Karnataka High Court
The State Of Karnataka vs Shankaramahadev M on 22 February, 2024
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CRL.A No.1263 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.1263 OF 2023
BETWEEN:
1. THE STATE OF KARNATAKA
BY MANDYA WEST POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001.
Digitally signed
by RUPA V ...APPELLANT
Location: HIGH (BY SRI. P. THEJESH, HCGP)
COURT OF
KARNATAKA AND:
1. SHANKARAMAHADEV .M
@ SHANKAR MAHADEVU .T
S/O MADAIAH
AGED ABOUT 49 YEARS
R/O ANNURU VILLAGE
C.A.KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT-571428.
2. SHANTHAMMA .T
W/O SHANKARAMAHADEV .M
AGED ABOUT 49 YEARS
ANNURU VILLAGE, C.A. KERE HOBLI
MADDURU TALUK, MANDYA DISTRICT-571428.
...RESPONDENTS
(BY SRI. H.B. CHANDRASHEKAR, ADV., FOR R1 & R2)
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CRL.A No.1263 of 2023
THIS CRIMINAL APPEAL IS FILED U/S.378(1)(3) OF
CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 24.01.2023 PASSED IN
S.C.NO.127/2016 ON THE FILE OF COURT OF IV ADDL.
DISTRICT AND SESSIONS JUDGE, MANDYA THEREBY
ACQUITTING THE ACCUSED/RESPONDENT OF THE OFFENCE
P/U/S 376, 420, 504, 506, 114, 419, 315 R/W 34 OF IPC. SET
ASIDE THE AFORESAID JUDGMENT AND ORDER DATED
24.01.2023 PASSED IN S.C.NO.127/2016 ON THE FILE OF THE
COURT OF IV ADDL. DISTRICT AND SESSIONS JUDGE,
MANDYA THEREBY ACQUITTING THE ACCUSED/RESPONDENT
OF THE OFFENCE P/U/S 376, 420, 504, 506, 114, 419, 315
R/W 34 OF IPC BY ALLOWING THIS CRL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State questioning the correctness
of the judgment of acquittal dated 24.01.2023 on the file of the IV
Additional District and Sessions Judge, Mandya, in
S.C.No.127/2016.
2. Brief facts leading to filing of this appeal are that PW-
1 was running a Computer and DTP Centre at Mandya, under the
name of Nagalingeshwara Offset printers in Subash Nagar,
Mandya and accused No.1 was running Mahadeshwara
Enterprises at Maddur and he used to visit frequently to PW-1's
shop for the purpose of getting DTP work. It is the case of
prosecution that accused No.2 is wife of accused No.1 and they
have two children. Accused No.1 without disclosing the same to
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PW-1, developed friendship with her. On 18.01.2013 around
07.00p.m. accused No.1 sexually abused PW-1 without her
consent and she became pregnant. When she insisted accused
No.1 to marry her, he postponed the same on one or other
pretext. The accused took her to Mysuru Hospital. On
15.09.2013 by giving different name in the Hospital records, she
underwent abortion on 18.09.2013. It is further case of the
prosecution that again on 15.12.2013 around 11.30a.m., accused
No.1 came to the shop of PW-1 and sexually abused her.
Whenever PW-1 asked him to marry, he postponed by giving
some lame excuses and again for the second time she became
pregnant, she called accused No.1 and insisted for marriage.
However, accused No.1 abused her and informed that he was a
married person having two children and further threatened of
dire consequences if she would discloses to anyone. PW-1
informed the act of accused No.1 to CW-5 Jayachandra and PW-
5, they went to the house of accused No.1, but accused No.1 was
not available. They informed the incident to accused No.2, wife of
accused No.1. Accused No.2 on 08.10.2014 at about 5.00 p.m.
came to the house of PW-1, abused her in filthy language and
gave life threat to her. Accused No.1, knowing fully well that he
was married and having children, made PW-1 to believe him and
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sexually abused and cheated her. Based on the said information,
the police registered the FIR. After investigation, charge sheet was
filed against accused Nos.1 to 3 for the offences punishable under
Sections 376, 420, 504, 506, 114, 419, 315 read with 34 of IPC.
