Karnataka High Court
Smt Shobha H T vs State Of Karnataka on 13 December, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.1386 OF 2017 (A)
BETWEEN:
Smt. Shobha H.T.
Aged about 40 years
W/o. H.G. Prabhu,
Herur Village,
Kasabha Hobli,
Kunigal Taluk - 572130.
.. Appellant
(By Smt. Veena J. Kamath, Advocate )
AND:
1. State of Karnataka
Kunigal Police Station
Represented by Special Public
Prosecutor, High Court
Building, Bengaluru - 560001.
2. Sri.H.G. Prabhu,
S/o. Govindaiha,
Aged about 40 years,
Herur Village,
Kasabha Hobli,
Kunigal Taluk - 572130.
.. Respondents
(By Sri. P. Thejesh, High Court Govt.Pleader for R-1;
Sri.B.S. Raghu Prasad, Advocate for R-2)
****
Crl.A.No.1386/2017
2
This Criminal Appeal is filed under Section 372 of the
Code of Criminal Procedure, 1973, with the following prayer:
"Wherefore, it is respectfully prayed that this Hon'ble
Court may kindly be pleased to call for the records and
set aside the order dated 30-05-2017 passed by the
learned VI Additional District and Session Judge, at
Tumkuru in S.C.No.38 of 2011 and convict the 2nd
respondent/accused for the offence punishable under
Section 376 of IPC, by allowing this appeal on the
above grounds, and on such other grounds as may be
urged at the time of Final Hearing of the petition and
pass any other suitable order as this Hon'ble Court
deems fit on the facts and circumstances of the case, in
the interest of justice and equity."
This Criminal Appeal having been heard through Physical
Hearing/Video Conferencing Hearing and reserved for judgment
on 15-11-2023, coming on for pronouncement this day,
Dr.H.B.Prabhakara Sastry J. delivered the following:
JUDGMENT
The complainant/CW-1(PW-3) has filed this appeal
under Section 372 of the Code of Criminal Procedure,
1973, (hereinafter for brevity referred to as "the Cr.P.C."),
challenging the judgment of acquittal dated 30-05-2017,
passed by the VI Additional District and Sessions Judge at
Tumakuru, (hereinafter for brevity referred to as "the
Sessions Judge's Court") in Sessions Case No.38/2011,
acquitting the accused of the offence punishable under
Section 376 of the Indian Penal Code, 1860 (hereinafter
for brevity referred to as "the IPC").
2. The summary of the case of the prosecution in
the Sessions Judge's Court was that, the complainant
(henceforth referred to as "the victim") and the accused
are residents of Heruru Village of Kunigal Taluk, within the
limits of the complainant - Police Station. The parents of
the accused by names Sri. Govindaiah and
Smt. Gowramma are old aged. The victim, being a
relative of the accused, was, at the request of the parents
of the accused, working in their house and attending to
the household works including cooking, cleaning of the
house, washing the cloths etc. Six months prior to the
date 28-04-2000, one day, when the parents of the
accused had been to Bengaluru to their daughter's house,
the victim and the accused were the only persons present
in the house. On that day, the accused had gone out of
the house and the victim, after completing the household
work, at about 8:30 p.m., was alone at home. At that
time, the accused came from outside and demanded the
victim that she should love him. The victim did not accede
to his demand. The accused, by force, committed rape
upon her. After the incident, while she was weeping, the
accused consoled her, stating that he would marry her and
that she should not reveal the said incident to anyone.
Thereafter, both of them started loving each other.
Subsequently, the victim conceived and became pregnant
of three months. She revealed the same to the accused,
for which, the accused asked her to get the same aborted
and gave her some tablets to consume in that regard.
However, scared by the same, she did not consume the
tablets given to her by the accused. When such being the
case, the parents of the accused started searching for a
girl for the accused. On coming to know about the same,
about fifteen days prior to the date, which is 28-04-2000,
the victim questioned the accused as to his conduct of
searching for other girl to marry. However, the accused
ignored the query of the victim (complainant) and stated
that it was his wish and threw her out of his house. The
same was witnessed by the people of their village
including Revanna, Chandrappa and Srinivas. The victim
revealed about the incident to her parents who
approached the parents of the accused and requested
them to get the victim married to the accused, however,
they also refused. Aggrieved by the same, the victim,
claiming herself to be a pregnant woman, filed a complaint
with the complainant Police on the date 28-04-2000,
which was registered in the complainant - Police Station in
Crime No.145/2000, against the accused, for the offence
punishable under Section 376 of the IPC.
3. After the Police conducted the investigation,
during which period, the victim gave birth to a baby boy,
the complainant Police filed charge sheet against the
accused for the offence punishable under Section 420 of
the IPC. The charge sheet was filed in the Court of the
learned Principal Civil Judge and JMFC at Kunigal in
C.C.No.807/2001. The charge was framed against the
accused for the offence punishable under Section 420 of
the IPC, by the Trial Court. However, vide order dated
16-09-2003, passed by the learned Principal District and
Sessions Judge, Tumkur, in Crl.Misc.420/2003, filed by the
respondent No.2 (accused), C.C.No.807/2001 was
withdrawn from the file of the learned Principal Civil Judge
(Jr.Dvn.) & JMFC., Kunigal and was made over by
assigning to the Court of the Principal Civil Judge (Jr.
Dvn.) & JMFC, Tumkur (hereinafter for brevity referred to
as the "the Trial Court"), for disposal in accordance with
law, where, it was numbered as C.C.No.1838/2003.
4. Before the Trial Court, in C.C.No.1838/2003,
since the accused pleaded not guilty and claimed to be
tried, the trial was initiated against the accused. In the
process of proving the alleged guilt against the accused,
the prosecution examined in all four witnesses i.e. CW-1,
CW-3, CW-5 and CW-4 as PW-1, PW-2, PW-3 and PW-4
respectively.
During trial, the prosecution filed an application
under Section 323 of the Code of Criminal Procedure, 1973
(hereinafter for brevity referred to as "the Cr.P.C."),
contending that, the incident involves the commission of
the offence punishable under Section 376 of the IPC by
the accused, as such, the matter was required to be
committed to the Sessions Judge's Court, for its trial.
The Trial Court, after inviting the objection and
hearing both side, by its order dated 30-04-2009 allowed
the application filed by the prosecution under Section 323
of the Cr.P.C. and committed the case to the Sessions
Judge's Court.
After receiving the records and perusing the entire
material placed before it and hearing both side, the
Sessions Judge's Court framed charge as against the
accused for the offence punishable under Section 376 of
the IPC.
5. Since the accused pleaded not guilty and claimed
to be tried before the Sessions Judge's Court also, the trial
was held, wherein, in order to prove the alleged guilt
against the accused, the prosecution got examined in all
seven (7) witnesses as PW-1 to PW-7, got marked
documents from Exs.P-1 to P-7 and no Material Objects
were produced. On behalf of the accused, neither any
witnesses were examined nor any documents were got
marked as exhibits.
