Sharan Basavaraj Sharane Gowda vs The State Of Karnataka
2023 Latest Caselaw 2221 Kant

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                                                              CRL. A. NO.100149/2014




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 13TH DAY OF APRIL, 2023

                                                    BEFORE
                                   THE HON'BLE MR JUSTICE RAJESH RAI K
                                 CRIMINAL APPEAL NO. 100149 OF 2014 (A-)

                          BETWEEN:

                              SHARAN BASAVARAJ SHARANE GOWDA,
                              AGE : 25 YEARS, OCC: ENGINEER,
                              R/O.KAVALANGI, TALUKA SINDHANOOR,
                              DISTRICT RAICHUR.

                                                                            ...APPELLANT
                          (BY SRI. S.S.PATIL & SRI. MAHANTESH R. PATIL, ADVOCATES)

                          AND:

                              THE STATE OF KARNATAKA,
                              REP. BY SPP HIGH COURT OF KARNATAKA,
                              THROUGH GOKARNA P.S.

BHARATHI
HM                                                                        ...RESPONDENT
Digitally signed by
BHARATHI H M
Location: High Court of
                          (SRI. V.S.KALASURMATH, HCGP FOR RESPONDENT)
Karnataka, Dharwad
Date: 2023.04.15
11:28:46 +0530
                                THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.
                          SEEKING TO ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE
                          JUDGMENT AND ORDER OF CONVICTION DATED 30.07.2014 AND
                          31.07.2014 PASSED BY THE DISTRICT AND SESSIONS JUDGE,
                          UTTARA KANNADA, KARWAR IN S.C.NO.43/2009 FOR THE OFFENCES
                          PUNISHABLE UNDER SECTION 376 OF IPC AND ACQUIT THE
                          APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTION 376
                          OF IPC.

                                THIS APPEAL, COMING ON FOR FINAL HEARING, HAVING
                          BEEN HEARD AND RESERVED FOR JUDGMENT ON 31.03.2023, THIS
                          DAY, THE COURT DELIVERED THE FOLLOWING:
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                                      CRL. A. NO.100149/2014




                        JUDGMENT

This appeal is filed by the sole accused against the

Judgment of conviction dated 30.07.2014 and order of

sentence dated 31.07.2014 passed by the District and

Sessions Judge, Uttara Kannada, Karwar (for short

'Sessions Judge'), in Sessions Case No.43/2009 convicting

him for the offences punishable under Section 376 of IPC

and sentencing him to undergo rigorous imprisonment for

seven years and to pay fine of Rs.50,000/-.

2. The case of the prosecution is that, the

complainant/victim i.e. P.W.13 aged about 29 years and

her husband i.e. P.W.14 are from Brisbrain, Australia and

the couple were on tour to India and they had come to

Gokarna and staying in a cottage at Paradise Beach,

belonging to P.W.9 Muralidhar Kamat. It is the further

case of prosecution that, on 07.03.2009 in the midnight

while the victim was asleep in the cottage, the accused

entered into the cottage and removed her panty and

committed rape on her. Hence, she lodged a complaint

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before the Gokarna Police on 07.03.2009 at about 10.30

p.m. Based on the said complaint, Gokarna Police

registered a case in Crime No.10/2009 dated 07.03.2009

as per Ex.P.19 and investigated the case by conducting

spot panchanama and arresting the accused on the same

day i.e. on 07.03.2009. After investigation, charge-sheet

came to be filed against the accused for the offence

punishable under Section 376 of IPC. On committal of the

case to the Sessions Court, the appellant/accused pleaded

not guilty for the charges leveled against him and claimed

to be tried.

3. In order to bring home the guilt of the accused

for the charges leveled against him, the prosecution

examined 19 witnesses i.e. P.W.1 to P.W.19 and reliance

placed documentary evidence at Ex.P.1 to Ex.P.22. Apart

from denying all the incriminating circumstances appeared

against the accused in the evidence of the prosecution

witnesses, the accused by way of defence got marked two

documents i.e. Ex.D.1 and Ex.D.1(a). The defence of the

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accused was one of the total denial and that of false

implication in the case.

4. After hearing the learned counsels from both

sides, the Sessions Judge by considering the materials and

the evidence available on record has passed the Judgment

holding that, the accused has committed rape on P.W.13

by entering the cottage. In that view of the matter, the

learned Sessions Judge convicted the appellant/accused

for the aforesaid offence. Aggrieved by the said Judgment

of conviction and order of sentence, the accused is in

appeal before this Court.

