Partly allowed

Gopala v. State of Karnataka

Karnataka HC30 Nov 2022CRL.A/1544/2016

Case brief

AI extract

What is this about?

Rape, cheating and dowry-demand convictions arising from a relationship and alleged promise of marriage were set aside, and the accused was acquitted. The court dismissed the State’s connected appeal against the other accused persons’ acquittal and directed refund of any fine paid.

What did the court decide?

Accused No.1’s convictions and sentences set aside; acquitted of rape, cheating and dowry demand. Bail bond cancelled and any fine paid ordered refunded.

Gopala Vs State of Karnataka — Dowry and Cruelty | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 30^TH DAY OF NOVEMBER, 2022

¶4

PRESENT

¶5

THE HON’BLE MR. JUSTICE B. VEERAPPA

¶6

AND

¶7

THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

¶8

CRIMINAL APPEAL No.1544/2016 C/W CRIMINAL APPEAL No.675/2017

¶9

IN CRIMINAL APPEAL No.1544/2016

¶10

BETWEEN:

¶11

GOPALA S/O. MALLAIAH, AGED ABOUT 34 YEARS, R/AT YARRAMMANAHALLI VILLAGE, Y.N. HOSAKOTE HOBLI, PAVAGADA TALUK, TUMAKURU DISTRICT – 572 141. ... APPELLANT

¶12

(BY SRI KARTHIK YADAV U., ADVOCATE FOR SRI VENKATA REDDY S.K., ADVOCATE)

¶13

AND:

¶14

STATE OF KARNATAKA BY Y.N. HOSAKOTE POLICE, Y.N. HOSAKOTE, PAVAGADA TALUK, TUMAKURU – 572 141 REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BENGALURU – 560 001. ... RESPONDENT

¶15

(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)

¶16

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. BY THE ADV. FOR THE APPELLANT/ACCUSED PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 25.08.2016 IN S.C. NO.348/2012, ON THE

¶17

¶18

FILE OF THE IV ADDL. DIST & SESSIONS JUDGE, AT MADHUGIRI, BY ALLOWING THIS APPEAL AND CONSEQUENTLY ACQUIT A-1/APPELLANT OF THE CHARGES, LEVELED AGAINST HIM UNDER SECTIONS 376 AND 417 OF IPC [AND SECTION 4 OF D.P. ACT, 1961]

¶19

IN CRIMINAL APPEAL No.675/2017

¶20

BETWEEN:

¶21

STATE OF KARNATAKA BY Y.N. HOSAKOTE POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BANGALORE – 1. ... APPELLANT

¶22

(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)

¶23

AND:

¶24

MALLAPPA S/O. LATE PATTAPPA AGED 60 YEARS,

¶25

MALLESHA S/O. MALLAPPA, AGED 40 YEARS,

¶26

SANNABORAMMA W/O. MALLAPPA, AGED 55 YEARS, RESPONDENT NOS.1 TO 3 ARE R/O. YARRAMMANAHALLI, PAVAGADA TALUK – 561 202. ... RESPONDENTS

¶27

(BY SRI KARTHIK YADAV U., ADVOCATE FOR SRI S.K. VENKATA REDDY, ADVOCATE FOR R-1 TO R-3)

¶28

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C BY THE S.P.P. FOR THE STATE PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 25.08.216 PASSED IN S.C. NO.348/2012 ON THE FILE OF THE IV ADDL. DIST. AND SESSION JUDGE, MADHUGIRI IN SO FAR AS ACQUITTING THE RESPONDENT/ACCUSED NO.2 TO 4 OF

¶29

¶30

THE OFFENCES P/U/S 417, 376, 506 R/W 34 OF IPC AND SECTION 4 OF DOWRY PROHIBITION ACT.

¶31

THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-

¶32

J U D G M E N T

¶33

Criminal Appeal No.1544/2016 filed by the

¶34

Accused and Criminal Appeal No.675/2017 filed by the State. These two appeals are filed against impugned judgment of conviction and order of acquittal dated 25.08.2016 made in S.C. No.348/2012 on the file of IV Additional District and Sessions Judge, Madhugiri convicting the accused No.1 for the offences punishable under the provisions of Sections 376 and 417 of IPC and sentenced to undergo simple imprisonment for a period of 10 years and fine of Rs.10,000/- for the offence punishable under the provisions of Section 376 of IPC and simple imprisonment for a period of one year with fine of Rs.5,000/- for the offence punishable under the provisions of Section 417 of IPC and simple imprisonment for two years with fine of Rs.10,000/- for the offence punishable under the provisions of Section 4

¶35

¶36

of the Dowry Prohibition Act and acquitted accused Nos.2 to 4 for all the offences made against them.

¶37

It is the case of the complainant/victim that she lodged a complaint as per Ex.P.5 on 02.07.2012 before the respondent-police alleging that the victim and accused No.1 were in love with each other for about five years and accused induced her and had a sexual intercourse for more than five years. After attending the age of 18 years, she went and requested the accused to marry as agreed by him and he refused. Thereby, in this connection, earlier on 14.12.2011, complainant lodge the complaint with respondent Police and Police called both her and accused No.1’s parents and elders gathered a Panchayath at Ganapathi Temple and the panchyatadars advised both of them and fixed the marriage. In front of panchayatadars at Ganapathi Temple of Pavagada, accused and complainant exchanged the garlands at the instance of the police and panachayatadars. Though the accused agreed to marry

¶38

¶39

the complainant within a period of three months, he has not come forward to marry her even after 6¹ /2 months. Thereby, at the instance of the victim, panchayathadars asked the accused and their parents wherein they demanded dowry of Rs.1,00,000/- cash along with 30 grams gold neck chain and 15 grams gold finger ring otherwise, they will not marry. As the victim family is a poor family, they could not arrange the dowry and thereby, the accused threatened for dire consequences if any complaint is lodged. Thereby, she lodged a complaint on 02.07.2012. Accordingly, the jurisdictional police registered a case in Crime No.40/2012 for the offence punishable under the provisions of Sections 376, 417 and 506 of IPC and Section 4 of DP Act. The jurisdictional police after investigation filed a chargesheet against the accused persons for the aforesaid provisions of IPC and no charge was framed under Section 4 of the DP Act.

¶40

¶41

Accused No.1 was arrested on 04.07.2012

¶42

and other accused were arrested on 24.07.2012 and thereafter released on bail. Since the matter was triable by the learned Sessions Judge, the learned JMFC referred the matter to the learned Sessions Judge, Madhugiri, who registered a case in SC No.348/2012, secured the presence of the accused persons and framed the charge on 16.03.2015 under the provision of Sections 376, 417 and 506 read with Section 34 of IPC and Section 4 of DP Act, read over to the accused persons in the language known to them, who pleaded not guilty and tried to be defence.