6. After hearing both side, the learned Sessions
Judge's Court, by its impugned judgment dated
30-05-2017, acquitted the accused of the offence
punishable under Section 376 of the IPC. Being
aggrieved by the same, the complainant (victim) - CW-1
(PW-3) has filed the present appeal.
7. The respondent No.1 - State is being represented
by the learned High Court Government Pleader and the
respondent No.2 (accused) is being represented by his
learned counsel.
8. The records from the Sessions Judge's Court were
called for, however, the records of the Trial Court in
C.C.No.807/2001 as well as in C.C.No.1838/2003 and also
the Sessions Judge's Court's records are placed before this
Court.
9. Heard the learned counsel for the appellant
(victim), learned High Court Government Pleader for the
respondent No.1-State and also the learned counsel for
respondent No.2 (accused). Perused the materials placed
before this Court, including the memorandum of appeal,
impugned judgment and the records from the Sessions
Judge's Court.
10. For the sake of convenience, the parties would
be referred to as per their rank before the Sessions
Judge's Court.
11. The learned counsel for the appellant (victim) in
her argument contended that, the victim, in her complaint
at Ex.P-1 itself, has clearly narrated about the occurrence
of the incident and also shown that, due to the act of rape
committed by the accused upon her, she conceived and
became pregnant. Further, the Date of Birth Certificate at
Ex.P-3 shows that a baby boy was born to the victim. The
Hospital record at Ex.P-7 shows that the delivery of the
child was a Full Time Normal Delivery (FTND), as such,
after nine months of pregnancy, the victim has delivered a
male child. This shows that, as on the date of the
complaint, the victim (complainant) was pregnant.
Learned counsel further submitted that, the evidence
of the witnesses was recorded about seventeen (17) to
nineteen (19) years after the date of the incident, as such,
minor discrepancies or variations, if any, are bound to
occur in the evidence and if any such contradictions or
variations are there, the same are not fatal to the case of
the prosecution.
Learned counsel also contended that the prosecution
had filed an interlocutory application for getting conducted
a DNA Test of the accused, however, the said application
came to be rejected. The complainant challenged the
same in a Criminal Petition before this Court, which also
came to be rejected, on the ground that the accused
cannot be compelled to undergo the DNA Test, however, it
reserved liberty to draw an adverse inference against the
accused under Section 114, illustration (h) of the Indian
Evidence Act, 1872 (hereinafter for brevity referred to as
"the Evidence Act"). Still, the learned Sessions Judge's
Court did not draw any adverse inference against the
accused who refused to undergo a DNA Test.
Further, the learned counsel contended that, the
learned Sessions Judge's Court has totally failed to
appreciate the evidence placed before it in its proper
perspective and ignoring the supporting evidence of all the
material witnesses, has proceeded to assume several
things on its own and acquit the accused of the alleged
offence, as such, the same deserves to be set aside and
the accused deserves to be convicted for the alleged
offence.
12. The learned High Court Government Pleader for
the respondent No.1 - State, in his brief argument,
submitted that, though originally the charge sheet was
filed for the offence punishable under Section 420 of the
IPC, however, the Investigating Officer has not filed the
additional charge sheet for the offence punishable under
Section 376 of the IPC. Still, he contended that in the
original charge sheet itself, the Investigating Officer has
clearly mentioned that the accused has committed rape
upon the victim and thereafter falsely assured her of
marrying her and continued his act of having sexual
intercourses with her. As such, he submitted that, the
provision of 'Section 376 of the IPC' though not is
expressly mentioned in the charge sheet, however, the
recitals in the charge sheet clearly mention about the
offence of rape committed by the accused.
Learned High Court Government Pleader further
submitted that, the evidence of PW-3 (victim) is trust
worthy and believable, as such, she has clearly proven
the guilt of rape committed by the accused upon her.
With this, the learned High Court Government
Pleader submitted that, he supports the present appeal
filed by the victim.
13. Learned counsel for the respondent No.2
(accused) in his argument contended that, the contention
of the accused, throughout, has been a total denial of the
occurrence of the alleged incident of rape. The prosecution
has utterly failed to prove the alleged guilt against the
accused. The evidence of PW-3 (victim) is not believable
and trustworthy. She has not given the specific date of
the alleged incident of rape.
Learned counsel further submitted that, even if the
DNA Test were to be conducted, the same would have, at
the best, shown the paternity/parentage of the male child
born to the victim, but it would not be a proof of rape
alleged to have been committed by the accused upon the
victim.
Learned counsel also submitted that, the scene of
offence panchanama has not been proved by the
prosecution, as such, the entire case of the prosecution
itself is not believable. With this, he prayed to dismiss the
appeal filed by the victim.
14. After hearing the learned counsels for the
parties, the points that arise for our consideration in this
appeal are:
[i] Whether the prosecution has proved
beyond all reasonable doubts that, six months prior
to the date 28-04-2000, one day, the accused
committed rape upon the victim (complainant) in
his house at Heruru Village, within the limits of the
complainant Police Station and thereby has
committed the offence punishable under Section
376 of the Indian Penal Code, 1860?
[ii] Whether the judgment of acquittal
under appeal warrants any interference at the
hands of this Court?
15. Before proceeding further in analysing the
evidence led in the matter, it is to be borne in mind that, it
is an appeal against the judgment of acquittal of accused
for the offence punishable under Section 376 of the IPC.
Therefore, the accused has primarily the double benefit.
Firstly, the presumption under law is that, unless his guilt
is proved, the accused has to be treated as an innocent
person in the alleged crime. Secondly, the accused has
already been enjoying the benefit of judgment of acquittal
passed under the impugned judgment. As such, bearing
the same in mind, the evidence placed by the prosecution
in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the
case of Chandrappa and others -vs- State of Karnataka,
reported in (2007) 4 Supreme Court Cases 415, while
laying down the general principles regarding powers of the
Appellate Court while dealing in an appeal against an order
of acquittal, was pleased to observe at paragraph 42(4)
and paragraph 42(5) as below:
" 42(4) An appellate Court, however, must bear
in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent Court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial
Court.
42(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the appellate
Court should not disturb the finding of acquittal
recorded by the trial Court."
(b) In the case of Sudershan Kumar -vs- State of
Himachal Pradesh reported in (2014) 15 Supreme Court
Cases 666, while referring to Chandrappa's case (supra),
the Hon'ble Apex Court at Paragraph 31 of its Judgment
was pleased to hold that, it is the cardinal principle in
criminal jurisprudence that presumption of innocence of
the accused is reinforced by an order of acquittal. The
Appellate Court, in such a case, would interfere only for
very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State
of Kerala, reported in (2022) 8 Supreme Court Cases 440,
at Paragraph 25 of its judgment, the Hon'ble Apex Court
was pleased to observe as below:
" 25. While dealing with an appeal against
acquittal by invoking Section 378 Cr.P.C, the
appellate Court has to consider whether the trial
Court's view can be termed as a possible one,
particularly when evidence on record has been
analysed. The reason is that an order of acquittal
adds up to the presumption of innocence in favour of
the accused. Thus, the appellate Court has to be
relatively slow in reversing the order of the trial
Court rendering acquittal. Therefore, the
presumption in favour of the accused does not get
weakened but only strengthened. Such a double
presumption that enures in favour of the accused
has to be disturbed only by thorough scrutiny on the
accepted legal parameters."