3. The trial Court framed charge against accused Nos.1
and 2 for the aforesaid offences, case was split up against
accused No.3 and registered as S.C.No.46/2017. Accused No.1
and 2 pleaded not guilty. Prosecution examined 11 witnesses as
PWs-1 to 11, produced 26 documents marked as Exs.P-1 to P-26.
The defence did not examine any witnesses, but the documents
were produced and marked as Exs.D-1 to D-6 during cross
examination. The trial Court, after evaluating the entire evidence
available on record, observed that there are a number of
contradictions, omissions and improvements in the case and
there is inordinate delay in lodging complaint by PW-1 and no
satisfactory explanation is forthcoming for such delay. The trial
Court, taking note of the medical evidence on record, came to the
conclusion that there is no clear evidence available against the
accused No.1 and 2 to hold them guilty of the offences charged
against them and by giving them benefit of doubt, proceeded to
acquit the accused.
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4. We have heard Sri.Thejesh P., learned High Court
Government Pleader for the appellant-State,
Sri.H.B.Chandrashekar, learned counsel for accused Nos.1 and
2/respondent Nos.1 and 2.
5. Sri.Thejesh P., learned High Court Government
Pleader has argued that the trial Court has committed grave error
in appreciating the evidence available on record. It is submitted
that PW-1, who is the victim, has clearly narrated the incident in
her evidence. Her evidence finds corroboration from the medical
evidence available on record. He submits that if the evidence of
PW-1 is read along with the evidence of Doctors PWs-6, 7 & 9 it
clearly establishes that accused No.1 has committed sexual
assault on PW-1 by promising her that he would marry her. He
further argues that PW-3, who is the neighbour of PW-1, has
stated that accused No.1 used to visit PW-1 frequently and
accused No.2 came to the house of PW-1 and abused her. The
evidence of this witness clearly demonstrate that accused Nos.1
and 2 have committed the offences. Hence, he seeks to allow the
appeal by reversing the judgment of acquittal by punishing the
accused persons appropriately.
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6. Sri.H.B.Chandrashekar, learned counsel for
respondent Nos.1 & 2 supports the impugned judgment of trial
Court and submits that PW-1 falsely implicated accused No.1 in
the case and there is no evidence whatsoever against accused
No.2 with regard to charged offences. He submits that the trial
Court has assigned detailed reasons for acquittal of the accused
from the charged offences. It is also submitted that as per the
case of prosecution when PW-1 was abused by accused No.1 on
18.01.2013 on the first occasion; and as per complaint averment
alleged incident occurred on 15.12.2013. Nothing prevented her
from filing the case then itself. As per the prosecution, accused
No.1 repeatedly sexually abused PW-1 thereafter also and after a
period of ten months, a complaint was filed against the accused
which would create doubt with regard to accusations. He submits
that after analyzing the evidence if the appellate Court comes to a
conclusion that two views are possible, one leading to acquittal
and one to the conviction, the appellate Court shall adopt the
view of the trial Court. Hence, he seeks to dismiss the appeal.
7. We have heard the arguments of learned High Court
Government Pleader for the appellant, learned counsel for the
accused-respondents, perused the impugned judgment of trial
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Court, and perused the entire evidence available on record. Now
this Court re-appreciates the entire evidence available on record
to examine the correctness of the impugned judgment of
acquittal.
8. PW-1 stated that she knows the accused. She was
working in the Byraveshwara Graphics, a DTP Centre of
Shivaswamy at Mandya, and before that she was working in the
Byraveshwara Printers belonging to one M. Nagesh in Mandya.
She stated that she had developed acquaintance with accused
No.1 when she was working in Byraveshwara Graphics, Mandya.