¶43

After completion of the evidence of the prosecution witnesses, the statement of accused was recorded under Section 313 of Cr.P.C. and accused persons denied all the incriminating circumstances and pleaded not guilty and have claimed to be tried.

¶44

¶45

Based on the aforesaid pleadings, the learned Judge framed the following points for

¶46

consideration:

¶47

“(1) Whether the prosecution has proved that accused No.1 made believe that he would marry her but did not marry her and thereby cheated her?

¶48

(2) Whether the prosecution has proved that by cheating CW1 putting forth the hope of marrying her, the accused No.1 had forcible sexual intercourse with her?

¶49

(3) Whether the prosecution has proved that the accused No.1 demanded dowry from CW4 to marry CW1?

¶50

(4) Whether the prosecution has proved that all the accused persons threatened CW1 to kill her?”

¶51

In order to prove its case, the prosecution

¶52

examined 20 witnesses as P.W.1 to P.W.20 and marked documents at Ex.P.1 to Ex.P.16 and material objects as

¶53

M.O.1 to M.O.7.

¶54

¶55

7. Considering both the oral and documentary

¶56

evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond reasonable doubt that accused No.1 made believe that he would marry the victim thereafter did not marry and thereby, cheated her and by cheating C.W.1 (P.W.3) with the hope of marrying had sexual intercourse with her. The prosecution proved that the accused demanded dowry from C.W.4/parents/the father of the victim P.W.3 and further recorded a finding that prosecution has failed to prove that all the accused persons threatened to kill the victim. Accordingly, the learned Sessions Judge by impugned judgment of conviction and order of sentence dated 25.08.2016 convicted accused No.1 for the offence punishable under Section 376, 417 of IPC and Section 4 of DP Act and acquitted him for the offence punishable under Section 506 of IPC and also acquitted accused Nos.2 to 4 for the offences made out against them. Hence, the present appeal is filed by accused No.1 against the judgment of conviction and the appeal

¶57

¶58

filed by the State against judgment of acquittal against accused Nos.2 to 4.

¶59

We have heard the learned counsel for the

¶60

parties to the lis.

¶61

Sri. Karthik Yadav, learned counsel for accused No.1/appellant in Crl. Appeal No.1544/2016 contended with vehemence that the impugned judgment of conviction and order of sentence passed by the Trial Court convicting the accused for the offences punishable under Sections 376 and 417 of IPC and Section 4 of DP Act is erroneous and contrary to material on record and same cannot be sustained. He would further contend that there is no evidence to show that P.W.3-victim was a minor as on the date of the alleged incident for about five years from the date of the complaint lodged on 02.07.2012.

¶62

He would further contend that P.W.3 has given her age in the evidence as 24 years as on

¶63

24.11.2015 and in complaint as per Ex.P.5 as 18 years.

¶64

It clearly indicates that as on the date of the incident, sexual intercourse between the accused and P.W.3 victim was a consensual sex as she has attained the age of majority and thereby, the provisions of Sections 417 and 376 of IPC would not arise. He further contended that there is unexplained delay of five years in lodging the complaint. No charge is framed under Section 4 of DP Act. Thereby conviction imposed against accused No.1 cannot be sustained.

¶65

He would further contend that there is no medical evidence to support the case of the prosecution and there are no corroborative evidence to support the evidence of the victim/prosecutrix and there is no dowry demand on the date of first complaint as allegedly filed. In the absence of all these materials, the learned Sessions Judge was not justified in convicting accused No.1.

¶66

11 -

¶67

He further contended that P.W.7 is a

¶68

mahazar witness to Ex.P.4, Marappa and Mallakka-

¶69

mother of the victim and Sannappa one of the panchayathdar and Venkateshaiah – P.W.10 another panchayathdar have partly turned hostile. P.W.11Doddanna and P.W.12-panchayatdar are relatives of the victim. Thereby, their evidence cannot be considered. In the absence of any agreement for marriage either oral agreement or written, there cannot be any dowry harassment as contemplated under Section 4 of DP Act. Thereby, Section 4 would not arise. Therefore, sought to allow the appeal filed by accused No.1.

¶70

Learned counsel while supporting the order of acquittal passed by the learned Sessions Judge would contend that absolutely there is no material either oral or documentary evidence to implicate accused Nos.2 to 4 the parents and brother of accused No.1, that there was an agreement of marriage between the parties and have demanded dowry, thereby, the learned Sessions

¶71

12 -

¶72

Judge is justified in acquitting accused Nos.2 to 4. Therefore, he sought to allow the appeal filed by accused No.1 and dismiss the appeal filed by the State.

¶73

Per contra, Sri.Vijay Kumar Majage, learned Additional SPP while justifying the judgment of conviction of accused No.1, would contend that the learned Sessions Judge is not justified in acquitting accused Nos.2 to 4 when the prosecution proved beyond reasonable doubt the ingredients, charges leveled against the accused persons are established. Thereby, the Trial Court ought not to have acquitted accused Nos.2 to 4 for the charges framed against them.

¶74

He further contended that when the common

¶75

intention of all the accused clearly establishes from the evidence on record namely P.W.2, P.W.8, P.W.10, P.W.11 and P.W.13, the learned Sessions Court failed to consider the evidence and discarded the aforesaid witnesses and thereby, erroneously learned Judge acquitted accused Nos.2 to 4 and they are liable to be

¶76

13 -

¶77

convicted for the offence punishable under Section 4 of DP Act and Section 506 of IPC.

¶78

He would further contend that the Sessions

¶79

Court failed to notice the evidence of Investigating Agency, which clearly establishes the guilt of accused Nos.2 to 4 and proved by the evidence of prosecution witnesses and material documents, the involvement of accused Nos.2 to 4. Thereby, the learned Judge is not justified in acquitting them.

¶80

He further contended that P.W.3/victim, P.W.2/brother-in-law of victim, P.W.5/father of the victim and P.W.8/mother of the victim in categorical terms deposed that there was constant love between the accused and the victim for about four years prior to the incident. Thereby, when panchayath was held that though accused No.1 agreed to marry, subsequently refused. Thereby, the learned Judge has rightly convicted the accused No.1 for the offences made against him in the charge memo. Therefore, sought to

¶81

14 -

¶82

allow the appeal filed by the State and convict the accused Nos.2 to 4 for the offences made out against them in the charge memo and dismiss the appeal filed against No.1.