The above principle laid down by it in its previous
case was reaffirmed by the Hon'ble Apex Court, in the
case of Ravi Sharma -vs- State (Government of NCT of
Delhi) and another reported in (2022) 8 Supreme Court
Cases 536 and also in the case of Roopwanti Vs. State of
Haryana and others reported in AIR 2023 SUPREME
COURT 1199.
It is keeping in mind the above principles laid down
by the Hon'ble Apex Court, we proceed to analyse the
evidence placed by the prosecution in this matter.
16. Among the seven witnesses examined by the
prosecution to prove the alleged guilt against the accused,
the primary, material and most important witness is, PW-3
(CW-1) - the victim.
In her examination-in-chief, PW-3 (CW-1) - the
victim has stated that, the accused, by relationship is her
maternal uncle's son. The father of accused by name
Sri.Govindaiah is her maternal uncle and his wife by name
Smt. Gowramma is the mother of the accused. The
accused is the resident of the very same village where the
victim resides. Eighteen (18) years to nineteen (19) years
prior to the date of her (victim's) evidence (her
examination-in-chief was recorded on the date
04-10-2016), for about two years, she has worked in the
house of the accused. At that time, since the mother of
the accused - Smt. Gowramma was not keeping good
health, at the request of the parents of the accused, she
(the victim) was staying in the house of the accused and
was attending to their household work. The parents of
accused, i.e. Sri.Govindaiah and Smt. Gowramma have
five daughters and three sons, however, the daughters
were residing separately in their respective matrimonial
homes. The accused alone was staying with his parents in
the village. The parents of the accused were now and then
visiting their daughters' houses, as such, whenever they
used to go out of the village to visit their daughters'
houses, they used to entrust the entire responsibility of
their house to her (the victim).
The witness has further stated that, when such being
the case, about eighteen years prior to the date of her
evidence, one day, the parents of the accused had been to
Bengaluru to visit the house of their daughter. On that
night, at about 20:30 hours (8:30 p.m.), after finishing
the cooking work, she was sitting in the house of the
accused. At that time, the accused who returned to the
home asked her to love him, for which, she did not agree.
Since she did not agree, the accused forcibly committed
rape upon her. After the incident of rape, when she was
weeping, the accused then promised her that he would
marry her and told her not to reveal about the incident to
anybody. The witness has stated that, after the said
incident, love developed between them for about six
months. During the said period, she conceived and
became pregnant of three months. She informed the
accused about she becoming pregnant of three months,
for which, the accused advised her to get the pregnancy
aborted and gave her few tablets to consume. Scared by
it, she did not consume those tablets.
The witness has further stated that, the accused
started searching for a girl to marry. She enquired as to
why he was looking for some other girl to marry, for
which, the accused replied stating that, it was his wish and
he physically threw her away from his house. The said act
of the accused throwing her (the victim) out of his house
by pushing her, holding her neck was seen by
Sri. Revanna, Sri. Chandrappa and Sri. Srinivasa, who are
the residents of the very same village. It is those people
who informed the same to her parents. The witness
stated that on the same evening, her parents visited the
house of the accused and requested the parents of the
accused to take the victim as their daughter-in-law by
getting her married to the accused, however, the parents
of the accused refused to it. This made her (victim) to go
to the complainant Police Station on the next day morning
and lodge a complaint against the accused. Stating so,
the witness has identified the complaint said to have been
lodged by her at Ex.P-1. She stated that, at the time of
lodging the complaint, she was pregnant of six months.
The witness further stated that, after she lodged the
complaint, the Police visited the house of the accused and
also enquired the neighbours. They also took her signature
to a document which she has identified at Ex.P-4. She also
stated that three months after she lodging the complaint,
she gave birth to a male child in the Vani Vilas Hospital at
Bengaluru. Thereafter, she started living with her parents
in Heruru village, however, later, she shifted to Bengaluru
and was residing at Bengaluru. She also stated that as on
the date of her evidence, the age of her son was 16 years.
Since PW-3 did not give the details of the document
at Ex.P-4, the prosecution got her treated as hostile and
cross-examined her. In her cross-examination from the
prosecution side, she admitted a suggestion as true that
on the date 01-05-2000, the complainant Police visited the
spot as shown by her and drew a scene of offence
panchanama as per Ex.P-4. The said panchanama was
witnessed by one Sri. Shivanna and Sri. Srinivasa.
However, due to long lapse of time, she could not able to
recollect the same.
The victim (PW-3) was subjected to a detailed cross-
examination from the accused' side. The details of her
family and the brothers to her father and the location of
their house were all elicited in her cross-examination.
Similarly, it was also elicited in her cross-examination
that, the father of the accused had five daughters and
three sons, among whom, one son was dead and all the
five daughters of Govindaiah were married and residing at
Bengaluru. She admitted a suggestion as true that the
accused studied Diploma course at Bengaluru by staying in
the house of his maternal aunt, however, she denied that
he was running an STD Booth at Bengaluru after
completion of his education. She admitted a suggestion as
true that the father of the accused has sufficient landed
property and getting an income of `10.00 to 15.00 lakhs
per annum, on the other hand, her father did not own any
agricultural property except some dry land and that his
annual income from agriculture was `50,000/-. She also
admitted that her father and her uncles were working as
Coolies to eke out their livelihood.
An attempt was made in the cross-examination of
PW-3 (the victim) to bring out that, both the victim and
her mother are not of good character. However, several
suggestions made in that regard were categorically denied
by the witness. The witness in her cross-examination
stated that, after she lodged a complaint, the Police had
taken her to the Government Hospital at Kunigal for her
medical examination. The denial suggestion made to her
about the evidence given in her examination-in-chief
regarding the alleged incident and the involvement of the
accused in the alleged incident were all not admitted as
true by the witness.
17. The second important and material witness upon
whom the prosecution is banking upon is, PW-5 (CW-3) -
Smt. Lakshmamma - the mother of the victim. This
witness has stated that the victim who is her daughter was
attending to the household work of the parents of the
accused with whom the accused was residing in their
village Heruru. All the daughters of Sri. Govindaiah
(father of the accused) were given in marriage and were
living in their matrimonial homes at Bengaluru. The
accused alone was residing with his parents in the village.
