Karnataka High Court
Prakasha vs State Of Karnataka on 7 June, 2024
1 CRL.A . 884 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 07TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 884 OF 2014
BETWEEN:
PRAKASHA
S/O MUDDUMADEGOWDA
AGED 26 YEARS
RESIDING AT TAGADUR GRAMA
BILIGERE HOBLI, NANJANGUD TALUK
MYSORE DISTRICT
(NOW IN JUDICIAL CUSTODY)
...APPELLANT
(BY SRI. CHANDRASHEKAR. P., ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH KAVALANDE POLICE STATION
MYSORE DISTRICT
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560 001.
...RESPONDENT
(BY SRI. M.DIVAKAR MADDUR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 12.06.2014
PASSED BY THE VII ADDL. DISTRICT AND SESSION JUDGE,
MYSORE IN S.C.NO.78/2011 FOR THE OFFENCE P/U/S 376
AND 417 OF IPC.
2 CRL.A . 884 of 2014
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 30.05.2024, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Appellant-accused has preferred this appeal being
aggrieved by the judgment of his conviction dated
12.06.2014 and order of sentence dated 17.06.2014
passed in Sessions case No.78/2011 by VII Additional
Sessions Judge, Mysuru.
2. Parties to this appeal are referred to as per their
rank before the trial Court for convenience.
3. That accused who was charge sheeted by the Circle
Inspector of Police, Nanjangud Circle in Crime
No.179/2010 of Kowlande Police Station for the offences
punishable under Sections 417 and 376 of IPC.
4. That the victim girl filed a complaint before the
Sub-Inspector, Kowlande Police Station, Nanjangud Taluk
on 28.11.2010 at 8.30 p.m. by appearing before the
Police Station alleging that she is the resident of
Tagaduru Village, she was in love with her neighbour i.e.,
3 CRL.A . 884 of 2014
Prakash S/o Muddumadegowda (accused) for the last two
years prior to filing of the complaint. It is alleged that for
the last six months prior to filing of the complaint, he
started cheating her. She used to inform him stating that
because of that she is facing problems in her education.
It is alleged that with an assurance to marry her, forcibly
without hearing the words of the complainant, raped her.
This fact was informed to the elderly members of her
village. At that time, his father and uncle Shivu were
called by the Panchayathdars of her village to Malle
temple and conducted panchayath. In the said
Panchayath, it was requested the accused to get marry
the victim girl. At that time the father and uncle of the
accused told the Panchayathdars, that in the recent
future they intend to perform the marriage of sister of
accused and prayed for two months time. Accordingly,
two months time was granted. After two months time,
even there was no response either from the accused or
from his parents. They vacated the village. Despite
calling of the accused and his father so also his uncle,
4 CRL.A . 884 of 2014
they did not respond and went on postponing and did not
come to the Tagaduru village. Therefore, a complaint
came to be filed against them before the Kowlande Police
Station. It is stated that twice they came to Kowlande
police station and took two adjournments regarding the
response. It is alleged that even then there was no
response from them. Thus it is alleged by the
complainant that, accused, his father Muddumadegowda,
his wife Susheela and uncle so also his wife Pramila have
committed the offence of cheating against the victim girl.
With these allegations a complaint came to be filed
before PW-19 Krishna Ramanna, the then Police Sub-
Inspector of Kowlande police station. It was registered by
him in Crime No.179/2010 and he registered the FIR as
per Ex.P-20 based upon Ex.P-1 complaint and the said
criminal law was set in motion.
5. PW-24 on taking up the investigation deputed the
staff for the purpose of apprehending the accused.
Accordingly, his staff apprehended the accused and
5 CRL.A . 884 of 2014
produced before him. He arrested the accused. He also
called the victim girl to the police station, seized her
clothes worn by her. On 30.10.2010 he visited the
Tagaduru village recorded the statements of the
witnesses, he visited the scene of offence conducted the
panchanama, subjected both accused and victim girl for
medical examination. After completion of investigation by
following all the formalities of investigation, filed charge
sheet against the accused for the aforesaid offences.
6. Before the learned Sessions Judge, to bring home
the guilt of the accused, prosecution in all examined 24
witnesses from PW-1 to PW-24 and got marked Exs.P1 to
P29 with respective signatures and M.O.Nos.1 to 14.
During the course of the cross examination Exs.D1 to
D15 were marked.
7. On hearing the arguments and on evaluation of the
evidence found the accused guilty for committing the
offences punishable under Sections 376 and 417 of IPC.
Accordingly, sentenced him as under:
6 CRL.A . 884 of 2014
"Accused is sentenced to undergo R.I for 7
(seven) years and shall pay a fine of Rs.50,000/-
and in default to undergo S.I for one year for
offence U/s 376 IPC.
Accused is sentenced to undergo R.I for 6
(six) months and shall pay a fine of Rs.1,000/- and
in default to undergo S.I for 2 months for offence
U/s 417 IPC".
8. This judgment of conviction and order of sentence
is now challenged by the appellant-accused by preferring
this appeal.
