Allowed

Smt Shobha H T v. State of Karnataka

Karnataka HC13 Dec 2023CRL.A/1386/2017

Case brief

AI extract

What is this about?

Victim's appeal against acquittal in a rape case. The High Court held the victim's sole testimony credible, corroborated by her pregnancy, birth of child, and refusal of accused for DNA test. Conviction under Section 376 IPC restored.

What did the court decide?

Accused convicted under Section 376 IPC, sentenced to 8 years rigorous imprisonment and fine of Rs.50,000/-. Victim compensation of Rs.45,000/- from fine under Section 357 CrPC. Further compensation u

Smt Shobha H T Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2023

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA

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CRIMINAL APPEAL No.1386 OF 2017 (A)

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BETWEEN:

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Smt. Shobha H.T. Aged about 40 years W/o. H.G. Prabhu, Herur Village, Kasabha Hobli, Kunigal Taluk - 572130.

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.. Appellant

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(By Smt. Veena J. Kamath, Advocate )

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AND:

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State of Karnataka

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Kunigal Police Station Represented by Special Public Prosecutor, High Court Building, Bengaluru - 560001.

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Sri.H.G. Prabhu, S/o. Govindaiha, Aged about 40 years, Herur Village, Kasabha Hobli, Kunigal Taluk - 572130.

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.. Respondents

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(By Sri. P. Thejesh, High Court Govt.Pleader for R-1; Sri.B.S. Raghu Prasad, Advocate for R-2)

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This Criminal Appeal is filed under Section 372 of the Code of Criminal Procedure, 1973, with the following prayer:

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“Wherefore, it is respectfully prayed that this Hon'ble Court may kindly be pleased to call for the records and set aside the order dated 30-05-2017 passed by the learned VI Additional District and Session Judge, at Tumkuru in S.C.No.38 of 2011 and convict the 2^nd respondent/accused for the offence punishable under Section 376 of IPC, by allowing this appeal on the above grounds, and on such other grounds as may be urged at the time of Final Hearing of the petition and pass any other suitable order as this Hon'ble Court deems fit on the facts and circumstances of the case, in the interest of justice and equity."

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This Criminal Appeal having been heard through Physical Hearing/Video Conferencing Hearing and reserved for judgment on 15-11-2023 , coming on for pronouncement this day, Dr.H.B.Prabhakara Sastry J . delivered the following:

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J U D G M E N T

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The complainant/CW-1(PW-3) has filed this appeal under Section 372 of the Code of Criminal Procedure, 1973, (hereinafter for brevity referred to as “the Cr.P.C.”), challenging the judgment of acquittal dated 30-05-2017, passed by the VI Additional District and Sessions Judge at Tumakuru, (hereinafter for brevity referred to as “the Sessions Judge’s Court”) in Sessions Case No.38/2011, acquitting the accused of the offence punishable under Section 376 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as “the IPC”).

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The summary of the case of the prosecution in the Sessions Judge’s Court was that, the complainant (henceforth referred to as "the victim") and the accused are residents of Heruru Village of Kunigal Taluk, within the limits of the complainant - Police Station. The parents of the accused by names Sri. Govindaiah and Smt. Gowramma are old aged. The victim, being a relative of the accused, was, at the request of the parents of the accused, working in their house and attending to the household works including cooking, cleaning of the house, washing the cloths etc. Six months prior to the date 28-04-2000, one day, when the parents of the accused had been to Bengaluru to their daughter's house, the victim and the accused were the only persons present in the house. On that day, the accused had gone out of

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the house and the victim, after completing the household work, at about 8:30 p.m., was alone at home. At that time, the accused came from outside and demanded the victim that she should love him. The victim did not accede to his demand. The accused, by force, committed rape upon her. After the incident, while she was weeping, the

