Karnataka High Court

Duradundappa @ Duradundeshwar S/O ... vs The State Of Karnataka on 29 January, 2025

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

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                                                                                  NC: 2025:KHC-D:1779
                                                                             CRL.A No. 100490 of 2019




                                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                                 DATED THIS THE 29TH DAY OF JANUARY, 2025
                                                                  BEFORE
                                            THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
                                                   CRIMINAL APPEAL NO. 100490 OF 2019 (C)

                                        BETWEEN:

                                        DURADUNDAPPA @ DURADUNDESHWAR
                                        S/O. NAGAPPA BANGARI, AGE: 32 YEARS,
                                        R/O: RAKSHISHIRAGAUM, NOW AT BELAGAVI.
                                                                                         ...APPELLANT
                                        (BY SRI. VITTHAL S.TELI, ADVOCATE)

                                        AND:

                                        THE STATE OF KARNATAKA
                                        REPRESENTED BY THE
                                        STATE PUBLIC PROSECUTOR,
                                        HIGH COURT OF KARNATAKA,
                                        DHARWAD BENCH, DHARWAD, THROUGH
                                        BAGALKOT TOWN POLICE STATION, BAGALKOT.
                                                                                  ...RESPONDENT
                                        (BY SRI. T.HANUMAREDDY, ADDL. GOVT. ADVOCATE)

                                             THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
                                        PRAYING TO, SECURE THE RECORDS IN SESSION CASE
                Digitally signed by B
                K
                MAHENDRAKUMAR
                                        NO.24/2015 ON THE FILE OF THE PRINCIPAL DISTRICT & SESSION
BK
MAHENDRAKUMAR
                Location: HIGH
                COURT OF
                KARNATAKA
                                        JUDGE, BAGALKOT AND TO SET ASIDE THE JUDGMENT OF
                DHARWAD BENCH
                Date: 2025.02.01
                13:32:22 +0530
                                        CONVICTION DATED 26.11.2019 AND ORDER ON SENTENCE
                                        DATED 27.11.2019 IN SESSION CASE NO.24/2015 ON THE FILE OF
                                        THE PRINCIPAL DISTRICT & SESSION JUDGE, BAGALKOT FOR
                                        OFFENCES UNDER SECTION 376 AND 420 OF THE INDIAN PENAL
                                        CODE.

                                            THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                                        JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                                        CORAM:   THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
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                                                NC: 2025:KHC-D:1779
                                         CRL.A No. 100490 of 2019




                           ORAL JUDGMENT

1. This appeal by the accused is filed under Section 374(2) of Criminal Procedure Code, 1973 (Cr.P.C.) challenging the judgment of conviction and order of sentence passed by the [Name of the Trial Court], wherein the accused has been convicted for offences punishable under Sections 376 and 420 of the Indian Penal Code, 1860 (IPC) and sentenced to undergo rigorous imprisonment for a period of seven years.

2. The prosecution's case is that on 23.08.2014, at approximately 6:00 a.m. in Bagalkot town, the accused allegedly induced the complainant's daughter (CW1) with a false promise of marriage, abducted her, and took her to Belagavi. It is further alleged that the accused wrongfully confined CW1 at Sheetal Lodge, Belagavi, from 25.08.2014 to 05.09.2014. During this period, the accused is alleged to have committed rape on CW1.

3. It is further alleged that three months prior to 23.08.2014, the accused falsely represented himself as an employee of the State Bank of India and expressed his intention to marry CW1. He allegedly persuaded the complainant to send CW1 along with him to introduce her to his father. When the complainant refused, the accused is said to have used criminal force, dragged the complainant by holding her blouse, and tore it with the intent to disrobe her.

4. Furthermore, it is alleged that the accused sought financial assistance from the complainant, claiming that he was constructing a new house in Belagavi. Based on this

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misrepresentation, he induced the complainant to deposit a sum of ₹75,000 into his State Bank of India account bearing number 20192075023. Additionally, he is alleged to have obtained ₹10,000 as a hand loan from the complainant and subsequently cheated her.

