[Cites 6, Cited by 0]
Karnataka High Court
State By Police Inspector vs Dayananda on 22 January, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 938 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.938 OF 2018
BETWEEN:
1. STATE BY POLICE INSPECTOR,
UPPINANGADI POLICE,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560001.
...APPELLANT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
AND:
1. DAYANANDA,
AGED ABOUT 35 YEARS,
Digitally signed S/O LINGA HARIJANA,
by DEVIKA M R/O NIRANA COLONY,
Location: HIGH SHIBAJE VILLAGE AND POST,
COURT OF BELTHANTADY TALUK,
KARNATAKA D.K. DISTRICT-574198.
2. SURESH,
S/O KUNHI HARIJANA,
AGED ABOUT 24 YEARS,
R/O NIRANA COLONY,
SHIBAJE VILLAGE AND POST
BELTHANGADY TALUK,
D.K. DISTRICT-574198.
...RESPONDENTS
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE FOR R1 AND R2)
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CRL.A No. 938 of 2018
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 30.10.2017 IN S.C.NO.124/2015 PASSED BY THE VI
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANGALURU,
THEREBY ACQUITTING THE RESPONDENT FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 448, 376(2)(n), 376(d), 506
R/W SECTION 34 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard the learned Additional SPP appearing for the
appellant/State and the learned counsel for respondent Nos.1
and 2.
2. This appeal is filed against the judgment of acquittal
passed by the Trial Court in S.C.No.124/2015 for the offences
punishable under Sections 448, 376(2)(n), 376(d), 506 read
with Section 34 of IPC.
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3. The factual matrix of the case of the prosecution is
that the accused persons committed rape on the victim P.W.1
on 03.10.2013 at 12.45 p.m. The accused persons came to the
house of P.W.1 and asked her water to drink and when she
entered inside the kitchen, both of them restrained her even
when she was crying, then lift her and put the hand on her
mouth and took her to the god room where accused No.1
committed forcible sexual intercourse on her and at that time,
accused No.2 had held her hand and then accused No.2 forcibly
had sexual intercourse on her and at that time, accused No.1
had held her and threatened to kill her if she discloses the
same to anybody. Further, within a month, twice they came to
her house and had forcible sexual intercourse on her and as a
result, she became pregnant and gave birth to a female child
on 04.07.2014. The police registered the case, investigated
the matter and filed the charge-sheet against the accused
persons and the accused did not plead guilty and claims trial.
4. The prosecution relies upon the evidence of P.W.1
to P.W.15 and also documents at Exs.P.1 to 26(a) and M.O.1 to
M.O.6. The accused were subjected to 313 statement and the
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accused have not led any defence evidence. The Trial Court
having considered both oral and documentary evidence
available on record, comes to the conclusion that the evidence
of P.W.1 and so also the evidence of P.W.2 and P.W.4, who are
the mother and sister of the victim, is not trustworthy. The
Trial Court also taken note of the fact that when P.W.1 was
examined by doctor P.W.5, not disclosed anything and though
clothes were seized, there is no any FSL report against the
accused, since the same was seized after long time. Only after
she came to know that she was pregnant, the complaint was
lodged and case was registered and the matter was
investigated. All these factors were taken note of by the Trial
Court and on scrutinizing the entire evidence, comes to the
conclusion that the evidence of P.W.1 is not trustworthy.
However, DNA test is against accused No.1. But in view of the
evidence of P.W.1 was not trustworthy and major
contradictions were there in the evidence of P.W.1, the Trial
Court did not accept the case of the prosecution and acquitted
the accused.
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5. Being aggrieved by the said judgment of acquittal,
the State has filed the present appeal.
6. The learned Additional SPP, Smt. Rashmi Jadhav,
appearing for the appellant/State would vehemently contend
that the evidence of P.W.1 is sufficient to bring home the guilt
of the accused as she has categorically stated about the
heinous act committed by the accused persons. She has
corroborated the same in her evidence to which nothing has
been elicited in her cross-examination so as to being a
complete go-by to the evidence regarding the sexual assault on
her by the accused persons. The learned counsel also would
submit that for the offence under Section 376 of IPC, in view of
the DNA test report coupled with the evidence of the
prosecution witnesses, there can be no manner of doubt as it is
proved that the accused have committed the said offences.
The said DNA report clinches the issue leaving no scope for any
doubt for debate in the matter. When the evidence of P.W.1
and DNA report is coupled with the evidence of P.W.2 and
P.W.4, the Trial Court ought to have convicted the accused
persons.
