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Karnataka High Court
State Of Karnataka vs Ambaresh S/O Basappa Halegoudra on 6 March, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 100323 of 2023
C/W CRL.A No. 100300 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 6TH DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
CRIMINAL APPEAL NO. 100323 OF 2023
(377(CR.PC)/418(BNSS))
C/W
CRIMINAL APPEAL NO. 100300 OF 2019
IN CRL.A NO. 100323/2023
BETWEEN:
STATE OF KARNATAKA R/BY.
THE KUSHTAGI POLICE STATION
DIST. KOPPAL THROUGH
THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
Digitally signed
by YASHAVANT
NARAYANKAR AND:
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
BENCH
Date: 2026.03.10
14:52:09 +0530
AMBARESH S/O BASAPPA HALEGOUDRA
AGE. 33 YEARS, OCC. PRIVATE DRIVER,
R/O. BIJAKAL, TQ. KUSHTAGI,
DIST. KOPPAL-583277.
...RESPONDENT
(BY SRI. B. ANWAR BASHA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/SEC. 377 OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER ON SENTENCE DATED
30.01.2019 PASSED BY THE DISTRICT AND SESSIONS JUDGE AT
KOPPAL IN SESSIONS CASE NO. 11/2016 AND ENHANCE THE
SENTENCE FOR THE OFFENCE U/SEC. 376(E) OF IPC FROM
RIGOROUS IMPRISONMENT FOR 7 YEARS TO LIFE IMPRISONMENT
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CRL.A No. 100323 of 2023
C/W CRL.A No. 100300 of 2019
HC-KAR
AND FINE AMOUNT MAY ALSO BE ENHANCED FROM RS. 5,000/- &
ETC.
IN CRL.A NO. 100300/2019
BETWEEN:
AMBARESH S/O BASAPPA HALEGOUDRA
AGE: 33 YEARS, OCC: PRIVATE DRIVER,
R/O: BIJKAL, KUSHTAGI, DIST: KOPPAL.
...APPELLANT
(BY SRI. B. ANWAR BASHA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
(THROUGH KUSHTAGI P.S.),
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, AT DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER
OF CONVICTION DATED 28.01.2019 AND SENTENCE DATED
30.01.2019 PASSED IN S.C.NO.11/2016 PASSED BY THE DIST.
AND SESSIONS JUDGE, KOPPAL AND TO ACQUIT THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 366, 376, 506 R/W 34 OF IPC, IN THE INTEREST OF
JUSTICE.
THESE CRIMINAL APPEALS, COMING ON FOR FURTHER
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE B. MURALIDHARA PAI
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CRL.A No. 100323 of 2023
C/W CRL.A No. 100300 of 2019
HC-KAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard learned counsel appearing for the accused and
the learned counsel appearing for the State.
2. These two appeals are filed by the accused as well
as the State challenging the judgment of conviction for the
offence punishable under Sections 366, 376(E) and 506 of IPC
imposing the sentence of 5 years for 366, 7 years for 376(E)
and 2 years for 506 of IPC and State appeal is filed questioning
the inadequacy of the sentence in respect of 376(E), since the
sentence imposed is 7 years.
3. The factual matrix of case of prosecution is that on
08.03.2015 at 08.30 p.m. at Bijakal village, when the victim,
PW.4 went to attend nature call, the accused No.1 along with
absconded accused Nos.2 and 3, in furtherance of their
common intention, had kidnapped the victim, who is a married
woman, from the lawful custody of her parents. In order to
entice away the victim, a married woman, for seducing her for
sexual intercourse, accused No.1 had fell behind victim since 2
to 3 years prior to kidnap, he was teasing her, compelling her
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to love, marry him, was also chasing her whenever she attends
the field work or she used to go to fetch water in the village.
Accused Nos.2 and 3 have also supported accused No.1 for
kidnapping her. It is the allegation that on the very same day,
he subjected her for sexual act with the threat that he would
kill her and also her parents if she has not given any consent.