5. Heard Sri S.S.Patil, learned counsel for the

appellant and Sri. V.S.Kalasurmath, learned HCGP for the

respondent-State.

6. Learned counsel for the appellant vehemently

contended that, the Judgment under appeal suffers from

perversity and illegality inasmuch as the learned Sessions

Judge has failed to notice that, the evidence of P.W.13 and

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14 does not inspire the confidence of the Court as it is

highly inconsistent and discrepant. He further contended

that, except P.W.13 and her husband P.W.14, all other

witnesses have turned hostile to the prosecution case.

Even otherwise by perusal of the evidence of P.W.13, her

evidence cannot be believed at any stretch of imagination

for the reason that without her consent and knowledge

while she was asleep, the accused had sexual act with her

and she was under the impression that, her husband has

committed the sexual act on her. Hence, according to the

learned counsel, her version does not inspire confidence to

rely and the learned Sessions Judge wrongly convicted the

accused for the offence punishable under Section 376 of

IPC.

7. Learned counsel would further contend that,

P.W.14, her husband though supported the case of the

prosecution, nevertheless, he is a hearsay witness to the

incident. According to him, after the incident by hearing

the hue and cry of his wife he came to the spot and at that

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time, the accused was already escaped from the spot. As

such, much evidentiary value cannot be attached to the

evidence of P.W.14.

8. Learned counsel would contend that, since the

victim was aged about 28 years and the Doctor who

examined the victim P.W.5 categorically admitted in her

evidence that, there was no sign of recent sexual

intercourse on the victim as per Ex.P.6 certificate. As such,

the version of P.W.13 has not corroborated with the

evidence of the Doctor and the certificate at Ex.P.6.

Hence, learned Sessions Judge has totally erred in

convicting the accused. Hence, learned counsel prays to

set aside the Judgment passed by the learned Sessions

Judge and prays to acquit the accused.

9. Per contra, learned HCGP sought to justify the

Judgment under appeal and contended that, the Judgment

does not suffer from any perversity or illegality since the

learned Sessions Judge on proper appreciation of oral and

documentary evidence has recorded the findings which are

CRL. A. NO.100149/2014

sound and reasonable regard being heard to the evidence

on record, therefore, it does not call for interference by

this Court. He would further contend that, P.W.13 the

victim has categorically stated the alleged incident of rape

committed by the accused on her on 07.03.2009 and to

that effect, the victim immediately lodged the complaint

which came to be registered by the said police in Crime

No.601/2009. According to the learned HCGP, her version

was supported by the evidence of P.W.14 who is none

other than her husband. P.W.14 immediately visited the

spot by hearing the hue and cry of his wife. While he so

reached to the spot, the accused ran away from the spot.

As such, according to the learned HCGP, there is no reason

to disbelieve the version of P.W.13 and P.W.14. He would

further contend that, though the medical evidence not

supported the version of P.W.13, nevertheless, the

evidence of the victim cannot be discarded as per the

settled position of law by the Hon'ble Apex Court. As such,

the Sessions Judge has justified in convicting the

appellant, therefore, he sought for dismissal of the appeal.

CRL. A. NO.100149/2014

10. In the facts of the case and in the light of the

submissions made on both sides, the points that would

arise for my consideration are :

(i) Whether the Judgment under appeal suffers from any perversity or illegality, warranting interference by this Court ?

(ii) Whether the learned Sessions Judge has justified in convicting the appellant/accused for the offence punishable under Section 376 of IPC ?

11. I have bestowed my anxious consideration to

the submission made by the learned counsel appearing on

both sides and carefully perused the records secured from

the trial Court and also the reasoning adopted by the

learned Sessions Judge.

12. This Court being the appellate Court, re-

appreciation of entire evidence on record is very much

required. On a cursory glance of the evidence deposed

before the trial Court, P.W.1 - Narayan is the witness for

Ex.P.1 the spot panchanama. The said witness identified

his signature on Ex.P.1, however denied the contents of

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Ex.P.1, as such, he has been treated as hostile witness to

the prosecution case. P.W.2 is the witness for the spot

mahazar as per Ex.P.1 and recovery mahazar i.e. Ex.P.2.

Though this witness identified his signature on Ex.P.1 and

Ex.P.2 respectively, but he denied the contents of Ex.P.1

and E.x.P.2. As such, he treated as hostile to the

prosecution case.

