Karnataka High Court
Parvati @ Alka W/O Mahadev Bhutewadkar vs Maruti S/O Irappa Vani on 20 February, 2024
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CRL.A No. 100107 of 2020
C/W CRL.A No. 100029 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100107 OF 2020 (A)
C/W
CRIMINAL APPEAL NO. 100029 OF 2020
IN CRL.A NO. 100107/2020
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
KHADE BAZAR POLICE STATION,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
Digitally signed
by DHARWAD BENCH, DHARWAD.
SHIVAKUMAR
HIREMATH ...APPELLANT
Date:
2024.02.23
13:16:40 +0530
(BY SRI. ASHK T. KATTIMANI, AGA)
AND:
1. SRI.MARUTI IRAPPA VANI
AGE. 42 YEARS,
R/O. H.NO.7, DSK VISHWAR DYAYARI,
TQ: HAVELI, PUNE-411041,
STATE. MAHARASHTRA.
2. SRI.MAHADEV S/O. KALLAPPA BUTTEWADKAR
AGE: 31 YEARS,
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CRL.A No. 100107 of 2020
C/W CRL.A No. 100029 of 2020
R/O: H.NO.7, DSK VISHWAR DYAYARI,
TQ: HAVELI, PUNE-411041,
STATE: MAHARASHTRA.
...RESPONDENTS
(BY SRI. S.B.DEYANNAVAR AND
SMT. NAGARATHNA S. PATTAR, ADVOCATES)
THIS CRIMINAL APPEAL IS FILED U/S 378 (1) AND (3) OF
CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 25/07/2019
PASSED BY THE VIIITH ADDL. DISTRICT AND SESSIONS
JUDGE AT BELAGAVI IN S.C.NO.237/2011 AND TO SET ASIDE
THE JUDGMENT AND ORDER DATED 25/07/2019 PASSED BY
THE VIIITH ADDL. DISTRICT AND SESSIONS JUDGE AT
BELAGAVI IN S.C. NO.237/2011 AND CONVICT AND SENTENCE
THE RESPONDENT / ACCUSED NOS.1 AND 2 FOR THE
OFFENCES PUNISHABLE U/S 120B, 328, 376, 504, 506, 109
R/W SEC.34 OF IPC. IN THE INTEREST OF JUSTICE AND
EQUITY.
IN CRL.A NO. 100029/2020
BETWEEN:
PARVATI @ ALKA
W/O. MAHADEV BHUTEWADKAR
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: KUMBHAR GALLI, HEBBAL VILLAGE,
TQ: KHANAPUR, DIST: BELAGAVI.
...APPELLANT
(BY SRI. PRAKASH N. HOSAMANE, ADVOCATE)
AND:
1. MARUTI S/O. IRAPPA VANI
AGE: 49 YEARS, OCC: BUSINESS,
R/O: DSK VISHWA, BANGALOW NO.7,
VADAGOAN-DHAYARI,
TQ: HAVELLI, PUNE-411041,
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CRL.A No. 100107 of 2020
C/W CRL.A No. 100029 of 2020
MAHARASTRA STATE.
2. MAHADEV S/O. KALLAPPA BHUTEWADKAR
AGE: 39 YEARS, OCC: SERVICE,
R/O: DSK VISHWA, BANGALOW NO.7,
VADAGOAN-DHAYARI,
TQ: HAVELI, PUNE: 411041,
MAHARASTRA STATE.
3. THE STATE OF KARNATAKA
BY PSI KHADE BAZAR POLICE STATION,
BELAGAVI,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENTS
(BY SRI. S.B. DEYANNAVAR AND SMT. NAGARATHNA S.
PATTAR, ADVOCATES FOR R1 AND R2)
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.,
PRAYING TO ALLOW THIS APPEAL BY SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 25/07/2019
PASSED BY COURT OF VIII ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI IN S.C.NO.237/2011 AND
CONVICT THE RESPONDENTS NO.1 AND 2 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 120B, 376, 504, 506, 109 R/W
34 OF IPC, IN THE INTEREST OF JUSTICE.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, T RAJESH RAI K, J., DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are arising out of the acquittal
Judgment passed in S.C.No.237/2011 dated 25.07.2019
by the VIII Addl. District and Sessions Judge, Belgaum,
wherein, the learned Sessions Judge acquitted the accused
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Nos.1 and 2 i.e., respondents in both the appeals, for the
offences punishable under Sections 120B, 328, 376,
506,504 109 read with Section 34 of Indian Penal Code
(for short 'IPC').
