The State Through Grameen Police ... vs Sharanu @ Sharanappa @ ...
2022 Latest Caselaw 12595 Kant

                                                            ®
           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 27TH DAY OF OCTOBER, 2022

                            PRESENT

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                              AND

       THE HON'BLE MR. JUSTICE ANIL B. KATTI

           CRIMINAL APPEAL No.200058/2014

BETWEEN:

The State through
Grameen Police Station,
Gulbarga.
                                                      ... Appellant

(By Sri Prakash Yeli, Additional State Public Prosecutor)

AND:

Sharanu @ Sharanappa
@ Sharanabasappa,
S/o. Yashwant Jamadar
Age: 26 years, Occ: Coolie
R/o. Kerur, Tq & Dist: Gulbarga.
                                                    ... Respondent

(By Sri. Ameet Kumar Deshpande, Senior Counsel
For Sri. Suresh C. Tengli, Advocate)

                               ****

      This Criminal Appeal is filed under Section 378 (1) and (3)
of the Code of Criminal Procedure, 1973, praying to grant leave
to appeal against the judgment and order dated 18.11.2013
                                              Crl.A.No.200058/2014
                                2




passed by the I Additional Sessions Judge, Gulbarga, in Sessions
Case No.335/2012, thereby acquitting the respondent/accused
for the offence punishable under Sections 450, 376 and 506 of
the IPC; set aside the judgment and order of acquittal dated
18.11.2013 passed by the I Additional Sessions Judge, Gulbarga,
in Sessions Case No.335/2012 for the offences punishable under
Sections 450, 376 and 506 of IPC and to convict                 the
respondent/accused for the offences punishable under Sections
450, 376 and 506 of IPC, in the interest of justice and equity.

      This Criminal Appeal having been heard through Physical
Hearing/Video Conferencing Hearing and reserved for judgment
at   Kalaburagi   Bench,   on   28-09-2022,      coming    on   for
pronouncement at the Principal Bench at Bengaluru, this
day, Dr.H.B. Prabhakara Sastry J. delivered the following:


                        JUDGMENT

The State has filed this appeal under Section 378 (1)

& (3) of the Code of Criminal Procedure, 1973, (hereinafter

for brevity referred to as "the Cr.P.C."), challenging the

judgment of acquittal dated 18-11-2013 passed by the

learned I Additional Sessions Judge at Gulbarga (hereinafter

for brevity referred to as "the Sessions Judge's Court") in

Sessions Case No.335/2012, acquitting the accused of the

offences punishable under Sections 450, 376 and 506 of the

Indian Penal Code, 1860 (hereinafter for brevity referred to

as "the IPC").

Crl.A.No.200058/2014

2. The summary of the case of the prosecution in

the Sessions Judge's Court was that, the accused, who was

a married person having wife and two children and a

resident of the village of the complainant/victim, was asking

her to have sexual intercourse with him and was always

following her and used to threaten her. In the month of

December 2011, on a day in the afternoon, when the other

members of the family of the victim girl had been to their

agricultural land for work, noticing that the

complainant/victim was alone in her house, the accused

barged into her house and caught hold of her, closed her

mouth with the help of a cloth and assaulted her and

committed rape upon her. Further, the accused threatened

her of killing her in case if she revealed about the incident

to anyone.

It is further the case of the prosecution that,

subsequently, on many occasions, the accused had sexual

intercourse with the complainant by putting her under life

threat. He used to further threaten her that in case if she

reveals the same to anyone, he would take her to Mumbai Crl.A.No.200058/2014

and sell her to others. Due to such repetitive acts of rape

by the accused upon her, the complainant (victim girl) got

pregnant, which fact she had not disclosed to anyone.

However, when she had been to the house of her aunt

situated at a place called Honnakiranagi village, she

developed severe pain in her stomach. Her aunt took her to

the Hospital, where, after examination, the Doctor told her

that the complainant/victim girl was pregnant of two and a

half months. Later, at the request of her aunt, the Doctor

medically terminated the pregnancy of the complainant.

However, the parents of the victim girl came to know about

the said fact of she becoming pregnant and the fact of

medical termination of her pregnancy. Thereafter, the

parents of the victim convened a Panchayat in the village.

Though the accused did not attend the said Panchayat, but

his parents, who attended the Panchayat, before the elders

in the village, agreed to perform the marriage of the victim

girl with their son, i.e. the accused - Sharanu @

Sharanappa. It was also agreed that their marriage to

be registered in the Office of the Registrar of Marriages at Crl.A.No.200058/2014

Kalaburagi (then Gulbarga). However, the accused failed to

come to Kalaburagi and failed to marry her. On the other

hand, the accused threatened the victim girl and her family

members stating that, he would burn them by setting their

house on fire. It is on the above lines, the

complainant/victim girl lodged a complaint with the

appellant - Police on the date 03-04-2012. After registering

the same, in their Station Crime No.104/2012, for the

offences punishable under Sections 448, 376 and 506 of the

IPC, the appellant - Police conducted the investigation and

filed charge sheet against the accused for the offences

punishable under Sections 448, 376 and 506 of the IPC.

3. In order to prove the alleged guilt against the

accused, the prosecution got examined in all fourteen (14)

witnesses as PW-1 to PW-14 and got marked documents

from Exs.P-1 to P-15(a) and produced Material Objects

MO-1 to MO-6. From the accused's side, neither any

witness was examined nor any documents were marked as

exhibits.

Crl.A.No.200058/2014

After hearing both side, the learned Sessions Judge's

Court, by its judgment dated 18-11-2013, acquitted the

accused of the offences punishable under Sections 450, 376

and 506 of the IPC. Challenging the same, the State has

preferred the present appeal.

4. The respondent/accused is being represented by

his learned counsel.

5. The Sessions Judge's Court records were called for

and the same are placed before this Court.

6. Heard the arguments from both side. Perused the

materials placed before this Court including the

memorandum of appeal, impugned judgment and the

Sessions Judge's Court records.

7. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the

learned Sessions Judge's Court.

8. After hearing the learned counsels for the parties,

the points that arise for our consideration in this appeal are:

Crl.A.No.200058/2014

[i] Whether the prosecution has proved beyond reasonable doubt that the accused on a day in the month of December 2011, in the afternoon committed the house trespass of the house of the complainant/victim at Keroouru village, within the limits of the complainant Police Station, with an intention to commit rape on the victim which is an offence punishable with imprisonment upto for life and thereby committed the offence punishable under Section 450 of the IPC?

[ii] Whether the prosecution has proved beyond reasonable doubt that, the accused on the date, time and place mentioned above committed rape on the victim girl/complainant and thereby committed an offence punishable under Section 376 of the IPC?

[iii] Whether the prosecution has proved beyond reasonable doubt that, the accused had threatened to the life of the victim girl and her parents i.e. CW-4 - Sri. Subhash and CW-5 - Smt. Siddamma with an intention to cause alarm to them and thereby has committed the offence punishable under Section 506 of the IPC?