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7. The learned counsel for respondent Nos.1 and
2/accused would submit that no doubt, there is a DNA test
report against accused No.1, but the very case of the
prosecution is that both accused Nos.1 and 2 at the same time
committed forcible sexual act against the victim and DNA report
is against only accused No.1 and not against accused No.2. It
is the case of the prosecution that accused Nos.1 and 2 not
only had sexual intercourse on the victim in a single point of
time, but subsequently also both of them had sexual act
together and hence, the very case of the prosecution is
doubtful. The learned counsel would submit that P.W.1
categorically says in her evidence that prior to the said
incident, she was not aware of the accused persons. But P.W.2
mother says that she used to visit the house of accused No.1
and accused No.1 is married and accused No.2 was not married
and subsequent to the alleged incident, accused No.2 married.
The evidence of P.W.1 is very clear that her sister P.W.4 was
doing tailoring work and she used to do the tailoring work
whole day. The evidence of P.W.2 and P.W.4 not inspires the
confidence of the Court. The learned counsel also brought to
the notice of this Court the evidence of P.W.5 doctor, who
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conducted medical examination of P.W.1. The doctor has not
stated anything about the act of these two accused persons and
only she has examined the victim and found that she was
pregnant and she gave the certificate. The same also creates
the doubt in the mind of the Court and hence, the Trial Court
rightly appreciated both oral and documentary evidence
available on record and acquitted the accused persons.
8. Having heard the learned Additional SPP appearing
for the appellant/State and the learned counsel for respondent
Nos.1 and 2/accused and considering the material available on
record, the points that would arise for the consideration of this
Court are:
(i) Whether the Trial Court committed an error in
acquitting the accused persons for the
offences invoked against them and whether
the prosecution proved the case against the
accused persons beyond reasonable doubt and
whether it requires interference of this court?
(ii) What order?
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Point No.(i):
9. The learned Additional SPP for the appellant/State
in her argument would vehemently contend that when the
evidence of P.W.1 is consistent and also when the material
available on record, particularly DNA test report goes against
accused No.1, the Trial Court ought not to have acquitted the
accused. But the fact is that the complainant in her complaint
in terms of Ex.P.1 states that both the accused persons have
committed sexual act against her will on 03.10.2013. It is the
case of the complainant that both of them caused life threat to
her if anything is disclosed to anybody. But she did not disclose
anything in the evidence with regard to the said fact is
concerned. P.W.2 mother says that P.W.1 disclosed that there
was a life threat. It has to be noted that the complaint was
given when P.W.1 came to know that she became pregnant in
view of the alleged act. It is also important to note that P.W.2
in her evidence categorically deposes that P.W.1 was visiting
the house of accused No.1 i.e., Dayananda. But P.W.1 in her
cross-examination says that before this alleged incident, she
was not aware of the accused persons. It is also her evidence
that in view of the said forcible sexual act, she had sustained
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the injuries on the date of the incident and the same is not
noticed by the mother. With regard to the nature of injuries are
concerned, if it is an forceful act, there is no any material
before the Court.
10. It is also important to note that P.W.1 in her
evidence says that on account of forceful act of accused No.1,
the things which were there in the spot were broken and the
same was noticed by the mother and family members and at
that time itself she has disclosed the same but not stated as
both subjected her for sexual act together. Hence, the very
case of the prosecution that after she became pregnant, this
act has happened is also contrary to the case of the
prosecution. It is the case of the prosecution that because of
life threat, P.W.1 did not disclose the same. The evidence of
P.W.1 is not consistent. In one breath she says that she was
not having any acquaintance with accused Nos.1 and 2 prior to
the incident, but in the cross-examination not only one time
she stated that she was not having any acquaintance with
accused prior to the incident and twice it is reiterated and no
stray admission. She says that even after lodging of the
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complaint also accused persons were visiting her house. Once
again she says that prior to lodging of the complaint, accused
persons have not visited her house and after lodging of the
complaint, twice they came. But the incident was taken place
even prior to the lodging of the complaint. She says that she
got written the complaint through the relative, but she is not
aware of the person, who wrote the complaint. It is also her
evidence that when the accused were coming, she noticed the
same and tried to lock the house, but she could not lock the
house and also says that her nighty was also torn and she did
not scratch the accused person and also says that accused
persons were there in the house for a period 2 hours, but they
did not allow her to go out and hence, she cannot call the
neighbors. Thereafter, accused persons left the house after
having the water and while leaving the same, they left the
house by saying that they will come back. When the accused
persons came to the house second time, it was 11 'O' clock and
in the complaint it is stated that the accused persons came
after one month of the first incident, but this evidence also
goes against the case of the prosecution. The evidence of P.W.1
and contents of the complaint are contrary to each other. All
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these admissions on the part of P.W.1 shows not trustworthy
and the same was also taken note of by the Trial Court.