¶83

In view of the rival contentions urged by the

¶84

learned counsel for the parties, the points that arise for our consideration in the present appeals are:

¶85

“1. Whether the accused in Crl.A.No.1544/2016 has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Court for the offences punishable under the provisions of Section 376 and 417 of Indian Penal Code and Section 4 of Dowry Prohibition Act?

¶86

Whether the State Government has made out a case to interfere with the impugned judgment and order of acquittal passed by the Sessions Court for the offences punishable under the provisions of Section 506 of Indian Penal Code and Section 4 of Dowry Prohibition Act, in the peculiar facts and circumstances of the present case?”

¶87

15 -

¶88

We have given our thoughtful consideration

¶89

to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.

¶90

This Court being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and material documents relied upon:

¶91

i) P.W.1 – Sri Sannamallappa, being the brother-

¶92

in-law of P.W.3 and mahazarwitness to Ex.P.1 seizure mahazar for having seized the material objects – M.Os.1 to 7 - public hair of accused No.1, underwear of accused No.1, Vaginal Swab, Public Hair of P.W.3, Nightly, Petty Coat and Blouse respectively has supported the case of the prosecution;

¶93

ii) P.W.2 – Sri Nagendrappa, brother –in-law of P.W.3/victim has deposed that there was love

¶94

16 -

¶95

affair between accused No.1 and P.W.3 which he came to know from others later and when P.Ws.5 and 8, who are parents of P.W.3 insisted the accused to marry P.W.3, the accused demanded dowry of Rupees One lakh, 30 grams of gold chair and 15 grams of gold ring, etc. In his cross-examination, he has admitted that he never saw P.W.3 visiting accused No.1’s house, but he learnt from others. P.Ws.11 to 13 were present in the panchayat convened at Y.N. Hosakote on 2.7.2011 and on the same day, at about 4.00 p.m. accused No.1 was apprehended by the Police and thereby accused No.2 had exchanged the garland at the instance of the police, in the temple, accused No.1 and P.W.3 had exchanged their garlands. Further, he identified Exs.P.2 and 3 two photographs and Ex.P.4 Spot mahazar where accused No.1 committed had physical relationship with P.W.3 and supported the case of the prosecution;

¶96

17 -

¶97

iii) P.W.3 – Smt. Parvathi, the victim, deposed that on the date of recording her evidence, she was aged 24 years; she knew the accused persons wherein accused No.1 was working as temporary teacher and both she and accused No.1 belonged to the same village; herself and accused No.1 were loving each other. On the pretext that they both would be marrying, they had physical relationship on several occasions in the house of the accused and he used to give tablets to her in order to avoid pregnancy. Thereafter, as he refused to marry her, she had given a complaint to the jurisdictional police which is marked as Ex.P.5. She has further deposed that after lodging of the complaint and in the panchayath convened, all the accused agreed for marriage between herself and accused No.1. Accordingly, she and accused No.1 exchanged their garlands. After six months, since accused

¶98

18 -

¶99

No.1 did not come forward to marry her, she approached the panchayathdars, who called the accused persons and as the accused persons demanded dowry, she lodged a complaint as per Ex.P.5. She identified the material objects M.Os.1 to 7 seized by the police . In her corss-examination, she has admitted that house of accused No.1 is nearer to her house which is a tiled roof. If anyone sits inside her house, they could watch who is going inside the tiled roof house. At the instance of accused No.1, she used to go his house. First accused No.1 used to go inside his house and thereafter, she would follow him. On several occasions they had physical relationship and it might be about 30 times. When she lodged a complaint in the year 2011 for the first time, at that time, it was only mentioned that there was love affair between them since two years. She admitted that her mother P.W.8 was the President of the Taluka

¶100

19 -

¶101

Panchayath and Ramanjeneya was the Vice President of the Zilla Panchayath and Jampaiah was the Director as well as her relative. She further has admitted the suggestion that in order to avoid pregnancy, accused No.1 used to give her tablets and the same was mentioned in the first complaint itself as well as in the second complaint. She has denied the suggestion that accused No.1 had not given any tablet to her and also that he had not raped her.

¶102

iv) P.W.4 – Sri Chittaiah, who is panch witness to Ex.P.1 has admitted that he does not know about the contents of Ex.P.1/seizure mahazar and has supported the case of the prosecution;

¶103

v) P.W.5 – Sri Eradasappa, father of the victim P.W.3, has deposed that he had two wives and the victim is his daughter. Accused persons are relatives. Since four years, accused No.1 was having an affair with P.W.3, with regard to

¶104

20 -

¶105

which, several panchayaths were held; there was a dowry demand from the accused and as he refused to give dowry, accused did not agree for solemnization of the marriage between accused No.1 and P.W.3. Therefore, his daughter P.W.3 had lodged a complaint. He has admitted in his cross-examination that there was no written agreement in the panchayath held and the information of giving a complaint was told to his wife by his daughter P.W.3 and at that time, his wife was the President of the Panchayath. He neither approached accused No.1 nor his parents, but he approach the panchayathdars. He supported the case of the prosecution;

¶106

vi) P.W.6 - Sri Mallappa, one of the panchayathdar and an hearsay witness regarding the demand of dowry and love affair between accused No.1 and P.W3, has deposed that P.W.12 secured him to the Panchayath convened at Maramma

¶107

21 -

¶108

Temple, Y.N. Hosakote and accused No.1 had agreed for the marriage and sought three months’ time and they had also exchanged the garlands. In his cross-examination, he admitted that the police have not recorded his statement and police personnel were not present when the panchayath was held. He has turned hostile to the case of the prosecution;

¶109

vii) P.W.7 – Sri Marappa, another witness to Ex.P.4 spot mahazar has deposed that there was a panchayath convened regarding the love affair of accused No.1 and P.W.3. He learned from others that accused No.1 had promised P.W.3 that he would marry her after three months and there was also exchange of garlands between them in Y.N. Hosakote Temple. In his cross-examination, he has admitted about the alleged illicit relationship between accused No.1 and P.W.3 and demand of dowry by the

¶110

22 -

¶111

accused. He has also admitted convening of panchayath and exchange of garlands and accused failing to marry P.W.3, since their demands were not fulfilled. He has deposed that the police have failed to record his statement and has partly supported the case of the prosecution.