5. To establish its case, the prosecution examined a total of 16 witnesses, designated as PW1 to PW16, and produced documentary evidence marked as Exhibits P1 to P33A. Additionally, two material objects were exhibited as MO1 and MO2. The trial Court, after framing points for consideration and appreciating the evidence on record, held that the prosecution had proved the guilt of the accused beyond all reasonable doubt and accordingly passed the impugned judgment of conviction and order of sentence.

6. Learned counsel for the appellant argued that the trial Court misread the evidence on record, which clearly establishes that the survivor (PW6) had voluntarily accompanied the accused on the date of the alleged incident, i.e., 23.08.2014. He contended that the sexual intercourse between the accused and PW6 was consensual and that the case was registered as a means to evade repayment of a loan amount borrowed by the complainant. He further submitted that the testimony of the manager and room boy of Sheetal Lodge (PW4 & PW5) confirms that the accused and PW6 stayed in the lodge as a married couple. However, this crucial evidence was not properly considered by the trial Court, leading to

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the erroneous conviction and sentencing of the accused, which is legally unsustainable.

7. Additionally, learned counsel argued that the reasoning adopted by the trial Court is inconsistent. While the Court found that the accused had allegedly taken PW6 from Bagalkot to Chikkodi and then to Belagavi by force, it nevertheless acquitted the accused of offences punishable under Sections 344, 366, and 354B of the IPC. This contradiction in findings, he contended, renders the conviction vitiated.

8. Learned Additional Government Advocate for the respondent/State submitted that the testimony of material witnesses, namely PW6 (the survivor) and PW1 (the mother of the survivor), along with the medical evidence, clearly establishes that the accused, by inducing the survivor with a false promise of marriage, forcibly engaged in sexual intercourse with her. Furthermore, the evidence on record demonstrates that the accused, by failing to repay the hand loan borrowed from the complainant, committed an offence punishable under Section 420 of the IPC. Therefore, the impugned judgment of conviction and order of sentence was rendered after a proper appreciation of the evidence on record and does not warrant any interference.

9. After considering the arguments advanced by learned counsel for both parties and upon perusal of the trial Court records, the point that arises for consideration is:

Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt, and whether the

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impugned judgment of conviction and order of sentence passed by the trial Court is legally sustainable?

10. PW1-mother of the survivor (PW6) in her examination- in-chief supported the case of the prosecution. However, during cross-examination, she admitted that three months prior to the date of the alleged incident, the accused had taken her, PW6 (the survivor), and PW3 (her son) to Mysore to visit his father. Therefore, her statement in the examination-in-chief that the accused forcibly took her daughter to Mysore on the date of the incident contradicts her own testimony in cross-examination. Additionally, she denied having borrowed any loan from the accused.

11. PW2, a panch witness for the seizure of the mobile phone, clothing, and the inspection of the scene at Sheetal Lodge, supported the prosecution's case.

12. PW3, the son of PW1 and brother of PW6, also supported the prosecution's case. In his cross-examination, he stated that the relationship between the accused's family and the complainant's family was cordial. He admitted that his sister used to speak to him frequently over the phone from 23.08.2014 to 05.09.2014, and that he was confident the accused would bring his sister back home. He also denied that his mother (PW1) had borrowed any loan from the accused.

13. PW4, the manager of Sheetal Lodge, stated in his examination-in-chief that the accused had not wrongfully confined the survivor (PW6) in the lodge and had forcible sexual intercourse

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with her. He further stated that the survivor was wearing a mangalsutra, which led him to believe that she was married, and he therefore allotted a room to the accused and the survivor. However, in his cross-examination, he stated that the accused and the survivor frequently left the lodge and returned.

14. PW5, a room boy at Sheetal Lodge, corroborated the statement of PW4, the manager.

15. PW6, the survivor, stated in her examination-in-chief that on 23.08.2014, despite objections from her mother, the accused forcibly took her from Bagalkot to Chikkodi and later to Belagavi, where they stayed in Room No. 109 of Sheetal Lodge. She alleged that the accused misbehaved with her and, despite her resistance, forcibly engaged in sexual intercourse. She further stated that on 05.09.2014, the police arrived at the lodge and took them back to Bagalkot. Additionally, she claimed that when the accused forcibly took her to Bagalkot, he obtained ₹85,000 from her mother (PW1).