[iv] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

Crl.A.No.200058/2014

9. Learned Additional State Public Prosecutor for the

appellant-State, in his argument, submitted that, as on the

date of the alleged offence, the victim girl was minor in her

age, as such, her alleged consent, if any, would not be a

valid consent in the eye of law. He further submitted that

the alleged consent letter/consent deed at Ex.P-14 which

has remained undisputed by the accused itself goes to show

that the accused has committed rape upon the victim

girl/complainant. However, the Sessions Judge's Court

erred in observing that the victim girl was major in her age

and the sexual act of the victim girl with the accused was a

consensual act, as such, it does not amount to rape.

Relying upon few judgments of the Hon'ble Apex Court

and also a judgment of the co-ordinate Bench of this Court,

the learned Additional State Public Prosecutor for the

appellant-State submitted that, when there is School

Certificate showing the date of Birth of the victim

girl/complainant, the uncertain medical evidence ought not

to have been solely relied upon by the Sessions Judge's Crl.A.No.200058/2014

Court. With this, he submitted to allow the appeal as

prayed.

The citations relied upon by the learned Additional

State Public Prosecutor would be referred to at the relevant

places herein afterwards.

10. Learned Senior Counsel for the respondent/

accused in his argument submitted that, the documents at

Ex.P-10 and Ex.P-12 would go to show that, the victim was

major in her age as at the time of the alleged incident.

Further, the Doctor who examined the victim girl has stated

that the victim girl has stated her age to be 19 years before

her. Even the alleged victim girl, as PW-3, has also stated

that the age shown in the Hospital records are true.

Therefore, the Sessions Judges Court has rightly held that,

the victim girl was major in her age, as on the date of the

alleged incident and that the act of sexual intercourse was a

consensual act.

Learned Senior Counsel for the respondent/accused

further submitted that the consent deed at Ex.P-14 proves Crl.A.No.200058/2014

that, it was a sexual consensual act with the consent of the

complainant/alleged victim girl. Therefore, Section 376 of

the IPC is not attracted.

He also submitted that the alleged threat said to have

been given by the accused has not been proved by the

prosecution. He further stated that due to political rivalry, a

false case has been foisted against the accused.

Finally stating that, the delay in lodging the complaint

was not explained by the complainant, learned Senior

Counsel also relied upon two judgments of the Hon'ble apex

Court in his support and submitted that the impugned

judgment does not warrant any interference at the hands of

this Court.

The case laws relied upon by the learned Senior

Counsel for the respondent/accused would be referred to at

the relevant places herein afterwards.

11. Among the 14 witnesses examined by the

prosecution, the important witnesses who speak about the

alleged incident are mainly the alleged victim girl/ Crl.A.No.200058/2014

complainant, i.e. PW-3 (CW-1)- Kum.Lakshmi, PW-2

(CW-4) - Sri. Subhash, PW-4 (CW-5)- Smt. Siddamma, and

PW-5 (CW-6)- Smt. Sharanamma.

12. The complainant/alleged victim girl, in her

evidence as PW-3 (CW-1) has stated that, she knows the

accused who is residing at a short distance from her house

in their village. While she was walking in the village, the

accused was looking at her with lust in his eyes. He used

to follow her, wink at her and pestering her to sleep with

him. That being the case, one afternoon, at about 3:00

p.m., in the month of December 2011, while she was alone

at her home, the accused entered her house and asked her

to fetch some drinking water for him. After entering the

house, the accused closed the door of the house and

making her to fall on the ground, committed rape upon her.

He also threatened her of killing her in case if she reveals

about the incident to her parents. About two to three times,

the accused has repeated the said act of rape upon her,

when nobody used to be there in her house.

Crl.A.No.200058/2014

The witness has further stated that three months

thereafter, to attend a family function in the house of her

aunt - Smt. Sharanamma in a place called Honnakiranagi

village, she had been there. At that time, she developed

pain in her stomach. Her aunt took her to Gowra Hospital

at Kalaburagi (then Gulbarga). The Doctor examined her

and stated that she was two and a half months' pregnant.

Her aunt got her pregnancy medically terminated. Her

parents came to know about the same. Later, they

summoned the accused and his parents before the elders in

the family and got the Panchayat held. In the said

Panchayat, the accused agreed to marry her, however, he

did not marry her. Since he refused to marry her, she

lodged a complaint before the Police against him. Stating

so, the witness has identified her complaint at Ex.P-2. She

also stated that as shown by her, the Police visited the spot

and drew a scene of offence panchanama. They also

collected the cloths worn by the accused while she was in

the Hospital. The witness has identified those two cloths at

MO-1 and MO-2.

Crl.A.No.200058/2014

This witness was subjected to a detailed cross-

examination from the accused's side. In her cross-

examination, though several attempts were made to shake

the credibility of her evidence given in her examination-in-

chief, but the witness adhered to her original version.

However, she admitted a suggestion as true that the

details about her name and age mentioned in the Gowra

Hospital records are true. She also has given more details

about the alleged act upon her and also she lodging the

complaint against the accused before the Police.

13. PW-2 (CW-4)- Sri. Subhasha, who is admittedly

the father of PW-3 - the alleged victim girl, has stated that,

on the date of incident, when both himself and his wife had

been to their land, at that time, their daughter (victim girl)

was alone at home. Three months thereafter, his daughter

had been to the house of her aunt, i.e. the elder sister of

his wife Smt. Sharanamma at Honnakiranagi village to

attend a family function there. In the said place, his

daughter developed pain in her stomach. Her aunt Crl.A.No.200058/2014

Sharanamma took her to the Hospital, where the Doctor,

after examining her stated that, she (victim girl) was

pregnant of two months. She got her pregnancy aborted.

It was in the very same evening, he (this witness) came to

know about the said act of abortion. Then he enquired with

his daughter and came to know from her that, on the date

when himself and his wife had been to their land and while

his daughter alone was at home, the accused, who was a

resident of the same village entered their house and

committed rape upon her.

The witness has further stated that, thereafter, he

went to the house of the accused and informed the parents

of the accused about the incident. He brought them to the

Hospital where his daughter was taking treatment. The

Doctor also stated that the pregnancy of the girl was

aborted. Then they returned to their village and assembling

the elders in the village, got a Panchayat conducted and in

the presence of Panchayatdaars, the accused agreed to

marry his (of this witness) daughter. He also agreed that

within eight to ten days, the marriage would be registered Crl.A.No.200058/2014

in the Office of the Registrar of Marriages. However, the

accused did not marry her. Then as per the advise of the

Panchayatdaars, he decided to lodge a complaint against

the accused. Accordingly, the complainant (PW-3) has

lodged a complaint with the Police.

This witness also was subjected to a detailed cross-

examination from the accused's side. He has given more

information about the incident and the time when he came

to know about the incident through his daughter. He also

stated that the Police had advised him to compromise the

matter with the accused.

The witness denied the denial suggestions made from

the accused's side. He further stated that when the

Panchayat was held in the presence of the elders, the

accused had executed a consent deed which contains his

(this witness's) signature. However, neither the accused

nor his daughter had put their signatures on the consent

letter.