9. The learned counsel for the appellant-accused with
all vehemence submits that the facts of this case do not
attract the provisions of Sections 417 and 376 of IPC. It
is his submission that the learned trial Court without
properly appreciating the evidence and documents
produced by the IO, has passed the impugned judgment
which is not at all sustainable in the eyes of law.
7 CRL.A . 884 of 2014
10. Learned counsel for the appellant submits that,
there was a complaint on 17.07.2010 to the Kowlande
police station stating, that victim girl and accused were in
love with each other. This fact of their love affair
between them was within the knowledge of their family
members. He would further submit that, though there
was a insistence as per the case of the prosecution for
the marriage of the victim girl with accused, the parents
of the accused agreed and left the village. The earlier
part of the evidence so stated by the victim girl in the
complaint as well as in her evidence is not properly
appreciated by the trial Court which has resulted in
miscarriage of justice. He would further submits that
evidence of PW1 so stated by her in her cross
examination clearly disclose that accused had never
promised to marry the victim girl-PW1. The learned trial
judge according to him has pre-determined by reading
the contents of Ex.P5 which is utterly wrong.
8 CRL.A . 884 of 2014
11. He would further submit that, on reading the
contents of Ex.P5 and Ex.D2 to 15 do establish that
accused had no intention to marry her or having any sex
with her. These documents are wrongly read by the trial
Court. He would further submit that, learned trial court
had failed to appreciate the contents of Medical Report
and evidence of PW.14 which do establish that, there was
no rape on her at all. Barring the victim girl-complainant,
the evidence other witnesses inter se is contradictory in
nature. He would further submit that their evidence do
not support the case of the prosecution of alleged
cheating and commission of rape by the accused. He
would further submit that, the evidence of PWs.1,2,3,5
and 8 do not inspire any confidence to prove the case of
the prosecution. He would further submit that on reading
the complaint allegation, date of alleged incident is not
stated and the evidence of doctor suffice to acquit the
accused.
9 CRL.A . 884 of 2014
12. In support of his submission, he relied upon
various oral and documentary evidence led by the
prosecution. He craves to allow the appeal and set aside
the impugned judgment of conviction and order of
sentence.
13. As against this submission, the learned HCGP for
State refuting the arguments of the learned counsel for
the appellant with all force, would submit that, the
evidence of PW.1 victim girl itself is sufficient to convict
the accused. He would further submit that, her evidence
supported by evidence of her father, the second wife of
her father and also the panchayatdars who were
examined in the trial Court. He would further submit that
on perusal of the oral and documentary evidence placed
on record by the prosecution as rightly appreciated by
the trial court, they prove the case of the prosecution. He
would further submit that, the trial Court is right in
passing the impugned judgment by finding the accused
guilty. He would further submit that such a considered
10 CRL.A . 884 of 2014
judgment cannot be interfered by this Court. He too
relied upon the various evidence placed on record by the
prosecution and also the findings of the trial Court on
various aspects. He prays to dismiss the appeal.
14. I have given my anxious consideration to the
submissions of both the side and perused the records.
15. In view of the rival submission of both the side
the following points arise for my consideration:
i. Whether the judgment of conviction
and order of sentence suffers from illegality
and without properly appreciating the
evidence?
ii. If so, the judgment of conviction
and order of sentence passed by the trial
court impugned in this appeal requires
interference by this Court?
16. As the prosecution has alleged the offence of
cheating and rape against the accused, before adverting
to the other aspects of the case, it is just and proper to
11 CRL.A . 884 of 2014
read the definition and ingredients of offences so alleged
against him.
17. Section 415 of IPC defines `Cheating'. It reads
as under:
"Whoever, by deceiving any person,
fraudulently or property to any person, or to
consent that any person shall retain any
property, or intentionally induces the person so
deceived to do or omit to do anything which he
would not do or omit if he were not so
deceived, and which act or omission causes or
is likely to cause damage or harm to that
person in body, mind, reputation or property, is
said to "cheat".
18. On reading the aforesaid definition of cheating, it
is the obligation of the prosecution to prove:-
1) Deception of any person
2)(a) Fraudulently or dishonestly
inducing that person
i) to deliver any property to any person
or
12 CRL.A . 884 of 2014
ii) to consent that any person shall
retain any property or
(b) intentionally inducing that person to
do or omit to do anything which she
would no do or omit if he were not so
deceived, and which act or omission
causes or is likely to cause damage or
harm to that person in body, mind,
reputation or property.
19. That means in the offence of cheating, there are
two elements:-
a) Deception and dishonest inducement
to do or omit to do something.
b) Mere dishonesty is not a criminal
offence. Moreover, to establish the
offence of cheating, the complainant
would have to show not only that he
was induced to do or omit to do a
certain act but that this induced
omission on his part caused or was
likely to cause him some harm or
damage in body, mind, reputation or
property- which are presumed to be
the four cardinal assets of humanity.
