Karnataka High Court

Yankappa Anegundi vs The State Of Karnataka on 19 February, 2024

Author: Rajendra Badamikar

Bench: Rajendra Badamikar

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                                                       NC: 2024:KHC-K:1618
                                                       CRL.A No. 200077 of 2018




                              IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                         DATED THIS THE 19TH DAY OF FEBRUARY, 2024

                                             BEFORE
                       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


                         CRIMINAL APPEAL NO.200077 OF 2018 (374)
                      BETWEEN:

                      YANKAPPA ANEGUNDI
                      S/O YAMANAPPA ANEGUNDI,
                      AGE: 29 YEARS, OCC: AGRICULTURE,
                      R/O BHOGAPUR VILLAGE,
                      TQ. SINDHANUR, DIST. RAICHUR-587108.

                                                                   ...APPELLANT

                      (BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)

                      AND:
Digitally signed by
SHILPA R              THE STATE OF KARNATAKA
TENIHALLI             R/BY ADDL. SPP
Location: HIGH        HIGH COURT OF KARNATAKA,
COURT OF
KARNATAKA             KALABURAGI BENCH-585106.
                      (THROUGH TURVIHAL P.S.,
                      DIST. RAICHUR)

                                                                 ...RESPONDENT

                      (BY SRI JAMADAR SHAHABUDDIN, HCGP)

                          THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
                      ADMIT THIS APPEAL, CALL FOR THE RECORDS FROM THE
                      COURT BELOW AND SET ASIDE THE JUDGMENT OF
                      CONVICTION AND ORDER OF SENTENCE DATED: 08.05.2018
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                                        NC: 2024:KHC-K:1618
                                        CRL.A No. 200077 of 2018




AND 10.05.2018 RESPECTIVELY, PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT RAICHUR FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 376 AND 420 OF
IPC AND ACQUIT THE APPELLANT/ACCUSED.

     THIS APPEAL COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This is an appeal filed by the appellant/accused

under Section 374(2) of Cr.P.C. challenging the judgment

of conviction dated 08.05.2018 and order of sentence

dated 10.05.2018, passed by the learned Principal District

and Sessions Judge, Raichur in S.C.No.27/2015, whereby,

the learned Sessions Judge has convicted the

appellant/accused for the offences punishable under

Sections 376 and 420 of the Indian Penal Code, 1860 (for

short 'IPC').

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Trial Court.

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3. The brief factual matrix leading to the case are

as under:

The victim/complainant is residing along with her

mother in the house of her maternal uncle in a tin shed of

Bhogapur village as her father has deserted her mother

and herself and contracted second marriage and residing

in Veerapur village. It is the further case of the

prosecution that the complainant used to attend the coolie

work and while she was doing coolie work, she came in

contact with the accused. The accused used to visit her

house oftenly and by assuring her that he would marry

her, he used to take money from her on several times and

also had a sexual intercourse with her against her will and

wish. It is further alleged that the accused has also

continued the said sexual relationship with her in her

house. According to the prosecution, on 04.01.2014 at

12.00 noon, the accused came to the house of the

complainant and insisted the complainant to have physical

relationship with him and when she refused on the ground

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that the accused was searching for another girl to marry,

but even then against her wish, he had forcible sexual

intercourse with her. It is alleged that the visit of the

accused to her house was noticed by the neighbours such

as Mukappa, Devappa and Shankrappa. Subsequently,

the mother of the complainant asked the accused to marry

her daughter i.e., the victim/complainant, but the accused

has flatly refused and hence, a complaint came to be

lodged in this regard on 15.02.2014 at about 8.30 p.m.

and on the basis of the complaint, the crime was

registered in Crime No.42/2014 of Turuvihal police station,

Raichur district and FIR came to be issued.

4. The victim was sent for medical examination

and thereafter, the accused was arrested and subjected to

medical examination and initially he was remanded to

custody and subsequently, he was enlarged on regular

bail. The Investigating Officer has investigated the crime

and then he found that there is sufficient material

evidence to show that the accused under the false promise

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of marriage, committed sexual assault on the

complainant/victim and submitted a charge sheet for the

offences punishable under Sections 420 and 376 of IPC.