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accused consoled her, stating that he would marry her and that she should not reveal the said incident to anyone. Thereafter, both of them started loving each other. Subsequently, the victim conceived and became pregnant of three months. She revealed the same to the accused, for which, the accused asked her to get the same aborted and gave her some tablets to consume in that regard. However, scared by the same, she did not consume the tablets given to her by the accused. When such being the case, the parents of the accused started searching for a girl for the accused. On coming to know about the same, about fifteen days prior to the date, which is 28-04-2000, the victim questioned the accused as to his conduct of searching for other girl to marry. However, the accused ignored the query of the victim (complainant) and stated that it was his wish and threw her out of his house. The same was witnessed by the people of their village including Revanna, Chandrappa and Srinivas. The victim revealed about the incident to her parents who approached the parents of the accused and requested them to get the victim married to the accused, however,

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they also refused. Aggrieved by the same, the victim, claiming herself to be a pregnant woman, filed a complaint with the complainant Police on the date 28-04-2000, which was registered in the complainant - Police Station in Crime No.145/2000, against the accused, for the offence punishable under Section 376 of the IPC.

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After the Police conducted the investigation, during which period, the victim gave birth to a baby boy, the complainant Police filed charge sheet against the accused for the offence punishable under Section 420 of the IPC. The charge sheet was filed in the Court of the learned Principal Civil Judge and JMFC at Kunigal in C.C.No.807/2001. The charge was framed against the accused for the offence punishable under Section 420 of the IPC, by the Trial Court. However, vide order dated 16-09-2003, passed by the learned Principal District and Sessions Judge, Tumkur, in Crl.Misc.420/2003, filed by the respondent No.2 (accused), C.C.No.807/2001 was withdrawn from the file of the learned Principal Civil Judge (Jr.Dvn.) & JMFC., Kunigal and was made over by

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assigning to the Court of the Principal Civil Judge (Jr. Dvn.) & JMFC, Tumkur (hereinafter for brevity referred to as the "the Trial Court"), for disposal in accordance with law, where, it was numbered as C.C.No.1838/2003.

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Before the Trial Court, in C.C.No.1838/2003,

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since the accused pleaded not guilty and claimed to be tried, the trial was initiated against the accused. In the process of proving the alleged guilt against the accused, the prosecution examined in all four witnesses i.e. CW-1, CW-3, CW-5 and CW-4 as PW-1, PW-2, PW-3 and PW-4 respectively.

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During trial, the prosecution filed an application under Section 323 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), contending that, the incident involves the commission of the offence punishable under Section 376 of the IPC by the accused, as such, the matter was required to be committed to the Sessions Judge's Court, for its trial.

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The Trial Court, after inviting the objection and hearing both side, by its order dated 30-04-2009 allowed

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the application filed by the prosecution under Section 323 of the Cr.P.C. and committed the case to the Sessions Judge's Court.

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After receiving the records and perusing the entire material placed before it and hearing both side, the Sessions Judge's Court framed charge as against the accused for the offence punishable under Section 376 of the IPC.

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Since the accused pleaded not guilty and claimed

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to be tried before the Sessions Judge's Court also, the trial

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was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all seven (7) witnesses as PW-1 to PW-7, got marked documents from Exs.P-1 to P-7 and no Material Objects were produced. On behalf of the accused, neither any witnesses were examined nor any documents were got marked as exhibits.

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After hearing both side, the learned Sessions Judge’s Court, by its impugned judgment dated 30-05-2017, acquitted the accused of the offence

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punishable under Section 376 of the IPC. Being aggrieved by the same, the complainant (victim) – CW-1 (PW-3) has filed the present appeal.

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The respondent No.1 - State is being represented by the learned High Court Government Pleader and the respondent No.2 (accused) is being represented by his learned counsel.

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The records from the Sessions Judge’s Court were called for, however, the records of the Trial Court in C.C.No.807/2001 as well as in C.C.No.1838/2003 and also the Sessions Judge's Court's records are placed before this Court.

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Heard the learned counsel for the appellant (victim), learned High Court Government Pleader for the respondent No.1-State and also the learned counsel for respondent No.2 (accused). Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the records from the Sessions Judge’s Court.

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For the sake of convenience, the parties would be referred to as per their rank before the Sessions Judge’s Court.