In the year 2008, accused No.1 came to the DTP centre and sat
there for quite sometime, at that time he showed a photo of a
person and asked whether she is interested to marry him, at that
time she informed him that her brother was mentally retarded
and he was missing, and until he would return home she cannot
marry. Immediately, accused No.1 stated that he himself will
marry her, for which she condemned. She further stated that she
opened her own DTP Centre at Mandya, at that time accused
No.1 called her and requested to give one quotation to enable him
to secure work to her. Thereafter, accused No.1 used to come to
her DTP Centre frequently to get the quotation work done. She
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stated that accused No.1 came to her and informed that he was
unmarried and intended to marry her. At that time, she refused
his proposal stating that she was having aged mother and family
responsibilities. In turn, accused No.1 informed PW-1 that he was
financially well placed, if PW-1 would marry him there would not
be any difficulties in her life. She further stated that on
18.01.2013 at 07.00 p.m. when she was alone in the DTP centre,
accused No.1 came to the centre, sat next to her and asked why
she was not inclined to marry him, but she refused to such
proposal on the ground that she was having family
responsibilities. At that time, accused No.1 hugged her by closing
her mouth and closed the door of DTP Centre, pushed her to lie
down on the ground, torn her clothes and then sexually abused
her. Thereafter, she informed accused No.1 that she would file a
police complaint against him, in turn, he informed her that he
was going to marry her and he would come to her house with
proposal and inform the same to her family members. She stated
that she threw the torn clothes in dustbin thinking that someone
may see her wearing the torn clothes. She stated that the accused
used to come to her DTP centre and he sexually abused her for 6-
7 times. She further stated that whenever she used to call
accused No.1 and insist him to marry her, he used to pretend
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that he was on a business tour and used to avoid her. She stated
that when she became pregnant and insisted on marrying her. At
that time, accused No.1 stated that as they were in the same
business, people would mistake them and requested her to abort
the fetus. But when she refused to remove the fetus, accused
No.1 threatened her stating that she had to chose her way and
she should not enter his life. She stated that due to fear, she
agreed for abortion and as per the instruction of accused No.1
she went to Mysuru. At that time she was eight months pregnant.
Accused No.1 took her to CBS diagnostics laboratory on
15.08.2013, made her to sit and gave her one token by informing
that as soon as the token number was called she should go
inside. In the token the name was mentioned as Shanthi. When
she questioned accused No.1 with regard to the name, he directed
her to go inside the room and later he would explain with regard
to the name. The doctor, on examination, advised that as she was
anemic they cannot abort the fetus and advised to take medicine
and come back after one week. She stated that on 15.09.2013 at
10.00 a.m. she went to Mysuru, however accused No.1 informed
that the doctor was not available and made her to stay in a lodge.
On the next day, accused No.1 took her to hospital and requested
the doctor by name Chandrabanu Singh to abort her pregnancy.
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She was admitted in the hospital and doctor gave her one bottle
blood. On 18.09.2013, the doctor gave her injection, thereafter
she delivered a baby, nurse informed her that she had given birth
to a baby boy. On enquiry accused No.1 informed her that the
doctor, i.e., accused No.3, took the baby. On 19.09.2013 she was
discharged from the hospital; accused No.1 boarded her in the
bus and requested to go home, accordingly, she came back and
accused No.1 stayed back in Mysuru. At the time of discharge,
accused No.1 informed that she should sign as Shanthi and in all
medical records her name is shown as Shanthi.
9. She stated that again after 15 days accused No.1
came to her DTP Centre, requested her to cooperate for some
days. When she refused to heed to the request of accused No.1,
he threatened her that he would not marry her and thereafter
forcibly sexually assaulted her. She further stated that accused
No.1 came to her DTP Center again on 15.12.2013 and sexually
abused her. At that time, neighours came and she informed
them that accused No.1 sexually abused her and she again
became pregnant. When she asked accused No.1 to marry, he
informed that she should abort the fetus, for which she did not
agree. On 28.09.2014 accused No.1 called her and gave life
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threat. Thereafter, she informed Sri.Jayachandra and
Sri.Ramananda about the incident and they tried to search
accused No.1, but they could not; then they informed accused
No.2 about the act of accused No.1. PW-1 stated that accused
No.2 came to her house and picked up quarrel on 08.10.2014
and threatened her with dire consequences. She gave complaint
to police on 09.10.2014 which is marked as Ex.P-1. Police took
her for medical examination, the doctor examined her, OPD
receipt is marked as Ex.P-2. The Police drew the spot mahazar
at DTP Centre which is marked as Ex.P-3. She stated that she
has not narrated the entire incident in the complaint at Ex.P-1,
however the same is stated in further statement recorded by the
police. She stated that later she came to know from
Sri.Jayachandra that accused No.1 is married and is having two
children and on questioning accused No.1, he informed that
Shanti is not his wife and he is not married and does not have
children. She stated that accused No.2 came to her DTP centre
when she was six months pregnant and informed that let accused
No.1 be with her and she will come and give statement with
regard to the same before the Superintendent of Police, for that
PW-1 stated that let accused No.1 tie Mangalya and marry her.