2. For the sake of convenience, the parties are
referred to their ranks before the trial Courts. Accordingly,
the accused Nos.1 and 2 are the respondents in both the
appeals and state is the complainant in Crl.A.No.
100107/2020 and Victim-PW.1 is the appellant in Crl.A.No.
100029/2020.
3. The factual matrix of the prosecution case in
brief are that -
Victim-P.W.1 in this case, lodged a private complaint
under Section 200 of Cr.P.C. against the accused, for the
offences punishable under Sections 376, 506, 504 read
with Section 34 and 109 of Indian Penal Code, before the
learned JMFC III Court, Belgaum in PCR No.243/2009,
wherein, she has stated that, she is the legally wedded
wife of accused No.2 and their marriage was solemnized
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on 20.06.2007 at Hebbal village according to the Hindu
Rights and customs. It is further alleged that, out of the
wedlock they begotten a male child namely, Heetesh in
the year 2008. Further, accused No.2 is working as a
Manager/Supervisor under accused No.1's Business. The
office of which is situated at Pune and other places and
accused No.2 happens to be the relative of accused No.1.
4. After the marriage, both accused No.2 and
accused No.1 used to visit the victim/complainant in
Angadi village once in a month. Things stood thus, on 04th
December 2007, accused No.2 called the victim and asked
her to come to Belgaum for a blood check up. When she
went to Belgaum, she was received by accused No.1,
instead of accused No.2. He told her that, her husband
would be coming soon and by that time, she should
complete her blood check up. For the said purpose,
accused No.1 took her to High-tech health care and
diagnostic centre for blood check up and thereafter, took
her to a room, in Hotel Adarsha Palace situated at Collage
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road, Belagaum. There, the accused No.1 offered her a
fruit juice mixed with sedatives (drugs). Without her
knowledge, she consumed the same and thereafter fell
asleep (unconscious). Further, it is the case of the victim-
PW.1 that, she regained her conscious on the next day
morning and was shocked to see herself semi naked and
also in pain. Hence, she realized that, accused No.1 had
forcibly committed sexual coitus on her, taking advantage
of her being unconscious. After some time, accused No.1
accompanied by accused No.2 came to the Hotel room. At
that time, though she disclosed the deceitful act of
accused No.1 to accused No.2 who is her husband, but, he
calmed her stating that, she should not feel bad or guilty
about what has transpired, as it was the duty bestowed
upon him, to keep his employer-accused No.1, happy at
all costs. He also tried to console and impress her that,
accused No.1 was a rich man. Thereafter, she returned to
her village and being frightened from the consequences,
has not revealed the forcible acts underwent to her
relatives. Thereafter, accused No.2 her husband used to
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call her from Pune and ask her to come to Belgaum on one
or the other pretext and when she refused, he used to
threaten her of dire consequence. Hence, reluctantly, she
used to go to Belgaum on the say of the accused No.2 and
he used to take her to the room in Hotel Adarsha Palace,
afterwards, accused No.1 used to join them and he used
to commit sexual coitus with her, in the presence of
accused No.2. Though she resisted such immoral acts of
accused Nos.1 and 2, the accused No.2 used to threaten
her stating that, if she intends to continue the marital
relationship, then such acts if this nature is inevitable for
her. It is further alleged in the complaint that, accused
No.2 called her once to Pune and told her that, he would
be taking her to Mumbai for few days. When she went to
Pune, she was received by accused No.1, who informed
her that, accused No.2 had already proceeded to Mumbai
for some emergency work, hence, he would be
accompanying her to Mumbai. Thereafter, accused No.1,
accompanied her to the residence of his friend, under the
pretext of having food and then after, accused No.1
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played indecent movies in her presence and committed
rape on her.
5. As a result of these acts, she, on 10.10.2008,
gave birth to a child and thereafter she revealed these
incidents to her parents. Thereafter when the same was
revealed to accused No.2, he threatened her and rejected
to stay with her and stated that, the child does not belong
to him. Further, accused No.2 also got issued a legal
notice to P.W.1-complainant to join the matrimonial Home
at Pune and deserted her at her parental house. Hence,
she lodged a private complaint on 04.05.2009, before the
learned Magistrate as stated supra. The said private
complaint came to be referred to Jurisdictional police
under Section 156 (3) of Cr.P.C for investigation and the
Police registered the FIR against accused Nos.1 and 2 for
the offences punishable under Section 376, 504, 506, 109
read with Section 34 of IPC in Crime No.142/2009 dated
18.05.2009. Thereafter, the said police conducted the
further investigation and laid the charge-sheet against the
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accused for the aforesaid offences before the committal
Court.