P.W.3 is the Doctor who examined the accused in

this case, and issued certificate as per Ex.P.3. According to

him, the accused is capable of performing sexual Act.

P.W.4 Dr. Anand who initially examined the victim

and issued certificate as per Ex.P.4 and thereafter she

referred the victim to P.W.5 for further examination.

P.W.5 Dr. Asha Bhat who examined the victim and

issued certificate as per Ex.P.6. According to her there was

no sign of recent sexual intercourse on the victim.

P.W.6, P.W.7 and P.W.8 are the circumstantial

witnesses in respect of the incident all are turned hostile

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CRL. A. NO.100149/2014

to the prosecution case. All the above witnesses have

accommodated the victim and P.W.14 at Gokarna Beach.

P.W.9 i.e. Muralidhar is the owner of the Hotel

namely Kaplay Paradise at Paradise Beach. He is a hearsay

witness in respect of the alleged incident and also a

witness for Ex.P.1 the spot mahazar.

P.W.10 is a circumstantial witness, who turned

hostile to the prosecution case.

P.W.11 is a hearsay witness and stated that, he

came to know about the alleged sexual act by the accused

to the victim through somebody.

P.W.12 Dr. Gajanan Hosbanna Nayak issued Ex.P.11

certificate by examining the accused.

P.W.13 is the victim in this case. She has stated that,

she along with her husband/C.W.13 was on a tour from

October, 2008 till March 2009 to India. On 01.03.2009 in

the evening she along with her husband had been to

Gorkarna and stayed in Café Paradise Hotel, Hut No.9,

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Paradise Beach, Gokarn. On 7th March, at about 1.00 a.m.

in the early morning the incident has occurred. On that

day she was alone in the hut and her husband was

sleeping outside the hut about a meter away. She states

that, she has seen the accused before the Court along with

his two friends on Paradise Beach on 06.03.2009 in the

afternoon. When she was sleeping in the hut on

07.03.20098 at about 1.00 in the morning, she saw the

accused on her and without her consent he penetrated his

organ in her vagina. When she awaken and put her hands

on his head, the said person had short hairs, as her

husband's hairs were long and she came to know that, the

person who is having sex with her, is not her husband. On

that day, as there were two candles lit in the hut, and a

camp lamp in the hut and there were lights by the side of

the hut, she could not recognize the accused during the

incident. Immediately, when she came to know that, he is

not her husband, she pushed him aside and screamed for

help. She states that, she woken up, saw her private part

having semen and it was wet, the accused has removed

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her underwear and her vaginal area was swollen due to

the impact. She states that, the accused had removed her

underwear before penetration. When she screamed for

help the accused ran away and at that time, he jumped

over her husband who was out side the hut. She states

that, the accused was wearing a blue shirt having collar.

Thereafter, her husband came inside the hut. She told

that, the accused raped her forcibly. He has also seen her

private part. Her husband went outside in search of the

accused and informed said incident to the owner of the

hut. In front of their hut, a Russian person along with his

girl friend was staying. The police had been to the scene

early in the morning after the sunrise. She lodged a police

complaint at about 10.00 a.m. in the morning.

P.W.14 is the husband of the victim (P.W.13). He

married the victim in the year 2005 at London. From

October 2008 till the end of March, 2009 he along with his

wife (victim) were on tour to India. During traveling, both

had been to Gokarn on 1st of March, 2009. On 01.03.2009

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he along with his wife had been to Gokarn and stayed in

Café Paradise Hotel, Hut No.9, Paradise Beach, Gokarna.

On 7th of March at about 1.00 in the morning the incident

occurred. When his wife was sleeping in side the hut, on a

mattresses, whereas, he was sleeping outside the hut

about a meter away from the hut. On that day at 1.00

a.m. in the morning he heard his wife screaming,

meanwhile a man jumped over him and ran away. He

noticed that, the said person was wearing a blue color

collar shirt. When he went inside the hut, his wife told

that, she has been raped. He noticed semen on inner part

of her both thighs. He stated that, his wife was frightened

by the said incident. He went outside the hut. By the side

of their hut, a Russian person along with his girl friend was

staying there. He states that, his neighbours were also

awakened by hearing the screaming voice and the owner

of the said Hotel was also awaken by the incident.

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P.W.15 Dayanand R. Naik is the Assistant Executive

Engineer of P.W.D, who prepared sketch of the spot as per

Ex.P.16.

P.W.16 Ganesh Krishna Gouda is the Police

Constable, who carried FSL items from the Dy.