11. The Trial Court also taken note of the evidence of
P.W.2-mother and P.W.2 deposes that she came to know about
the act of the accused persons through the P.W.1, but P.W.2
says that there are 10 houses surrounding her house and there
are dogs and vehicles are moving infront of their house, but
P.W.1 says that when the family members noticed about the
damages caused to the articles in the house, she revealed the
same on the very same day. But, P.W.2 says that she came to
know about when she became 5 months pregnant and also she
says that the P.W.1 was visiting the house of Dayananda i.e.,
accused No.1 and she was having the habit of going to their
house and she also admits that he was married but, other one
i.e., accused No.2 was not married and P.W.2 also admits that
when she was in the house, accused persons were visiting her
house and all these evidence creates the doubt with regard to
the case of the prosecution is concerned.
12. The other witness is P.W.4, who is the sister of the
P.W.1 and her evidence is also that she came to know about
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the same subsequently and the accused persons are
responsible for the pregnancy of her sister. In the cross-
examination she stated that while giving the statement before
the Police, she has stated that her sister revealed that she was
subjected to sexual act on 03.10.2013, but she says that when
P.W.1 was not feeling well, herself and her mother used to take
her to the Hospital, but not accompanied. But, P.W.2 says that
she only sent the P.W.1 to the Hospital. The P.W.2 also says
that she has accompanied P.W.1 to Hospital in the cross-
examination. The P.W.4 categorically says that she does the
tailoring work in her house and she is having customers.
Having considered all these evidence, no consistency in the
evidence of P.W.1, P.W.2 and P.W.4 and apart from that when
the P.W.1 went to the Hospital and subjected to medical
examination and Doctor who conducted the medical
examination on 29.03.2014 at 03.30 to 03.35 p.m., says that
P.W.1 came to the Hospital and she examined her and found 22
weeks of pregnancy and found that she is not having sufficient
blood and hence, gave the two bottles of blood and she was
subjected to sonography and confirms 25 weeks of pregnancy
and she was discharged on 11.04.2014 and hence, it is clear
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that she was in the Hospital for about more than 14 days and
she has given the certificate in terms of Ex.P.10 and nothing is
disclosed with the Doctor also who is responsible for the act of
her pregnancy. All these factors were also taken note of by the
Trial Court while appreciating the evidence and no doubt other
witnesses are official witnesses and mahazar witnesses and
mahazar conducted after a long time and cloths were seized
but, nothing was found since the cloths were not seized
immediately after the incident of alleged rape and having taken
note of all these factors into consideration when the evidence of
P.W.1 is not trustworthy and also the evidence of P.W.2 and
P.W.4 is contrary to each other with regard to the act is
concerned and also taking note of the admission on the part of
P.W.2 that accused was also visiting the house of P.W.1 when
she was present and also inturn the P.W.1 was also visiting the
house of accused No.1 and all these material does not inspire
the confidence of the Court to come to a conclusion. No doubt
DNA report is against the accused No.1 and only based on the
DNA report in view of inconsistency in the evidence of P.W.1
and other material available on record and the same cannot be
a sole basis for convicting the accused and hence, we do not
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find any force in the arguments of Additional SPP that Trial
Court committed an error in not appreciating the DNA evidence
as well as the evidence of P.W.1 and unless evidence of P.W.1
is trustworthy and inspires the confidence of the Court,
question of convicting the accused does not arise.
13. It is also important to note that P.W.1 is aged about
25 years at the time of the alleged incident and she did not
bring it to the notice of either the parents and only after she
became pregnant, that too not disclosed before the Doctor and
only disclosed the same with the family members subsequently
and even the admissions on the part of the P.W.1 goes against
her own evidence and the same is not creditworthy and hence,
we have not accepted the case of P.W.1 and hence, benefit of
doubt goes in favour of the accused persons and the same is
exercised by the Trial Court. Hence, we answer the point as
negative.
14. In view of the discussions made above, we pass the
following:
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ORDER
The Criminal Appeal is dismissed. The bond
executed if any is cancelled.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MD,RHS
List No.: 1 Sl No.: 15