6. After committal of the case before the learned
Sessions Court, the learned Sessions Judge framed the
charges against the accused for the aforementioned
offences and read over the same to the accused. However,
the accused denied the same and claimed to be tried.
7. In order to prove the charges levelled against
the accused before the trial Court, the prosecution has
examined 22 witnesses as P.W.1 to P.W.22, so also got
marked 61 documents as Ex.P.1 to Ex.P.61.
8. After completion of the prosecution evidence,
the learned Sessions Judge read over the incriminating
evidences of material witnesses to the accused as per the
provision under Section 313 of Cr.P.C. Though the accused
denied the same, they did not choose to examine any
witnesses on their behalf. However, accused got marked
09 documents as Ex.D.1 to Ex.D.9. The defence of the
accused is that of total denial and of false implication.
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9. After assessment of oral and documentary
evidences, placed before the learned Sessions Judge, the
learned Sessions Judge acquitted the accused for the
charges levelled against them. The legality and validity of
the said Judgment is challenged under these appeals by
the victim and by the State. More specifically, the victim
P.W.1 has filed Criminal Appeal No.100029/2020 and the
State has preferred Criminal Appeal No.100107/2020 to
set aside the impugned Judgment passed by the Sessions
Court and to convict the accused Nos.1 and 2 for the
offences, they have charged.
10. We have heard the learned Addl. SPP in
Criminal Appeal No.100107/2020, so also learned counsel
Sri. Prakash N. Hosamani in Criminal Appeal
No.100029/2020, for the appellants and learned counsel
Smt. Nagarathna S for the respondents/accused in both
the appeals.
11. Learned Addl. SPP and the learned counsel Sri.
Prakash N. Hosamani, appearing for the appellants in both
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the appeals would vehemently contend that, the Judgment
under these appeals suffer from perversity and illegality;
since the learned Sessions Judge, without properly
appreciating the evidence available on record, proceeded
to acquit the accused for the charges levelled against
them, only on the basis of surmises and conjectures. They
would further contend that, the evidence of P.W.1 -the
prosecutrix and her private complaint as per Ex.P.1
corroborates to each other. In spite of which, the learned
Sessions Judge, relying on the minor omissions and
contradictions, disbelieved her version, which is against
the settled principle of law laid down by this Court and
also the Hon'ble Apex Court. According to the counsels,
the evidence of prosecutrix has to be treated in higher
pedestal and the conviction can be awarded to the
accused, solely based on the testimony of prosecutrix.
They would further contend that, the evidence of P.W.1
corroborates with the evidence of P.W.2, i.e. the father of
P.W.1, since, he categorically deposed that, accused No.1
committed forcible sexual act with his daughter P.W.1
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based on the instigation of accused No.2 and thereby she
has begotten a child from it. Further, P.W.5, the sister of
P.W.1, also deposed that, her sister accompanied accused
Nos.1 and 2 to Pune and Mumbai in the year 2007 and she
had also been to Belgaum several times as per the
instructions of accused No.2. She further deposed that,
her sister informed the illegal acts of accused Nos.1 and 2
with her. Hence, according to the learned counsel the
evidence of P.W.1 clearly corroborates with the evidences
of P.W.2 and P.W.5, so also the medical evidence of
Doctor P.W.16 and the Investigating Officer P.W.21. They
would also contend that, P.W.22-the then Police Inspector
of Kadebazar, produced the victim before the learned
JMFC and obtained the blood sample of son of P.W.1 and
thereafter sent the same for DNA examination and the
report obtained is produced before the Court as per
Ex.P.45 and on perusal of Ex.P.45, the same depicts that,
the DNA profile of the sample blood sent in item No.1-
male child Master Geetesh is consistent with having come
from offspring of Mr. Maruti Irappa Vaani s/o. Mr. Irappa
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Vaani and matching with the DNA profile of the sample
blood sent in item No.2. Hence, it is clear that, accused
No.1 had committed sexual coitus with the victim P.W.1.