Superintendent of Police office to FSL office.

P.W.17 is the Police Constable who has also carried

out FSL articles.

P.W.18 Kirankumar Naik is the then PSI of the

Gokarna Police Station who received the complaint from

the complainant and registered the case in Crime

No.10/2009 on 07.03.2009 and thereafter arrested the

accused and conducted the investigation in this case.

P.W.19 is the Police Inspector i.e. Investigating

Officer in this case, who completed the investigation and

laid the charge-sheet before the jurisdictional Court.

13. By perusal of the above evidence, except the

evidence of P.W.13 and P.W.14, there is no reliable

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evidence placed by the prosecution before the Sessions

Court. Although P.W.13 is the victim in this case and

deposed before the Court that, when she was asleep at

about 1.00 a.m. in the morning she saw the accused

penetrated her and when she was awakened and put her

hands on his head, she felt that, the hairs of the said

person was short, but her husband's heirs were long. She

came to know that, the person who was having sex with

her is not her husband, as such, she screamed and at that

time, her husband came and accused ran away from the

spot. Though the said version of P.W.13 supported by

P.W.14 i.e. her husband, admittedly the P.W.14 is a

hearsay witness. He came to know about the incident

through P.W.13. In the cross-examination, P.W.13

categorically admitted that, there are lot of huts around

her hut during the time of incident and workers are

engaged in the hotels. She further stated that, she has no

idea whether there was electricity supply during the night

in the said hotel and the police have not asked about the

source of light. Further, she stated that she had worn MO1

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to MO3 dresses. The accused had removed all those

clothes at the time of committing sexual act on her.

However, she did not woke up when he removed those

clothes and after having penetration by the accused she

was awaken and she did not had any injuries on her

private part. Further except her husband nobody came to

the scene of occurrence on hearing her hue and cry. By

perusal of this evidence of P.W.13, the same does not

inspire confidence on this Court that the accused has

committed forcible sexual act with her as deposed by her.

There are not only material contradictions in her evidence,

but also the manner in which the alleged incident has

taken place as per the version of the prosecutrix, is not

believable.

14. The Hon'ble Apex Court in the catena of

Judgments has held that, though the sole testimony of the

victim can be relied in a rape case, but in the same time

her version must be trustworthy and unblemished and her

evidence must be sterling quality i.e. should be of a very

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high quality, the same should be in a position to accept it

for its face value without any hesitation. To test the quality

of such a witness, the status of the witness would be

immaterial and what would be relevant is the truthfulness

of the statement made by such a witness. What would be

more relevant would be the consistency of the statement

right from the starting point till the end namely, at the

time when the witness makes the initial statement and

ultimately before the Court. It should be natural and

consistent with the case of the prosecution qua the

accused. There should not be any prevarication in the

version of such a witness. The witness should be in a

position to withstand the cross-examination of any length

and howsoever strenuous it may be and under no

circumstance should give room for any doubt as to the

factum of the occurrence, the person involved, as well as

the sequence of it. Such a version should have co-relation

with each and every one of other supporting material such

as the recoveries made, the manner of offence committed,

the scientific evidence and the expert opinion. The said

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version should consistently match with the version of

every other witness. My view is fortified by the Judgment

rendered by the Hon'ble Apex Court in Rai Sandeep

alisas Deepu Vs. State (NCT of Delhi), reported in

(2012) 8 SCC 21. On evaluating the evidence of P.W.13,

it cannot be said that the evidence of the said witnesses

reached the touch stone of the law laid down by the Apex

Court in the above Judgment. Though P.W.14, reiterated

the version of the victim P.W.13, he is none other than her

husband and nevertheless, he is a hearsay witness. Hence,

much evidentiary value cannot be attached to his version.

None of the other witnesses supported the case of the

prosecution either circumstantial witnesses or the

witnesses for recovery of material objects and the spot

panchanama in respect of their investigation. Hence, in

that view of the matter, in my considered opinion, the trial

Court has erred in convicting the appellant for the charges

leveled against him. Accordingly, I answered the above

points. Therefore, I proceed to pass the following:

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ORDER

(i) The appeal filed by the appellant is allowed;

(ii) The Judgment of conviction dated 30.07.2014 and order of sentence dated 31.07.2014 passed in Sessions Case No.43/2009 by the District and Sessions Judge, Uttara Kannada, Karwar is hereby set aside;

(iii) The fine amount if any paid by the accused shall be returned to him, on proper identification.

Sd/-

JUDGE

SVH