¶112

viii) P.W.8 - Smt. Mallakka, mother of the victim has deposed on par with P.W.5 her husband that accused Nos.3 and 4 are her brother and brother-in-law and remaining accused are their children. There was a love affair between accused No.1 and P.W.3 and she knew the same since four years. Since P.W.3 was minor, accused No.1 had promised that he would marry her after she attaining majority, but he had informed P.W.3 that he was not going to marry her which was intimated to her by her daughter P.W.3. Accordingly, there was a panchayath convened at Y.N. Hoskote in

¶113

23 -

¶114

Ganapathy Temple wherein there was exchange of garlands in presence of the panchayathdars and that accused had agreed to marry P.W.3 after three months. Thereafter, after three months, when they approached the accused, there was demand of dowry, thereby a complaint was lodged against the accused. She has partly turned hostile to the case of the prosecution. In her crossexamination, she has admitted her statement as per Ex.P.6, convening of panchayath, but there was no discussion in the village where the incident had happened. Further in the cross-examination, she has denied the suggestion that accused No.1 by threatening P.W.3 with dire consequence had raped her. P.W.8 has supported the case of the prosecution and nothing has been elicited in her cross-examination to disbelieve her evidence;

¶115

24 -

¶116

ix) P.W.9 - Sri Sanna Lingappa, another panchayathdar, has deposed that P.Ws.5 and 8 had called him to Y.N. Hosakote Police Station to the panchayath convened and the fact that the accused No.1 agreeing to marry P.W.3 in the panchayath convened. Even after three months, he did not marry her. He identified the photographs Exs.P.2 and 3. He has deposed that the police have not recorded his statement. He has denied the suggestion that police recorded his statement under Section 161 Cr.P.C., marked as Ex.P.7 and turned hostile to the case of the prosecution;

¶117

x) P.W.10 - Sri Venkateshaiah, another panchayathdar has deposed that there was a settlement in the Maramma temple at Y.N. Hosakote and accused No.1 had agreed to marry P.W.3 and there was an exchange of garlands. He had learnt from others that accused No.1 had not married P.W.3 even after

¶118

- 25 -

¶119

three months and when the parents of P.W.3 approached the accused, there was a demand for dowry. He is an hearsay witness as he had not attended the panchayath convened on that day when there was demand of dowry. He has denied the suggestion that his statement under Section 161 Cr.P.C., was recorded by the Police and as such, he has partly supported the case of the prosecution;

¶120

xi) P.W.11 - Sri Doddanna, Panchayathdar and a relative of P.W.8 - mother of the victim P.W.3 has deposed about the alleged illicit relationship between accused No.1 and P.W.3 and convening of panchayath where P.Ws 10, 12, and 13 were present and demand of dowry by the accused. He has supported the case of the prosecution.

¶121

xii) P.W.12 - Sri Ramanjinappa another panchathdar

¶122

and relative of P.W.8 has deposed on par with

¶123

26 -

¶124

P.W.1 and supported the case of the

¶125

prosecution.

¶126

xiii) P.W.13 - Sri Bevina Marappa another panchayathdar has deposed about convening of panchayath near Maramma Temple and exchange of garlands, but thereafter did not agree to marry P.W.3 even after three months. Later, he learnt from P.Ws.5 and 8 about demand of dowry and has supported the case of the prosecution.

¶127

xiv) P.W.14 - Sri Lakshmaiah, Assistant Engineer, who prepared the sketch as per Ex.P.9 on the request of the jurisdictional police has supported the case of the prosecution.

¶128

xv) P.W.15 - Hanumanthachari, Police Constables, has deposed that he apprehended accused No.1 and produced him before the circle Inspector of Police.

¶129

27 -

¶130

xvi) P.W.16 - Sri Mallappa, Assistant Sub-Inspector

¶131

of Police has deposed that on receiving the complaint on 19.12.2011 from P.W.3, registered a case in C.Misc.61/2011. The said complaint is neither produced nor got marked. He has identified his signature marked as Ex.P.5(a) and supported the case of the prosecution.

¶132

xvii) P.W.17 - Sri R. Harish, Sub-Inspector of Police,

¶133

who received the complaint - Ex.P.5 and registered the FIR - Ex.P.11 on 2.7.2012 on the basis of the complaint lodged by P.W.3 has supported the case of the prosecution.

¶134

xviii) P.W.18 - Sri M.M. Pasha, Circle Inspector of Police has deposed that he took charge of investigation from P.W.17 - Sri R. Harish and recorded voluntary statement of accused No.1 marked as per Ex.P.12. He secured report from P.W.19 - Dr. Geetha, marked as Ex.P.13 pertaining to P.W.3. He also secured Ex.P.14,

¶135

- 28 -

¶136

the opinion of the doctor about accused No.1 , seized the material objects M.Os.1 to 7 under seizure mahazar Ex.P.15 and filed the charge sheet on 27.8.2012. On 27.11.2012 secured the FSL report marked as Ex.P.16. In his cross-examination, he admitted that P.W.3 has not stated before him about the tablets given to her by accused No.1 for avoiding pregnancy.

¶137

xix) P.W.19 - Dr. Geetha, Medical Officer of Pavagada Government Hospital, has deposed that she examined the complainant - P.W.3 on 3.7.2012 and issued the report as per Ex.P.13 (wrongly mentioned as Ex.P.17 in her deposition) stating that there were no external injuries and signs of intercourse. She collected the material objects - M.Os.3 to 7. She has supported the case of the prosecution.

¶138

xx) P.W.20 - Dr. Shashidar, Medical Officer of Pavagada Government Hospital, who examined accused No.1 has deposed that he collected

¶139

29 -

¶140

the material objects M.Os.1 and 2 and issued the report as per Ex.P.14. She has supported the case of the prosecution.

¶141

Based on the aforesaid pleadings, the learned Sessions Judge formulated two points for determination and considering both oral and documentary evidence on record, recorded a finding that the prosecution has proved beyond reasonable doubt that it is accused No.1, who committed the offences punishable under the provisions of Sections 376 and 417 of IPC and Section 4 of the Dowry Prohibition Act and accordingly, convicted him for the said offences and sentenced him as stated supra and acquitted accused Nos.3 and 4 for the said offences.