The brother of the accused by name Sri. Vasantha was
dead few years back. It is after the death of said
Vasantha, which was about sixteen (16) years prior to the
date of her (PW-5's) evidence, at the request of
Smt. Gowramma - the mother of the accused, she had
sent her daughter (PW-3-victim) to the house of the
accused to work in their house and to attend to the
household works there. She further stated that, though
initially the victim refused to go to their house, however,
after being convinced by them (this witness and her
husband) she (the victim) went to the house of the
accused and was looking after the household work, where
she used to stay in the house of the accused, however,
whenever the parents of the accused were leaving the
village, she used to return to her house for sleeping in the
night.
About the incident, the witness (PW-5) has stated
that, during that time, while the victim was working in the
house of the accused, one day, at about 8:00 p.m., the
victim came weeping to their house. When enquired, she
(the victim) stated that the accused had committed rape
upon her, stating that he would marry her. The witness
has also stated that, her daughter had told her that even
prior to the said date, the accused had already committed
rape upon her, due to which, she had conceived and
become pregnant. She stated that her daughter had also
told her that, she (the victim) insisted the accused to
marry her, however, the accused refused to marry her, on
the other hand, advised her to get the pregnancy aborted.
The witness stated that her daughter also told her that, on
the date and time when the accused had committed rape
upon her, both the parents of the accused were not in the
house.
This witness further stated that, the Doctor who
examined her daughter confirmed pregnancy, stating that
she was four months' pregnant then. Noticing these, she,
joined by her husband and other relatives, went to the
house of Govindaiah - the father of the accused and
requested the accused and his parents to get the victim
married to the accused. However, they denied the
allegation that the accused had committed rape upon the
victim and quarrelled with these people. This made the
complainant (victim) to lodge a Police complaint against
the accused. She also stated that the victim gave birth to
a male child, who was aged about sixteen (16) years as on
the date of her evidence.
This witness was also subjected to a detailed cross-
examination from the accused' side. It was admitted in her
cross-examination that, if there is a mangalya chain
around the neck of a woman and if she is wearing toe-
rings, then she is a married woman, however, the witness
denied that the victim was married. The witness
voluntarily stated that the victim was wearing toe-rings
only to avoid the evil look of the gents in the society. The
witness stated that the victim was not wearing mangalya
chain.
Several suggestions were made to the witness
assassinating her character so also that of the victim,
however, the witness has specifically denied all those
suggestions. She also denied that the accused is staying
at Bengaluru by running an STD Booth. She denied the
suggestion that the victim was not working in the house of
the accused. The denial suggestions made to her
regarding the incident were also not admitted as true by
this witness. Thus, the defence could not elicit any
statements favourable to the accused in the cross-
examination of either PW-3 or PW-5.
Both these witnesses have completely adhered to
their original version given in their examination-in-chief.
18. The other witness who has spoken about some
part of the alleged incident is, PW-4 (CW-4) -
Sri. Revanna.
PW-4 (CW-4) - Sri. Revanna has stated in his
examination-in-chief that, he knows both the accused, the
victim and their families. He has seen the victim working
in the house of the accused for one to two years, by which
time, all the daughters of Sri. Govindaiah - the father of
the accused had already got married and they were
residing with their families in their matrimonial homes.
The mother of the accused was not maintaining good
health.
About the incident, what he (PW- Revanna) claims to
have stated is that, on the date 13-04-2000, at about
7:30 p.m., in the house of the accused, both the accused
and the victim were quarrelling, at which time, the parents
of the accused were also present. He was at Ganapathi
Temple which was nearby to the house of the accused. On
the said date, himself, Chandrappa and Srinivas had been
to the house of the accused. At that time, the victim was
requesting the accused to marry her stating that she has
become pregnant of six months, however, the accused
was refusing to it and pushed her out of the house,
holding her neck. Thereafter, the victim, by weeping,
went towards her house.
The witness has further stated that, at his enquiry
with the victim, she told that by the act of the accused,
she has conceived and become pregnant of six months,
however, the accused was then refusing to marry her, as
such, the quarrel took place. After stating these aspects,
the witness also stated that the Police has obtained his
signature on a document marked at Ex.P-4. However, he
did not explain what the said document was, as such, the
prosecution, with permission, treated him as hostile and
subjected him to a cross-examination, wherein, he
admitted a suggestion that the document at Ex.P-4 was
the scene of offence panchanama drawn by the Police in
his presence and the spot of the offence was shown by
none else than the victim. He also stated that because of
the long passage of time of about seventeen years, he
could not clearly remember as to in which place he has
signed to the document at Ex.P-4.
In his cross-examination from the accused' side, he
maintained the original stand that he has seen the quarrel
that had taken place between the accused and the victim
and has given more details about the said incident. The
denial suggestions made to him were not admitted as true
by this witness. Thus, his evidence given in his
examination-in-chief could not be shaken in his cross-
examination from the accused' side.
19. The evidence of the victim as PW-3 and her
mother as PW-5, that the accused is a close relative of the
victim and the houses of the accused and the victim are
not only located in the same village but also quite nearby
to each other, are not in dispute. Further, the evidence of
PW-3, PW-4 and PW-5 which has come in uniformity to the
extent that in order to help the parents of the accused and
at their request, the victim was assisting in the household
works of the accused including cooking, cleaning the house
and washing the cloths etc., could not be shaken in the
cross-examination of those witnesses.
Thus, it stands proved that, the accused and the
victim were known to each other and also they were close
relatives. The victim was working in the house of the
accused at the relevant point of time and on several days
used to stay in the house of the accused, to help the
parents of the accused at their request, who were not only
old aged but the mother of the accused was also ailing
with some health issues.
20. The learned counsel for the respondent No.2
(accused) in his argument contended that, when PW-3
herself has stated that, whenever the parents of the
accused used to go out of the village, the victim used to
return to her house in the night to sleep and if that were
to be the case, then what made the victim to be present in
the house of the accused at the time of the alleged
incident, is not explained by the prosecution.
21. The said doubt from the accused' side finds a
convincing answer in the evidence of none else than the
victim (PW-3) herself. The evidence of PW-3 on the said
point goes to show that, whenever the parents of the
accused used to go out of their village, she (the victim)
used to return to her home to sleep in the night. On the
date of the alleged incident also, according to PW-3, after
attending to the household works and completing cooking,
at about 8:30 p.m., she was sitting in the house of the
accused. At that time, the accused came to the house
from outside and demanded her to love him, for which,
she did not agree. Thus, she has shown that, as a routine,
she has attended to the household works including
cooking. Though she was supposed to go to her house in
the night, as the parents of the accused were not at home,
her evidence shows that she was waiting for the accused
to return home, so that she can leave that place and go to
her house. Further, it was not too late in the night and it
was just 8:30 p.m. Therefore, there is nothing unnatural,
or uncommon or unusual in she being present in the house
of the accused at 8:30 p.m. on the alleged date of the
incident.
22. The evidence of PW-3 (CW-1) victim would
further go to show that, at the time when she was waiting
for the accused to return, so that she could leave the said
place to return to her house, the accused who returned to
his house at 8:30 p.m., when his parents were not in the
village, demanded the victim to love him, for which, she
refused. It is to be noticed that at the time of the alleged
incident, the accused must have been aged about 29
years.