She stated that accused No.2 sent a word from her brother that
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she can come to their matrimonial home and stay there and when
she refused, accused No.2 came to her DTP Centre and abused
her in filthy language. She stated that on 11.12.2014 she gave
birth to second child. She stated that police have collected blood
samples from her, her child and accused No.1 for the purpose of
DNA profile test and in the said report, it has come that accused
No.1 is the father of the baby. She stated that accused Nos.1 and
2 have threatened to kill her by stating that she had not aborted
the child. She stated that when she went to Polyclinic Nursing
Home to abort first fetus, she signed the medical records, the
same are marked as Ex.P-7.
10. PW-2 stated that he is the neighbour of PW-1 victim.
When he was going near his house, at that time police called him
to be a witness for the mahazar. PW-1 showed the place where
she resided, her DTP Centre and informed that accused No.1
sexually abused her 5-6 times in the said place. The said
mahazar is at Ex.P3. The police collected blood samples of
accused No.1, PW-1 as well as the child born to PW-1 and their
consent was obtained in the form. The mahazar drawn for
collection of blood samples and consent form are marked as
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Exs.P9 to P12. He stated that CW-7 Huchaiah was also present
who signed the mahazars.
11. PW-3 is the neighbour of PW-1 who stated that he is
an auto driver and residing near the house of PW-1. He stated
that he has seen accused No.1 visiting PW-1 frequently and they
were very close. He stated that on 08.10.2014 around 5 p.m.
when accused No.2 came to the house of PW-1, she picked up a
quarrel and gave life threat to her. At that time, CW-3 Shylaja
was also present. He stated that when he enquired with PW-1
with regard to the quarrel, she narrated the incident. He further
stated that accused No.1 used to visit PW-1's shop prior to
08.10.2014.
12. PW-4 is a woman ASI who took PW-1 to the hospital
for medial examination. PW-5 is a social worker who stated that
he knew PW-1 and she introduced accused No.1 to him in 2014.
He stated that accused No.1 used to visit the DTP Centre of PW-1
and accused No.1 was insisting her to remove the fetus, then only
he would marry her. He stated that accused No.1 made her to
believe by a false promise, sexually abused her and again she
became pregnant. He stated that at the request of PW-1, he went
to the house of accused No.1, but he was not available. Accused
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No.2 - wife of accused No.1 discussed the issue with them and
she informed that PW-1 can come to their house and reside with
them. Accordingly, he came and informed the same to PW-1. He
stated that on 09.10.2014, PW-1 informed him that accused No.2
came to her house around 5 p.m., picked up a quarrel and gave
life threat to her. PW-6 stated that she collected blood samples of
accused No.1, PW-1 and the child born to PW-1.
13. PW-7 stated that the police brought PW-1 to the
hospital for examination. He stated that the investigating officer
raised certain queries and the same have been replied. He stated
that PW-1 is 8 months pregnant. The said report is marked as
Ex.P13. He stated that before answering to the queries, he
enquired with PW-1 and accordingly she informed that 4 months
prior to the said date, there was sexual intercourse. He stated
that there were no external injuries on the private parts of PW-1.
