State Of Karnataka vs Kotanagoud @ Shivangouda
2023 Latest Caselaw 5266 Kant

                                                   -1-
                                                          NC: 2023:KHC-D:8344-DB
                                                          CRL.A No. 100489 of 2019




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                DATED THIS THE 4TH DAY OF AUGUST, 2023
                                                PRESENT
                           THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                  AND
                           THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                                 CRIMINAL APPEAL NO. 100489 OF 2019 (A-)
                      BETWEEN:
VINAYAKA              STATE OF KARNATAKA,
BV                    REPRESENTED BY THE POLICE INSPECTOR,
Digitally signed by
VINAYAKA B V          KUNDAGOL POLICE STATION,
Location: DHARWAD
Date: 2023.08.09      TQ: KUNDAGOL, DIST: DHARWAD,
11:45:35 -0700
                      THROUGH THE ADDL. STATE PUBLC PROSECUTOR,
                      ADVOCATE GENERAL OFFICE,
                      HIGH COURT OF KARANTAKA, DHARWAD BENCH.
                                                                       ...APPELLANT
                      (BY SRI. M.B. GUNDAWADE, ADDITIONAL SPP)

                      AND:
                      1.   KOTANAGOUD @ SHIVANGOUDA,
                           S/O. NINGANGOUDA PATIL,
                           R/O: KUBIHAL, TQ: KUNDGOL,
                           DIST: DHARWAD-581113.

                      2.   CHANNAPPA S/O. BASAVANNEPPA BACHANAKI,
                           R/O: KUBIHAL, TQ: KUNDGOL,
                           DIST: DHARWAD-581113.
                                                                   ...RESPONDENTS
                      (BY SRI. VIDYASHANKAR DALWAI, AMICUS CURIAE FOR R1 AND R2)

                            THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
                      CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
                      JUDGMENT AND ORDER OF ACQUITTAL DATED 06/06/2019, PASSED
                      BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,DHARWAD
                      SITTING AT HUBLI IN S.C.NO.147/2012 AND TO SET ASIDE THE
                      JUDGMENT AND ORDER OF ACQUITTAL DATED 06/06/2019, PASSED
                      BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD
                      SITTING AT HUBLI IN S.C. NO.147/2012         CONVICT THE
                      RESPONDENTS/ACCUSED     FOR    THE  OFFENCES   PUNISHABLE
                      U/SEC.354, 366, 376, 506 R/W SECTION 34 OF IPC, IN THE
                      INTEREST OF JUSTICE AND EQUITY.
                                -2-
                                     NC: 2023:KHC-D:8344-DB
                                     CRL.A No. 100489 of 2019




    THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:

                            JUDGMENT

The State has preferred this appeal challenging the

judgment dated 06.06.2019 in Sessions Case No.147/2012

on the file of I Additional District and Sessions Judge,

Dharwad sitting at Hubli.

2. Respondents in this appeal faced trial for the

offences punishable under Sections 354, 366, 506 and 376

read with Section 34 of IPC and by the impugned judgment,

the Trial Court acquitted them of the charges framed against

them and therefore this appeal.

3. The prosecution case is that on 14.04.2012

around 9.00 p.m., PW.21 along with her aunt-PW.20 went

out of the house for attending second call of nature. At 9.30

p.m., only the aunt returned cryingly and revealed before

her family members that the respondents kidnapped PW.21

on their motorcycle. Having searched for PW.21 for about

two days, on 19.04.2012 PW.1 went to police station and

gave report to the police, based on which the police

NC: 2023:KHC-D:8344-DB CRL.A No. 100489 of 2019

registered FIR, held investigation and filed charge sheet

against the accused.

4. The prosecution examined 30 witnesses PWs.1 to

30 and got marked the documents as per Exs.P.1 to P.47

and material objects MOs.1 to 7 for establishing its case.

Two witnesses DWs.1 and 2 adduced evidence supporting

the accused and 8 documents Exs.D.1 to 8 were marked

from their side.

5. Assessing the evidence, the trial Court arrived at

conclusions that the sexual intercourse between accused

No.1 and PW.21 was consensual and that the age of PW.21

as on the date of 14.04.2012 was more than 16 years and

therefore held the accused not guilty of the offences.

6. We have heard the arguments of Sri

M.B.Gundawade, learned Additional State Public Prosecutor

and Sri Vidyashankar G.Dalawai, Amicus Curiae for

respondent No.1 & 2.