23. The medical examination report about the
accused at Ex.P-5 as on 28-04-2000 has assessed the age
of the accused at 29 years. On the backside of the said
document, the date of birth of the accused is shown to be
19-09-1971. Since the said date of birth is not attested
by the Doctor through his signature beneath the said
mentioning, the said date of birth need not be taken as a
proven fact. Still, the medical assessment made by the
Doctor at Ex.P-5 which is not disputed from the accused'
side and the evidence of the said Doctor as PW-6 who has
stated that, at the request of the complainant Police, he
has medically examined the accused on the date
28-04-2000 and gave his endorsement as per Ex.P-5(a)
establishes that as per the medical assessment, the
accused was aged about 29 years. It is nobody's case
that, as on the said date, or on the date of the alleged
incident of alleged rape or as on the date of the medical
examination of the accused on 28-04-2000, the accused
was a married person.
Similarly, the victim in her complaint at Ex.P-1 has
shown her age as 19 years, as on the date of the
complaint which is 28-04-2000. The medical evidence of
the Doctor (PW-6) who examined the victim on the date
28-04-2000 also shows that the Doctor has opined that
the age of the victim was 19 years as on the said date.
Further, the Doctor has also opined as per Ex.P-5(a) that,
the accused was capable of doing sexual intercourse. The
said evidence of the Doctor about the age of the accused
and the victim and the capacity of the accused to have
sexual intercourse, have not been denied or disputed in
his cross-examination. Thus, the evidence of the
prosecution witnesses establishes that both the accused
and the victim were young adults in their age and both of
them were unmarried as on the date of the alleged
incident.
24. Learned counsel for the appellant (victim) in her
argument contended that, the evidence of PW-3 (victim)
that, she was subjected to rape by the accused is further
corroborated by the medical document at Ex.P-7 which is
marked with consent, which shows that the victim gave
birth to a male child on the date 04-08-2000, which
delivery was considered by the Doctor as a Full Term
Normal Delivery (FTND). Further, the very same medical
record also shows that the victim had no menstruation
(Amenorrhea) since nine months. The same would go to
show that, as on the date of the complaint at Ex.P-1, the
victim was pregnant and that the alleged act of rape by
the accused upon the victim was about six months prior to
the date of the complaint, also stands proved.
25. The learned counsel for the appellant (victim)
further contended that during the pendency of the matter
before the Trial Court, the prosecution had filed an
application, seeking permission to subject the accused for
a DNA matching test, however, the said application came
to be rejected. The victim filed a criminal
petition before this Court in Criminal Petition
No.3905/2011 which came to be disposed of by this Court
on the date 19-11-2015, with an observation that, though
the accused cannot be coerced to submit himself for a
DNA test, however, it is always open for the prosecution to
contend before the trial Court while addressing arguments
to take necessary inference under Section 114 illustration
(h) of the Evidence Act, if he does not co-operate for the
DNA test. With this, the learned counsel submitted that
since the accused did not co-operate for a DNA test, an
adverse inference has to be drawn to the effect that, the
accused is the father of the male child born to the victim.
26. Learned counsel for the respondent No.2
(accused) in his argument though conceded that the
Criminal Petition No.3905/2011 was filed before this Court
and the same came to be disposed of on the date
19-11-2015, however, contended that even if DNA test
would have been done and the matching result had come,
still, the same, at the best, would only go to establish the
parentage of the male child born to the victim but not the
act of rape committed upon the victim.
27. The learned counsel for the appellant (victim)
along with a memo dated 15-11-2023 has filed a copy of
the order dated 19-11-2015 passed by a co-ordinate
Bench of this Court in Criminal Petition No.3905/2011.
The said order would go to show that the appellant herein
who is said to be the victim had filed a petition under
Section 482 of the Cr.P.C. praying to set aside the order
dated 23-04-2008 passed in Criminal Revision Petition
No.86/2007 by the Presiding Officer, Fast Track Court-V,
Tumkur and also the order dated 30-04-2009 passed by
the Trial Court in C.C.No.1838/2003. As observed above,
the prosecution had filed an application under Section 311
read with Section 91 of the Cr.P.C. in the Trial Court for
conducting the DNA test of the accused and after contest,
the said application came to be rejected by the Trial Court.
Aggrieved by the same, a revision petition came to be filed
in Criminal Revision Petition No.86/2007, which also came
to be rejected. Challenging the said order, the victim had
filed a criminal petition in Criminal Petition No.3905/2011
before this Court. By its order dated 19-11-2015, a co-
ordinate bench of this Court disposed of the said criminal
petition with an observation made as below in paragraph 7
of its order:
"Having regard to the scope of present
proceedings, it is quite probable that the DNA test,
which can conclusively throw light on the parentage
of the child born to the complainant, would also have
bearing on the merits of the case also. But, there
cannot be any coercive order on the accused to
submit himself for DNA test. It is always open for
the prosecution to content before the trial Court
while addressing arguments to take necessary
inference under Section 114(h) of Indian Evidence
Act, if he does not co-operate for DNA test.
It is upto the trial Court to consider such
submission within scope of the present criminal
proceeding for which the accused is now charged.
With the above observation, the petition stands
disposed of. Since the complaint is of the year 2000,
the trial Court is permitted to expedite the matter."
The present impugned judgment upon which the
present appeal has arisen does not appear to have
considered the observation made by this Court in the
above said Criminal Petition No.3905/2011 dated
19-11-2015. Thus, it is not clear whether the prosecution
has addressed its arguments requesting the learned
Sessions Judge's Court to draw necessary inference under
Section 114 illustration (h) of the Evidence Act.
It is not in dispute that subsequent to the disposal of
the Criminal Petition No.3905/2011, till date, no DNA test
of the accused has been conducted in the matter.
Admittedly, the prosecution and thereafter, the victim
made continuous efforts to obtain the order/permission
for getting the DNA test of the accused conducted,
however, this Court, under the above order dated
19-11-2015, passed in Criminal Petition No.3905/2011,
did not entertain the said request. Since the victim, as an
appellant, now has addressed the arguments requesting
this Court to draw necessary inference under Section 114,
illustration (h) of the Evidence Act, the necessity of
drawing such an inference, as sought for, is required to be
looked into.
28. Learned counsel for respondent No.2 (accused)
has not opposed the drawing of any such inference.
However, his contention is that, the said inference, at the
best, may lead to drawing an inference about the
parentage of the child born to the victim but not about
the alleged act of rape. Section 114 of the Evidence Act
and illustration (h) to the said provision reads as below:
"114. Court may presume existence of certain
facts:
The Court may presume the existence of any
fact which it thinks likely to have happened, regard
being had to the common course of natural events,
human conduct and public and private business, in
their relation to the facts of the particular case.