The Hon'ble Apex Court has laid down
the ingredients required to constitute
cheating in various judgments. They
are:
1) There should be fraudulent or
dishonest inducement of a person.
2) The persons who deceived should
be induce to deliver any property to
13 CRL.A . 884 of 2014
any person or to consent that any
person shall retain property.
3) The person so deceived should be
intentionally induced to do or omit to
do any thing which he would not do
or omit to do if he were not so
deceived.
4) Such act is likely to cause damage
or harm to the person induced in
body, mind, reputation or property.
20. So far as definition of `Rape' is concerned, is
defined under Section 375 of IPC. The said section reads as
under:
375. Rape.--A man is said to commit
"rape" if he--
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other
person; or
(b) inserts, to any extent, any object or a part
of the body, not being the penis, into the
vagina, the urethra or anus of a woman or
makes her to do so with him or any other
person; or
(c) manipulates any part of the body of a
woman so as to cause penetration into the
vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or
any other person; or
(d) applies his mouth to the vagina, anus,
urethra of a woman or makes her to do so with
him or any other person,
14 CRL.A . 884 of 2014
under the circumstances falling under any of
the following seven descriptions:--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent
has been obtained by putting her or any person
in whom she is interested, in fear of death or of
hurt.
Fourthly.--With her consent, when the man
knows that he is not her husband and that her
consent is given because she believes that he
is another man to whom she is or believes
herself to be lawfully married.
Fifthly.--With her consent when, at the time of
giving such consent, by reason of unsoundness
of mind or intoxication or the administration by
him personally or through another of any
stupefying or unwholesome substance, she is
unable to understand the nature and
consequences of that to which she gives
consent.
Sixthly.--With or without her consent, when
she is under eighteen years of age.
Seventhly.--When she is unable to
communicate consent.
Explanation 1.--For the purposes of this
section, "vagina" shall also include labia
majora.
Explanation 2.--Consent means an unequivocal
voluntary agreement when the woman by
words, gestures or any form of verbal or non-
verbal communication, communicates
willingness to participate in the specific sexual
act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the
15 CRL.A . 884 of 2014
reason only of that fact, be regarded as
consenting to the sexual activity.
Exception 1.--A medical procedure or
intervention shall not constitute rape.
Exception 2.--Sexual intercourse or sexual acts
by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
21. A man is said to commit "rape" who, except in
the case hereinafter excepted, has sexual intercourse
with a woman under circumstances falling under any of
the six descriptions mentioned above. Section 376 of IPC
speaks for punishment for rape.
22. Thus, to prove the offence of `Rape', the
prosecution is under obligation to prove the following:
1) Sexual intercourse by a man with a woman
2) The sexual intercourse must be under
circumstances falling under any of the six
clauses given under section 375 of IPC.
3) That the accused had sexual intercourse
with his own wife aged under twelve years.
16 CRL.A . 884 of 2014
Moreover, victim's consent is not a real consent,
and rape is said to have committed in the following
cases:
1) Where victim's submission is procured by
threats of personal violence;
2) Where the consent is obtained by fraud
as per the nature of the act.
3) Where the consent is obtained by
impersonating the women's husband;
4) Where the female is so mentally deficient or
young or drunk that her knowledge and
understanding are such that she is not in a
position to decide whether to consent or resist;
23. Keeping the aforesaid definition and ingredients of
the offence in mind, let me analyze the evidence placed
on record by the prosecution to ascertain as to whether
the prosecution is able to establish the guilt of the
accused or otherwise.
24. It is the case of the prosecution, that both victim
girl and accused were the neighbours. Both had love
affair between them. Even prior to filing of the complaint
i.e., Ex.P1 dated 28.10.2010, a similar complaint was
17 CRL.A . 884 of 2014
also filed as per Ex.P27 on 17.07.2010 by the victim girl
herself. It is stated in Ex.P27 that she is residing at
Tagaduru village along with her parents and studying in
2nd PUC at Janatha Pre-University College. It is stated by
her that for the last one year prior to filing complaint she
was in love with accused. Her parents and family
members of the accused got the knowledge of the same.
Even the elderly members of the village with whom the
love affair were brought to their notice, advised the
accused to marry the victim girl. Though the parents of
the accused girl agreed and gave consent to perform the
marriage of accused with victim girl, but, they ran away
to Mysuru. Therefore, she lodged a complaint as per
Ex.P27 requesting the police to call the accused and his
parents to render justice to her.
25. In the second complaint dated 28.11.2010 for the
first time, she had stated that for the last six months
prior to filing of his compliant Ex.P27, accused started
cheating her. On assuring to marry her, with force raped
18 CRL.A . 884 of 2014
her. Thereafter, panchayat was called and the elderly
members of the village conducted the panchayat. At that
time, it was told by the father of the accused that he had
to perform the marriage of sister of accused i.e., his
daughter and prayed for two months time. Accordingly,
two months time was granted by the panchayathdars.
Even after that accused or his parents did not respond to
the panchayathdars or to the call of her father, therefore,
a complaint came to be filed by her vide Ex.P1.