The witness has also denied a suggestion that, due to

a political rivalry with respect to an election, a false case Crl.A.No.200058/2014

has been lodged against the accused. He denied that no

alleged incident, as stated by him, has occurred. Thus,

except eliciting more details about the incident, the

evidence of PW-2 given in his examination-in-chief also

could not be shaken in the cross-examination of that

witness from the accused's side.

14. PW-4 (CW-5) - Smt. Siddamma, the mother of

the alleged victim girl has stated in her examination-in-chief

that her daughter, i.e. the victim girl had been sent to her

aunt - Smt. Sharanamma's house at Honnakiranagi village

to attend a family function. At that time, her daughter

developed pain in her stomach. The said Sharanamma had

taken her to Gowra Hospital at Kalaburagi (then Gulbarga).

On the same day, she (this witness) joined by her husband

also had been to Kalaburagi. While they were about to

return to their village, they saw the said Sharanamma

standing in front of Gowra Hospital. When enquired, she

stated that the alleged victim girl had been brought to the

Hospital. After visiting their daughter, she (this witness) Crl.A.No.200058/2014

came to know by enquiring with her daughter that the

accused had committed rape upon her, one afternoon of a

day, while she was alone at her house, due to which, she

conceived and her pregnancy was got medically terminated.

The girl also stated before her that, she was put under life

threat by the accused, as such, she did not reveal about the

incident before her parents.

The witness further stated that, thereafter, after

assembling the elders, they got conducted a Panchayat. In

the said Panchayat, which also included the elders by name

Sadashivappa, Nayeem Khan and Madivalaiah, the father of

the accused had attended. Since the father of the accused

refused to get the alleged victim girl married to his son, the

victim girl went to the Police Station and lodged a

complaint.

This witness also was subjected to a detailed cross-

examination, wherein she adhered to her original version.

However, she stated that she had not attended the

Panchayat and that her husband had been to the

Panchayat.

Crl.A.No.200058/2014

This witness denied the suggestion that due to a

political rivalry in connection with an election, a false case

has been lodged against the accused.

Thus, the evidence of PW-4 also corroborates the

evidence of PW-3 and PW-2 about the alleged incident and

the alleged act of the accused in committing the alleged

offence.

15. PW-5 (CW-6)- Smt. Sharanamma has stated that,

her niece i.e. the victim girl had been to her house to

attend a family function. At that time, she complained of

pain in her stomach. She (this witness) took her to Gowra

Hospital at Kalaburagi (then Gulbarga). There, the Doctor,

after examining her (victim girl), stated that she was

pregnant of two and a half months. When enquired, her

niece stated that, while her parents had been to their land

and she was alone at home, the accused entered their

house and after asking for a cup of water to drink and while

she had gone inside, he entered inside and by closing the

door, committed rape upon her.

Crl.A.No.200058/2014

The witness also stated that she got the pregnancy of

the victim girl medically terminated in the Hospital. While

the victim girl was in the Hospital, when she had come out

of the Hospital, to have a cup of tea, her sister (PW-4) and

her husband (PW-2) saw her and enquired her as to why

she was there. She told them the details. Thereafter, after

returning to their village, the parents of the victim girl got

conducted a Panchayat, however, the accused did not agree

to marry the victim girl. Thus, the victim girl lodged a

complaint against the accused before the Police.

In her cross-examination, this witness adhered to her

original version, however, she stated that the details of the

victim girl about her name, father's name and age of the

girl were given to the Doctor by herself (by this witness).

She stated that, it was she who has given her consent to

the Doctor for medical termination of the pregnancy of the

victim girl. She denied the denial suggestions made to her.

Thus, the evidence of PW-5 corroborates the evidence

of PW-2 and PW-3 that, it was the said PW-5 (this witness)

who got the pregnancy of the alleged victim girl medically Crl.A.No.200058/2014

terminated and accidentally PW-2 and PW-4, noticing PW-5

near the Hospital came to know about their daughter

becoming pregnant at the act of the accused. The evidence

of PW-5 that it was she who got the pregnancy of the

alleged victim girl medically terminated at Gowra Hospital at

Kalaburagi was not denied in her cross-examination.

16. PW-6 (CW-8) - Ramji, PW-8 (CW-10) -

Madivalaiah and PW-9 (CW-9) - Nayeem Khan were

examined by the prosecution as witnesses who speak about

the holding of alleged Panchayat at the instance of the

parents of the alleged victim girl.

PW-6 and PW-9 in their evidence have uniformly

stated that, PW-2 - Yeshwant Jamaadaar got them

assembled including PW-8 - Madivalaiah, Sadashivappa and

others to hold the Panchayat. The Panchayatdaars

suggested the father of the accused that the accused should

marry the victim girl. The father of the accused agreed to

the same. The marriage was fixed to be held on the date Crl.A.No.200058/2014

of Ugadi, however, the accused did not marry the victim

girl.

In the cross-examination of PW-6, the witness has

stated that a consent deed was prepared according to the

resolution passed in the Panchayat and after reading out in

the presence of all, it was signed wherein he (this witness)

also has put his signature.

PW-9, in his cross-examination stated that, to the said

Panchayat, the accused and the victim girl did not appear.

Both PW-2 - Subhasha and one Yeshwant, the father of the

accused jointly stated before the elders that, the accused

has committed rape upon the victim girl. The witness

admitted a suggestion as true that the consent deed was

also written in the Panchayat. He also admitted that in the

said consent letter, it was mentioned that since the accused

and the victim girl were loving each other, their marriage

inter se has to be performed.

By stating so, both PW-6 and PW-9 have made it clear

that, as stated by PW-2 and PW-4, a Panchayat was held in

the village in connection with the alleged incident.

Crl.A.No.200058/2014

Further, by suggesting to PW-9, the accused has

admitted that a consent deed was executed in the said

Panchayat.

17. PW-8 (CW-10) - Madivalaiah, PW-6 (CW-8) -

Ramji and PW-9 (CW-9) - Nayeem Khan, stating that, they

too were among the Panchayatdaars, have stated that,

they have seen the holding of Panchayat with respect to the

incident of the accused committing rape upon the victim girl

(PW-3). The Panchayatdaars decided that the accused

should marry the victim girl on the date of Ugadi, however,

the accused did not marry the victim girl.

The witnesses have also stated that in the said

Panchayat, a document was also written.

In the cross-examination of PW-8, the witness has

also stated that, he was the scribe of the consent deed in

the Panchayat. He stated that he has written the consent

deed as stated by the Panchayatdaars.

The witness (PW-8) admitted a suggestion as true that

as stated by the Panchayatdaars it was shown in the Crl.A.No.200058/2014

consent deed that the accused and the alleged victim girl

were loving each other and as such, their marriage inter se

has to be performed.

