was offered by the accused during questioning under Section 313 (1) (b) Cr.P.C. As such, there is clinching evidence on record and also strong circumstances which suggest that the accused had committed the alleged offences."

8. The prosecutrix is examined as PW.1. Ex.P1

is the complaint lodged by her. In Ex.P1, it is averred

that since four years the accused was in physical

relationship with her and he used to forcibly commit

sexual intercourse and had promised that he will marry

her. When she became pregnant, he gave some tablets

to cause miscarriage, however, she gave birth to a child.

Panchayat was convened. But, the accused did not

attend the panchayat. On the other hand, he claimed

that he has no connection with the prosecutrix and

therefore, she gave a complaint to Mahila Sahaya Vani.

She was driven out by her father on 16.01.2013 and

thereafter she took shelter at Shaktidhama Mysuru, from

there she was sent to Mahila Sahaya Vani.

9. In her evidence, PW.1 has deposed that since

four years prior to lodging of the complaint she and the

accused were in love with each other. She got

acquainted with him when he was visiting the house of

one Kempamma. She has stated that the accused is her

distant relative and used to take her as a domestic

servant to his house and whenever she visited his house

she used to stay in his house for about 15 days. The

accused was teasing her and tried to have physical

intimacy with her and when she objected, he told her

that many persons have married the girls who are elder

to them. One day, in the afternoon, the accused came

to her house and even when she tried to scream, he

closed her mouth and committed forcible sexual

intercourse and thereafter he told her not to inform the

matter to others and assured her that he will marry her.

She has further deposed that since then the accused

used to visit her and because of the physical relationship,

she became pregnant and even then the accused

promised her that he will marry her and gave

3-4 tablets and she consumed the same, but it was of no

use. Thereafter, the accused quarrelled with her and

went to Bengaluru. She waited for him and when

contacted him over phone, he demanded money and also

threatened her with dire consequences not to disclose

the matter to others. On 08.11.2012, she gave birth to a

female baby at Cheluvamba Hospital, Mysuru. Since the

accused did not visit her, she complained to Mahila

Sahaya Vani. However, the accused denied of having

any relationship with her and then she lodged the

complaint with the help of Mahila Sahaya Vani as per

Ex.P1.

10. The prosecution has got examined PW.5-

Medical Officer, Primary Health Centre, Hampapura. She

has deposed that on 13.09.2012 at about 11:30 a.m.,

the prosecutrix was examined by her and she found that

the prosecutrix was seven months pregnant and that she

was unmarried.

11. PW.6 is the Orthopedician who has collected

the blood samples of the accused, prosecutrix and the

baby and the samples were sent for DNA examination.

12. PW.7 is the Medical Officer who has examined

the prosecutrix on 18.01.2013.

13. PW.8 is the Assistant Director, FSL,

Bengaluru, after examining the samples sent by PW.6,

issued Report marked as Ex.P4.

14. PW.9 is the Doctor working at Cheluvamba

Hospital, Mysuru. He has issued the documents

pertaining to delivery of a female baby. He has attested

the copy of the summary sheet / case sheet as well as

Birth Certificate of the child. The documents are marked

as Exs.P-16 to P-18.

15. As per evidence of PW.8, the DNA profile

results of the blood samples sent in item Nos. 1, 2 and 3

are as under:

"a. The DNA profile of the sample blood sent

in item No.1, the baby of Ms.Mahadevamma @

Madevi is consistent with having come from the

Offspring of Mr.Sankara @ Roopesha G.B., S/o

Basavaraju @ Moogaiah and matching with the

DNA Profile of the sample blood sent in item No.3.

b. The DNA profile of the sample blood sent

in item No.2 Ms.Mahadevamma @ Madevi, D/o.

Mahadevaiah, is matching with the DNA Profile of

the baby of Ms.Mahadevamma @ Madevi, sample

blood sent in item No.1."

16. From the above evidence, there is no room to

doubt that the prosecutrix was subjected to sexual

intercourse by the accused and subsequently she gave

birth to a female baby on 08.11.2012. The evidence of

PW8 and the DNA report would clearly establish that the

accused is the biological father of the child born to the

prosecutrix. Nothing is elicited in the cross-examination

of the above witnesses to disbelieve their evidence.

17. According to PW.1, she and accused were in

love with each other for the past four years. The

accused is her distant relative and he used to take her to

his house to work and at that time, she used to stay in

his house for about 15 days. Once when he tried to

touch her, she advised him not to do such things. At

that time, he told her that many boys have married the

girls who are elder to them. One day, in the afternoon,

the accused came to her house and closed the door and

committed forcible sexual intercourse on her and

thereafter told her not to inform the matter to others

saying that he will give her life and since then, he used

to visit her and there was a physical relationship.

18. In a similar set of facts, the Hon'ble Apex

Court in the case of Maheshwar Tigga (supra) has

observed in paragraphs-13 and 14 as under:

"13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out.

It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case we are not persuaded to accept the solitary statement of the prosecutrix that

at the time of the first alleged offence her consent was obtained under fear of injury.

14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her."