Illustrations:
The Court may presume-
(a) to (g) xxx xxx xxx
(h) that if a man refuses to answer
a question which he is not compelled to
answer by law, the answer, if given, would be
unfavourable to him;
But the Court shall also have regard to such
facts as the following, in considering whether such
maxims do or do not apply to the particular case
before it:
As to illustrations (a) to (g) xxx xxx
As to illustration (h): A man refuses to
answer a question which he is not
compelled by law to answer, but the answer
to it might cause loss to him in matters
unconnected with the matter in relation to
which it is asked."
29. In the instant case, the contention of the
appellant (victim) throughout has been that, the accused
apart from initially subjecting her to an act of rape against
her will and consent, also had the occasion to have
subsequent sexual intercourses with her, since after the
incident of alleged rape, both of them developed intimacy
or love against each other. As such, due to the sexual
intercourses the accused had with her over a period of six
months from the date of the alleged act of rape, she
conceived and became pregnant and gave birth to a male
child on the date 04-08-2000. The discharge cum identity
card of the Vani Vilas and Children's Hospital, Bangalore,
which is marked as a consent document at Ex.P-7 shows
that the victim gave birth to a male child on the date
04-08-2000 at 2:30 a.m., which was a Full Term Normal
Delivery (FTND) of a live baby. The very same Hospital
record also shows that the patient had the history of
Amenorrhea (no menstruation) since nine months. The
Referral Card issued by the General Hospital, Kunigal,
which is at Ex.P-6 shows that the Gynecologist who was
examined as PW-6 apart from recording the examination
of the victim in their Hospital on the date 28-04-2000 at
1:30 p.m. has also considered it as a Medico-Legal Case
(MLC) and recorded the history of victim as Amenorrhea
(state of no menstruation) since six months, which means,
as on the date of the complaint itself, the victim had not
undergone menstruation for nearly six months, which has
led him to believe that, she was pregnant, which,
according to her, was of six months. Consequently in
continuation of the same, as per Ex.P-7, she delivered a
male child on the date 04-08-2000 after completion of full
term of nine months of pregnancy. Therefore, it stands
established that, as on the date of lodging the complaint
on the date 28-04-2000, the victim was a pregnant
woman. Her evidence as PW-3 that, after the initial act of
rape, the accused, on the pretext of marrying her, had
occasion to have sexual intercourses with her since both of
them had developed love against each other, gives no
scope to suspect it.
30. Further it is also the evidence of PW-3, PW-4
and PW-5 that, a day prior to the date of the complaint,
when the victim is said to have approached the accused
and his parents and requested them through her parents
to get her marriage done with the accused, neither the
accused nor his parents denied that the accused had no
reason to develop intimacy with the victim. On the other
hand, they generally denied the allegation and are said to
have rejected the request of the victim and her parents.
According to PW-3, PW-4 and PW-5, apart from they
rejecting the request of the victim and her parents, the
accused also pushed the victim, by holding her neck, out
of his house.
31. PW-4 in his evidence has supported the said
evidence of PW-3 (the victim). There is no reason to
suspect the evidence of PW-4 -Revanna, who is known to
the families of both the accused as well the victim, as
such, as an un-biased independent witness, he has only
stated what he has seen. Thus the evidence of PW-3,
PW-4 and PW-5 establishes that before approaching the
Police, the victim and her parents apart from approaching
the accused and his family and bringing to their notice that
the accused has committed the act of sexual intercourse
with the victim which, at the first instance was rape, had
also pleaded them to put an end to the matter by agreeing
to get married the victim to the accused.
32. The above evidence of PW-3, PW-4 and PW-5
gains support through the refusal of the accused to subject
himself for a DNA test. As observed by this Court in the
above mentioned Criminal Petition No.3905/2011, an
inference may have to be drawn under Section 114
illustration (h) of the Evidence Act. The said inference
would be to the extent that, the accused had sexual
intercourse with the victim, consequent to which, the
victim conceived and became pregnant and after the
completion of full term of pregnancy gave birth to a male
child on the date 04-08-2000. Thus, the parentage of the
child can be inferred that, the accused is the father of the
said male child, however, as contended by the learned
counsel for the respondent No.2 (accused), by that
inference itself, it cannot be concluded that the victim was
subjected to rape by the accused. For the said aspect, it is
the evidence of PW-3, PW-4, and PW-5 which requires a
re-visit on the said aspect.
33. PW-3, both in her complaint at Ex.P-1 as well in
her evidence as PW-3, has specifically and clearly stated
that the first act of sexual intercourse by the accused upon
her was against her will and consent. Despite her
rejection and protest, the accused subjected her to rape
on the date of first incident. No doubt, neither in the
complaint nor in her evidence as PW-3, the victim has
given the exact date of the alleged incident, however,
when the accused was a person known to the victim, being
her relative and in whose house the victim was working as
a domestic aide, it can be inferred that she had faith in the
accused. Further, the recital in the complaint at Ex.P-1 as
well the evidence of PW-3 would go to show that, after the
incident, the accused stated to her that he would marry
her, as such, she should not disclose about the incident to
anybody. Believing him, the victim who was also at that
time young adult developed love towards him, resultantly,
she conceived and became pregnant and subsequently
delivered a male child. Under the said circumstance, it is
not expected that the victim should have necessarily
remembered the date of the alleged first act of rape by the
accused and should have mentioned the specific date of
the act of rape in the complaint which was undisputedly
filed by her, six months after the alleged incident.
34. Further, the evidence of PW-4 - Revanna also
shows that, he, along with Srinivas and Chandrappa had
witnessed the quarrel said to have taken place on
the date 13-04-2000 at 7:30 p.m. in front of the house of
the accused where the victim was telling the accused and
his parents that she was subjected to injustice by them.
According to PW-4, the victim also told him at his enquiry
that, it is because of the act of the accused, she has
become pregnant of about six months and that the
accused has been refusing to marry her. The said evidence
which is in consonance with the similar evidence of PW-5 -
the mother of the victim would also go to show that, the
accused, by falsely promising the victim that he would
marry her, had sexual intercourses with her resulting in
the victim conceiving and becoming pregnant. Thus, the
medical evidence shows that the victim was a pregnant
woman of six months as on the date of her medical
examination and after three months, she delivered a male
child. The inference drawn under Section 114 illustration
(h) of the Evidence Act shows that the accused is the
parent of the male child given birth by the victim on the
date 04-08-2000.
Thus, it stands proved that the accused had sexual
intercourses with the victim in the span of six months
immediately prior to the date of the complaint at Ex.P-1.
35. Even though it is established that the accused
had sexual intercourses with the victim, however, the first
act of sexual intercourse which the accused had with the
victim was not with the consent of the victim, but against
her will and wish. The complaint at Ex.P-1 as well the
evidence of PW-3 clearly goes to show that it is only after
the accused committing rape upon the victim and when
the victim started weeping, the accused told her that he
would marry her and that she should not reveal about the
incident to anyone. Thus, the first act of the accused as
against the victim proves to be not with consent of the
victim but it was an act committed by the accused against
her will and consent, as such, the said act of the accused
is a rape committed upon the victim.