Thereafter, took her to Kushtagi and then to Sarjapura area,
hired a rented house, confined her and subjected her for sexual
intercourse continuously and also a life threat was caused by
accused No.1 at the instigation of accused Nos.2 and 3. Hence,
the prosecution invoked the offences punishable under Sections
366, 376(E) and also Section 506 of IPC. The Police have
registered the case based on the complaint, Ex.P7, registered
the FIR in terms of Ex.P17, took up the investigation and
recorded the statement of the witnesses. The victim was
subjected to recording of statement under Section 164 of
Cr.P.C as per Ex.P18. After having collected all the materials,
the Police have filed the charge sheet. The accused/appellant
was secured and other accused Nos.2 and 3 were absconded
and split-up charge sheet was filed.
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4. In order to prove the charges against the accused,
prosecution relies upon evidence of PW.1 to PW.14 and marked
Ex.P1 to Ex.P18(A) and also marked M.O.1 to M.O.6. The
accused was subjected to statement u/S 313 Cr.P.C. On
closure of the prosecution evidence, the accused denied the
incriminating evidence but did not choose to lead any defence
evidence. The trial judge having considered both oral and
documentary evidence, even though found discrepancies in the
evidence of PW.4 victim, but comes to the conclusion that
evidence of PW.1, PW.4, PW.5, PW.6 and PW.7 and medical
report, Ex.P9 and Ex.P16 and particularly PW.4 prosecutrix has
found trustworthy evidence and her evidence inspires the
confidence of the Court. As such, the defence set up by the
accused that there is consensual sex and consent is free
consent by the victim, is not acceptable, thereby convicted the
accused for the above offences.
5. Being aggrieved by the judgment of conviction, the
appellant who is the accused No.1 filed the appeal in Criminal
Appeal No.100300/2019. The counsel appearing for the
appellant vehemently contends that the Court below ought to
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have taken note of victim statement wherein she has clearly
stated that both were residing in the Sarjapur area in
Bangalore for a longer period, which amounts to a consent,
there is no forceful sexual act and the same does not come
within the purview of definition of Section 376-E of IPC.
Counsel would also vehemently contend that the case is
registered by implicating the accused falsely on the basis of the
statement given by father of the victim. The victim herself only
went along with the appellant and joined the company of the
appellant but trial judge failed to consider the same.
6. The counsel appearing for the appellant also
vehemently contends that when the victim lived in a house at
Sarjapur along with accused from March 2015 to October 2015,
question of even invoking Section 366 as well as 376-E of IPC
so also causing of life threat involving Section 506 do not arise.
None of the ingredients of these offences were attracted in the
case on hand. Hence the trial judge committed an error which
requires interference of this court.
7. On the other hand, the counsel appearing for the
respondent/ State would submit that the evidence of PW.4
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victim lady is very clear that by causing threat the accused
subjected her for sexual act by kidnapping, confined her in a
house at Sarjapura from March to October 2015. She was also
subjected her for sexual act till her delivery. Accused and
victim were apprehended by the police. Then complaint is
lodged and even her statement was recorded before the
learned magistrate u/S 164 of CrPC. Trial Court rightly
appreciated both oral and documentary evidence available on
record and convicted the accused. However learned Addl. S.P.P.
would submit that the trial Court imposed only seven years for
the offence punishable under Section 376(E) IPC and ought to
have imposed the higher sentence. Hence, it requires
interference of this Court by allowing the Criminal Appeal No.
100323/2023.
8. Having heard the counsel appearing for the
appellant, the counsel appearing for the respondent and also
considering the grounds which have been urged in both the
appeals so also the oral submissions of respective counsel, the
points that would arise for the consideration of this Court are:
i. Whether the trial Court committed an error
in convicting the appellant for the offences
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u/S 366, 376(E) and 506 of IPC and
whether it requires interference of this
Court?
ii. Whether the State has made out ground
that trial Court committed an error in
imposing the inadequate sentence and
whether it requires interference of this
Court?
iii. What order?