With these grounds, the learned counsels prays to allow
the appeal.
12. Per contra, learned counsel appearing for the
accused would contend that, the Judgment under these
appeals does not suffer from any perversity or illegality.
Since, the learned Sessions Judge acquitted the accused,
after meticulously examining the evidence available on
record, in a well reasoned Judgment; which, does not call
for any interference. According to the learned counsel, the
case put-forth by the P.W.1 cannot be accepted at any
stretch of imagination for the reason that, there is an
inordinate delay of nearly 3 years in lodging the complaint
by P.W.1. According to her the initial date of incident was
on 12.04.2007 and she has lodged the private complaint
on 04.05.2009. As such, there is no such explanation is
forthcoming, either in the complaint or in the evidence, for
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such inordinate delay caused in lodging the private
complaint. According to the learned counsel, there was a
family dispute pending between accused No.2 and PW.1.
Hence, in order to take revenge against accused No.2, she
has hatched a conspiracy to implicate him in the alleged
crime. Hence, according to learned counsel, PW.1 has
foisted a false case against the accused with the same
vengeance. Further, the learned counsel also would
contend that, as admitted by P.W.1, ever since
04.12.2007, till the year 2009, the accused No.1 had
continuous sexual act with her in the capacity of husband.
In such circumstance, it cannot be believed that, accused
No.1 had forcible sexual coitus with her. Antithetical,
according to the counsel, P.W.1 must be a consenting
party to the act alleged to be committed by the accused
and in such circumstances, the offences charged against
the accused does not attract the offences under Section
375 of IPC and hence, the learned Sessions Judge rightly
acquitted the accused for the charges levelled against
them. She would also contend that, though the
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prosecution made an attempt to examine the lodge
owners where the accused committed sexual assault on
her, all these witness have turned hostile to the
prosecution case. P.W.2 and P.W.5 i.e., the father and
sister of P.W.1 are the hearsay witnesses to the incident.
Except these witnesses, all other witnesses have turned
hostile to the case of the prosecution. Hence, according to
the learned counsel, the prosecution has miserably failed
to prove the guilt of the accused. Accordingly, she prays
to dismiss the appeals.
13. Having heard the learned counsels for the
respective parties, so also on perusing the records made
available before us, the point that would arise for our
consideration are that,
"i. Whether the Judgment under
this appeal suffers from perversity or
illegality?
ii. Whether the learned Sessions
Judge justified in acquitting the accused
for the offence punishable under Section
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120-B, 328, 376, 506, 504, 109 r/w
Section 34 of Indian Penal Code?"
14. As both these points are interlinked to each
other, they are taken up for consideration together, in
order to avoid the repetition of facts and dictates.
Accordingly, this Court being the appellate Court, is
mandated to re-visit the entire evidence and the
documents made available before us. Hence, on careful
perusal, we find;
PW.1-victim, lodged the private complaint as per
Ex.P.1, she re-iterated the contents of Ex.P.1 and deposed
that, she got married with the accused No.2 on
26.02.2007 at Hebbal village. Subsequently, on
18.11.2007 accused No.2 called her to Pune and asked
her to come to Belgaum and accordingly, she has gone to
Belgaum. At that time, accused No.1 received her and told
that accused No.2 has gone to work and thereby, he took
her to Adarsh Hotel, 4th floor, Room No.1414 and offered
two glasses of juice and subsequent to she consuming the
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same, she fell asleep or became unconscious. On the
same day, at 5:30 pm, she got up and found that she was
nude and thereby, she came to know that, the accused
had committed sexual coitus on her. Thereafter, she
narrated the same to accused No.2, but he has abused
and threatened her with dire consequences and has told
her that accused No.1 is his boss and it is his duty to
make sure that he is happy. Again on two occasions her
husband called her to Bogar ways and asked her to join
the accused No.1 and accused No.1 committed sexual
coitus on her continuously for a period of 3 years and
finally, as a consequence, she gave birth to a male child
on 10.10.2012 and thereafter, she informed the illegal act
committed by accused Nos.1 and 2 on her to her parents
and lodged the private complaint against the accused
Nos.1 and 2.
PW.2-Bommana Vithoba Bastekar, father of PW.1,
reiterated the contents of Ex.P.1 in his oral testimony.
According to him, PW.1 informed him regarding the rape
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committed by accused No.1 by taking her to Pune and
Belgaum on several occasions.