36. No doubt, except the strong evidence of the
victim as PW-3, there are no direct evidence about the act
of rape upon her by the accused. Like any other single
instance of rape and upon the immediate medical
examination of the victim, accused and the dress materials
worn by them, which may show the presence of some
signs of sexual intercourse like presence of semen, pubic
hair etc., no such signs or evidences can be expected in
the case on hand, since as has been repeatedly observed
above, the alleged act of sexual intercourse was spread
over a period of six months after the first act of rape.
Therefore, no other evidence including medical evidence
can be expected in the case on hand. However, the birth
of the child and the inference drawn about the parentage
of the child would come to the support of the victim and
her evidence.
Thus, the sole evidence of the victim, who is the
prosecutrix in the instant case, proves to be truthful,
trustworthy and believable.
37. Our Hon'ble Apex Court, in the case of STATE OF
PUNJAB VS. GURMIT SINGH AND OTHERS reported in
(1996) 2 Supreme Court Cases 384, was pleased to
observe in paragraph 8 of its judgment as below:
" ..... ....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 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-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."
38. In the case of Moti Lal vs. State of Madhya
Pradesh reported in (2008) 11 Supreme Court Cases 20,
which was a case involving offences punishable under
Sections 375, 376 and 450 of the IPC, the question of
conviction on the sole testimony of prosecutrix for the
alleged offences was involved. 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 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 the Doctor. In a given case,
even if the doctor who examined the victim does not find
sign of rape, it is no ground to disbelieve the sole
testimony of 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 the public or
before the Police. The Indian women have a tendency to
conceal such offence because it involves her prestige as
well as the prestige of her family.
39. Our Hon'ble Apex Court in the case of PHOOL
SINGH VS. STATE OF MADHYA PRADESH reported in
(2022) 2 Supreme Court Cases 74, has summarised the
principles as to when the sole testimony of the
victim/prosecutrix be taken as a basis for conviction even
in the absence of corroboration. The Hon'ble Apex Court
relying upon its previous judgment in the case of STATE
OF PUNJAB VS. GURMIT SINGH AND OTHERS (1996) 2
Supreme Court Cases 384 and analysing the facts before
it, observed that the prosecutrix in the case before it had
fully supported the case of the prosecution and she had
been consistent right from the very beginning, nothing had
been specifically pointed out as to why the sole testimony
of the prosecutrix should not be believed. The Court
further observed that in the case before it, even after
thorough cross-examination, she had withstood by what
she had stated and had fully supported the case of the
prosecution. With this the Hon'ble Apex Court observed
that they see no reason to doubt the credibility and/or the
trustworthiness of the prosecutrix.
40. In the instant case, as observed above, since
the incident has occurred inside the house of the accused
in the late evening and accused being not only a known
person, but also a relative of the victim in whose house
the victim was working as a domestic aide, it cannot be
expected that there would be any eye witnesses or other
witnesses to corroborate the evidence of the victim
(PW-3). Her evidence which is consistent throughout
alone is reliable, believable and trustworthy to prove the
incident of rape and the alleged guilt of the accused in
subjecting her to rape. The subsequent developments
which took place after the incident of rape and subsequent
sexual intercourses committed by the accused upon the
victim have been corroborated through the evidence of
PW-4 and PW-5, who have successfully withstood the
thorough cross-examination from the accused' side.
41. The evidence of PW-1 (CW-9), the then Police
Sub-Inspector of the complainant Police Station
corroborates the evidence of PW-3 that she lodged a
complaint with the complainant Police as per Ex.P-1 on the
date 28-04-2000 at about 07:15 a.m. PW-1 has also
stated that after registering the complaint in their Station,
he prepared an FIR as per Ex.P-2 against the accused for
the offence punishable under Section 376 of the IPC.
The evidence of PW-7 (CW-12) - G. Hanumantha
Reddy that during the course of investigation, he arrested
the accused and sent both the accused and the victim to
the General Hospital at Kunigal and got them medically
examined, stands corroborated by the evidence of PW-6
(Doctor). The further evidence of PW-7 - Investigating
Officer that, he also visited the scene of offence as shown
by the victim and drew a scene of offence panchanama as
per Ex.P-4 stands corroborated by the evidence of PW-3
and PW-4.
42. The document at Ex.P-7 which was marked with
consent shows that the victim girl gave birth to a male
child at Vani Vilas Hospital at Bengaluru. The evidence of
PW-2 (CW-13) - Sri. T.R. Krishnamurthy, the other
Investigating Officer shows that he has secured the
certified copy of the birth Certificate with respect to the
said child which was marked at Ex.P-3. It is PW-2, who,
after completing the investigation, has filed the charge
sheet against the accused. Thus, the investigation shown
to have been conducted in the matter stands corroborated
by the evidence of PW-3, PW-4, PW-5 and PW-6.
43. The defence of the accused was multi-fold. All
those defences were taken by the accused in the form of
suggestions made to PW-3 and PW-5 in their cross-
examinations.
44. The main defence of the accused was that, both
the victim and her mother were of loose character and the
mother of the victim had extra marital relationship and the
victim also had relationship with several boys during her
studies in X Standard (SSLC), however, both PW-3 and
PW-5 have denied the said suggestion as true.
45. The other defence taken up by the accused was
that, the accused and his family were rich and the victim
and her family were poor, as such, the victim wanted to
lead a well-to-do life and thus the victim had lodged a
false complaint against the accused.
46. No doubt, in the cross-examination of PW-3, it
was elicited that the father of the accused had a vast area
of landed agricultural property from which he was getting
annual income of a sum of `10.00 to 15.00 lakhs, on the
other hand, except some piece of dry land, the father of
the victim had no other immovable property and his
annual income was only a sum of `50,000/-, however, by
mere considerable difference in their respective income
itself, it cannot be inferred that the victim had any
intention to give a false complaint as against the accused
and through it, had compelled the accused to marry her.
PW-3 has denied a suggestion made to that effect in her
cross-examination from the accused' side.
47. The last defence taken up by the accused was
that, the accused, after completion of Diploma course,
was running an STD Booth at Bengaluru, as such, he was
residing at Bengaluru. Suggestions to that effect were
made to PW-3 and PW-5 in their cross-examination from
the accused' side, however, both these witnesses denied
the said suggestion. Even though the accused could have
produced sufficient documentary evidence to show that,
he was residing at Bengaluru and running an STD Booth
there, however, he has not chosen to place any
documentary evidence in support of his defence.
As such, all the defences taken up by the accused in
his support, could not, in any way, successfully create any
doubt in the case of the prosecution.
Thus, it has to be held that the prosecution has
proved beyond all reasonable doubts that, the accused has
committed rape upon the victim.