¶142

On careful perusal of the complaint Ex.P.5

¶143

lodged by P.W.3-victim on 2.7.2012 stating that she and accused No.1 had love affair for more than 5 years and accused No.1 assured her that he would marry her after she attains 18 years, had physical relationship with her

¶144

30 -

¶145

and they continued the same for more than five years. Thereafter, on attaining the age of 18 years, when she asked accused No.1 to marry her, he refused to marry her. Therefore she lodged a complaint on 14.12.2011 before Y.N. Hosakote Police Station and her parents convened a panchayath but it went in vain. Then she lodged another complaint Ex.P.5 and thereby the police called both the parents of accused No.1 and the complainant's and a panchayat was convened at Ganapathi Temple of Pavagada wherein the accused agreed to marry the complainant-P.W.3 and there was exchange of garlands and accused had sought three months time to marry P.W.3/complainant. Even after 6 months, since accused No.1 did not come forward to marry P.W.3 and was postponing the marriage on one or

¶146

the other reason, she intimated the elders Doddanna and Bevina Marappa, who convened a panchyath, where the accused demanded dowry of Rupees One lakh cash, 30 grams of gold chain, 15 grams of gold ring. Since the complainant's parents were unable to pay, P.W.3

¶147

31 -

¶148

was compelled to lodge a complaint. Though P.W.3 has referred the acknowledgement, dated 19.12.2011, in the complaint dated 2.7.2012, it is neither marked nor it is produced before the Court. As per the original records, as on the date of filing the complaint i.e., on 19.12.2011, she was aged about 22 years and accused No.1 had sexual relationship with her since they were having the affair for more than 5 years and about one year she had physical relationship with accused No.1.

¶149

P.W.3 - the complainant has deposed in her

¶150

evidence that about the physical relationship between herself and accused No.1 was on so many occasions and it cannot be counted and it might be more than 30 times. She has admitted that for the first time, in the year 2011, a complaint was lodged mentioning that 'there was love affair between herself and accused No.1 since two years that means from the year 2009. Accordingly, if we take into consideration, the age of the victim mentioned in her evidence as 24 years in the year

¶151

32 -

¶152

2015, her age on the date when the complaint was lodged in the year would be 20 years. Accepting the complaint dated 19.12.2011, wherein she has mentioned her age as 22 years and her physical relationship with accused No.1 was since one year and had love affair for more than 5 years, she was aged about 21 years on the first day, when accused No.1 induced P.W.3 for physical relationship. She has also stated in her cross-examination that she has not given the complaint about physical relationship between herself and accused No.1 when she was 16 years old.

¶153

On careful perusal of the evidence of P.W.2/brother-in-law of the victim, P.W.3/victim, P.Ws.5/father of the victim P.W.3 and P.W.8/mother of the victim, all have deposed about the love affair between accused No.1 and P.W.3 for more than four years, but they have neither taken any action nor have disclosed the age of victim/P.W.3 . None of the panchayatdars or witnesses examined on behalf of the

¶154

33 -

¶155

prosecution have deposed about the age of the victim/P.W.3 that she was minor at the time when accused No.1 induced P.W.3 for the first time for physical relationship with him. In the absence of any material produced either oral or documentary or the medical evidence to prove that the victim was minor as on the date of the alleged incident i.e., in the year 2009

¶156

or 2011, it is very difficult to accept the case of the prosecution that the victim was minor as on the date when accused No.1 and P.W.3 had physical relationship for the first time, which aspect of the matter has not been considered by the learned Sessions Judge.

¶157

It is also relevant to state that when the panchayath was convened on the basis of the first complaint lodged, there was exchange of garlands between accused No.1 and P.W.3. P.W.2 is the brotherin-law of P.W.3, who has admitted in his crossexamination that after the Police Inspector assaulted the accused, there was exchange of garlands at the instance

¶158

34 -

¶159

of the Police. The other panchayatdars viz., P.Ws.6, 9 to 13 never have disclosed about P.W.3 being minor as on the date of accused inducing P.W.3 for having physical relationship. Admittedly, P.Ws.11 and 12, who are relatives of P.W.8 - mother of the victim and none of the panchayatdars have deposed regarding demand of dowry by accused including P.Ws. 2 to 4 including mother and father of the victim P.W.3 except the complaint lodged that they demanded dowry in the form of cash and jewellery. Even there is no evidence about demand of dowry. Neither there is any medical evidence with regard to age of the victim P.W.3 nor sexual act with accused No.1. Though P.W.19 the doctor, who examined P.W.3 has specifically stated that there are no external injuries or signs of intercourse with P.W.3 as per Ex.P.13.

¶160

On re-appreciation of the entire material on record, clause sixthly, of Section 375 of IPC reads as under:

¶161

35 -

¶162

"375. Rape.—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 following descriptions:—

¶163

(First) — xxxx (Secondly) — xxxx (Thirdly) — xxxx (Fourthly) — xxxx (Fifthly) — xxxx (Sixthly)— With or without her consent, when she is under sixteen years of age. Explanation.— Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."

¶164

The material on record clearly depicts that the

¶165

evidence of either the victim-P.W.3 or P.W.5 - father or P.W.8 - mother of P.W.3 failed to prove that victimP.W.3, as on the date of the incident, was minor. Even

¶166

36 -

¶167

no material is produced to prove the date of birth of the victim. As already stated supra, as per the original complaint, dated 14.12.2011, on which date, P.W.3 had lodged a complaint, she was aged about 22 years and that she had a love affair with accused No.1 for more than five years as well as physical relationship for more than one year i.e., prior to lodging the first complaint. As such, the age of P.W.3 was 21 years as on the date of the incident and accused was above the age of 18 years. Therefore, the provisions of clause sixthly of Section 375 of IPC does not attract the case of the prosecution.

¶168

In so far as criminal intimidation, though the learned Sessions Judge framed the charge against accused, but acquitted accused No.1 under the provisions of Section 506 of IPC. Admittedly, the State has not filed any appeal against acquittal of accused No.1 for the offence punishable under Section 506 of IPC. Though accused Nos.2 to 5 were acquitted for the

¶169

37 -

¶170

aforesaid offence along with other offences, on careful reading of the provisions of Section 503 of IPC., in order to punish accused No.2 to 4 for the offence punishable under Section 506 of IPC., the punishment for criminal intimidation is prescribed as defined under the provisions of Section 503 of IPC. The evidence on record clearly depicts that there is no evidence to hold that the accused have intimidated the victim/P.W.3 as defined under Section 506 of IPC and there is no specific averment about the demand made by accused Nos.1 to 4 except the statement under Section 161 of Cr.P.C. or version of the interested witnesses P.W.3, 5, 8 and other panchayatdars, who are relatives and no independent witness/villagers are examined with regard to alleged continuous physical relationship for more than 5 years as per the evidence of P.W.3 and none of the villagers have been examined to prove the illicit relationship between accused No.1 and P.W.3.