7. The argument of Sri M.B.Gundawade is that

although some of the witnesses turned hostile, the

NC: 2023:KHC-D:8344-DB CRL.A No. 100489 of 2019

prominent witnesses PWs.1, 2, 8, 9, 10, 20 and 21 have

supported the prosecution case. PW.21 is the victim. Her

evidence clearly discloses that she was kidnapped in the

night hours when she had gone out of the house for

attending the calls of nature and taken to the relative's

house of respondent No.1 at Devikoppa village. Accused

No.1 had sexual intercourse with her forcibly inspite of her

resistance. Then she was taken to the house of PW.13 at

Gadag. They stayed there for 10 to 15 days. There also he

had intercourse with her against her will. The evidence of

PW.21 as regards sexual intercourse finds support from the

evidence of the doctor-PW.14. Her clear evidence is that the

hymen of PW.21 was torn. This being the consistent

evidence of PW.21, the trial Court ought not to have

acquitted the accused.

8. Learned Amicus Curiae submits that the

testimony of PW.1 clearly discloses that when she was made

to sit on the motorcycle, she did not shout and when she

travelled along with accused No.1 in the bus, she did not

disclose to the co-passengers that she had been kidnapped.

NC: 2023:KHC-D:8344-DB CRL.A No. 100489 of 2019

And when she was made to stay in the house of the relative

of accused No.1, she did not reveal before them that she was

brought there forcibly. Her conduct is sufficient enough to

draw an inference that she was a consenting party. He also

argued that as on 14.04.2012, she had crossed 16 years as

is evident from the age proof provided as per Ex.P.21 and

also the age estimation given by the doctor- PW.15. In this

view, the acquittal judgment cannot be disturbed in the

appeal.

9. We have perused the entire evidence both oral

and documentary. On re-appreciation of evidence we find

that PW.1, the father of PW.21 has just given evidence that

his daughter did not return home on 14.04.2012 and only

her sister-in-law returned raising hue and cry stating that

PW.21 was forcibly taken by both the accused. His evidence

to this extent is of course believable, but the question is

whether PW.21 was really kidnapped by the accused in order

to subject her to forcible intercourse. For this reason the

evidence of PW.21 becomes important. Of course she too has

stated that on 14.04.2012 at 9.00 p.m., she went out of the

NC: 2023:KHC-D:8344-DB CRL.A No. 100489 of 2019

house with her aunt-PW.20 for attending calls of nature and

while returning home, she was kidnapped by both the

accused and taken to Devikoppa village. She has stated that

accused No.1 had intercourse with her in the house of his

relative inspite of her resistance. Then they went to the

house of PW.13 at Gadag and stayed there for 10 to 15

days. She has stated that there also she was subjected to

intercourse. But her answers in the cross-examination clearly

reveal that she never raised cry for help when she was

kidnapped or when she was traveling in the bus with accused

No.1. If she had stayed for 10 to 15 days in the house of

relative of accused No.1 at Gadag there was ample

opportunity for her to escape from that house and disclose

the incident to somebody. She did not seek for help from

anybody anywhere. More than that Ex.P.16 is important. This

is a medical examination report given by PW.14. The history

written in Ex.P.16 shows that PW.21 stated before the doctor

that she went voluntarily with accused No.1 on 14.04.2012

and stayed with him up to 07.05.2012. She stated that she

voluntarily had sexual intercourse with accused No.1.

NC: 2023:KHC-D:8344-DB CRL.A No. 100489 of 2019

Therefore history written in Ex.P.16 falsifies the testimony of

PW.21 in her examination-in-chief.

10. Next important aspect to be considered is about

the age of PW.21 as on 14.04.2012. For proving the age, the

prosecution produced Ex.P.21 which is a certificate of age

issued by the Head Master of the High School where PW.21

studied. In this document date of birth is mentioned as

10.05.1996. But PW.21 has sated in her cross-examination

that her date of birth is 25.01.1995, in which event her age

as on 14.04.2012 was 17 years 2 months 19 days. Added to

this, there is evidence given by PW.15, who estimated the

age of PW.21 and gave a report as per Ex.P.19 mentioning

that the age of PW.21 was between 16 and 17 years. To this

estimation we can give a marginal error of two years either

side. Therefore, if two years is added to the outer age limit,

her age may be held as 19 years. There is no consistent

evidence with regard to age. If Ex.P.21 alone is considered,

even if PW.21 was a consenting party, her consent was of no

consequence as she was a girl of below 18 years. But in the

light of evidence given by PW.15 and his report as per

NC: 2023:KHC-D:8344-DB CRL.A No. 100489 of 2019

Ex.P.19, accused would become entitled to benefit of doubt.

In this view, we do not find good grounds to interfere with

the judgment of the Trial Court. Hence, the appeal is

dismissed.

11. The High Court Legal Services Committee is

directed to pay honorarium of Rs.10,000/- to the learned

Amicus Curiae.

Sd/-

JUDGE

Sd/-

JUDGE

EM