Karnataka High Court
Sagar @ Arun vs The State Of Karnataka on 16 October, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 200176 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.200176 OF 2018
(374(Cr.PC)/415(BNSS))
BETWEEN:
SAGAR @ ARUN S/O MOTILAL RATHOD,
AGE: 21 YEARS, R/O KESARATTI,
TQ. SINDAGI, DIST. VIJAYAPUR-586101.
...APPELLANT
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY ADDL. S.P.P.,
HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585106.
(THROUGH TALIKOTI P.S.
DIST.VIJAYAPUR-586101)
Digitally signed by ...RESPONDENT
KHAJAAMEEN L
MALAGHAN (BY SRI JAMADAR SHAHABUDDIN, HCGP)
Location: High
Court Of Karnataka THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C. PRAYING TO ADMIT THIS APPEAL, CALL FOR
THE RECORDS FROM THE COURT BELOW AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED: 28.11.2018 AND 29.11.2018 RESPECTIVELY PASSED
BY THE II ADDL. DISTRICT & SESSIONS JUDGE, AT
VIJAYAPURA, IN S.C.NO.103/2016 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 341, 376(2)(f) AND 506 OF IPC
AND ACQUIT THE APPELLANT/ACCUSED, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 200176 of 2018
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
ORAL JUDGMENT
The judgment and order dated 28.11.2018 and
29.11.2018 passed by the Court of II Additional District
and Sessions Judge, Vijayapura [for short, 'the Sessions
Judge'] in Sessions Case No.103/2016, convicting and
sentencing the accused/appellant for offences punishable
under Sections 341, 376 (2) (f) and 506 of IPC, is assailed
in this appeal.
2. The learned Sessions Judge has found the
accused guilty of the aforementioned offences and
sentenced him to undergo rigorous imprisonment for ten
years and to pay a fine of Rs.20,000/- for the offence
punishable under Section 376 (2) (f) of IPC, simple
imprisonment for one month and fine of Rs.500/- for the
offence punishable under Section 341 of IPC, simple
imprisonment for one year and fine of Rs.2,000/- for the
offence punishable under Section 506 of IPC, with default
sentence for non-payment of fine, for each of the offences.
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3. Heard the learned counsel for the appellant and
the learned High Court Government Pleader for the State
and perused the evidence and material on record.
4. The prosecution has alleged that on 10.12.2015
at about 8.00 p.m. in land bearing RS No.102/1 of CW-
6/Gollalappa situated in Tumbagi village, Muddebihal
taluk, when the victim/PW-1/complainant had been to
attend the second call of nature, accused wrongfully
restrained her and committed forcible sexual intercourse
and also criminally intimidated by posing life threat to her,
thereby committed the charged offences.
5. In order to establish the charges leveled, the
prosecution examined twelve witnesses and got marked
seventeen documents and M.Os.1 and 2, before the Trial
Court.
6. The learned Sessions Judge, on appreciation of
the oral and documentary evidence adduced, came to the
conclusion that the evidence of the prosecutrix is
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trustworthy and cogent and therefore, it does not require
any corroboration from other witnesses and the medical
examination report clearly establish that there is forcible
sexual intercourse by the accused on the victim.
7. Section 376 (2) (f) of IPC was invoked as the
accused was a relative of the victim, which is not denied
by the defence. However, the defence taken was that the
accused and the victim were known to each other and
accused wanted to marry the victim, which was opposed
by others namely the parents and brothers of the victim,
on the other hand they wanted her marriage performed
with one Vithal and therefore, filed a false case against the
accused.
8. The incident is alleged to have taken place on
10.12.2015 at about 8.00 p.m. It is alleged that the
victim/PW-1 along with her cousin Vanitha, examined as
PW-7 had gone to attend the call of nature towards the
land of one Babu Chavan and at that time the accused
came and dragged the victim by holding her hand inside
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the field. PW-7 ran towards the house and informed the
matter to victim's mother and other relatives. The accused
by then, forcibly removed victim's leggings and committed
sexual intercourse on her.