Thus, even by suggesting to this witness also like

PW-9, the accused has admitted the execution of the

alleged consent deed in the Panchayat said to have been

held in their village at the instance of PW-2 - the father of

the victim girl. This further corroborates the evidence of

PW-2 - the father of the alleged victim girl that after the

alleged incident, at his instance, a Panchayat was held

before the elders in their village, where a consent deed was

prepared.

18. The next witness who speaks about the alleged

medical termination of pregnancy of PW-3 - victim girl is,

PW-11 (CW-17) - Dr. Annapurna Goura. She has stated

that, to her Maternity Home, with the name and style

'Goura Maternity Home' at Gulbarga (now Kalaburagi), on

13-03-2012, PW-5 - Sharanamma brought PW-3 - the

alleged victim girl with the complaint of some complication Crl.A.No.200058/2014

regarding menstruation. After conducting some test, she

confirmed that the said victim girl was pregnant of ten

weeks and two days. At the request of said PW-5 -

Smt. Sharanamma - the aunt of the victim girl, the

pregnancy of the victim girl was terminated on the same

day. Later on, one day, the Police visited her Hospital and

seized the case papers and also obtained a clarification

letter from her about the medical termination of pregnancy

of the victim girl. The witness has identified the said letter

at Ex.P-12.

In her cross-examination from the accused's side, the

witness admitted a suggestion as true that, in the consent

form, filled up and given by the patient (victim girl), she has

stated her age as 19 years. When the girl told her age

before her, Smt. Sharanamma was also present. She

further stated that in case if the patient is minor, then for

termination of pregnancy, she was to take the consent of

her parents/guardian.

The said un-denied evidence of PW-11 corroborates

the evidence of PW-2, PW-3, PW-4 and PW-5 that, PW-3 the Crl.A.No.200058/2014

victim girl had become pregnant of two months and her

pregnancy was medically terminated at Goura Hospital in

Gulbarga (now kalaburagi). Therefore, the evidence of

PW-3 that she conceived, which, according to her, was at

the act of the accused, stands further corroborated by the

evidence of PW-11 - Medical Doctor.

19. The last witness, who speaks about the alleged

act of sexual intercourse upon PW-3 is, PW-10(CW-15) -

Dr. Neelavati Tambre, who has stated in her evidence that,

while working as a Lady Medical Officer on deputation at the

District Government Hospital, Gulbarga, on the date

03-04-2012, she examined PW-3 - the victim girl, who was

brought to her by the complainant - Police, through a

Woman Police Constable, with the history of sexual assault

in the month of December 2012. The mother of the victim

girl also had accompanied the victim. The witness stated

that, the victim told her that Sharanappa, son of Yeshwant

had repeated sexual intercourse with her in the month of

December 2012 and that he had been to her house in the Crl.A.No.200058/2014

afternoon when nobody was present in the house and on

the pretext of asking for a cup of drinking water, he went

inside and closing the door, had forcible sexual intercourse

with her. This witness stated that the girl told to her that

though she shouted for help, but nobody came to her

rescue. The girl further told to her that the accused used to

come to her house on every fifteen to twenty days and

threatened her that if she revealed the matter to her

parents, he would kill her.

The witness further stated that, as told to her by the

victim girl, she became pregnant and as such, she got her

pregnancy medically terminated at a Private Hospital in

Goura Maternity Home.

The witness further stated that, she subjected the girl

to medical examination and after conducting various

examinations including blood, ultra sonography, and clinical

examination and also getting the patient examined by the

psychiatrist - Dr. Amol, she was of the opinion that, age of

the alleged victim girl was between 16 years to

18 years and that she was used to the act similar to that of Crl.A.No.200058/2014

sexual intercourse, however, she did not find any evidence

of recent sexual intercourse.

This evidence of PW-10 was not specifically denied in

her cross-examination, which further goes to show that, the

victim girl had sexual intercourse and had become

pregnant, which pregnancy she got medically terminated.

Thus, the evidence of PW-2, PW-3, PW-4, PW-5,

PW-6, PW-8, PW-9, PW-10 and PW-11 would go to show

that PW-3 - victim girl having been subjected to sexual

intercourse, had become pregnant and that her pregnancy

was medically terminated.

20. The evidence of PW-3 would further go to show

that, it was the accused and accused alone who had sexual

intercourse with her. The said evidence of PW-3 is further

corroborated by the evidence of her parents i.e. PW-2

(father) and PW-4 (mother) and also the evidence of her

aunt i.e. PW-5. Further, even PW-10 - the Lady Medical

Doctor has also stated that, the history given by none else

than the victim was that, the sexual intercourse upon her Crl.A.No.200058/2014

was by none lese than the accused. The trustworthy

evidence of these witnesses would further go to establish

that, it was the accused and accused alone who had sexual

intercourse with PW-3 - the victim girl, which had resulted

in she conceiving and later on getting her pregnancy

medically terminated.

21. The evidence of Panchayatdaars i.e. PW-6, PW-8

and PW-9 also would go to show that, a Panchayat in

connection with the relationship of the accused and the

victim girl was held, wherein the accused was advised to

marry the victim girl, by drafting a consent deed, however,

the accused did not marry. The said aspect of a consent

deed having been drawn in the said Panchayat is admitted

by the accused in the cross-examination of PW-8 and

PW-9.

No doubt in the said cross-examination, it is shown

that the accused and the victim girl were in love with each

other, but the evidence of PW-3 (victim girl), PW-2 (victim's

father), PW-4 (victim's mother) and PW-5 (victim's aunt) Crl.A.No.200058/2014

that the accused had forcibly committed the act of sexual

intercourse against PW-3, having withstood searching cross-

examination becomes trustworthy and more reliable. More

importantly, the evidence of none lese than the victim girl

(PW-3) that she was subjected to a forcible sexual

intercourse by the accused, as such, she was subjected to

rape, cannot be disbelieved.

22. In that connection, learned Additional State Public

Prosecutor for the appellant - State, relied upon a judgment

of the Hon'ble Apex Court, in the case of State of Punjab Vs.

Gurmit Singh and others reported in (1996) 2 Supreme Court Cases

384. In the said judgment, while dealing with the offence

punishable under Sections 376, 363, 366 and 368 of the

IPC, the Hon'ble Apex Court was pleased to observe in

paragraph 8 of its judgment as below:

"8. .......The testimony of the victim in such

cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to Crl.A.No.200058/2014

convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-

Crl.A.No.200058/2014

looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the

judicial mind as probable. ......"

23. In the case of Motilal vs. State of Madhya

Pradesh reported in (2008) 11 Supreme Court Cases

20, in a case involving the offences punishable under

Sections 375, 376 and 450 of the IPC, wherein also the

question of conviction on the sole testimony of prosecutrix

for the alleged offence was involved and the medical

evidence was not helpful to the prosecution, the Hon'ble

Apex Court, in paragraph 12 of its judgment, reiterated its

observation made in its previous judgment in the case of Crl.A.No.200058/2014

Om Prakash vs. State of Uttar Pradesh reported in

(2006) 9 Supreme Court Cases 787, wherein it was

observed that, it is a settled law that the victim of sexual

assault is not treated as accomplice and as such, her

evidence does not require corroboration from any other

evidence, including the evidence of a Doctor. In a given

case, even if the Doctor who examined the victim does not

find any sign of rape, it is no ground to disbelieve the sole

testimony of the prosecutrix. In a normal course, a victim

of sexual assault does not like to disclose such offence even

before her family members, much less, before public or

before the Police. The Indian women have a tendency to

conceal such offence because it involves her prestige as well

as prestige of her family.