¶171

38 -

¶172

Though P.Ws.5 and 8, father and mother of P.W.3 have admitted in their cross-examination that

¶173

there was love affair between accused No.1 and P.W.3 for more than five years, have not lodged any complaint and only P.W.3 - victim herself has lodged the complaint for the first time on 19.12.2011 stating that her age was 22 years as on that day and she had physical relationship with accused No.1 since one year as accused No.1 had promised/guaranteed her that he would marry.

¶174

In order punish the accused under the provisions of Section 417 of IPC., it is relevant to refer to the provisions of Section 415 of IPC., which reads as under:

¶175

"Section 415 - Cheating:

¶176

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any 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

¶177

39 -

¶178

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".

¶179

On careful reading of the provisions of Section 415, the ingredients required to constitute an offence of cheating are as under:

¶180

(i) there should be fraudulent or dishonest inducement of a person by deceiving him;

¶181

(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or

¶182

(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

¶183

(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

¶184

40 -

¶185

Admittedly, in the present case, it is not the

¶186

case of the complainant that before the sexual act by the accused for the first time prior to one year i.e., on 19.12.2011, when she was aged about 21 years, accused No.1 by promising that he would marry her, had induced her for sexual intercourse. As per the complaint - Ex.P.5, P.W.3 was in love with accused No.1 for more than 5 years and all along she co-operated with him for sexual relationship. On 14.12.2011 when she lodged the complaint alleging the sexual act, she was aged about 21 years and as has been admitted by PW.3 in her cross-examination, there was no inducement by accused No.1 for the first time when they had physical relationship and it might be about 30 times. Even the parents of the P.W.3-victim, who are P.Ws.5 and 8 have deposed only the fact that there was an affair between their daughter-P.W.3 and accused No.1 for more 5 years. It is not their case that for the first time when accused No.1 had physical relationship with P.W.3, he

¶187

41 -

¶188

had induced her on the ground that he would marry her, which clearly depicts that the ingredients of Section 415 of IPC are not attracted and therefore, question of conviction of accused No.1 under the provisions of Section 417 of IPC cannot be sustained. Even in the complaint, P.W.3 has not stated about the promise given by accused No.1 to marry her before the sexual act committed by him. The learned Sessions Judge without considering the oral and documentary evidence on record, has proceeded to convict accused No.1 for the offence punishable under the provisions of Sections 376, 417, 506 of IPC and Section 4 of the Dowry Prohibition Act ignoring the fact that the victim/P.W.3 was major as on the date when she had physical relationship with accused No.1 on consent.

¶189

On a careful reading of both oral and documentary evidence on record, including the medical evidence that there is no evidence against the accused from which it can be conclusively inferred that there was

¶190

42 -

¶191

any fraudulent and dishonest inducement by the prosecutrix by constituting the offence under the provisions of Section 417 of the IPC. Therefore, the accused cannot be convicted for the offence punishable under Section 417 of the IPC, thereby the prosecution

¶192

has not proved beyond reasonable doubt the alleged offence. As already stated above, the State has not filed

¶193

any appeal against the acquittal of accused No.1 under Section 506 of the IPC and the material on record does not depict that accused Nos.2 to 4 have demanded dowry.

¶194

It is relevant to consider at this stage the definition of dowry as contemplated under Section 2 of the Dowry Prohibition Act, 1961 which reads as under:

¶195

“2. Definition of ‘dowry’. - In this act,

¶196

“dowry” means any property or valuable security given or agreed to be given either directly or indirectly–

¶197

a) by one party to a marriage to the other party to the marriage; or

¶198

43 -

¶199

b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,

¶200

at or before or any time after the marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

¶201

Explanation II.-The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).”

¶202

A careful reading of the said definition makes

¶203

it clear that dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage or to the other party to the marriage; or by the parents of either of the party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties.

¶204

44 -

¶205

Admittedly, in the present case, except the

¶206

complainant and the panchayatdars who are the relatives, there is no independent evidence from the village where the accused and PWs.3, 5 and 8 are residents to show the relationship between accused No.1 and PW.3 and there was a demand. Admittedly, PW.8 mother has admitted in the cross-examination that the accused has neither threatened nor ruined the chastity of her daughter PW.3. In the absence of any material produced by the prosecution beyond reasonable doubt, mere panchayat held between the parties and on assault by the Police Inspector as admitted by PW.2, exchange of garlands cannot be called as an agreement or agreed by both the parties to a marriage either by the accused or parents of he accused or victim or parents of the victim, thereby the alleged demand was not to be connected with the marriage either directly or indirectly. Admittedly, there is no marriage ceremony held between the parties except exchanging garlands in the police station at the instance of the Sub-Inspector who

¶207

45 -

¶208

assaulted accused No.1.Thereby the prosecution has not proved beyond reasonable doubt the involvement of the accused persons either accused No.1 or accused Nos.2 to 4 implicate for the offence made out in the charge memo and the learned Sessions Judge acquitted accused Nos.2 to 4 and the prosecution has failed beyond reasonable doubt the involvement of the accused to attract the provisions of Sections 376 and 417 read with Section 4 of the Dowry Prohibition Act.

¶209

Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Deepak Gulati

¶210

vs. State of Haryana [AIR 2013 SC 2071] para Nos.15, 22, 23 and 24 held as under:

¶211

“15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Act 1872’) provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed

¶212

46 -

¶213

into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, along with the provisions of Section 90 of the Act 1872. Section 90 of the Act, 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 , IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.

¶214

The instant case is factually very similar to the case of Uday (AIR 2003 SC 1639 : 2003 AIR SCW 1035) (Supra), wherein the following facts were found to exist:

¶215

I. The prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to.

¶216

II. She was conscious of the fact that her marriage may not take place owing to

¶217

47 -

¶218

various considerations, including the caste factor.

¶219

III. It was difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her.

¶220

IV. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix.

¶221

To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived she went with him to the Karna lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no

¶222

48 -

¶223

complaints to any one. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in court at Ambala. However, here they were apprehended by the police.

¶224

If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of “false promise of marriage” has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the afore-mentioned fact situation.”

¶225

It is also relevant to state at this stage that

¶226

according to the complaint Ex.P-5, they had an affair for more than five years and according to the first complaint

¶227

49 -

¶228

on 19/11/2011 her age was 22 years and she had physical contact with accused No.1 at the age of 21 years i.e., prior to one year of the complaint. Thereby there was inordinate delay in lodging the complaint. If there was sexual act for more than five years continuously and had attained the age of majority and it was completely consensual act between accused No.1 and PW.3, thereby lodging complaint on 02/07/2012 was after due deliberation taking advantage that the accused and the parents of the accused are the brother and sister-in-law of PW.8 i.e., the mother of the victim/PW.3, thereby they have falsely implicated accused No.1. In the absence of any explanation about the delay in lodging the complaint, on that ground alone, the prosecution case is liable to be disbelieved.