9. In Ex.P-1/complaint, victim has stated that
when she screamed, her brother, cousins and others came
to the spot and assaulted the accused, however, he ran
away and escaped. She then informed her mother and
others about the incident. She has further stated that
since her father had been to Pandharpur, after he returned
home, her mother informed the matter to him and then
the complaint was lodged.
10. A case was registered at Kalkeri police station
in Crime No.129/2015 against the accused by the PSI -
PW-9, which was later transferred to Talikoti police station
on the point of jurisdiction and registered as Crime
No.7/2016.
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11. Learned counsel for the appellant has
contended that there is delay in lodging the complaint,
which has been used to falsely implicate the accused. The
learned High Court Government Pleader has contended
that the delay has been properly explained in the
complaint itself and the delay if any is not a ground to
disbelieve the case of prosecution.
12. Case was registered at Kalkeri police station, on
11.12.2015 at about 11.00 am. Incident has taken place
in the village, which is about 8 kilo meters away from the
police station. The incident took place during night hours.
The reason for lodging the complaint on the next day has
been explained in Ex.P.1. Hence, delay in lodging the
complaint is not a ground to throw away the prosecution
case. However, burden lies on the prosecution to establish
that the incident as alleged has taken place and to prove
the charges leveled against the accused, beyond
reasonable doubt.
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13. In Ex.P.1, the victim has stated that she had
gone to attend the call of nature along with her cousin by
name Vanita. When the accused started dragging her, her
cousin ran towards her house. On hearing her scream, her
brothers' and cousin came to the spot and they started
assaulting the accused, however, accused fled away.
14. Before appreciating the evidence of the
prosecutrix, it is necessary to examine the evidence of
other material witnesses who have supported the
prosecution case. The prosecution has examined victims
cousin Vanitha as PW.7, brother of the victim as PW-4 and
her another cousin is examined as PW-5 and victim's
mother is examined as PW3. Two other material
witnesses, cited as CW-9 and CW-10 are not examined.
15. PW-7 has deposed in her evidence that, she
along with the victim had gone to attend the call of nature
on 10.12.2015 at 8.00 p.m., towards Talikoti road. When
the victim was sitting for attending the nature's call,
accused came and held her hands and started to pull her.
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Both of them opposed and beat him. Then she ran towards
the house and informed the matter to her parents and
returned to the spot along with her uncle and brothers'
and at that time they saw the victim weeping. On enquiry,
she informed them that the accused spoiled her.
16. A perusal of the evidence of PW-7 goes to show
that after she ran towards the house and informed the
matter to others, she along with others namely the
brothers' and cousin of the victim came to the spot.
However, she has not stated that when they came to the
spot even the accused was present. On the other hand,
she has stated that when they came to the spot, victim
was weeping and she was coming towards her house.
Contrary to the same, PW-4, brother of the victim has
deposed in his evidence that he along with his mother and
others went to the spot and caught hold the accused and
beat him, but the accused escaped from the spot. On
enquiry, victim told them that the accused tried to commit
rape on her.
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17. PW-5 cousin of the victim, who also went along
with others to the spot has deposed that when they went
to the spot, accused ran away. He has not stated that they
caught the accused and assaulted him etc.
18. PW-3 is victim's mother. She has deposed
about the victim going along with PW-7 to attend the call
of nature and within a short time PW-7 returning home
and informing her and others about the incident. She has
stated that immediately she went to the spot along with
others and when they went there, accused ran away and
others chased and assaulted him.
19. There is discrepancy in the evidence of the
above witnesses with regard to the presence of accused
when they all went to the spot after PW-7 informed them
about accused dragging the victim towards the field.