PW-8 stated that on 17.09.2013 around 2.30 p.m. one Shankar
and Shanthi came to their clinic. At that time, said Shanthi
suffered excessive bleeding and was anemic. He stated that in
their clinic, fetus of Shanthi was aborted and she was discharged
from the hospital on 19.09.2013. Ex.P7 is the admission card of
PW-1. He stated that PW-1 informed him that her name is
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Shanthi, she is from Mandya and accused No.1 is her husband.
He identified accused No.1 in the open Court however, he could
not identify PW-1. PW-9 Dr.Chandrashekar stated that he
collected the blood samples from the police, conducted DNA test
and his report is produced and marked as Ex.P15. He stated that
DNA report indicates that the blood sample of fetus born to PW-1
matches with the blood sample of accused No.1. PW-10 a WPSI
stated that she received the information and registered the FIR.
PW-11 stated that he recorded the further statement of PW-1 and
other witnesses and also stated with regard to the manner of
conducting investigation. On completion of investigation, he filed
charge sheet.
14. In the cross-examination, PW-1 admitted that she did
not inform about the incident to her family members and friends.
However, in the complaint at Ex.P1 she stated that after detailed
discussion with family members and friends, she gave the
complaint. Hence, there is delay in filing the complaint. She also
admitted that 2 months prior to filing of the complaint, she had
decided to file complaint. She also admitted that she gave
complaint against accused No.1 in the month of July 2014.
However, she withdrew the said complaint and the contents of the
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complaint were available in the computer and she did not inform
about the filing and withdrawal of the complaint to the police. On
perusal of Ex.P2 - OPD document, it is evident that PW-1 went to
the hospital on 30.12.2014. However, in the cross-examination,
she stated that she went to the hospital on 09.10.2014. Further,
in the cross-examination PW-1 admitted that she has not stated
with regard to frequent calling by accused No.1 to her and
frequent visit of accused No.1 to the DTP Centre, in the complaint
at Ex.P1 and also before the learned Magistrate under Section
164 statement. She also stated that she did not mention in the
complaint or before the Magistrate with regard to the incident of
sexually exploiting her on 18.01.2013 at 7 p.m. when she was
alone in DTP Centre. She also admitted in the cross-examination
that she did not fully disclose about her pregnancy of 8 months
in the complaint as well as before the Magistrate. She also
admitted that she had not mentioned in the complaint and before
the Magistrate that accused No.1 took her to Mysuru, made her
to stay overnight and thereafter took her to hospital where
accused No.3 was working. She also admitted that she had not
mentioned in the complaint at Ex.P1 that accused No.1 insisted
her to sign as Shanthi in the medical records when he took her
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for abortion. She also admitted that she had not stated about the
incident of 15.12.2013 in her complaint.
15. On perusal of the cross-examination, it can be
gathered that PW-1 did not state the various events spoken in the
examination-in-chief, in the complaint at Ex.P1 and also before
the Magistrate while recording Section 164 Cr.P.C. statement.
On close analysis of the evidence of PW-1, her cross-examination,
complaint at Ex.P1 and her statement recorded before the
Magistrate, it can be fairly said that PW-1 has improved her case
in the examination-in-chief which was never stated in Ex.P1 or
before the Magistrate. PW-1 clearly admitted that in the year
2008, she developed acquaintance with accused No.1 as he used
to come to her DTP Centre for work and the said acquaintance
turned into physical relation between them and she became
pregnant. As per the evidence of PW-1, accused No.1 took her to
Mysuru hospital and got the fetus aborted. PW-1, in her
examination-in-chief stated that she gave birth to a child.
However, she pretended that she has not seen the child and
accused No.1 informed her that doctor has taken the child. The
narration of events by PW-1 with regard to accused No.1 taking
her to the hospital for abortion and giving birth to the child leads
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to doubt credibility in her evidence. PW-1, in her examination-in-
chief stated that at the second instance, accused No.1 sexually
abused her forcibly for 6-7 times by falsely assuring her that he
would marry her and she became pregnant and thereafter
delivered a baby.