Thus, the evidence of PW-2, PW-3, PW-4, PW-5,

PW-6, PW-8, PW-9, PW-10 and PW-11 would clearly go to

show that, PW-3 was subjected to sexual intercourse and

the reliable evidence of PW-3 (prosecutrix) would further go

to establish that, it was the accused and accused alone who Crl.A.No.200058/2014

had subjected her to sexual intercourse on more than one

occasion, which has resulted in she becoming pregnant.

24. The said act of sexual intercourse between the

accused and the victim girl is 'rape', according to the

prosecution. However, according to the learned Senior

Counsel for the accused, even if the alleged act of sexual

intercourse is taken as established, but it was a consensual

act with the consent of both the accused and the victim girl,

which victim girl was major in her age, as on the date of the

alleged act, as such, the accused cannot be held guilty for

the offence punishable under Section 376 of the IPC.

25. In this context, the evidence regarding

determination of the age of the victim girl (PW-3) plays an

important role.

According to the prosecution, the date of birth of the

victim girl (PW-3) being 5th August 1996, she was minor in

her age as in December 2011, when the incident of alleged

rape upon her has taken place. In that regard, it is only in Crl.A.No.200058/2014

the evidence of PW-3, PW-10, PW-11 and PW-14, we could

find some statements referring to the age of the victim girl.

26. PW-3 - the victim girl, in her evidence, while

giving the details of her identity, has stated that, she was

aged about 14 years. Though she claims to have studied

upto VIII Standard Schooling, but no where she has stated

her date of birth. However, in her cross-examination, she

has stated that, as on the occurrence of the incident in the

month of December 2011, it was two years after she

leaving her studies in the School. Further, she admitted a

suggestion as true that she has seen the medical

documents issued by the Doctor at Goura Maternity Home

and that the description regarding her name, father's name

and her age mentioned there are true. She also denied a

suggestion made from the accused's side that, her age was

more than 18 years and that her statement that she was 14

years old was not a true statement. Except these details,

nothing more has been elicited regarding her age in her

cross-examination.

Crl.A.No.200058/2014

27. PW-10 (CW-15) - the Lady Medical Doctor, who

examined the victim girl, at the request of the Police has

stated that, the Radiologist of her Hospital had conducted

age estimation and reported the age of the alleged victim

girl as 16 years to 18 years. Therefore, she opined that,

the age of the victim girl was between 16 years and 18

years.

28. PW-11 (CW-17) - Dr. Annapurna Goura, who

conducted medical termination of pregnancy upon the

victim girl, has stated that, in the consent form filled up and

given by the victim girl, she has stated her age as 19 years.

29. In addition to the above, the prosecution got

examined PW-14 (CW-18) - Ekadanta, the Head Master of

the Government Higher Primary School at Keroor, who has

stated that, the victim girl had studied in their School and

as per the School records, the date of birth of the victim girl

was 05-08-1996. Accordingly, he has issued a date of

birth confirmation letter as per Ex.P-6 to the Police.

Crl.A.No.200058/2014

30. In the light of the above evidence, it was the

argument of the learned Additional State Public Prosecutor

for the appellant- State that, the victim girl has

categorically stated that, she was minor in her age, as on

the date of the incident and that her date of birth

confirmation certificate issued by the Head Master of the

School also mentions that, as on the date of the incident,

the victim girl was 15 years 4 months old. Therefore, even

if it is taken that she had given her consent for sexual

intercourse by the accused, still, it is not a valid consent in

the eye of law, as such, the accused be held as guilty for

the alleged offences.

In his support, he relied upon a judgment of the

Hon'ble Apex Court in the case of Mahadeo S/o. Kerba Maske

Vs. State of Maharashtra and another reported in (2013) 14

Supreme Court Cases 637.

31. Per contra, learned Senior Counsel for the

accused/respondent, in his argument contended that, the

evidence of PW-10 coupled with the documentary evidence Crl.A.No.200058/2014

at Ex.P-10 would go to show that, the age of the victim girl

was 16 years to 18 years. Further, the evidence of PW-11

read with the documentary evidence at Ex.P-12 would go to

show that, the victim girl has stated before the Doctor her

age as 19 years. Further, the victim girl, as PW-3, in her

cross-examination, has admitted as true that her age

shown in the Hospital record of Goura Maternity Home is

true. The said record shows the age of the victim girl as 19

years. Therefore, the girl was major in her age as on the

date of the alleged incident, as such, her consent for sexual

intercourse was a valid consent.

He further submitted that the date of birth

confirmation letter issued by the school authorities (Head

Master) as per Ex.P-6, is not reliable, in the above

circumstances.

In support of his arguments on the point, learned

Senior Counsel for the accused/respondent relied upon a

judgment of the Hon'ble Apex Court in the case of Alamelu Crl.A.No.200058/2014

and another Vs. State, Represented by Inspector of Police

reported in AIR 2011 SUPREME COURT 715.

32. The victim girl, admittedly, had studied upon to

VIII standard in a School. Though she has not given her

date of birth in her evidence, but even on the date of

recording of her evidence in the Sessions Judge's Court, she

has shown herself as minor in her age. She categorically

denied a suggestion that, she was major in her age, as on

the date of the alleged incident, so also on the date of her

evidence. If an admission in her cross-examination to the

effect that, the entries made in the medical record at Goura

Hospital regarding her name and age are true is to be

accepted as the sole basis to determine her age, then, her

very another statement made at more than one place in her

very same evidence as PW-3 that, she was a minor as on

the date of the incident also cannot be ignored and the

same also to be weighed at par with other statements in

her evidence.

Crl.A.No.200058/2014

Thus, the main argument of the learned Senior

Counsel for the accused/respondent that, the medical

record of Gowra Maternity Home, Gulbarga (now

Kalaburagi) which is at Ex.P-12 shows the age of the girl as

19 years, is the conclusive proof, is not acceptable.

33. PW-11 (CW-17)-Dr. Annapuran Goura, who is the

Doctor who issued the medical record at Ex.P-12, in her

evidence, has not stated anything about she conducting any

test to ascertain and confirm the age of the victim girl.

Therefore, admittedly, she has proceeded only believing as

to what was said to have been stated before her regarding

the age of the victim girl. It cannot be ignored of the fact

that, admittedly, the victim girl was unmarried as on the

date of medical termination of her pregnancy and which

victim girl was taken to PW-11 - Doctor by the maternal

aunt of the girl, who some how wanted that the pregnancy

of the girl has to be medically terminated. Therefore, there

is all the possibility of she stating that, the girl was major in

her age, in order to avoid any further complications. Even Crl.A.No.200058/2014

otherwise also, as observed above, the statement of PW-11

is only based upon the say of the victim girl and her aunt.