Admittedly, these witnesses have not seen the accused
committing sexual assault on the victim. However, the
discrepancy noticed above will not come in the away of
disbelieving the evidence of prosecutrix, if otherwise the
charges are established from her evidence.
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20. The learned High Court Government Pleader
has contended that the evidence of the prosecutrix alone
is sufficient in a case of this nature to prove the guilt of an
accused. He contended that, in this case the evidence of
the victim is corroborated by medical evidence and the
evidence of other witnesses would be helpful to
prosecution in the form of circumstantial evidence.
21. It is argued by the learned counsel for appellant
that the evidence of the prosecutrix in this case is not
trustworthy and the medical evidence also does not
support the say of prosecution to prove that it is a case of
forcible sexual intercourse committed by the accused. To
buttress his argument, learned counsel has drawn the
attention of the Court to the history furnished to the
Doctor by the victim herself, at the time of her
examination. He contended that even accepting that
incident has taken place, this is a case of consensual sex
and on seeing the victim and the accused together,
brother and other relatives of the victim have implicated
the accused in a false case.
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22. The learned counsel relied on a decision of the
Hon'ble Supreme Court reported in 2024 AIAR
(Criminal) 151 in the case of Ved Pal and another vs.
State of Haryana. Paras No.8, 11 and 12 are extracted
hereunder:-
"8. No doubt that the conviction of the appellants
under Section 376 of the IPC could be recorded
on the sole testimony of the prosecutrix if the
evidence is found to be trustworthy, cogent and
reliable. As rightly pointed out by Ms. Ruchi
Kohli, learned counsel appearing for the State,
the minor contradictions in the evidence of the
prosecution witnesses would not substantially
deter the prosecution case.
11. As such, it is clear that even according to the
prosecution, the prosecutrix was dragged from
her house to the house of accused Suresh. It is
difficult to believe that, at that time, the
prosecutrix did not make any cries/hues.
12. It is further to be noted that in the medical
evidence, the Doctor has specifically stated that
no injuries were found on the person of the
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prosecutrix. Though he has opined that the
possibility of the sexual intercourse could not be
ruled out, he has also stated that the possibility
of intercourse earlier to the MLR cannot be ruled
out. It is further to be noted that the FSL report
further finds that no semen was found on the
clothes of the prosecutrix or on the vaginal swab.
The semen was found on the underwear of
accused Suresh."
23. The learned counsel for appellant has drawn
attention of the Court to the cross-examination of PW.5,
wherein the said witness admitted that, there were talks of
giving victim in marriage to one Vittal and they had
decided to perform the marriage of the victim with the
said Vittal, during the marriage of her uncle, to minimize
the marriage expenditures.
24. It is well settled that to hold an accused guilty
of commission of offence of rape, solitary evidence of
prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy. Her
evidence should be of sterling quality and unblemished.
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25. To establish that the accused has committed
rape, prosecution has to prove the ingredients of the said
offence. If the victim is proved to be a minor i.e., aged
below 18 years, then even if there is consent given by her,
the same is not a consent in the eye of law. In the case on
hand, admittedly the victim was not a minor as on the
date of commission of the offence. Hence, whether there
was consent or not on the part of the victim is a matter
which has to be examined by the Court by appreciating
not only the evidence of the victim, but also other
evidence and material on record.
26. The victim has been examined as PW-1. She
has deposed that on 10.12.2015 at about 8.00 p.m.,
herself and her cousin Vanita had been to attend the call
of nature near the land of Madivalappa Gollalappa Sevu
Chavan, at that time, suddenly the accused came and held
her hand and dragged her towards the sunflower field.
Her cousin ran towards the house. Then accused took
her towards the sunflower field, pulled down her pant and
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undergarment and committed rape on her. When her
brother came to the spot, accused ran away. She has
stated that her another brother Raju and a person by
name Kiran Pawar also came to the spot.
27. According to the victim, accused took her
towards the sunflower field, pulled down her pant and
undergarment and committed rape on her and when her
brother by name Anil came to the spot, accused ran away.