26. On comparing the contents of Ex.P27, the initial
complaint dated 17.07.2010 and the contents of Ex.P1,
the second complaint dated 28.07.2010, the first
complaint is silent about the alleged cheating, rape.
Whereas, the second complaint is silent about the date of
alleged offence of rape. That means she has filed quite
contradictory complaints before the Kowlande police
station. If one complaint is believed in its entirety, the
other complaint cannot be believed in toto.
19 CRL.A . 884 of 2014
27. Ex.P2 is the scene of the panchanama prepared by
the IO on 29.11.2010 as shown by the complainant in
the presence of panchayath. Ex.P3 and P4 are the
photographs. Ex.P5 are the bunch of love letters
addressed by the accused to the complainant victim girl
expressing his love with victim girl. Ex.P6 is the letter.
Ex.P7 is the panchanama under which 11 letters are
seized. The love letters marked under Ex.P5 are seized
by the IO. So far as handwriting on these letters is
concerned, the accused is not disputing. Even these
letters are sent for scientific examination and a report to
that effect is received along with the admitted hand-
writings of accused as per Ex.P24. It is opined by the
Scientific Examiner that the said hand-writings belong to
the accused. To that effect, he submitted a report with
certificate of examination as per Ex.P22 and P.23. A
detailed mode of scientific examination is stated in
Ex.P23. While marking these documents, no little finger
was raised by the defence. That means accused admits
20 CRL.A . 884 of 2014
the handwriting on these letters as opined by the
Scientific Examiner.
28. The important document is Ex.P13 the opinion of
the doctor after medically examining the accused. It is
stated that accused is capable of doing sexual
intercourse and is opined that there is no evidence to
suggest that he is incapable of doing sexual intercourse.
The contents of Ex.P13 is not denied by the defence.
29. Another important document is Ex.P14 addressed
by the IO to the doctor PW.13 Dr.Veena to medically
examine the victim girl and submit the report.
Accordingly, after medically examining the victim girl-
PW1, the doctor gave the report/opinion that, the victim
girl at the time of medical examination was aged more
than 17 years and less than 18 years. The said age is
determined based upon her physical, dental, radiological
findings and secondary sexual character. It is her
evidence before the trial Court that hymen was not torn
but, her hymen admits two fingers. Accordingly the
21 CRL.A . 884 of 2014
doctor has issued a report as per Ex.P14. It is opined by
the doctor after medically examining the victim girl that,
it is not possible to opine that whether she had any
sexual intercourse or not. Ex.D2 to D15 are the bunch of
love letters addressed by victim girl to the accused
wherein she had expressed her deep love with the
accused. These are all the important documents
produced by the prosecution in proving its case.
30. So far as oral evidence is concerned, PW1 being
the victim girl has stated beyond the contents of her
complaint so filed as per Ex.P1. It is her evidence that,
herself and accused were in love with each other. At that
time, she was studying in PUC. Accused was an
agriculturist and also doing other works. There were
exchange of love letters in between them. According to
her, six months prior to filing of complaint, accused
committed rape on her. She states that one day prior to
six months of fling of complaint, at 4.00 pm, when
herself and accused were talking with each other in a
22 CRL.A . 884 of 2014
backyard of the house of the accused, though she
resisted and asked the accused not to commit sexual
intercourse with her, but, he committed rape on her. She
states about the place where alleged offence said to have
been committed by the accused. It is her evidence that in
the said place, there is no movement of any public.
Even, from that place, one cannot see the public who
used to move. According to her evidence, after
undressing her so also undressing himself, he committed
rape on her though she resisted. For the first time, she
states in her evidence that as he intended to marry her,
therefore, forcibly he committed such an offence on her.
According to her, at that place they were together till
7.00 pm. Thereafter, he asked her to go to her house
and at that time she told that as he had sexual
intercourse with her, asked him to take her to his house.
But, accused was reluctant. When she went to her
house, her father was in the house. She narrated the
incident to her father as he asked why she came late.
Her father informed the father of the accused.
23 CRL.A . 884 of 2014
Thereafter, as her father understood that no justice will
be given to her, they approached the panchayathdars of
her village. It is her further evidence that,
panchayathdars advised the accused to marry the victim
girl. As there was no response, complaint Ex.P1 came to
be filed. She narrates about she being taken to the
hospital for medical examination etc. She identifies the
letters addressed by the accused to her. According to
her, though accused assured her to marry, but, ran
away.
31. On reading the contents of the complaint and her
statement in her examination-in-chief, we find sufficient
improvements in her evidence. Whatever she has not
stated in her complaint has been stated for the first time
in her evidence on oath. She has been thoroughly cross-
examined by the defence. She admits that when she was
in love with the accused, she was studying in 10th
Standard. She admits that, in the said love letters,
accused has not stated that he is going to marry her. In
24 CRL.A . 884 of 2014
unequivocal terms, she states that prior to the alleged
incident so stated in this case, she had no physical
contact with the accused. According to her, the backyard
of the accused is the 5 minutes away from her house.