Even though the husband of PW-11 - Doctor was a

Radiologist practicing in the very same Hospital, however,

no attempt was made to ascertain the age of the victim girl

by PW-11 - Doctor, in her Hospital. Therefore, the mere

statement of PW-11 - Doctor, which, in turn, based upon

the oral information said to have been given to her by the

victim girl and her maternal aunt, cannot be the sole basis

to determine the age of the victim girl.

The other evidence available to ascertain the date of

the victim girl is to be analysed.

34. PW-10 (CW-15) - Dr. Neelavati Tambre, the

District Government Hospital Doctor, Gulbarga, who

examined the victim girl, after registration of the FIR, has

stated that, the Radiologist in their Hospital has assessed

the age of the victim girl, according to whom, the girl was

aged between 16 years and 18 years.

Crl.A.No.200058/2014

Admittedly, even the opinion of the Government

Doctor (PW-10) is based upon the report of the Radiologist,

who, in turn, appears to have based his opinion on an X-ray

report. Admittedly, no Ossification Test has been conducted

in the matter. Further, it also cannot be ignored that, the

medical opinion based upon the Radiologist's opinion does

not specifically say that, the victim girl was major in her

age, i.e. above 18 years of age as on the date of her

examination. He says that it may be some where between

16 years to 18 years.

35. In the case on hand, the medical opinion alone

cannot be the main criteria to decide or infer the age of the

victim girl, for the reason that the prosecution, in order to

prove the age of the victim girl, as she was a minor as on

the date of incident, has examined PW-14 (CW-18) -

Ekadanta, who, undisputedly, is the Head Master of the

School where the victim girl studied. The said witness has

stated that according to the records maintained by their

School, the date of birth of the victim girl was 05-08-1996.

Crl.A.No.200058/2014

In that regard, he has given a date of birth confirmation

letter also as per Ex.P-6.

36. Learned Senior Counsel for the accused/

respondent, contending that, the said evidence of PW-14 -

Head Master, is not to be relied upon, has referred to the

judgment of the Hon'ble Apex Court in Alamelu's case (supra).

In the said judgment, wherein also, the question of

determination of the age of the prosecutrix in a case

involving an offence punishable under Section 376 of the

IPC was involved, the Hon'ble Apex Court, in paragraph 38

of its judgment, was pleased to observe that the Transfer

Certificate issued by the Government School duly signed by

the Head Master though would be admissible in evidence

under Section 35 of the Indian Evidence Act, however,

admissibility of such a document would be of not much

evidentiary value to prove the age of the girl in the absence

of the material on the basis of which age was recorded. The

date of birth mentioned in the Transfer Certificate would Crl.A.No.200058/2014

have no evidentiary value unless the person, who made the

entry or who gave the date of birth is examined.

37. Admittedly, in the aforesaid case, the Head

Master had not been examined, whereas in the case on

hand, the Head Master, who has issued the date of birth

confirmation certificate as per Ex.P-6 was examined as

PW-14 and that the accused also has cross-examined him.

His evidence clearly goes to show that, he has given the

true account of the date of birth of the victim girl as has

been recorded in the records maintained by the School. No

suggestion was made to the said witness in his cross-

examination that the said date of birth recorded in the

School records as '05-08-1996' was incorrect or a false

date of birth. Merely because PW-14 was not working as

Head Master, as on the date of admission of the victim girl

into their School, it cannot be held that he cannot issue the

date of birth confirmation certificate based on the records

maintained by the School in his capacity as Head Master as

on the date of issuance of the certificate at Ex.P-6. It is so, Crl.A.No.200058/2014

particularly when no attempt has been made from the

accused's side at least to suggest to the witness that the

said entry of date of birth as '05-08-1996' as the date of

birth of the victim girl was incorrect or not true. Therefore,

the judgment relied upon by the accused in Alamelu's case

(supra) would not enure to his benefit in the facts and

circumstances of the present case.

On the other hand, in the judgment relied upon by the

learned Additional State Public Prosecutor in the case of

Mahadeo S/o. Kerba Maske Vs. State of Maharashtra and

another (supra), our Hon'ble Apex Court was pleased to

observe in paragraph 12 of its judgment that, in the light of

the statutory rule in the form of Juvenile Justice (Care and

Protection of Children), Rules 2007 (hereinafter for brevity

referred to as "the J.J. Rules"), prevailing for ascertaining

the age of a juvenile, it is their opinion that the same yard

stick could be rightly followed by the Courts for the purpose

of ascertaining the age of the victim as well.

Crl.A.No.200058/2014

The above said Rule 12 (3) of the Juvenile Justice

Rules, reads as below:

"12. Procedure to be followed in determination of Age.-

      (1)       xxx
      (2)       xxx
      (3)       In every case concerning a child or juvenile

in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;"

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

Crl.A.No.200058/2014

and, while passing orders in such case, shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, recorded a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause(b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

In the case of Jarnail Singh Vs. State of Haryana

reported in (2013) 7 Supreme Court Cases 263 also, which

had also involved the question of determination of age of a

minor girl in an offence punishable under Section 376(2)(g),

366, 120B of the IPC, in paragraph 23, it was observed by

the Hon'ble Apex Court as below:

"23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime...."

Crl.A.No.200058/2014

Applying the above said principle to the case on hand,

it has to be held that, the date of birth confirmation

letter/certificate issued by PW-14 which is at Ex.P-6,

depicting the date of birth of the victim girl as entered in

her School records has not been specifically denied. No

where in the evidence of PW-14, it is suggested to the

witness that, the said entry showing the date of birth

involved of the victim girl as '05-08-1996' either was

incorrect or false. PW-14 has withstood the cross-

examination from the accused's side and has stood by the

date of birth confirmation letter/certificate issued by him at

Ex.P-6.

38. There is nothing to suspect or disbelieve that the

date of birth of the victim girl was not correctly shown in

the said certificate at Ex.P-6, which in turn, was an extract

of the records maintained by the School authorities. As per

Rule 12 (3)(ii) of the J.J. Rules, the date of birth

confirmation certificate from the School stands on a higher

priority than the medical opinion of a Doctor.

Crl.A.No.200058/2014

39. As per Rule 12(3)(b) of the J.J. Rules, it is only in

the absence of the matriculation or equivalent certificates or

the date of birth certificate from the School or a birth

certificate given by a Corporation or a Municipal authority or

a panchayat, the medical opinion would be sought from a

duly constituted Medical Board, which will declare the age of

the juvenile or the child.

40. In the instant case, since the certificate issued by

the School as per Ex.P-6, which is based upon the records

maintained by it, is placed by the prosecution, the author of

Ex.P-6 who is the Head Master of the said School has also

been examined as its witness (PW-14), the medical opinion

of PW-10, which, in turn, was based upon a Radiologist's

report and admittedly, when the said Radiologist also was

not examined, cannot be relied upon, as such, the age of

the victim girl has to be necessarily held as 15 years 4

months as in the month of December 2011.