9. Having heard the respective counsels and also the
perusal of material, this Court already taken note of case of
prosecution which has been in a nutshell mentioned above and
the sum and substance of the case of the prosecution is that
when the PW.4 victim lady went to attend nature call at 8.00
p.m, the accused came along with accused No.2 and 3 and
kidnapped her, he also subjected her for sexual act and made
her to confined in the house at Sarjapura. During that time
also she was subjected to continuous sexual act. Thereafter
both of them have been apprehended by the Kushtagi Police
almost after seven months.
10. The prosecution mainly relies upon the evidence of
the victim girl, who has been examined as PW.4. Having
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considered the evidence of PW.4, in her chief evidence she has
stated that her marriage was performed and she was pregnant.
Her parents called her to their house to perform the religious
function and as such she went to the house of her parents.
When at around 07.00 to 08.00 p.m. when she went to attend
nature call towards Mudenur road, at that time this accused
came along with other two accused and tightly gagged her
mouth and made her to become unconscious, accused No.1
lifted her with the help of accused Nos.2 and 3 to a vehicle.
When she woke up, she saw the accused Nos.2 and 3 and also
the accused No.1. All of them have caused the threat to join
the accused No.1. When she refused to accompany accused
No.1, all the accused Nos.1 to 3 threatened her that they are
going to do away with her husband's life, spoil her future
marital life and kill her parents. So also, it is her statement that
accused No.1 took her to a side by land to a stream to one land
of Jeerar and accused No.1 had committed rape on her. It is
also her contention that she protested such act of accused
No.1. Thereafter, accused Nos.1 to 3 took her in a Tata Ace
vehicle to Kushtagi and also threatened that if she raises any
voice, he is going to kill her. Hence she did not scream at any
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place. She was taken to Bangalore and then to Sarjapura area,
kept her in a room in the School premises, it is like jantha
house and asked her to live in that house. Even the accused
No.1 continued his sexual act with her and subsequently she
gave birth to a child as she was pregnant while going along
with the accused No.1. Thereafter, Kushtagi police came and
apprehended them. Complaint was given in terms of Ex.P7. In
the complaint also she reiterated the same. Police have drawn
the mahazar of the place from where she was kidnapped, so
also the place where she was subjected to sexual act. Then the
mahazar was drawn at Sarjapur where they were living.
11. This witness was subjected to cross-examination.
In the cross-examination she admits that she has given
complaint initially against ten persons, wherein out of that
accused No.3 belongs to Talavagera Village, rest other accused
belongs to Bijakal village. But she admits that she has given
oral complaint and it was reduced into writing by Kushtagi
Police. She has not given any computerized or typed copy of
the complaint. She categorically admits that, at the time of
filing the complaint herself and her parents were present and
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her husband was not present. It is also admitted that now she
is having a child aged about 16 months. She claims that
accused Nos.2 and 3 are related to accused No.1. The trial
Court also took note of demeanour of the witness when she
started weeping in the Court while examining her. But her
evidence before the Court is that accused No.2 had gagged her
mouth. During the course of evidence, i.e. while cross
examining PW.1, on 28.11.2016 she says that she became
unconscious. Again she says that when she had attended the
second nature call, all ten persons had chased her. She
deposed this fact before the Police and she has given the
complaint against ten persons, but all the ten persons were not
accompanied her. When she had been to attend nature call,
only three persons had come behind her on 03.08.2015.