When she was in SSLC, there were exchange of letters in
between both. According to her, in all 16 letters were
addressed by the accused. For two years accused used to
visit her house. On that day, she went to the backyard at
4.30 p.m. and was there upto 7.00 p.m. When she
returned to her house, the second wife of her father was
in the house. She narrated the incident to her.
Thereafter, after three days, her father called the
Panchayath after meeting the elderly members of his
village. According to her version in the examination-in-
chief, when she came to the house, her father was in the
house. She narrated the incident to him. Her father
called the father of the accused etc. But in the cross-
examination, she had given a different evidence and
states that after three days of incident, Panchayath was
called. According to her evidence, she narrated about
25 CRL.A . 884 of 2014
the incident to the panchayathdars also. She also had
narrated about running away of the accused. She went to
the police station at 9.00 pm on that day. According to
her, after four days of filing complaint, she was taken to
the doctor for medical examination. She states about the
letters addressed to her by the accused so confronted to
her as per Ex.D2 to D15. She had denied all other
suggestions.
32. On reading the evidence of PW1 the victim girl, we
find so many improvements, exaggerations,
embellishments, contradictions and omissions in her
evidence with that of the complaint allegations.
33. PW.2 Basavegowda PW.3 Rajamma Basavegowda
are the father and second wife of PW2 respectively.
Evidently, they are the hearsay witnesses. As per the
evidence of PW.2 on getting the information about the
incident within six months, there were four panchayaths
conducted. Discussion was made. At that time, father of
the accused agreed to perform his son's marriage with
26 CRL.A . 884 of 2014
victim girl and prayed for two months time. In the cross-
examination, PW.2 states that, on the date of incident,
he came to the house at 6.00 pm and at that time his
wife and victim girl were talking with each other. On that
day he came to know about love affairs between his
daughter and accused. This is altogether a different
evidence spoken to by PW.2.
34. PW.3 Rajamma states that, about two years back
at 6.00 pm her daughter i.e., victim girl after coming
from college was found weeping. When she enquired, she
told that accused took her to his backyard, forcibly by
gagging her mouth, raped her. This evidence is not
spoken to by the victim girl. In the cross- examination,
PW.3 deposed ignorance about love affair between victim
girl and accused. According to her, when victim girl
narrated about the incident, Saraswathi and her husband
were not there in the house. There were three
panchayaths conducted. On the following day of incident,
the panchayath took place. In the said panchayath,
27 CRL.A . 884 of 2014
about 200 persons of Keranguru village and 300 persons
of her village gathered. She does not know the discussion
which has taken place in the panchayath. This PW.3 has
given a different evidence with that of the evidence of
PWs 1 and 2.
35. PW.4 Madegowda being Pancha was signatory to
Ex.P7 Mahazar but, has been turned hostile. Therefore,
his evidence would not help the case of the prosecution.
36. PW.5 - Revegowda, S/o.Muddegowda is the
elderly person of Kiragunda village. According to his
evidence, PW.2 father of the victim girl came to him and
informed about commission of rape by the accused on
her daughter (victim girl). He requested to give justice to
him. It is his further evidence that, therefore, himself
from his village and other persons of his village like
Doddegowda, Siddaraju, Javeregowda, etc., together
arranged the Panchayath along with elderly members of
Tagadur village by name Madegowda, gurumallegowda
and another Madegowda about two years back prior to
28 CRL.A . 884 of 2014
giving of his evidence. In the said Pancahyath accused as
well as his father Muddeumadegowda attended. The
father of the accused sought two months' time as he has
scheduled the marriage of his daughter and assured to
arrange a marriage of victim girl with accused (his son).
Accordingly, Panchayathdars agreed. It is his further
evidence that, as agreed no marriage of accused and
victim girl took place. When enquired with the father of
the accused, he stated ignorance about the said
marriage. Accordingly, they informed PW.2 to take
necessary action.
37. In the cross-examination, he states that victim girl
is not belonging to his village whereas, the first wife of
Basavegowda was the native of his village and she is not
related to him. According to him, in all twelve persons
went to Tagadur village to attend the panchayath.
According to him people of Tagadur village gathered in
the panchaayath. Except the said Panchayath no other
panchayaths were held.
29 CRL.A . 884 of 2014
38. On perusal of the evidence of this witness, it
shows that he has altogether given a different evidence
with regard to conducting of Panchayaths. As per the
case of the prosecution, in all four panchayaths were
conducted. but, according to this PW.5, except the
panchayath which he has told in the cross-examination,
there were no other panchayaths. He being the hearsay
witness about the incident, no much value can be
attached to his evidence but, however, his evidence is to
be accepted to the extent of conducting panchayath of
which he is one of the panchayathdar.
39. PW.6 P. Ravi is the relative of victim girl and
according to him on getting information about the
incident, the panchayath was conducted in Tagaduru
village. 50-60 persons of Tagadur village gathered in the
said panchayath. He being a hearsay witness, much
value cannot be attached to his evidence. His evidence
can be believed to the extent that he attended the
30 CRL.A . 884 of 2014
panchayath so also was present when Ex.P7 was
prepared.