5. After submission of the charge sheet, the

learned Magistrate has taken cognizance of the offences

and matter was committed to the Sessions Court. Then

the presence of the accused was secured by issuing

summons as he was on bail and he appeared through his

counsel. The learned Magistrate before committing the

matter has also furnished the prosecution papers to the

accused as contemplated under Section 207 of Cr.P.C.

6. The learned Sessions Judge after hearing both

the parties has framed charges under Sections 376 and

420 of IPC and same were read over and explained to the

accused. The accused pleaded not guilty and claimed to

be tried.

7. To prove the guilt of the accused, the

prosecution has examined in all 15 witnesses as PWs.1 to

15 and also placed reliance on 13 documents marked as

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Exs.P1 to P13. After conclusion of the evidence of the

prosecution, the statement of the accused under Section

313 of Cr.P.C. was recorded to enable the accused to

explain the incriminating evidence appearing against him

in the case of the prosecution. The case of the accused

was of total denial. However, he did not lead any oral or

documentary evidence in support of his defence.

8. Having heard the arguments and after

appreciating the oral and documentary evidence, the

learned Sessions Judge has convicted the accused for the

offences punishable under Sections 376 and 420 of IPC.

After hearing on sentence, he convicted the accused for

the offence punishable under Section 376 of IPC and

sentenced him to undergo rigorous imprisonment for a

period of 10 years with fine of Rs.50,000/- and for the

offence under Section 420 of IPC, he sentenced him to

undergo rigorous imprisonment for a period of 5 years

with fine of Rs.25,000/- with default clause.

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9. Being aggrieved by this judgment of conviction

and order of sentence, the appellant/accused is before this

Court by way of this appeal under Section 374(2) of

Cr.P.C.

10. Heard the arguments advanced by the learned

counsel for the appellant/accused and the learned High

Court Government Pleader for the respondent - State.

Perused the records.

11. The learned counsel for the appellant would

contend that the complainant/victim and accused are

relatives with each other and the relationship between

them is by way of consensual sex and there is no evidence

regarding promise of marriage and under the pretext of

the same, there is any sexual assault. He would contend

that except PW.1/victim, all other witnesses are only the

hearsay witnesses and the medical evidence does not

assist the prosecution regarding sexual assault against the

will of the victim and the evidence of the victim is

inconsistent and contrary. He would also assert that the

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evidence of the victim and the evidence of other witnesses

including the mother of the victim disclose that the

complaint was lodged only when the accused has refused

to marry the victim and there is no evidence to

substantiate that under the false promise of marriage, the

relationship came to be developed. Hence, he would

contend that the learned Sessions Judge has failed to

appreciate any of these aspects and in a mechanical way

convicted the accused only on the basis of the self serving

testimony of the victim/complainant. As such, he would

contend that the judgment of conviction and order of

sentence is perverse and erroneous and sought for

allowing the appeal by setting aside the impugned

judgment of conviction and order of sentence.

12. Per contra, the learned High Court Government

Pleader for the respondent/State would contend that the

evidence clearly disclose that the sexual intercourse is

under the false promise of marriage and it attracts the

offence under Section 376 of IPC. He would also submit

NC: 2024:KHC-K:1618

that the victim/complainant, her mother and other

neighbors have supported the case of the prosecution and

there is sufficient material evidence which was properly

appreciated by the learned Sessions Judge. Hence, he

would contend that the judgment of conviction and order

of sentence does not suffer from any perversity so as to

call for interference by this Court. As such, he would seek

for dismissal of the appeal.

13. Having heard the arguments and perusing the

oral and documentary evidence placed on record, now the

following point would arise for consideration:

"Whether the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Raichur in S.C.No.27/2015 dated 08.05.2018 is perverse, arbitrary and erroneous so as to call for any interference by this Court?"

14. This complaint was lodged on 15.02.2014

evening at 08-30 p.m. The victim is aged bout 21 years

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while lodging the complaint and her allegations disclose

that the accused was known to her since one year, as they

came in contact while attending the coolie work and under

the guise of marriage, he used to take certain amount

from her and used to have sexual relationship with her

against her will. She further asserted that on 04.01.2014

at 12-00 O' clock, when she was in her house, the accused

came there and asked her to sleep with him and when she

refused on the ground that as he is already in search of a

different bride, the accused against her will, had forcible

intercourse with her and hence, she alleges that a

complaint came to be lodged.