¶229

Our view is also fortified by the judgment of the Hon’ble Supreme Court in the case of Rajesh Patel

¶230

vs. State of Jharkhand [2013 Crl.L.J. 2062] the

¶231

50 -

¶232

Hon’ble Supreme Court at paragraph Nos.9 to 12, 14 and 16 has held as under:

¶233

“ 9. Further, there is an inordinate delay of nearly 11 days in lodging the FIR with the jurisdictional police. The explanation given by the prosecutrix in not lodging the complaint within the reasonable period after the alleged offence committed by the appellant is that she went to her house and narrated the offence committed by the appellant to her mother and on assurance of Purnendu Babu – PW3, the mother remained silent for two to four days on the assurance that he will take action in the matter. Further, the explanation given by the prosecutrix regarding the delay is that at the time of commission of offence the appellant had threatened her that in case she lodges any complaint against him, she would be killed. The said explanation is once again not a tenable explanation. Further, the reason assigned by the High Court regarding not lodging the complaint immediately or within a reasonable period, it has observed that in case of rape, the victim girl hardly dares to go to the police station and make the matter open to all out of fear of stigma which will be attached

¶234

51 -

¶235

with the girls who are ravished. Also, the reason assigned by the trial court which justifies the explanation offered by the prosecution regarding the delay in lodging the complaint against the appellant has been erroneously accepted by the High Court in the impugned judgment. In addition to that, further observation made by the High Court regarding the delay is that the prosecutrix as well as her mother tried to get justice by interference of PW3, who is a common friend of both of them and PW4, the Doctor with whom the prosecutrix was working as a Nurse. When the same did not materialize, after lapse of 11 days, FIR was lodged with the jurisdictional police for the offence said to have been committed by the appellant. Further, the High Court has also proceeded to record the reason that prosecutrix had every opportunity to give different date of occurrence instead of 14.2.93 but she did not do it which reason is not tenable in law. Further, the High Court accepted the observation made by the learned trial Judge wherein the explanation given by the prosecutrix in her evidence about being terrorized to be killed by the appellant in case of reporting the matter to the police, is wholly

¶236

52 -

¶237

untenable in law. The same is not only unnatural but also improbable. Therefore, the inordinate delay of 11 days in lodging the FIR against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not only makes the prosecution case improbable to accept but the reasons and observations made by the trial court as well as the High Court in the impugned judgments are wholly untenable in law and the same cannot be accepted. Therefore, the findings and observations made by the courts below in accepting delay in lodging the FIR by assigning unsatisfactory reasons cannot be accepted by this Court as the findings and reasons are erroneous in law.

¶238

Further in the case in hand, PW3, ho is a common friend of the appellant and the prosecutrix, according to the prosecution case, he has categorically stated that he does not know anything about the case for which he had received the notice from the court to depose in the case. PW4 has stated in his evidence that the prosecutrix was getting nursing training privately in his chamber for the last three years as on the date of his examination, namely, on 16.11.95. He has stated in his

¶239

53 -

¶240

examination- in-chief that on 14.2.93 when he opened his chamber the prosecutrix came to his chamber and further stated that her mother did not tell him anything. He has been treated as hostile by the prosecution, he was cross-examined by the prosecutor, in his crossexamination he has categorically stated that he has told the police that he does not know anything about the incident. He has further stated that neither the prosecutrix nor her mother told him about the incident and further stated that he does not know anything about the case.

¶241

Further, neither the Doctor nor the I.O. has been examined before the trial court to prove the prosecution case. The appellant was right in bringing to the notice of the trial court as well as the High Court that the nonexamination of the aforesaid two important witnesses in the case has prejudiced the case of the appellant for the reason that if the doctor would have been examined he could have elicited evidence about any injury sustained by the prosecutrix on her private part or any other part of her body and also the nature of hymen layer etc. so as to corroborate the story of the prosecution that the

¶242

54 -

¶243

prosecutrix suffered unbearable pain while the appellant committed rape on her. Nonexamination of the doctor who has examined her after 12 days of the occurrence has not prejudiced the case of the defence for the reason that the prosecutrix was examined after 12 days of the offence alleged to have committed by the appellant because by that time the sign of rape must have disappeared. Even if it was presumed that the hymen of the victim was found ruptured and no injury was found on her private part or any other part of her body, finding of such rupture of hymen may be for several reasons in the present age when the prosecutrix was a working girl and that she was not leading an idle life inside the four walls of her home. The said reasoning assigned by the High Court is totally erroneous in law.

¶244

In view of the above statement of evidence of PW3 and PW4 whose evidence is important for the prosecution to prove the chain of events as per its case, the statement of evidence of the aforesaid witnesses has seriously affected the prosecution case. Therefore, the courts below could not have, at any stretch of imagination, on the basis of the

¶245

55 -

¶246

evidence on record held that the appellant is guilty of committing the offence under Section 376, IPC. Further, according to the prosecutrix, PW3 who is alleged to have rescued her from the place of occurrence of offence, has clearly stated in his evidence that he does not know anything about the incident in his statement thereby he does not support the version of prosecution. The High Court has erroneously accepted the finding of the trial court that the appellant has not been prejudiced for nonexamination of the doctor for the reason that she was working as a Nurse in the private hospital of PW4 and being a nurse she knew that the information on commission of rape is grave in nature and she would not have hesitated in giving the information to the police if the occurrence was true. Further, the finding of the courts below that non-examination of the I.O. by the prosecution who has conducted the investigation in this case has not caused prejudice to the case of the appellant, since the prosecution witnesses were unfavorable to the prosecution who were either examined or declared hostile by the prosecution, which reasoning is wholly untenable in law. Therefore, the finding and reasons recorded by

¶247

56 -

¶248

both the trial court as well as the High Court regarding non-examination of the above said two witnesses in the case has not prejudiced the case of the appellant is totally an erroneous approach of the courts below. For this reason also, we have to hold that the findings and reasons recorded in the impugned judgment that the trial court was justified in holding that the prosecution has proved the charge against the appellant and that he has committed the offence on the prosecutrix, is totally erroneous and the same is wholly unsustainable in law.