40. PW.P7 Siddaraju S/o. Ramegowda is concerned,
he is signatory to Ex.P10 under which the letters were
seized and marked as Ex.P5. Seizure of letters as per
Ex.P5 is not disputed by the defence. According to the
cross-examination directed to PW.7, often he used to
visit the Police Station and in the Police Station he signed
the Panchanama. With regard to the seizure of the letters
under the aforesaid panchanama, there is no serious
dispute between both the sides.
41. PW.8, Gurumallegowda, S/o.Puttegowda is
resident of Tagadur village and elderly member of the
said village who participated in the panchayath.
According to his evidence, when panchayath was
conducted, the father of the accused, Muddumadegowda
was present but, his son (accused) was absent. When
enquired, he assured to perform the marriage of his son
(accused) with victim girl. In the cross-examination, he
31 CRL.A . 884 of 2014
states that the father of the victim girl has not given any
written letter to conduct the Panchayath. He deposes
ignorance about the avocation of the accused.
42. On reading the evidence of this PW.8, he is
quite ignorant about the incident and had got the
knowledge about the incident from others, except
participating in the pacnahayath he has not stated any
other evidence. To that extent his evidence is to be
accepted.
43. PW.9 Shivamallegowda and PW.10 Madegoda are
cited as Panchas to Ex.P2 but, have been turned hostile.
Nothing worth is elicited from their mouth so as to
disbelieve their version spoken in the examination-in-
chief. Therefore, their evidence would not help the
prosecution.
44. PW.11, Rajashankar, S/o.Rajendra Swamy was a
Principal of Janatha PU College at the relevant time who
has issued Ex.P12 showing the date of birth of victim girl
as 20.03.1994. The date of birth of victim girl as stated
32 CRL.A . 884 of 2014
in Ex.P12 is not disputed either by the prosecution or by
the defence. To the extent of issuing Ex.P12, evidence of
PW.11 is to be accepted.
45. PW.12, Dr.Jayaprakash is a Doctor who medically
examined the accused and issued Ex.P13. There is no
dispute with regard to the contents of Ex.P13 by the
accused. It is stated in the cross-examination that if any
forcible sexual intercourse is committed such person may
sustain small injuries. For this suggestion directed to
him, he has given positive evidence. To the extent of
contents of Ex.P13 evidence of PW.12 is to be accepted
as the contents of this document are not denied by the
defence.
46. PW.13, Dr.Veena W/o. Gangadhar, having medically
examined the victim girl on 29.11.2010 at 4.50 p.m. has
issued the certificate as per Ex.P14 noticing the
contents of her medical examination in the said
document. While discussing on Ex.P14, it is discussed
that what were all the features she noticed while
33 CRL.A . 884 of 2014
medically examining the victim girl. Contents of Ex.P14
are not disputed by both the side. It has come in the
cross-examination of PW.13 that, normally in case of
rape, the victim may sustain injuries on her person but,
she has not noticed any type of injuries on the person of
the victim girl. She has denied all other suggestions
directed to her.
47. PW.14 K.G.Veena, PC of Kowlande police station
accompanied the victim girl to the Hospital for medical
examination and submitted a report as per Ex.P15.
According to her, the victim girl was taken to the Hospital
in between 12.30 p.m. and 1.00 p.m. but she cannot say
the time of her return to the police station. To the extent
of accompanying victim girl to the Hospital, her evidence
is to be believed. Likewise PW.15 P.Champak the Police
Constable took the victim girl on 29.11.2010 to the
Mysore Medical College for the purpose of medical
examination and obtained certificate as per Ex.P17. To
34 CRL.A . 884 of 2014
the extent of obtaining Ex.P17 after medical examination
his version is to be believed.
48. PW.16, Dr.D.N.Chandrashekar also examined the
victim girl and after medical examination of victim girl of
her teeth, X-ray, physical examination, development of
her private part etc.., came to the opinion that, the
victim girl was aged more than 17 years and less than 18
years and to that effect he has issued Ex.P17.
49. No effective cross-examination is directed. It is his
evidence that, if the girl is minor he has to obtain the
permission of the parents or guardian of the girl. But, in
this case, he has not obtained any person either from the
parents or guardian of the victim girl.
50. From the evidence of this witness, it shows that
the victim girl was aged between more than 17 years and
less than 18 years when she was medically examined.
This fact is not disputed by the prosecution or the
defence.
35 CRL.A . 884 of 2014
51. PW.17 was the Village Accountant of Nanjangud
Taluk and has issued RTC extract as per Ex.P18. NO
cross-examination is directed to this witness by the
defence. To the extent of issuing Ex.P18 his evidence is
to be believed.
52. PW.18, Nanjundiah was HC of Kowlande police
station as the relevant time on 29.11.2010, as per the
directions of PSI went to Tagadur village and as shown
by the victim girl, prepared the Pancahnama of the scene
of offence as per Ex.P2 obtained the photographs as per
Ex.P3 and P4 prepared the sketch as per Ex.P19.