15. At the outset, the allegations made in the

complaint disclose that the last physical relationship was

on 04.01.2014 and on that day, the accused against the

will of the complainant had forcible sexual intercourse with

her. But interestingly, the complaint was lodged on

15.02.2014 i.e., after 1 ½ moths later on. The

explanation offered was that when the matter was

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exposed to the neighbours and when her mother tried to

negotiate and convince the accused to marry the

complainant who refused, a complaint came to be lodged.

16. At the outset, in the instant case, except the

evidence of the complainant, there is no other material

evidence and all the other witnesses are the only hearsay

witnesses including the mother of the

complainant/P.W.3/Kattemma. Hence, the entire case

rests on the evidence of the complainant. The

complainant/victim was examined herself as P.W.1. In her

evidence, she claimed that she had been to the land of the

accused for coolie work and at that time, she came in

contact with the accused. She has also deposed that the

accused asked her to have physical relationship and she

refused, but against her will, the accused had raped her.

Her further evidence discloses that 3 ½ years earlier, at

12-00 in the noon again the accused had forcible

intercourse against her will. Her examination-in-chief

discloses that initially physical relationship was developed

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about 3 ½ years earlier and she never asserted that the

accused under the promise of marriage, had physical

relationship with her. Her further evidence discloses that

after this incident, he started to see bride for marriage and

this version discloses that the accused never promised the

complainant initially while developing the relationship

regarding he marrying her and there is no evidence of

giving false promise of marriage so as to attract the

provisions of Section 420 of IPC.

17. Further, the evidence of the complainant

discloses that about one year back at 12-00 noon, the

accused came to her house and asked her to sleep with

him and then, she refused on the ground that he is in

search of other bride and then, again the accused against

her will had physical intercourse with her and went away.

She further deposed that then, she brought it to the notice

of her mother and then, her parents requested the

accused to marry her and as he refused, this complaint

came to be lodged. The entire evidence of the

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complainant discloses that initially the physical relationship

is against her will. But the allegations of the complainant

disclose that after initial physical relationship, since 3 ½

years earlier they had continued physical relationship

regularly and one year earlier, there was a physical

relationship in spite of oppose by the complainant. The

conduct of the complainant all along discloses that initially

she never insisted for her marriage with the accused and

she never asserted that the accused developed

relationship with her under the false promise of marriage.

Even it is not her case that they are in love with each

other.

18. In her cross-examination, she denies that the

accused is related to her, but the evidence of other

witnesses including that of her mother, clearly disclose

that the accused is related to the complainant. It is elicited

that the village is a small village and there are number of

houses adjoining the house of the victim/complainant. In

the cross-examination, she admitted that she used to

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attend the coolie in the lands of others and since one year

prior to lodging of the complaint, she had regularly

physical relationship with the accused. She has also

admitted that they used to have physical relationship in

her house itself. She further deposed that she had

brought it to the notice of her mother and other neighbors,

but they did not advise her in this regard. This part of the

cross-examination for better appreciation is reproduced

her:

"10. £Á£ÀÄ PÀÆ° PÉ®¸ÀPÌÉ ¨ÉÃgÉAiÀÄªÀgÀ d«ÄÃ£ÀÄUÀ½UÉ ºÉÆÃUÀÄvÉÃÛ £É C£ÀÄßªÀzÀÄ ¤d. ¦ügÁå¢ PÉÆqÀÄªÀQAÌ vÀ MAzÀÄ ªÀµðÀ zÀ ¥ÀÆªÀðzÀ°è £À£U À É ªÀÄvÀÄÛ DgÉÆÃ¦vÀ¤UÉ zÉÊ»PÀ ¸ÀA¥ÀPðÀ EvÀÄ.Û £Á«§âgÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°èAiÉÄÃ zÉÊ»PÀ ¸ÀA¥ÀPðÀ ºÉÆAzÀÄwÛzª ÝÉ ÅÀ . DgÉÆÃ¦AiÉÆAzÉUÉ zÉÊ»PÀ ¸ÀA¥ÀPÀð ¨É¼¹ É zÁV¤AzÀ F «µÀAiÀÄ ZÁ¸ÁB 2 ±ÀAPÀgU À ËqÀ, ZÁ¸ÁB 4 ªÀÄÆPÀ¥Àà ªÀÄvÀÄÛ ZÁ¸ÁB 3 zÉÃªÀªÄÀ ä EªÀjUÉ ºÉÃ¼ÀÄvÁÛ EzÉ.Ý C ¸ÀªÀÄAiÀÄPÉÌ CªÀgÀÄ £À£U À É AiÀiÁªÀÅzÉÃ «µÀAiÀÄzÀ §UÉÎ ¸À®ºÉ PÉÆnÖ®.è "

19. Her further cross-examination discloses that

about one year back, the accused tried to marry one

Shivamma of Mannapur village and even then, the accused

used to approach her for his physical relationship and she

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further asserted that even against her oppose, he used to

regularly visit her and in spite of seeing a bride for 6-7

months, he regularly had physical relationship with her.

This cross-examination in paragraph No.11 clearly

establish that all along the complainant and the accused

had physical relationship and initially there was no promise

of marriage. Even after the accused was in search of bride,

they continued physical relationship for a long period and

though it was brought to the notice of neighbors and

Devamma, they did not advise her anything. Hence, it is

evident that the physical relationship between the accused

and the complainant was a consensual physical

relationship and not under the false promise of marriage

as asserted now. The complainant in her further cross-

examination, in paragraph No.13 has gone to the extent

by saying that if the accused married her, she would not

have lodged the complaint.

20. The evidence of P.W.1 does not inspire the

confidence of the Court to show that the accused under

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the false compromise of marriage, developed physical

relationship with the complainant. But the evidence

discloses that the complainant subsequently insisted the

accused to marry her and when he refused, she lodged a

complaint. The evidence of the complainant clearly

establish that initially she voluntarily developed

relationship with the accused and later on she insisted him

to marry her for which he refused.

21. P.W.2 is the uncle of the victim/complainant in

whose house, the victim was residing, but his evidence

discloses that he is the hearsay witness and his cross-

examination reveals that his son is a Panchayat member

and as the accused refused to marry her, they thought

that if the criminal case lodged against him, he would

marry the complainant/victim and under this presumption,

a complaint was lodged. His evidence does not establish

that the accused has developed any relationship with the

victim under the false promise of marriage.

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22. P.W.3 Kattemma is the mother of the

victim/complainant and she claims that the accused had

physical relationship with her daughter under the guise of

false promise, but the said fact itself is not stated by the

victim/complainant/P.W.1. She is not an eyewitness and

she got information only from her daughter. In the cross-

examination she has gone to the extent of staying that the

accused and her daughter were in love with each other. It

is a new story invented by this witness, as the said fact

was never asserted by the complainant/victim herself. Her

evidence also discloses only in order to compel the

accused to marry her daughter, this complaint was lodged,

as the accused has refused to marry her. Her evidence

also does not establish that under false promise, the

accused developed physical relationship with the

complainant.

23. P.W.4 Khasimasab and P.W.9 Durgappa are the

two spot mahazar witnesses, but both these witnesses

have turned hostile and denied preparation of spot

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mahazar in their presence on 16.02.2014. But considering

the nature of the offences, the hostility of these witnesses

do not have relevancy.

24. P.W.5 Smt. Devamma and P.W.6 Sri Mukappa

are two neighbouring witnesses and their evidence simply

disclose that the accused used to visit the house of the

victim and they got knowledge from the victim regarding

physical relationship. They are the hearsay witnesses and

their evidence do not assist the prosecution that the

accused committed rape on the victim under the false

promise of marriage.

25. P.W.7 Siddappa is the PDO who deposed that

the house No.342 at Bhogapur village is standing in the

name of Yankappa S/o Govindappa, wherein the victim

was residing, but what is the base for this witness to say

that the victim is residing in the said house is not at all

explained and the owner of the house Yankappa was not

examined in the instant case to substantiate the

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contention that he has allowed the victim to stay in the

house.

