State Of Karnataka vs Vittalagouda S/O Channagouda ...
2023 Latest Caselaw 5335 Kant

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                                                        NC: 2023:KHC-D:8429-DB
                                                         CRL.A No. 100424 of 2019




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                             DATED THIS THE 7TH 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. 100424 OF 2019 (A)
                      BETWEEN:
                      STATE OF KARNATAKA,
                      REPRESENTED BY THE POLICE SUB-INSPECTOR,
                      GARAG POLICE STATION, DHARWAD DISTRICT,
                      THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
                      ADVOCATE GENERAL OFFICE,
                      HIGH COURT OF KARNATAKA,
                      DHARWAD BENCH.
                                                                          ...APPELLANT
                      (BY SRI M.B.GUNDWADE, ADDL.SPP)

                      AND:
                      VITTALAGOUDA S/O. CHANNAGOUDA PATIL,
                      AGE: 27 YEARS, OCC: RESERVE POLICE,
                      NOW TERMINATED FROM SERVICE,
                      R/O: AT AND POST: KOTABAGI,
                      TQ. AND DIST: DHARWAD-581105.
         Digitally
         signed by                                                   ...RESPONDENT
         VINAYAKA
         BV           (BY SRI ARUN L.NEELOPANT, ADV.)
VINAYAKA Location:
BV       DHARWAD
         Date:
         2023.08.09         THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
         11:45:11 -
         0700         CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
                      JUDGMENT AND ORDER OF ACQUITTAL DATED 25/04/2019 PASSED
                      BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD IN
                      S.C. NO.146/2017 AND TO SET ASIDE THE JUDGMENT AND ORDER
                      OF ACQUITTAL DATED 25/04/2019 PASSED BY THE IV ADDL.
                      DISTRICT AND SESSIONS JUDGE, DHRWAD, IN S.C.NO.146/2017
                      AND CONVICT THE RESPONDENT / ACCUSED FOR THE OFFENCES
                      PUNISHABLE U/SECS.376 AND 417 OF IPC, IN THE INTEREST OF
                      JUSTICE AND EQUITY.

                          THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                      SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:
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                                     NC: 2023:KHC-D:8429-DB
                                      CRL.A No. 100424 of 2019




                          JUDGMENT

The state has preferred this appeal challenging the

acquittal judgment in SC.No.146/2017 on the file of IV

Additional Sessions Judge, Dharwad.

2. We have heard Sri M.B.Gundawade, learned

Additional State Public Prosecutor and Sri Arun L.

Neelopanth, learned counsel for the respondent.

3. The prosecution case is that the respondent/

accused committed rape on PW.1 against her will and

without consent. Information about the rape was given by

PW.1 to the Police on 22.08.2016 as per Ex.P.1. She

complained to the police that the accused used to follow her

when she was going to college and once expressed his desire

to marry her. Though she was not willing in the beginning,

gradually there developed love between them. The accused

was recruited as a police constable in the Police Department

and was sent to training. Whenever he used to visit his

native place, he used to take PW.1 with him on his

motorcycle. One day the accused took PW.1 to his friend's

NC: 2023:KHC-D:8429-DB CRL.A No. 100424 of 2019

house in the premises of the Police quarters. His friend was

not there and taking advantage of the same, he expressed

his desire to have intercourse with her. Though she was not

willing at that time, he said that he would marry her and had

intercourse. Like this whenever they found time, accused

used to take her to the police quarters and was having

intercourse on the promise of marriage. On 05.03.2016

accused took her to his friend's quarters and had

intercourse. At that time he said that he had made all

arrangements for register marriage. Then in the course of

time when she requested him to marry her, he said that his

parents were not willing and started avoiding her company.

Therefore she approached the police on 22.08.2016. Based

on this report the police held investigation and filed charge

sheet for the offences punishable under Sections 376 and

417 of IPC.

4. The prosecution examined 25 witnesses as per

PWs.1 to 25 and got marked 51 documents as per Exs.P.1 to

P.51. MOs.1 to 18 were the material objects marked through

NC: 2023:KHC-D:8429-DB CRL.A No. 100424 of 2019

prosecution witnesses. Defence also got marked one

document as per Ex.D.1.

5. After appreciating the evidence, the trial Court

found that PW.1 as a consenting party and more than that

her age was 21 years at the time when they first had

intercourse. Finding the evidence placed by the prosecution

before the Court not trustworthy, the trial Court acquitted

the accused and hence this appeal.

6. It is the argument of Sri M.B.Gundawade learned

Addl. SPP that though the age of the girl was 21 years on the

day when Ex.P.1 was lodged before the police, it's plain

reading makes very clear that the accused sought sexual

advance under the false promise of marriage. Consent thus

obtained was under misconception of fact and such a consent

does not benefit the accused. It was a clear act of rape. He

also argued that the accused refused to marry PW.1 having

had sexual intercourse with her for several times. In this

view offence under Section 417 of IPC also would get

attracted. It is his argument that the trial Court has missed

to notice this aspect of the matter and wrongly come to

NC: 2023:KHC-D:8429-DB CRL.A No. 100424 of 2019

conclusion that the prosecution has not been able to prove

its case.

7. Sri Arun L.Neelopath argued for sustaining the

impugned judgment.

8. The prominent witnesses are PWs.1, 19 and 25

out of 25 witnesses. PW.1 herself makes it very clear that

she had intercourse with the accused. But her statement is

that she would not have agreed for sexual intercourse but for

the promise made by the accused to marry her. It may be a

fact that on the day when both had intercourse for the first

time, accused might have told like that but her subsequent

conduct was very important. Plain reading of Ex.P.1 makes it

clear that both had sexual intercourse several times. Her age

as on the day when she lodged Ex.P.1 was 21 years, she was

a major. She was a college going girl. She was fully aware of

the consequence of her act in participating the sexual

intercourse with the accused. Being aware of the

consequences of what she was doing, if she still participated

in the act of coitus, it is impossible to draw an inference that

she was not willing for the sexual intercourse and she did so

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under the belief that the accused would marry her. It was

not a one day affair but it continued for several days and

therefore a clear inference can be drawn that she was a

consenting party being a major. The Trial Court has also

found that the evidence with regard to investigation is also

not trustworthy. We do not find any perversity in

appreciation of evidence by the trial Court. Therefore, we do

not find any good grounds to interfere with the impugned

judgment. Hence, appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

EM