16. However, in her cross-examination, PW6 admitted that the accused frequently visited their house and spoke to her on the phone. She further stated that on 03.07.2014, the accused had taken her, her mother, and her brother to Mysore, where they stayed in a lodge for 2-3 days at his expense. She also admitted that the accused had not borrowed ₹85,000 from her mother; rather, her mother had borrowed ₹1,25,000 from the accused, of which a portion had already been repaid.

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17. The remaining witnesses are official witnesses, and their testimonies are not considered material to the case. Therefore, their evidence may not be relevant for the purpose of adjudication.

18. The prosecution alleges that although the accused was not an employee of the State Bank of India, he fraudulently obtained the survivor's (PW6) consent for marriage by misrepresenting his identity and concealing his actual name. However, the prosecution's claim that the accused borrowed ₹85,000 from PW1 lacks substantial evidence. On the contrary, the evidence on record indicates that PW6's mother had borrowed money from the accused and deposited part of the borrowed amount into his bank account on 01.07.2014 and 02.07.2014, as evidenced by Exhibits P2 and P3.

19. Furthermore, the documents at Exhibits P2 and P3 show the accused's name as Bangari N.D., whereas the complaint refers to him as Rajesh S/o Nagaraj Kallolli. This discrepancy undermines the prosecution's claim that the accused had borrowed ₹85,000 from PW1.

20. The prosecution also alleges that PW6 was wrongfully confined at Sheetal Lodge until 05.09.2014. However, the prosecution has failed to establish that the survivor, at any point during this period, resisted the accused from engaging in sexual intercourse. On the contrary, the evidence on record confirms that she was in regular contact with her brother. Additionally, the testimonies of the manager (PW4) and room boy (PW5) of Sheetal

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Lodge clearly indicate that the accused and PW6 presented themselves as a married couple and frequently left the lodge and returned.

21. There is no substantive evidence, apart from the self- serving statement of PW6, to prove that the accused forcibly engaged in sexual intercourse with her. Moreover, the financial transactions between PW1 and the accused strongly suggest that the accused has been falsely implicated after demanding repayment of the money borrowed by PW1.

22. The categorical admissions of PW1, PW2, and PW6 that, prior to the alleged incident, they had voluntarily traveled to Mysore with the accused at his expense clearly establish that the relationship between the accused and PW6 was consensual. Furthermore, no attempt was made by PW1 to file a complaint on 23.08.2014, when the accused allegedly took PW6 to Bagalkot in presence. Instead, PW1 filed a complaint only on 31.08.2014, alleging that the accused had abducted PW6, which casts doubt on the prosecution's case.

23. The trial Court acquitted the accused of the offences punishable under Sections 366, 344, and 354B of the IPC. Therefore, the conviction of the accused for the offence punishable under Section 376 of the IPC runs contrary to the trial Court's own finding, which acquitted the accused of the charges of abduction and outraging modesty.

24. Additionally, the accused was convicted under Section 420 of the IPC on the ground that he failed to repay a sum of

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₹85,000 allegedly borrowed from PW1. However, the evidence on record establishes that it was PW1 who had borrowed money from the accused and had repaid part of the loan, as evidenced by Exhibits P2 and P3.

25. In light of the aforementioned reasons, facts, and circumstances of the case, the impugned judgment of conviction and order of sentence is not legally sustainable.

26. Accordingly, I proceed to pass the following:

ORDER

a) The appeal is allowed.

       b)      The judgment of conviction dated 26.11.2019 and order
               sentence      dated    27.11.2019   in   Session   Case

No.24/2015 passed by the Principal District & Session Judge, Bagalkot is set aside.

c) The appellant/accused is acquitted of the charged offences; and Jail Authorities are directed to release the appellant forthwith, if not required in any other case.