26. P.W.8 Dr.Ramya who has examined the

accused and certified that there is no evidence to show

that he is incapable of doing any act of sexual intercourse

and in this regard, she has issued Ex.P.6. It is not the

case of the defence that the accused is important.

27. P.W.10 has deposed regarding drawing sketch

of the scene of offence, but there is no evidence to show

that the victim was residing in the said house as the owner

Yankappa was not examined to prove that he had allowed

the victim to stay in the said house.

28. P.W.11 Dr. K.S.Rajkumar and P.W.13 Dr. Ashok

deposed regarding examining the victim and their

evidence simply disclose that the victim had regular

intercourse, but she had no external injuries on her body

including private parts. Hymen was not intact. The

evidence simply disclose that the victim was regularly

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having intercourse, but that does not disclose that she had

intercourse with the accused only, as no semen stains

were found and she was examined only 1 ½ months

subsequent to last alleged intercourse.

29. P.W.12 and P.W.14 are the Investigating Officer

and they have deposed regarding investigation done by

them.

30. In the instant case, the prosecution first

required to prove the fact that the victim was residing in

the house belonging to one Yankappa bearing Panchayat

No.342 at Bhogapur village, but the said Yankappa was

not examined. Further, the entire case of the prosecution

is based on the evidence of the victim, but the evidence of

the victim discloses that there was no promise of marriage

while accused and the victim developed physical

relationship amongst themselves. Her evidence discloses

that she insisted marriage with the accused only when he

started searching for a bride. Hence, the contention of the

prosecution that the under false promise, the victim was

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raped cannot be accepted and on the contrary, it is

evident from the evidence of the complainant that all

along the victim and the accused had physical relationship

regularly. Even after maintaining physical relationship for

more than one year, no complaint was lodged and

subsequently, after 1 ½ years or 2 years later on, a

complaint was lodged making allegation of false marriage.

The evidence lead by the prosecution do not inspire

confidence of the Court regarding the offences under

Sections 376 and 420 of IPC. The complainant/victim

never claimed that the accused insisted sexual favour

under the false promise of marriage nor asserted that they

were in love with each other and under the false promise,

he maintained the physical relationship. The evidence of

the complainant discloses that she voluntarily maintained

sexual relationship. That the complainant only when

accused was in search of a bride, she started insisting for

marriage. There is delay in lodging the complaint also and

the medical evidence simply asserts that there was a

physical relationship between the parties, but it does not

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disclose any forcible intercourse. Looking to these facts

and circumstances, it is evident that the prosecution has

failed to substantiate the contention that the accused

under the false promise of marriage, committed rape on

the complainant and later on, by refusing to marry the

complainant, cheated her. The ingredients of the offences

under Sections 376 and 420 of IPC are not substantiated

by the prosecution.

31. The learned Sessions Judge failed to appreciate

any of these aspects in proper perspective and in a

mechanical way on a self-interested testimony of the

complainant proceeded to convict the accused. He did not

even appreciate the examination-in-chief itself, wherein

she never asserted that physical relationship was

developed under the false promise of marriage. The entire

approach of the learned Sessions Judge is perverse, and

arbitrary which has resulted in miscarriage of justice.

When it is a consensual sexual relationship, the offences

under Sections 376 or 420 of IPC cannot be made

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applicable. The judgment of conviction and order of

sentence passed by the learned Principal Sessions Judge

suffers from perversity and arbitrariness. The other view

of innocence of the accused is also possible considering

the evidence on record and when two views are possible,

the Court is required to take the view favourable to the

accused. But in the instant case, the learned Sessions

Judge has taken a contrary stand which is not appropriate.

Considering these facts and circumstances, the impugned

judgment of conviction and order of sentence calls for

interference. Hence, the point under consideration needs

to be answered in the Affirmative and accordingly, I

proceed to pass the following:

ORDER

i) The appeal is allowed.

ii) The impugned judgment of conviction dated

08.05.2018 and order of sentence dated

10.05.2018 passed by the learned Principal

District and Sessions Judge, Raichur in