¶249

Further, one more strong circumstance which has weighed in our mind is that they had good acquaintance with each other as they were class-mates and they were in terms of meeting with each other. The defence counsel had alternatively argued that the appellant had sex with her consent. The High Court proceeded not to accept the said argument by giving reasons that the appellant failed to explain as to under what circumstance he had sex with the consent of the prosecutrix when she was confined in his house. The contention urged on behalf the appellant that it

¶250

57 -

¶251

was consensual sex with the prosecutrix is to be believed for the reason that she herself has gone to the house of the appellant though her version is that she went there at the request of the appellant to take back her book which she had given to him. This is a strong circumstance to arrive at the conclusion that the defence case of the appellant is a consensual sex. Further, the prosecution case is that after the offence was committed by the appellant he had locked the room from outside and left. After half an hour Purnendu Babu- PW3 arrived and unlocked the room. This story is improbable to believe and the prosecutrix has not lodged the complaint either immediately or within reasonable period from the date of occurrence. The complaint was undisputably lodged after lapse of 11 days by the prosecutrix. In this regard, it is pertinent to mention the judgment of this Court in Raju v. State of Madhya Pradesh, the relevant paragraph of which is extracted hereunder for better appreciation in support of our conclusion:

¶252

“12. Reference has been made in Gurmit Singh case to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating

¶253

- 58 -

¶254

to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a

¶255

59 -

¶256

lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.”

¶257

The trial court as well as the High Court should have appreciated the evidence on record with regard to delay and not giving proper explanation regarding delay of 11 days in filing FIR by the prosecutrix and nonexamination of complainant witnesses, viz. the Doctor and the I.O. which has not only caused prejudice to the case of the appellant but also the case of prosecution has created reasonable doubt in the mind of this Court. Therefore, the benefit of doubt must enure to the appellant. As we have stated above the testimony of the prosecutrix is most unnatural and improbable to believe and therefore it does not inspire confidence for acceptance of the same for sustaining the conviction and sentence. Therefore, we are of the view that the impugned judgment requires to be interfered with by this Court in exercise of its jurisdiction. Accordingly, we allow the appeal and set aside the impugned judgment.”

¶258

60 -

¶259

Except the evidence of PW.3 about sexual

¶260

intercourse for five years prior to the complaint Ex.P-5 dated 02/07/2012, there is no other corroborative evidence including the father PW.5 and atleast motherPW.8 never whispered about accused No.1 and PW.3 had physical contact except stating that they had love affair for more than four years. If it is really the statement of PW.3 had to accept what prevented the jurisdictional police when they lodged first complaint to refer the matter to the jurisdictional authority or advise the party or this case continued is not forthcoming and the alleged endorsement issued in favour of PW.3 is not marked in the present case, thereby the prosecution failed to prove any of the offences alleged against the accused persons beyond reasonable doubt.

¶261

The evidence of PWs.3, 5 and 8 with regard to sexual act between the accused and PW.3 not consistent, on one hand, Ex.P-5 states five years and on the other hand the complaint Ex.P-5 dated

¶262

61 -

¶263

19/11/2011 states that accused No.1 and PW.3 had physical contact for about one year prior to the complaint and in the evidence she says that they had physical contact about two years prior to the complaint and she was aged 24 years. Thereby, there is no clarity in the evidence adduced and the evidence on record clearly depicts that there is no sign of sexual intercourse as per the evidence of doctor PW.19 and all panchayatdars and the relatives’ witnesses only spoke about the love affair and not sexual act between the accused and PW.3 and thereby, if we consider the evidence of prosecution witnesses except PW.3 on one side and on the other side evidence of PW.3, there are two views possible.

¶264

It is well settled that there is no embargo on the appellate Court reviving the evidence upon which an order of conviction is based. The golden thread which

¶265

runs through the web of administration of justice in the criminal case is that two views are possible on the

¶266

62 -

¶267

evidence adduced in the case, one pointing to the guilt of the accused and the other of the innocence, the view which is favourable to the accused should be adopted, the paramount consideration of the Court is to ensure that miscarriage of justice is prevented and the miscarriage of justice which may arise from the acquittal or the guilt is not less than conviction of an innocent. Admittedly, in the present case, at the first instance, it is not proved by the prosecution beyond reasonable doubt that on the date of first sexual intercourse between the accused and PW.3 victim has induced sexual act and at that time she was below 16 years as contemplated under the provisions of Section 375 description sixthly of the IPC. On that ground alone, the judgment passed by the learned Sections Judge convicting the accused cannot sustain and acquittal of accused Nos.2 to 4 is just and proper and the State has not made out any ground to interfere with the acquittal of accused Nos.2 to 4 in exercise of appellate powers

¶268

63 -

¶269

under the provisions of Section 374 of the Code of Criminal Procedure.

¶270

On re-appreciation of the entire material on

¶271

record, both oral and documentary evidence on record and in the light of the principles enunciated by the Hon’ble Supreme Court stated supra, the first point raised in the present appeal has to be answered in the affirmative holding that accused No.1 has made out a case to interfere with the judgment and order of sentence dated 25/08/2016 passed by the learned Sessions Judge for the offences punishable under the provisions of Sections 376, 417 of the IPC and Section 4 of the Dowry Prohibition Act. Accordingly, second point raised in the appeals is answered in the negative holding that State has not made out any case to interfere with the acquittal of the accused Nos.2 to 4 for the offences made out in the charge.

¶272

In view of the above, we pass the following:-

¶273

64 -

¶274

ORDER

¶275

i) The Criminal Appeal filed by the accused is hereby

¶276

allowed .

¶277

ii) The impugned judgment of conviction and order of sentence dated 25^th August, 2016 made in S.C.No.348/2012 on the file of the IV Addl. District

¶278

& Sessions Judge, Madhugiri, convicting and sentencing accused No.1 to undergo simple imprisonment for a period of ten years with a fine of Rs.10,000/- for the offence punishable under the provisions of Section 376 of IPC and a further sentence to undergo simple imprisonment for one year and with a fine of Rs.5,000/- for the offence punishable under Section 417 of the IPC and also to undergo simple imprisonment for a period of two years with a fine of Rs.10,000/- for the offence punishable under Section 4 of the Dowry Prohibition Act with default clauses is hereby set aside.

¶279

65 -

¶280

iii) Accused No.1 is hereby acquitted for the offences

¶281

punishable under the provisions of Sections 376, 417 of the IPC and Section 4 of the Dowry Prohibition Act.

¶282

iv) The appeal filed by the State in Crl.A.No.675/2017 is hereby dismissed devoid of merit and the acquittal of the accused Nos.2 to 4 passed by the learned Sessions Judge is hereby confirmed.

¶283