She has nowhere stated that she objected when the
accused dragged her towards the sunflower field or
screamed, resisted or beat him, as deposed by PW-7. In
the cross-examination she has admitted that accused is
the nephew of her mother and he was residing in the same
village. She has not stated that after her cousin Vanita
i.e., PW-7 ran towards her house, she returned to the spot
along with her mother, brother, cousin and others. She
has not at all stated about PW-7 returning to the spot. On
the other hand, she has stated that when her brother Anil
came to the spot, accused ran away. It appears that when
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victim's brother by name Anil, examined as PW-5 came to
the spot and saw the victim and accused together,
accused ran away from the spot. Hence, a doubt arises in
the mind of the Court as to whether it was a consensual
sex or rape as alleged by the prosecution.
28. It is contended by the learned counsel for
appellant that the medical evidence does not suggest that
sexual intercourse was committed at all. Pointing out to
the evidence of PWs-4 and 5, he has contended that
according to the said witnesses the accused tried to
commit rape and molest the victim, whereas, they have
not stated that the accused has raped the victim. He
contended that as per FSL report seminal stains were not
detected in the articles sent for examination i.e., the panty
and underwear of the victim.
29. The prosecution has examined the Doctor PW-
8, working at BLDE Hospital, Vijayapura, who conducted
medical examination of the victim as well as the accused.
The final opinion in respect of the victim, furnished by him
is marked as Ex.P.8. He has opined that, signs of recent
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sexual intercourse present in the form of swollen and
reddened labia minora, reddened vagina, blood stained
fluid oozing out of vagina, ruptured hymen seen.
30. It is vehemently contended by the learned
counsel for appellant that, considering the place where the
alleged incident took place, which is a sunflower field and
if the victim had resisted the act of rape, certainly she
would have sustained external injuries. PW-8 has
examined the victim on 11.12.2015 at about 06.30 p.m.
He did not notice any other external injuries on the body
of the victim. In the cross-examination he admitted that, if
there is consensual sexual intercourse, there cannot be
external injuries over the body.
31. It is also relevant to notice that, as per FSL
report - Ex.P.17, the articles sent for examination were
found negative for seminal stains. What is more important
to be noticed in this case is that, the history furnished to
the doctor at the time of examination of the victim. In
Ex.P.8 - certificate issued by the doctor - PW.8 regarding
examination of the victim, history furnished is "voluntary
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sexual intercourse with Sagar Rathod". If it was a case of
forcible sexual intercourse, there was no reason for
furnishing the history before the Doctor that, the sexual
intercourse with accused was voluntary. Admittedly, it is
not the case of prosecution that, the said history was
furnished by accused. Ex.P.8 being the document of the
prosecution and PW.8 being a prosecution witness, himself
having deposed in his evidence that, the victim has given
history as voluntary sexual intercourse with the accused,
case of the prosecution that, accused has committed rape
on the victim, appears to be highly doubtful.
32. As already discussed, victim was a major at the
time of incident. Her evidence that accused committed
forcible sexual intercourse, against her will, does not
inspire confidence of the Court. In fact, the same is
disproved by her own statement made before the doctor at
the time of her examination. Hence, accused is entitled to
benefit of doubt. The judgment and order of conviction
and sentence passed by the Trial Court are therefore liable
to be set-aside. Accordingly, the following;
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ORDER
I. The appeal is allowed.
II. The judgment and order dated 28-11-2018 and
29-11-2018 passed by the Court of II Additional
District and Sessions Judge, Vijayapura in Sessions
Case No.103/2016 are set-aside.
III. The appellant / accused is acquitted of the offences
punishable under Sections 341, 376 (2) (f) and 506
of IPC.
IV. His bail bond stands cancelled.
V. The fine amount if any deposited in this case, shall
be refunded to accused.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
SWK,AMM,KJJ
CT:SI