48. However, the Sessions Judge's Court failed to
appreciate the evidence both oral and documentary placed
before it in its proper perspective. It has observed that,
the victim has not produced any evidence to show that, as
on the date of the compliant, she was pregnant. In
arriving at such a conclusion, the Sessions Judge's Court
has ignored the complaint at Ex.P-1, which categorically
stated that the complainant was pregnant as on the date
of lodging the complaint and also the medical documents
at Ex.P-6 and Ex.P-7, out of which, the particular
document is at Ex.P-7 which shown that the victim had
delivered a child on the date 04-08-2000 after full term
pregnancy, which is of nine months. As such, obviously as
on the date of the complaint, the victim should have
necessarily been a pregnant woman, as contended by her.
49. The Sessions Judge's Court also observed that
there were inconsistencies among the evidence of
witnesses, however, it failed to notice as to what those
inconsistencies were. It observed that when PW-3 is said
to have met the Doctor, she has not informed him as to
who was responsible for her pregnancy and she also did
not inform the Doctor about the duration of her pregnancy
as on 28-04-2000. The learned Sessions Judge's Court
enlarged the said doubt to such an extent to disbelieve the
evidence of PW-3. That reasoning of the Sessions
Judge's Court is not convincing, in the light of the analysis
of the evidence of the prosecution witnesses made above.
When the very examination of the victim by PW-6 (Doctor)
on the date 28-04-2000 as a Gynecologist in the General
Hospital at Kunigal was upon the reference by the Police
and treating the case as a Medico-Legal Case (MLC) and
also when in her complaint before the Police, the victim,
as a complainant, had already alleged that, it was the
accused who was the cause for her pregnancy, it is not
necessary that the victim should have ensured the
reporting of the same by the Doctor in the medical slip at
Ex.P-6.
50. The other observation of the learned Sessions
Judge's Court that, the evidence of PW-4 discloses that he
made statement to the Investigating Officer (PW-7)
stating that he saw PW-3 in the house of Govindaiah,
whereas the evidence of PW-7 (Investigating Officer) does
not disclose that PW-4 had made such type of statement
to him, is too minor a discrepancy and would not result in
disbelieving the evidence of PW-4 or the case of the
prosecution. In the process, the Sessions Judge's Court
also ignored the fact that there was a gap of more than
seventeen (17) years from the date of the occurrence of
the alleged incident to the time of recording the evidence
of PW-4. Further, the alleged improvement made by the
witness was not at all a material improvement. Whereas
the Sessions Judge's Court, by making a mountain out of a
molehill, has proceeded to pronounce the judgment of
acquittal, which, in our view, is erroneous and warrants
interference at the hands of this Court.
Accordingly, we proceed to pass the following:
ORDER
[i] The Criminal Appeal stands allowed;
[ii] The impugned judgment in Sessions
Case No.38/2011, dated 30-05-2017, passed
by the learned VI Additional District and
Sessions Judge at Tumakuru, is hereby set
aside;
[iii] Respondent No.2 (Accused) - Sri.H.G.
Prabhu, S/o. Govindaiha, Aged about 40 years,
Herur Village, Kasabha Hobli, Kunigal Taluk -
572130, is convicted for the offence punishable
under Section 376 of the Indian Penal Code,
1860;
To hear on sentence, the matter is passed over.
Sd/-
JUDGE
Sd/-
JUDGE
BMV*
Dr.HBPSJ & UMBAJ:
13-12-2023
HEARING ON SENTENCE
51. Heard the learned counsels for the parties, on
sentence.
52. Learned counsel for the second respondent
(accused) submits that, the alleged incident has taken
place more than two decades back and the accused is
already married having a child and dependents to take
care of, as such, a lenient view be taken.
53. Per contra, learned counsel for the appellant
(victim) and the learned High Court Government Pleader
for respondent No.1 - State, submitted that, the offence
committed against the victim is heinous in nature and the
victim being deserted by the accused has been suffering
throughout her life including in bringing up her son, for
nearly two decades. Every day, she has undergone
mental agony and insult in the society. Under the said
circumstance, the accused deserves maximum punishment
which the law prescribes for the proven guilt.
54. 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.
55. Though the incident is said to have happened
about twenty-three years back, however, apart from the
accused who is said to have got the responsibility of a
family and dependents to take care of, the victim is said to
have been deprived of her family life for ever. She is said
to have been living alone taking care of her son.
According to the learned counsel for the appellant
(victim), the victim, being the mother of a child born
without marriage, has been undergoing lot of turmoil and
humiliation in society and her grown up son has not only
been deprived of his father's love and affection, but also
the identity of the father.
As such, keeping in mind the facts and circumstances
of the present case and other mitigating factors canvassed
by the learned counsel for the parties, we proceed to pass
the following:
ORDER ON SENTENCE
[a] For the offence punishable under
Section 376 of the Indian Penal Code, 1860, the
accused - Sri.H.G. Prabhu, S/o. Govindaiha,
Aged about 40 years, Herur Village, Kasabha
Hobli,Kunigal Taluk - 572130, is sentenced to
undergo Rigorous Imprisonment for a period of
eight years and shall also be liable to pay a fine
of a sum of `50,000/- (Rupees Fifty Thousand
Only), in default of payment of fine, he shall
undergo an additional rigorous imprisonment for
a period of six months;
[b] Out of the fine amount, deposited, if
any, by the accused, a sum of `45,000/- be paid
to the victim (PW-3), as victim's compensation
under Section 357 of the Code of Criminal
Procedure, 1973. The remaining sum of `5,000/-
be paid to the State;
[c] The victim (PW-3) is also entitled for
compensation under Section 357(a) of the Code
of Criminal Procedure, 1973;
[d] The District Legal Services Authority,
Tumakuru, is directed to decide the quantum of
compensation payable to the victim (PW-3)
under the Scheme under Section 357 (a) of the
Code of Criminal Procedure, 1973, and to take
appropriate steps for compensating the victim
(PW-3) under the Scheme at the earliest, but
not beyond a period of six months from the date
of receipt of a copy of this judgment.
[e] The accused - Sri.H.G. Prabhu, S/o.
Govindaiah, Aged about 40 years, Herur
Village, Kasabha Hobli, Kunigal Taluk - 572130,
shall surrender before the learned Sessions
Judge's Court, within forty five (45) days from
today and serve the sentence;
[f] The respondent No.2 (accused) is
entitled for the benefit of set-off for the period,
if any, undergone by him in Judicial Custody in
the matter, under Section 428 of the Code of
Criminal Procedure, 1973;
[g] A free copy of this judgment be
furnished to the accused, immediately by the
Registry.
Registry is directed to send a copy of this judgment
to the District Legal Services Authority, Tumakuru,
immediately, for doing needful in the matter.
Registry is also directed to transmit a copy of this
judgment to the Sessions Judge's Court, forthwith along
with its records, for doing the needful in the matter in
securing the accused for serving the sentence and in
accordance with law.
Sd/-
JUDGE
Sd/-
JUDGE
BMV*