PW.3-Subhash Hanumant and PW.4-Panduranga are
the panchas to PW.9 to PW.12 i.e., the Spot Panchanamas
of different places where the accused No.1 committed
sexual intercourse with PW.1. However, among these
witnesses PW.3 has totally turned hostile and PW.4 has
identified his signatures on Mahazars.
PW.5-Achutya Bomanna, brother of PW.1 and a
hear-say witness, partially treated hostile to the
prosecution case.
PW.6-Prabhakar and PW.7-Bhimanna Kadesh,
receptionists of Adarsha Palace Hotel and sanman lodge
respectively. PW.8-Sushant is also receptionist of Sanman
Lodge, PW.9-Nagaraj, service boy of Sanman Lodge,
PW.10-Prashant, office assistant of Pari Resort, all are the
circumstantial witnesses and they have turned hostile to
the prosecution case.
PW.11-Somanna, PW.12-Pramod are the relatives of
PW.1, among them, PW.11 has partly turned hostile and
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PW.12 has totally turned hostile to the case of
prosecution.
PW.13-Adenappa Somappa, Medical Officer,
examined victim on 04.12.2007 and issued certificate as
per Ex.P.31.
PW.14-Mohan Rao, independent witness, turned
hostile to the prosecution case.
PW.15-Nemichandra the then Police Constable,
accompanied the accused Nos.1 and 2 after their arrest to
the Hospital for medical examination.
PW.16-Adinatha, Medical Officer, examined the
prosecutrix on 23.05.2009 and opined that, 'she is used to
an act like sexual intercourse' and issued the certificate as
per Ex.P.34.
PW.17-Dr.Vinod, Assistant Director of FSL,
Bangaluru, conducted the DNA examination of the son of
PW.1 and issued report as per Ex.P.45 and opined that,
son of PW.1 is the biological son of accused No.1.
PW.18-Kiran Kumar, Medical Officer, examined
accused Nos.1 and 2 and issued certificate as per Ex.P.9
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and opined that, they both are capable of performing
sexual intercourse.
PW.19-Shankarananda Bhimappa, the then PSI,
drawn the Spot Panchanama as per Ex.P.10 and recorded
the statement of CW.14 and handed over the investigation
to PW.20.
PW.20-Arunkumar, registered the FIR in Crime
No.142/2009 based on the Ex.P.1-Private Complaint as
per Ex.P33..
PW.21-Chandrashekar, Investigation Officer,
conducted the entire investigation in this case and laid the
chargesheet against the accused for the aforementioned
offences.
PW.22-Shankaragouda Patil, the then Police
Inspector, filed an application before the Magistrate to
obtain the blood sample of son of PW.1 for DNA
examination and thereafter, produced the son of PW.1
before the Magistrate.
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15. On careful perusal of the above evidence, in
order to prove the charges levelled against the accused,
the prosecution mainly relied on the evidence of PW.1-
prosecutrix, so also her complaint as per Ex.P.1. On
perusal of the same, it is the specific case of PW.1 that,
the accused No.2 married her and thereafter, the accused
Nos.1 and 2 in furtherance of their common intention
called the complainant to Belgaum on the pretext of blood
checkup on 04.12.2007 and thereafter, accused No.1 took
her to Adarsha Palace Hotel, Belgaum and offered her
sedative mixed drinks and committed rape on her.
According to PW.1, on the same day in the evening, she
informed the said aspect to accused No.2 her husband. In
spite of which, he threatened her not to reveal the same
since, the accused No.1 was his employer. Subsequently,
accused Nos.1 and 2 persuaded PW.1 to visit Belgaum,
Pune and on different places on several occasions,
accused No.1 repeatedly committed sexual assault on her.
Though, first sexual act committed by accused No.1 was
on 04.12.2007, the PW.1 lodged the complaint on
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04.05.2009 i.e., after lapse of nearly three years. There
are no such cogent explanations forthcoming, either in the
private complaint-Ex.P.1 or in the evidence of PW.1 for the
inordinate delay caused in lodging the private complaint.
Admittedly, the PW.1 has not chosen to lodge any
complaint before the police for the sexual act committed
by accused No.1. She lodged the private complaint after
lapse of three years, before the Magistrate as per Ex.P.1.