41. In addition to the above, when the evidence of

the very same victim girl is once again looked into, it can be Crl.A.No.200058/2014

noticed that the prosecutrix, as PW-3, has stated that, at

the time of the incident in December 2011, it was already

two years from she being a dropped out student from the

School. According to her, she had studied upto VIII

standard. For the said schooling from I Standard to VIII

Standard, she has spent eight years. After she became a

drop-out from the School, there was two years' gap till the

date of the incident. Thus, from the date of her initial

schooling till the date of the incident, the time period was

ten years. For a Government Schooling, the students would

be admitted at the minimum age of six years. If it is taken

that, she was admitted to the School at the earliest age of

six years, still, as on the date of the incident in December

2011, her age would be, at the maximum, 16 years. As

such also, the age of the victim girl remains to be 16 years,

as on the date of the first incident of rape and under no

stretch of imagination, her age can be 18 years and above.

Therefore, the victim girl remained to be a minor as on the

date of the incident and at his alleged repetitive sexual acts.

Crl.A.No.200058/2014

Therefore, the argument of the learned Senior Counsel

for the respondent/accused that, PW-3 - the victim girl was

major as on the date of the incident, is not acceptable.

42. Further, it can be seen that the accused has not

categorically denied or disputed his act of sexual

intercourse with the victim girl. On the other hand, it is his

contention that, such an act was a consensual act. Though

stray suggestions were made to PW-2 (the father of the

victim girl), in his cross-examination that, the accused had

never sexual intercourse with the victim girl, but the said

suggestion was denied by the witness.

On the other hand, as noticed above, PW-6, PW-8,

PW-9 have spoken about the Panchayat held in their village

in connection with accusation made against the accused by

the parents of the victim girl. They have also stated about

the consent deed being entered into in the said Panchayat

as per Ex.P-14. No doubt in the said consent deed, there is

no mention about the accused having sexual intercourse

with the victim girl, but it is shown that there was love Crl.A.No.200058/2014

between the accused and the victim girl. Though execution

of the consent deed was denied in the cross-examination of

PW-2, however, it was specifically admitted by the accused

in the cross-examination of PW-9 - the panchayatdaar to

the said Panchayat. It was specifically suggested to the

said witness that, at the time of Panchayat, a consent deed

was also written and the witness has admitted the said

suggestion as true. The very same witness in his very same

cross-examination has stated that, it is not only the father

of the victim girl i.e. PW-2, but also the father of the

accused by name Yeshwant, both of them jointly stated

before the Panchayat that the accused has committed rape

upon the victim girl. The said statement made by the

panchayatdaar (PW-9) in his cross-examination by the

accused's side has not been further denied or disputed from

the accused's side. As such also, it can be inferred that

even though it was revealed before the Panchayatdaars that

the accused has committed rape upon the victim girl,

however, while putting it down in writing in the form of a

document, they did not call it as a rape or sexual Crl.A.No.200058/2014

intercourse but they shown it only as a love affair between

the accused and the victim girl, since it was a document to

be put in writing in a public Panchayat and that the very

intention of the parties was to see that the accused and the

victim girl marries each other.

43. Even according to the prosecution, as has come

out in the evidence of PW-2, PW-3 and PW-4, since the

accused refused to marry the victim girl within the time

fixed in the consent deed, after the expiry of the time, the

very same panchayatdaars suggested, asking the father of

the victim girl to go to the Police and lodge a complaint.

Accordingly, PW-3 - the victim girl, lodged a complaint

against the accused before the Police. Therefore, the

contention of the accused that, the victim girl was a major

in her age, as on the date of the alleged incident and that it

was a consensual sexual act between the accused and the

victim girl, is not acceptable.

44. Assuming for a moment that, since the victim girl

(PW-3) suffered the alleged sexual intercourse by the Crl.A.No.200058/2014

accused on more than one occasion and did not reveal

about the same, even to her parents, till they themselves

came to know from PW-5 by chance, when the girl was

taken for medical termination of pregnancy by her aunt

(PW-5), then, whether a consensual act prevents from

holding the accused guilty for the offence punishable under

Section 376 of the IPC ?, is to be seen.

45. Learned Senior Counsel for the respondent/

accused, submitting that a consensual act by the parties for

sexual intercourse would not amount to 'rape', relied upon a

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

Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra

and others reported in 2019 CRL.L.J. 1169. In the said

case, wherein also Section 375 of the IPC and the question

of rape and a consensual sex was involved, the Hon'ble

Apex Court in paragraph 20 of its judgment was pleased to

make a distinction between 'rape' and 'consensual sex' in

the following words:

"20. Thus, there is a clear distinction between rape and consensual sex. The Court, in such cases, Crl.A.No.200058/2014

must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."

The above judgment, though would go to show that,

there is a clear distinction between 'rape' and 'consensual

sex', but the facts of the said case goes to show that, the Crl.A.No.200058/2014

alleged 'consensual sex' was between two persons who

were major in their age.

46. In the instant case, since it is established that the

victim girl (PW-3) was minor in her age, at the time of the

alleged incident, her consent would be invalid in the eye of

law, as such, the question of the accused having consensual

sex with her after obtaining her consent would not arise.

Thus, the act of the accused in the present case in having

sexual intercourse with the victim girl is necessarily to be

held as an act of rape punishable under Section 376 of the

IPC.

47. The alleged act of the accused against the victim

girl of subjecting her to rape is stated by none else than the

victim girl herself. The evidence of other material witnesses

including her parents (PW-2 and PW-4) her aunt (PW-5) are

only based upon the information given to them by none else

than the victim girl herself, as such, whether the sole

testimony of the prosecutrix can be fully believed? is also

one of the aspects to be looked into.

Crl.A.No.200058/2014

48. Our Hon'ble Apex Court, in the case of Vijay alias

Chinee v. State of Maharashtra reported in (2010) 8

Supreme Court Cases 191 wherein also the question

involved was proof of the offence punishable under Section

376(2)(g) of the IPC, after referring to several of its

previous judgments, was pleased to hold in paragraph 14 of

its judgment that the law that emerges on the issues is to

the effect that the statement of the prosecutrix, if found to

be worthy of credence and reliable, requires no

corroboration. The Court may convict the accused on the

sole testimony of the prosecutrix.

49. Similarly, same view was again reiterated by the

Hon'ble Apex Court in the case of Phool Singh v. State of

Madhya Pradesh reported in 2021 SCC OnLine SC 1153, in

which case, the Hon'ble Apex Court after referring to its

various previous judgments in different case including its

judgment in Vijay @ Chinee's case (supra), was pleased

to observe in paragraph 24 of its judgment that, applying

the law laid down by the Court in several of its previous Crl.A.No.200058/2014

cases discussed in the judgment to the facts of the case

before the Court, the Court saw no reason to doubt the

credibility and/or trustworthiness of the prosecutrix which

was found to be reliable and trustworthy. Therefore,

without any further corroboration, the conviction of the

accused relying upon the sole testimony of the prosecutrix

was held to be sustainable.