12. It is also her evidence that when she was subjected
to sexual act in the land, both of them were there for about one
and a half hours. She also says that accused Nos.2 and 3 were
seated in the hind side when they were proceeding in the Tata
Ace but the accused was only driving the Tata Ace and he was
standing by the side of him. She says that she has not made
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any hue and cry and not screamed as they have given threat of
killing her as well as her family members. It is also her
evidence that subsequently she was subjected to medical
examination and M.O.1 to 4 are also marked. She says that
saree which she had purchased and given to her was left by her
in Bangalore house itself and M.O.1 to 4 are handed over after
2 to 3 days when she came back from Bangalore to Kushtagi.
This witness was also re-examined with regard to the
statement made before the Magistrate under Section 164 of
Cr.P.C. and confronted the document Ex.P18. The same is
admitted by her. She identifies her signature as Ex.P18(A).
13. The other witness PW.5 is the mother and PW.6 is
the brother. Both of them depose before the Court that they
are the hearsay witnesses as they come to know about the
same through the PW.4. The Doctor is examined as PW.7. This
witness deposes before the court that victim was subjected to
sexual act but there is no any material that she was subjected
to recent sexual act and there is no any material before the
Court with regard to the recent sexual act. PW.7 says that on
genital examination, she found that there is old rupture of
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hymen, perineum lacks, vagina roomy, fortunately that lacks.
She has collected two cervical swabs bottle number 1, two
vaginal swab bottle number 2, Blue yellow printed saree, black
panty, faded pink colour langa and brown colour gloves for the
purpose of report from RFSL. However, there is no any positive
report with regard to the seizure of the said articles. RFSL
report is at Exhibit P8. She has given final opinion on
04.05.2016 that individual was used to act like that of sexual
intercourse but there are no signs of recent sexual intercourse
and final opinion is given as per Exhibit P9.
14. Having taken note of case of the prosecution and
also the genesis of the crime, it is very clear that the victim
was a married woman and was pregnant at the time of alleged
kidnap. It is also case of the prosecution that when she went
to attend nature call she was kidnapped. But in the statement
made before the Learned Magistrate as per Exhibit P18 she has
not stated anything about gagging of her mouth. In the
statement she has stated that she asked the accused persons
why three persons came, she claims that she screamed at the
spot but threat was caused to her. All the three accused
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forcibly taken to the vehicle, made her to sit in the vehicle and
caused the threat till Kustagi. But her evidence is that she was
subjected to sexual act in the vehicle itself, she has not stated
anything about she was subjected to sexual act in any land.
Though she claims that she was confined in the house and she
was subjected to sexual act regularly, but before the Court her
evidence is contrary to Exhibit P18. In Exhibit P18 she deposes
before the Magistrate that she was subjected to sexual act in
the vehicle, but not stated anything about that she was
subjected to sexual act in the land. It is very clear that she was
taken to Kustagi, then taken to Bengaluru and only allegation
made in Exhibit P18 is that she was forced to sit in the vehicle
and nothing is stated with regard to the act of accused no. 1.
But in the cross examination before the Court she says that she
was subjected to sexual act in the land, at that time accused
no. 2 and 3 were standing in the road. Hence it is clear that
there is an improvement in the evidence of the victim. Though
in the chief evidence before the Court she says that accused
Gagged her mouth but no such statement is made before the
Magistrate when the statement was given before the
magistrate at the first instance on 16.01.2016. Even the
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answer elicited from the mouth of PW4 with regard to the
incident is concerned. But in the complaint, Exhibit P7 she
stated that more than ten persons have chased her but only
accused no. 1 to 3 forcibly took her. Thus the very genesis of
the case of the prosecution is doubtful.
15. In the cross-examination also she admits that she
gave the complaint against ten persons. But police investigated
the matter and filed charge sheet only against accused no. 1 to
3. The allegation against accused no. 2 and 3 is that they have
supported accused no. 1 in kidnapping her. Having taken note
of the material on record, it is very clear that she went along
with the accused to Kustagi, then they travelled from Kustagi to
Bengaluru, from Bengaluru to Sarjapura, where they have
stayed for a period of seven months from March 2015 to
October 2015. At no point of time she made any hue and cry
even at the time of subjecting her for sexual act or while taking
her to different places. It is emerged during the course of
evidence that she gave birth to a child at Sarjapur itself. Her
statement is also very clear that after she gave birth to the
child, she was not subjected to sexual act by the accused.