19. It is also useful to refer to paragraph-16 of

the judgment of the Hon'ble Apex Court in the case of

Tilak Raj (supra), which is extracted hereunder:

"We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Penal Code, 1880 (in short

"the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of the incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of a copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable."

20. In the case of Uday v. State of Karnataka

(supra) the Hon'ble Apex Court, referring to a case in

Deelip Singh @ Dilip Kumar (supra), has held that

consent given by a woman believing the man's promise

to marry her would fall within the expression "Without

her consent" only if it is established that from the very

inception the man never really intended to marry her

and the promise was a mere hoax".

21. In Anurag Soni v. State of Chattisgarh

(supra), relied on by the leaned HCGP, it is held that, if

prosecutrix gave consent relying upon false promise of

marriage by accused, it amounts to consent given on

misconception of fact and such consent cannot excuse

accused from charge of rape.

22. In the case on hand, admittedly, the

prosecutrix is about eight years elder than the accused.

There was physical relationship between them for about

four years. According to prosecutrix, on account of

physical relationship she became pregnant and she

informed the same to the accused. At that time, the

accused gave 3-4 tablets for causing miscarriage but it

was of no use. Except, the oral evidence, there is no

material to show that in fact the accused gave any

tablets to her. The prosecutrix has given birth to a

female baby on 08.11.2012. It is stated in Ex.P1 as well

as in her cross-examination that she was driven out of

the house on 16.01.2013 by her father and brother and

thereafter she took shelter at Shakthidama in Mysuru,

who later sent her to Mahila Sahaya Vani in H.D.Kote.

The complaint is lodged on 17.01.2013, which shows

that the complaint was lodged only after the prosecutrix

was sent out of the house along with her child by her

family members.

23. In the cross-examination, PW.1 has stated

that because there was close acquaintance with the

accused she did not inform the matter to

CW.3-Jayamma, who had seen the accused visiting her

house. She has admitted that since three years the

accused was visiting her house and she did not inform

about their relationship either to her sister or any of the

family members. Her say is that the accused had

threatened her with dire consequences not to disclose

the incident to others and therefore, she did not disclose

the incident to others, which is difficult to believe.

24. In the facts and circumstances of the case

and keeping in view the above pronouncements of the

Apex Court, it cannot be held that the consent given by

the prosecutrix for sexual intercourse is under

misconception of fact. On the other hand, the evidence

on record is sufficient to show that it is voluntary. The

consent was conscious and deliberated choice. The

prosecutrix was an adult and a matured lady of 30 years

at the time of incident and the accused was aged about

22 years. She has admitted in her testimony that she

had relationship with the accused and both of them were

in love with each other for the past four years. She

used to stay in the house of the accused for about 15

days whenever she visited his house. The evidence, as a

whole, clearly indicates that the story of the prosecutrix

regarding forcible sexual intercourse is not believable.

25. Admittedly, the prosecutrix was unmarried.

According to her, the accused had promised her to marry

her and in the pretext of marriage, continued the

physical relationship. Her evidence would disclose that

when she became pregnant, she informed the matter to

the accused. At that time, he assured that after

informing his family members, he would marry her. He,

then quarreled with her and went to Bengaluru and did

not return and she waited for him. Thereafter, she

informed the matter to the villagers and a panchayat was

convened. However, the accused did not attend the

panchayat. After the prosecutrix became pregnant, the

accused did not turn up and even disputed paternity of

the child. Even though the evidence is not sufficient to

bring out the charges leveled against the appellant for

the offence punishable under Section 376 and 506 of

IPC, there is sufficient evidence to attract the ingredients

of Section 417 of IPC. Therefore, this Court is of the

view that the accused without any intention to marry the

prosecutrix, involved in sexual activities and after she

became pregnant and delivered a baby, refused to marry

her and therefore, he is liable to be convicted under

Section 417 of IPC. In the result, the following:

ORDER

i. The Judgment and Order dated 28th and 29th

November, 2017 passed by the Court of VII Additional

Sessions Judge, Mysuru, in S.C.No.265/2014, is hereby

set aside insofar as conviction and sentence of the

appellant / accused for the offence punishable under

Sections 376 and 506 of IPC.

ii. The conviction of the appellant / accused for

the offence punishable under Section 417 of IPC and

the sentence of imprisonment passed by the trial Court

for the said offence is hereby confirmed.

iii. The fine amount imposed by the Trial Court

for the said offence is enhanced to Rs.50,000/- and in

default of payment of fine, accused shall undergo simple

imprisonment for three months. The entire fine amount,

if realized, shall be paid to the prosecutrix / PW.1 as

compensation.

26. This Court is also of the view that the

compensation awarded to the victim is not adequate and

therefore, this is a fit case to recommend the District

Legal Services Authority, Mysuru, to award adequate

compensation to the victim / PW1, after deciding the

quantum of compensation.

27. Registry is directed to communicate this order

to the District Legal Services Authority, Mysuru, forthwith

for compliance.

28. The accused is in judicial custody. Hence, the

operative portion of the order shall be communicated to

the Jail Authoirty.

Sd/-

JUDGE TL