50. In the instant case, the evidence of PW-3 - the

victim girl as well the evidence of her parents i.e. PW-2 and

PW-4 clearly goes to establish that, in December 2011,

when both the parents of the victim girl had been to their

work to their agricultural land, the accused entered their

house while PW-3 was alone in the house and on the

pretext of asking for a cup of drinking water, he went inside

the house and closed the door of the house. According to

PW-3 - victim girl, he made her to fall on the ground and

then closed her mouth with a piece of cloth and committed

rape upon her. Thus, the said evidence of PW-2 and PW-4

and more particularly PW-3 the victim girl which has Crl.A.No.200058/2014

successfully withstood the cross-examination by the

accused proves beyond reasonable doubt that the accused

had an intention to commit rape upon the victim girl which

offence of rape was punishable with an imprisonment

extendable upto imprisonment for life and thus has

committed the offence of house trespass in order to commit

the offence punishable with imprisonment for life, as

prescribed under Section 450 of the IPC.

51. The evidence of PW-3 -the victim girl also

establishes that the accused had put life threat upon her

that, in case if she reveals about the incident to her parents

or anybody else, he would kill her. The said trustworthy

evidence of none else than the victim girl proves beyond

reasonable doubt that, the offence committed by the

accused is punishable under Section 506 of the IPC.

52. As observed above, the evidence of PW-3 - the

victim girl since has withstood the thorough and searching

cross-examination and could not be shaken in any manner

and since she has given all required details about the Crl.A.No.200058/2014

incident, which fulfills the ingredients of Sections 450, 376,

506 of the IPC, the same is believable and since her

evidence is further corroborated by the evidence of other

material witnesses, including the evidence of PW-2, PW-4,

PW-5, PW-6, PW-8, and PW-9 and the medical evidence of

PW-10 and PW-11, without any hesitation, it can be held

that the prosecution has proved the alleged guilt of the

accused for the alleged offences beyond all reasonable

doubts.

53. Even though the prosecution could able to place

sufficient materials to prove the alleged guilt against the

accused, however, the Sessions Judge's Court has erred in

appreciating the materials placed before it in their proper

perspective. The Sessions Judge's Court mainly relied upon

the consent deed at Ex.P-14 and called that the said

admitted document showed that it was a love affair

between the accused and the victim girl and that it was not

an act of rape. Further, giving no valid reasons, they

disbelieved the date of birth confirmation certificate issued Crl.A.No.200058/2014

by the Head Master of the School at Ex.P-6 and further

observed that the accused had not put his signature to the

consent deed at Ex.P-14.

54. Further more, the learned Sessions Judge's Court

adopted its own methodology of calculating the age of the

victim girl, based upon the statements made by her mother

about the length of her married life and also birth of the

victim girl during the said period. When there was sufficient

evidence, both oral and documentary, to determine the age

of the victim girl, which has been analysed above, such an

exercise by the Sessions Judge's Court of finding out new

method of calculating the age of the victim girl based upon

her mother's married period was uncalled for, in the facts

and circumstances of the present case.

55. It is these reasoning given by the Sessions

Judge's Court, which is now proved to be not a proper

reasoning, has led it to pronounce the impugned judgment

of acquittal against the accused. Since the said finding of

the Sessions Judge's Court is now proved to be erroneous Crl.A.No.200058/2014

and since the prosecution has proved the alleged guilt of

the accused for all the alleged offences beyond reasonable

doubt, the impugned judgment passed by Sessions Judge's

warrants interference at the hands of this Court and the

criminal appeal deserves to be allowed.

Accordingly, we proceed to pass the following:

ORDER

[i] The present Criminal Appeal

No.200058/2014 stands allowed;

[ii] The judgment in Sessions Case

No.335/2012 dated 18-11-2013 passed by the I

Additional Sessions Judge, at Gulbarga, acquitting

the accused of the offences punishable under

Sections 450, 376 and 506 of the Indian Penal

Code, 1860, stands set aside;

[iii] The Accused - Sharanu @ Sharanappa @

Sharanabasappa, S/o. Yashwant Jamadar Age: 26

years, Occ: Coolie R/o. Kerur, Tq & Dist: Gulbarga, is

convicted for the offences punishable under Crl.A.No.200058/2014

Sections 450, 376 and 506 of Indian Penal Code,

1860;

Sd/-

JUDGE

Sd/-

JUDGE

HEARING ON SENTENCE

56. Immediately after the pronouncement of the

judgment, as desired by both side, heard both side on the

order on sentence.

57. Learned Senior Counsel for the respondent/

accused submitted that the accused being a married person

with dependents has got greater responsibility towards his

family, further more, he had the benefit of judgment of Crl.A.No.200058/2014

acquittal in the Sessions Judge's Court, as such a lenient

view may be taken in the matter.

58. Per contra, learned Additional State Public

Prosecutor for the appellant -State submitted that since the

offence committed by the accused against the victim girl

being a heinous one, maximum punishment prescribed

under the Indian Penal Code be ordered against the

accused.

59. It is the sentencing policy that the sentence

ordered must be proportionate to the gravity of the proven

guilt. It shall be neither exorbitant nor for the name-sake.

Hence, keeping the above principle of the sentencing

policy and considering the facts and circumstances of the

case on hand, we proceed to pass the following:

ORDER ON SENTENCE

[i] The accused - Sharanu @ Sharanappa @ Sharanabasappa, S/o. Yashwant Jamadar Age: 26 years, Occ: Coolie R/o. Kerur, Tq & Dist:

Crl.A.No.200058/2014

Gulbarga, is sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of `5,000/- (Rupees Five Thousand Only), in case of default of payment of fine, to undergo rigorous imprisonment for a further period of two months, for the offence punishable under Section 450 of the Indian Penal Code, 1860.

[ii] The accused - Sharanu @ Sharanappa @ Sharanabasappa, is further sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of `20,000/- (Rupees Twenty Thousand Only), in default of payment of fine, to further undergo rigorous imprisonment for a period of six months for the offence punishable under Section 376 of the Indian Penal Code, 1860.

[iii] The accused - Sharanu @ Sharanappa @ Sharanabasappa, is also sentenced to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 506 of the Indian Penal Code, 1860.

[iv] All the sentences shall run concurrently.

[v] The accused is entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973.

Crl.A.No.200058/2014

[vi] The accused shall surrender before the learned Sessions Judge's Court within forty five (45) days from today and serve the sentences as ordered above by this Court.

[vii] A free copy of this judgment be furnished to the accused immediately by the Registry.

Registry to transmit a copy of this judgment along

with Sessions Judge's Court records to the concerned

Sessions Judge's Court immediately, for doing needful in the

matter.

Sd/-

JUDGE

Sd/-

JUDGE

BMV*