According to his evidence, the said scene of offence and
as shown by the victim, he prepared the panchanama. To
the extent of conducting panchanama and obtaining the
photographs, his evidence is to be believed.
53. PW.19, Krishna S/o. Ramanna, the ASI of
Kowlande police station at the relevant time who typed
the complaint filed by the victim as dictated by her and
registered the crime in Crime NO.179/2010 of Kowlande
36 CRL.A . 884 of 2014
PS prepared the FIR as per Ex.P20. He identifies Ex.P1.
No cross-examination is directed to this witness by the
defence. That means, defence admits filing of a
complaint as per Ex.P1 and also setting the criminal law
in motion.
54. PW.20, Devendra S/o.Ramaiah, the Police
Constable of Kowlande Police Station at the relevant
time, as per the directions of his superiors, he
apprehended the accused at Tagadur Bus Stand and
produced before IO and produced Ex.P21 report.
Apprehension of accused and his production before the
IO is not disputed by the defence.
55. PW.21 Yathish Kumar S/o. Revanna was Police
Constable of Kowlande Police station carried the FIR to
the Magistrate. No cross-examination is directed to him.
56. PW.22 Zenith S/o.Mohammed Basha, the In-
charge Scientific Officer, FSL, Bengaluru speaks in his
37 CRL.A . 884 of 2014
evidence about scientifically examining 16 love letters
comparing the hand writings. On scientific examination,
he has given opinion that the said handwritings pertain
to accused and to that effect, he has given opinion as per
Ex.P22. Except denial nothing is elicited from his mouth.
57. As discussed supra, the contents of letters stated
above and the handwriting pertains to accused is not
disputed by the defence.
58. PW.23, Mallegowda, S/o.Kullakuppegowda is a
neighbour to the house of the victim and accused. But,
has been declared as hostile witness. Nothing worth has
been elicited from his mouth.
59. PW.24, Pramodh Kumar B., was the investigation
officer who conducted the investigation and filed the
charge sheet against the accused. Though he has been
directed with intensive cross-examination but, nothing
worth is elicited from his mouth.
38 CRL.A . 884 of 2014
60. So far conducting of investigation by him, defence
never disputes the same.
61. On cumulative reading of the evidence adduced by
the prosecution, it shows that, much contradictory and
discrepant evidence has been spoken to by all the
witnesses. As stated supra, PW.1 being the main witness
in this case has altogether given a different evidence with
that of her own first complaint marked as Ex.P27 and
second complaint on which the criminal law was set in
motion marked as Ex.P1.
62. On reading the entire oral and documentary
evidence there are large discrepancies in the complaint
made to the police both Ex.P27 and P1 respectively. Even
based upon Ex.P1, FIR was registered if considered in the
light of the statement which the complaint was filed as
per Ex.P27, we find so many improvements,
embellishments. This fact is not properly explained by
the prosecution.
39 CRL.A . 884 of 2014
63. On reading the entire text of the evidence, it
shows that, the relations between the parties are shown
to be consensual if any. The mis-statement by the
complainant is evident from the fact that she claimed to
have love affair with the accused and she had no physical
contact prior to six months of filing the complaint. The
initiation of the proceedings against the accused as per
the argument of the counsel for the accused being an
abuse of process of law have some force.
64. The learned HCGP submitted that, on account of
the assertions made in the complaint, it is proved by the
prosecution that the accused has committed the
aforesaid offence. It is alleged by the complainant that
on a false promise to marry, both herself and accused
had physical intercourse. There was an assurance to
perform the marriage by the father of accused. All the
family members knew about the same. It was all in good
faith on the promise made by the accused. According to
the prosecution, with these facts on record, it is a clear
40 CRL.A . 884 of 2014
case of rape on false promise to marry is made out
against the accused.
65. On referring the FIR and the complaint, it is stated
by the victim that herself and accused had love affair.
According to her, prior to six months of the incident, on
assurance to marry her, accused raped her. She never
disclosed the date of such an offence. Even thereafter
also there were exchange of love letters in between
them. She has categorically stated that, in all the love
letters addressed by accused there is no mention that he
is going to marry her. Gradually the relationship between
them developed as per her evidence.
66. The investigation officer after registering the
complaint never chose to record her statement under
Section 164 of Cr.PC. In the second complaint Ex.P1 as
per the evidence placed on record, there was a complete
change in the stand of the complainant. The fact remains
that the parties admittedly were in relationship from the
time when the victim girl was studying in 10th Standard.
41 CRL.A . 884 of 2014
Alleged promise to marry came about six months back
prior to filing of compliant Ex.P1 from where they started
having physical relation. It has also come on record that,
it is not only the consent of the complainant which is
really evident from her own evidence. It is her evidence
that, often both used to meet together. On the date of
alleged incident, she left the house at 4.30 p.m. and she
was with the accused till 7.30 p.m.