The same was also after delivery of the child. Admittedly,
the marital relationship between the PW.1 and accused
No.2 was strained one and to that effect, accused No.2
had issued a legal notice to her on behalf of his counsel
seeking for restitution of conjugal rights. In such scenario,
it clearly goes to show that, lodging of private complaint
by PW.1, subsequent to lapse of nearly three years, post
first alleged incident, creates a doubt in the mind of this
Court . Even her evidence is carefully looked into, it draws
an inference in the mind of this court that, she is a
consenting party for the consensual sexual act committed
by accused No.1 with her.
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16. Further, According to PW.1, she alone travelled
on several occasions from Belgaum to Pune and Mumbai.
In spite of that, she failed to unveil the forcible sexual
assault being committed on her by accused No.1 to
anybody including the Police, her parents or any other
third person. In such circumstances, her version does not
inspire this Court that the accused No.1 had committed
forcible sexual coitus with her repeatedly on several
occasion at different places without her consent.
17. At the cost of repetition, we would emphasize,
the prosecution/PW.1 failed to explain the inordinate delay
caused in lodging the complaint for about three years.
Even otherwise, prosecution/PW.1 have also failed to
explain the reason for lodging the private complaint before
the court instead the Police station. In order to buttress
the finding of this Court with respect to delay caused by
PW.1 in filing the private Complaint is concerned, this
Court would rely upon the decision of the Hon'ble Apex
Court in the case of Vijayan v. State of Kerala, reported
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in (2008) 14 SCC 763, wherein, the Hon'ble Apex Court
in paragraph No.5 has held as under-
"5. The present case wholly depends
upon the testimony of the prosecutrix. The
incident in the present case took place seven
months prior to the date of lodging the
complaint as a realisation dawned upon her
that she has been subjected to rape by the
appellant-accused. No complaint or
grievance was made either to the police or
the parents prior thereto. The explanation
for delay in lodging the FIR is that the
appellant-accused promised her to marry
therefore the FIR was not filed. In cases
where the sole testimony of the prosecutrix
is available, it is very dangerous to convict
the accused, specially when the prosecutrix
could venture to wait for seven months for
filing the FIR for rape. This leaves the
accused totally defenceless. Had the
prosecutrix lodged the complaint soon after
the incident, there would have been some
supporting evidence like the medical report
or any other injury on the body of the
prosecutrix so as to show the sign of rape. If
the prosecutrix has willingly submitted
herself to sexual intercourse and waited for
seven months for filing the FIR it will be very
hazardous to convict on such sole oral
testimony. Moreover, no DNA test was
conducted to find out whether the child was
born out of the said incident of rape and that
the appellant-accused was responsible for
the said child. In the face of lack of any
other evidence, it is unsafe to convict the
accused. Therefore, we are of the opinion
that the view taken by the trial court and the
learned Single Judge of the High Court in
convicting the appellant-accused under
Section 376 IPC cannot be sustained.
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Consequently, we set aside the judgment
and order of the trial court as also of the
High Court and quash the conviction and
sentence of the appellant-accused under
Section 376 IPC. The accused may be
released forthwith from custody if not
required in any other case."
(Emphasis supplied by US)
18. We are aware of the fact that, the evidence of
prosecutrix alone would be suffice to prove the charges
levelled against the accused in a case of sexual assault.
Nevertheless, in order to rely on her sole testimony, her
evidence should be sterling quality, as laid down by the
Hon'ble Apex Court in the case of Rai Sandeep alias
Deepu Vs. State(NCT) of Delhi reported in (2012) 8
SCC 21, the Hon'ble Apex Court held, as below:
"22. The Court considering the version of
victim/prosecutrix, such witness should be in a
position to accept it for its face value without
any hesitation. To test the quality of such a
witness, the status of the witness would be
immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would
be the consistency of the statement right from
the starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the Court. It
should be natural and consistent with the case
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of the prosecution qua the accused. There
should not be any prevarication in the version
of such a witness. The witness should be in a
position to withstand the cross examination of
any length and howsoever strenuous it may be
and under no circumstance should give room
for any doubt as to the factum of the
occurrence, the persons involved, as well as,
the sequence of it. Such a version should have
co-relation with each and everyone of other
supporting material such as the recoveries
made, the weapons used, the manner of
offence committed, the scientific evidence and
the expert opinion. The said version should
consistently match with the version of every
other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not
be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version
of such a witness qualifies the above test as
well as all other similar such tests to be
applied, it can be held that such a witness can
be called as a 'sterling witness' whose version
can be accepted by the Court without any
corroboration and based on which the guilty
can be punished. To be more precise, the
version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects should
match the said version in material particulars
in order to enable the Court trying the offence
to rely on the core version to sieve the other
supporting materials for holding the offender
guilty of the charge alleged."