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When all the material clearly discloses even though PW6 and
PW7, mother and brother were examined, both of them are
hearsay witnesses and this Court has to look into the evidence
of PW4 victim is consistent and reliable. It is also important to
note that when PW4 was subjected to medical examination and
the evidence of the Doctor is very clear that there was no any
recent sexual act. Apart from that, it is an admitted fact that
she is a pregnant lady, she accompanied the accused and
stayed along with him from March to October 2015. Having
taken note of all these factors into consideration, it is rightly
pointed out by the counsel appearing for the appellant that no
ingredients of offence u/S 366, 376(2) and also 506 could be
invoked against the accused. The trial Court even though
having taken note of the evidence of PW4 in detail discussed
while considering the case, but comes to the conclusion that
there was a threat, only with that threat she was kidnapped
and subjected to sexual act. But the trial Court fails to take
note of the fact that she went along with accused to Kustagi,
then also to Bangalore, from there also to Sarjapura and stayed
for a period of almost seven months. When all these factors
were taken note of, there is a force in the contention of the
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Counsel for appellant that it was a consensual sex; that a
married woman went and stayed with a person, i.e. the
accused, for about seven months. When such all materials
suggest that it is not a case of kidnapping or subjecting her for
sexual act without her consent, it cannot be termed as a
forceful sexual act by the accused. When the victim is major,
knows the consequence of the same and accompanies with the
accused, question of invoking the offence under Section 376-E
also does not arise. The trial judge lost sight of all these factors
into consideration and comes to a conclusion that the very
evidence of PW4 inspires the confidence of the Court and failed
to take note of different versions given in Exhibit P18,
Statement made before the Learned Magistrate under Section
164 of Cr.P.C. as well as the evidence given before the Court as
PW4. Further there is an improvement with regard to the very
genesis of the case of the prosecution. Nothing is stated in
Exhibit P18 that her mouth was gagged and she became
unconscious, but while giving the evidence before the Court she
says that forcibly taken by closing her mouth and she become
unconscious. But such statement was not made at the initial
stage when the statement was made before the Learned
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Magistrate under Section 164 of Cr.P.C. When there are
material contradictions in the evidence of PW4, it is not a case
for invoking the offences u/S 366 as well as 376 and so also
causing of life threat either to her or to any family members.
Though it is stated that life threat was caused to her as well as
her parents, husband and also they are going to break her
marriage, and all these factors are nothing but an improvement
in the case of the prosecution. Hence we found that the trial
Court fails to consider all these materials and committed an
error in convicting the accused for the offences punishable
Section 366, 376-E and 506 I.P.C. Thus it requires interference
of this Court.
16. No doubt, the trial Court Comes to a conclusion that
accused was stayed along with the victim lady for a longer
period, cannot suggest that it was a forceful act and trial judge
lost sight of the factors which have been considered by this
Court and when such being the case, it is a fit case on re-
appreciation of evidence available before the Court and we
have consciously read the evidence of PW4 and other materials
available before the Court to come to a other conclusion that
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trial Court committed an error and hence we answered the
point number 1 in affirmative and point number 2 in the
negative.
17. In view of the discussions made above, we passed
the following:
ORDER
Appeal filed by the appellant/accused is allowed. The
judgment of conviction and sentence passed by the trial court
is set aside.
The bail bond executed by the accused is cancelled. If
any fine amount is deposited, is ordered to be refunded in
favour of the accused on proper identification.
The appeal filed by the State for enhancement of
sentence is dismissed consequent upon reversal of the
judgment of conviction.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
RKM,BVV
CT-CMU
LIST NO.: 1 SL NO.: 7