16. The medical evidence on record indicates that the
child born to PW-1 is the child of accused No.1. However, there is
no evidence available on record to indicate that the accused No.1,
without the consent of PW-1 had sexually abused her. The entire
evidence of PW-1 clearly indicates that the relation between PW-1
and accused existed from 2008 to 2014. During the said period,
they developed physical relation and PW-1 became pregnant
twice, which she got aborted at the first instance and at the
second instance, she delivered a baby. This kind of evidence of
PW-1 clearly indicates that the act of sexual intercourse of
accused No.1 with PW-1 is consensual. PW-1 asserted in her
evidence that accused No.1, on a false promise of marrying her
and against her consent, sexually abused her. The said evidence
of PW-1 is also unbelievable for the reason that PW-1, in her
evidence and cross-examination clearly admitted that the accused
No.1 used to call her frequently and used to visit her DTP Centre
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frequently and during the said period, they developed intimacy.
It is difficult to believe that PW-1 was not aware that the accused
No.1 was a married person and had children. In the cross-
examination, when a suggestion was put to PW-1 whether she
filed case against one Shivaswamy and whether the said case was
settled in compromise, she stated that there was no relation
between her and said Shivaswamy. The Trial Court has rightly
disbelieved the evidence of PW-1 in view of a number of
contradictions referred supra.
17. The evidence of PW-1 indicates that the accused No.1
sexually abused PW-1 in the year 2012 and thereafter. However,
the complaint at Ex.P1is filed on 09.10.2014. There is enormous
delay in filing the complaint. On bare perusal of the complaint, it
is evident that PW-1 has not stated anything with regard to the
incidents about which she has spoken in her evidence. Ex.P8
statement recorded by the learned Magistrate under Section 164
of Cr.P.C. also does not indicate with regard to the various facts
and sexual abuse by accused No.1 on PW-1 which has been
stated by PW-1 in her evidence. This clearly establishes that PW-
1 has improved her case and has spoken contrary to the case of
prosecution. On perusal of the evidence available on record, it
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can be fairly inferred that PW-1 is not truthful in giving her
evidence. Hence, her evidence cannot be believed.
18. The prosecution examined PWs-2 who is the witness
to mahazar and PW-3 neighbour of PW-1. They have spoken with
regard to accused No.1 visiting PW-1 frequently. However, they
are not the eye witnesses. Their evidence is based on the
information given by PW-1. PW-2 is the witness to the mahazar
at Ex.P3 and Exs.P9 to P12. The said witness spoke only with
regard to drawing of mahazar. His evidence with regard to sexual
abuse by accused No.1 on PW-1 is hearsay. Hence, the same
cannot be believed. PW-5 who claims to be a social worker, has
spoken with regard to sexual abuse on PW-1 based on the
information giving by PW-1. The said witness has spoken with
regard to visiting the house of PW-1 and certain statement made
by accused No.2 during the said visit. Such evidence cannot be
believed in the absence of any corroboration. PW-3 stated that
accused No.2 came to the house of PW-1 and gave life threat.
Again the said evidence is based on the information given by PW-
1. There is no independent, cogent and acceptable evidence on
record that accused No.2 came to the house of PW-1 and
quarreled with her.
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19. The other witnesses are the official witnesses who
spoke with regard to collection of samples, DNA report, medical
examination of victim and the manner of conducting
investigation. The evidence of these witnesses itself would not
establish the guilt of the accused unless it is corroborated the
independent evidence. In the absence of any corroboration to the
evidence of official witnesses, this Court cannot come to a definite
conclusion that accused No.1, without the consent of PW-1,
sexually abused her on a false promise to marry her.
20. The Trial Court, on analysis of the entire evidence of
the prosecution, has come to a definite conclusion that the
prosecution failed to prove the charges leveled against the
accused by cogent and acceptable evidence. The Trial Court has
given the benefit of doubt to the accused and proceeded to acquit.
This Court, on re-appreciation of the entire evidence on record is
of the considered view that the prosecutrix cannot be called a
trust worthy witnesses. The evidence of prosecutrix is nothing
but an improvement made during the trial and her evidence is
not corroborated by other witnesses. There are no good reasons
to take a different view.
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21. For the aforementioned reasons, appeal must fail and
it is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
BSR/RV