On careful perusal of evidence of PW.1 by applying
the law laid down by the Hon'ble Apex Court in the above
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case, the evidence of PW.1 is not consistent in itself and is
of sterling quality for the reasons discussed supra. No
doubt she has begotten a child due to the act committed
by accused No.1 as the prosecution has placed the DNA
report which depicts that the DNA profile of accused No.1
matches with the DNA of the son of PW.1. Nevertheless,
the act committed by accused No.1 on PW.1 was a
consensual act. As such, in the absence of forcibility,
ingredients of Section 375 of IPC r/w Section 90 of IPC
"against her will", in our opinion, does not attract.
19. To further emphasize, on perusal of the
evidence of PW.1 and her father-PW.3, the act committed
by accused No.1 must be an act committed with
deliberation. The consent for the purpose of Section 375,
requires voluntary participation the same cannot be
gathered after the exercise of intelligence, knowledge of
significance and moral quality of act and also after having
fully exercised choice between resistance and assent.
There was consent or not in the act involved, has to be
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ascertained by meticulously examining the records and
also all the relevant circumstances.
and PW.1 were travelled in and around Karnataka and
Maharastra for a period of three years and according to
her, accused No.1 repeatedly committed sexual coitus
with her, in such scenario, it can be easily concluded that,
the act was consensual one and PW.1 was involved in it by
her free volition and such being the case, in our opinion, it
cannot be said that, the ingredients of Section 375 of IPC
has been fulfilled, since there existed no forceful act
between accused No.1 and PW.1.
21. Though, the prosecution examined PWs.6 to 10
i.e., the Receptionists and workers of different Lodges/
Hotels where the accused No.1 and PW.1 had stayed, all
have turned hostile to the prosecution case. As such, the
prosecution also failed to prove any relevant piece of
evidence to connect the accused in the alleged Crime.
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22. In such circumstances, on over all perusal of
the evidences adduced by the prosecution, we are of the
considered view that the Judgment passed by the learned
Sessions Judge does not call for any interference.
Moreover, the appeals on hand are the acquittal appeals
and the Hon'ble Apex Court has clearly laid down the law
in the case of H.D. Sundara v. State of Karnataka,
reported in (2023) 9 SCC 581, emphasizing on the view
that has to be adopted when an acquittal judgment is
called-in-question in paragraph Nos. 8.4, 8.5 and 9 has
held as under -
8.4. If the view taken is a possible view,
the appellate court cannot overturn the
order of acquittal on the ground that
another view was also possible; and
8.5. The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which can
be recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no
other conclusion was possible.
9. Normally, when an appellate court
exercises appellate jurisdiction, the duty of
the appellate court is to find out whether
the verdict which is under challenge is
correct or incorrect in law and on facts. The
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appellate court normally ascertains whether
the decision under challenge is legal or
illegal. But while dealing with an appeal
against acquittal, the appellate court cannot
examine the impugned judgment [State of
Karnataka v. H.K. Mariyappa, 2010 SCC
OnLine Kar 5591] only to find out whether
the view taken was correct or incorrect.
After reappreciating the oral and
documentary evidence, the appellate court
must first decide whether the trial court's
view was a possible view. The appellate
court cannot overturn acquittal only on the
ground that after reappreciating evidence, it
is of the view that the guilt of the accused
was established beyond a reasonable doubt.
Only by recording such a conclusion an
order of acquittal cannot be reversed unless
the appellate court also concludes that it
was the only possible conclusion. Thus, the
appellate court must see whether the view
taken by the trial court while acquitting an
accused can be reasonably taken on the
basis of the evidence on record. If the view
taken by the trial court is a possible view,
the appellate court cannot interfere with the
order of acquittal on the ground that
another view could have been taken.
(Emphasis supplied by Us)
23. Hence, we find no such compelling reason to
interfere in the Judgment rendered by the trial Court and
accordingly, we answer Point No.1 in the negative and
Point No.2 in the affirmative and proceed to pass the
following -
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ORDER
Both these appeals filed by the
victim and the State in Crl. A Nos.
respectively are dismissed being devoid of
merits.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