67. From the contents of the complaint i.e. Ex.P1 on
the basis of which, FIR was got registered and her earlier
statement before the Police as per Ex.P27 it is evident
that there was no promise to marry initially when
relations between them started when she was studying in
10th Standard. In any case, even on the dates, months,
time etc..., when the complainant alleged about her visit
with the accused, she never stated about promise to
marry as alleged in Ex.P1. In Ex.P1, for the first time,
after six months of the incident, she states though there
was a promise to marry when panchayath was conducted
42 CRL.A . 884 of 2014
accused ran away from the village. It is not a case where
the complainant was of an immature age who could not
foresee her welfare and take right decision. She was a
grown up girl studying in PUC, aged about 18 years. She
was matured and intelligent enough to understand the
consequences of the moral and immoral acts for which
she consented. In fact, it was a case of betraying her
welfare.
68. In a recent decision of Hon'ble Apex in 2024 SCC
Online SC 316 between Mrs.X vs. Mrs.A and others, the
Hon'ble Apex Court have categorically held that, in a case
of present nature, taking into consideration of the
allegations of FIR and charge sheet as they stand, the
crucial ingredients of the offence have to be proved. In
the course of the judgment in para.11 the Apex Court
has referred the judgment in Pramod Suryabhan Pawar
vs. State of Maharashtra reported in (2019) 9 SCC
608 wherein, the Hon'ble Apex Court has observed in
para.18 of the judgment as under:
43 CRL.A . 884 of 2014
"To summarise the legal position that emerges
from the above cases, the ''consent'' of a
woman with respect to Section 375 must
involve an active and reasoned deliberation
towards the proposed act. To establish whether
the ''consent'' was vitiated by a ''misconception
of fact'' arising out of a promise to marry, two
propositions must be established. The promise
of marriage must have been a false promise,
given in bad faith and with no intention of being
adhered to at the time it was given. The false
promise itself must be of immediate relevance,
or bear a direct nexus to the woman's decision
to engage in the sexual act.
69. In the aforesaid 2024 SCC Online SC 316 at
para.13 the Hon'ble Apex Court has given events that
have taken place based upon the facts of the case.
70. By taking the allegations in the FIR, the charge
sheet and the contents of Ex.P27, the first complaint and
the evidence placed on record by the prosecution, the
crucial ingredients of the offence under Sections 415 and
375 of IPC are absent in this case. The relationship
between the parties was purely of a consensual nature.
In the backdrop of interpretation of the various relevant
provisions and also the evidence placed on record by the
44 CRL.A . 884 of 2014
prosecution, if looked into, the trial Court has committed
a factual and legal error in appreciating the evidence
placed on record by the prosecution. None of the
ingredients of offence under Section 415 and 375 of the
IPC are fulfilled by the prosecution with legal and
acceptable evidence. This being the first appellate Court,
under the provisions of the criminal law the appellant
court, can very well re-appreciate the evidence and come
to a definite conclusion to know that whether the
prosecution was right in proving its case or otherwise. In
the light of the aforesaid ingredients culled out in the
aforesaid paras, offences alleged against the accused and
in the light of evidence placed by the prosecution, in my
opinion, the prosecution case suffers from material
particulars. The evidence of victim is full of
improvements, embellishments and with contradictory
statement not only in the complaints so filed by her but
also in the evidence. In a case of present nature, victim
is the best witness to speak the real truth. But, her stand
throughout the evidence is altogether is inconsistent.
45 CRL.A . 884 of 2014
Such a evidence never inspire any confidence so as to
believe her story.
71. During the course of arguments, it was submitted
by the learned HCGP as well as the accused appellant
that the victim girl is married to a different person and
residing happily with her husband and children. Even the
accused is also married and residing happily with his
wife. This submission is placed on record as per the
submissions of both the side.
72. If all the aforesaid factual features coupled with
the position of law is put together, the prosecution has
utterly failed to prove the guilt of the accused to the hilt.
The learned trial Court by basing the evidence of PW.1
victim only has come to a wrong conclusion that, it was a
case of cheating and rape which in my opinion is
incorrect.
73. The said finding of the trial Court requires
interference by this Court. Consequentially, the judgment
46 CRL.A . 884 of 2014
of conviction and order of sentence passed by the trial
Court is liable to be set aside by allowing this appeal.
Resultantly, I pass the following:
ORDER
i) Appeal filed by the appellant is allowed.
ii) Judgment of Conviction dated 12.6.2014
and order of sentence dated 17.6.2014
passed in SC No.78/2011 by the VII
Additional Sessions Judge, Mysore dated
12.6.2014 is set aside.
iii) The appellant- accused is acquitted of
the charges levelled against him under
Section 415 and 376 of IPC.
iv) His bail bonds stand cancelled and is set
at liberty.
v) Send back the trial Court records along
with a copy of the judgment.
47 CRL.A . 884 of 2014
vi) Orders regarding disposal of the
property is undisturbed.
Sd/-
JUDGE
CPN/Sk/-