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The learned counsel for the appellant (victim) in her argument contended that, the victim, in her complaint at Ex.P-1 itself, has clearly narrated about the occurrence of the incident and also shown that, due to the act of rape committed by the accused upon her, she conceived and became pregnant. Further, the Date of Birth Certificate at Ex.P-3 shows that a baby boy was born to the victim. The Hospital record at Ex.P-7 shows that the delivery of the child was a Full Time Normal Delivery (FTND), as such, after nine months of pregnancy, the victim has delivered a male child. This shows that, as on the date of the complaint, the victim (complainant) was pregnant.

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Learned counsel further submitted that, the evidence of the witnesses was recorded about seventeen (17) to nineteen (19) years after the date of the incident, as such, minor discrepancies or variations, if any, are bound to occur in the evidence and if any such contradictions or

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variations are there, the same are not fatal to the case of the prosecution.

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Learned counsel also contended that the prosecution had filed an interlocutory application for getting conducted a DNA Test of the accused, however, the said application came to be rejected. The complainant challenged the same in a Criminal Petition before this Court, which also came to be rejected, on the ground that the accused cannot be compelled to undergo the DNA Test, however, it reserved liberty to draw an adverse inference against the accused under Section 114, illustration (h) of the Indian Evidence Act, 1872 (hereinafter for brevity referred to as "the Evidence Act"). Still, the learned Sessions Judge's Court did not draw any adverse inference against the accused who refused to undergo a DNA Test.

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Further, the learned counsel contended that, the learned Sessions Judge's Court has totally failed to appreciate the evidence placed before it in its proper perspective and ignoring the supporting evidence of all the material witnesses, has proceeded to assume several things on its own and acquit the accused of the alleged

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offence, as such, the same deserves to be set aside and the accused deserves to be convicted for the alleged offence.

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The learned High Court Government Pleader for the respondent No.1 – State, in his brief argument, submitted that, though originally the charge sheet was filed for the offence punishable under Section 420 of the IPC, however, the Investigating Officer has not filed the additional charge sheet for the offence punishable under Section 376 of the IPC. Still, he contended that in the original charge sheet itself, the Investigating Officer has clearly mentioned that the accused has committed rape upon the victim and thereafter falsely assured her of marrying her and continued his act of having sexual intercourses with her. As such, he submitted that, the provision of 'Section 376 of the IPC' though not is expressly mentioned in the charge sheet, however, the recitals in the charge sheet clearly mention about the offence of rape committed by the accused.

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Learned High Court Government Pleader further submitted that, the evidence of PW-3 (victim) is trust worthy and believable, as such, she has clearly proven the guilt of rape committed by the accused upon her.

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With this, the learned High Court Government Pleader submitted that, he supports the present appeal filed by the victim.

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Learned counsel for the respondent No.2 (accused) in his argument contended that, the contention of the accused, throughout, has been a total denial of the occurrence of the alleged incident of rape. The prosecution has utterly failed to prove the alleged guilt against the accused. The evidence of PW-3 (victim) is not believable and trustworthy. She has not given the specific date of the alleged incident of rape.

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Learned counsel further submitted that, even if the DNA Test were to be conducted, the same would have, at the best, shown the paternity/parentage of the male child born to the victim, but it would not be a proof of rape

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alleged to have been committed by the accused upon the victim.

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Learned counsel also submitted that, the scene of offence panchanama has not been proved by the prosecution, as such, the entire case of the prosecution itself is not believable. With this, he prayed to dismiss the appeal filed by the victim.

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After hearing the learned counsels for the parties, the points that arise for our consideration in this appeal are:

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[i] Whether the prosecution has proved beyond all reasonable doubts that, six months prior to the date 28-04-2000, one day, the accused committed rape upon the victim (complainant) in his house at Heruru Village, within the limits of the complainant Police Station and thereby has committed the offence punishable under Section 376 of the Indian Penal Code, 1860?

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[ii] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

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Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that, it

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is an appeal against the judgment of acquittal of accused for the offence punishable under Section 376 of the IPC. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.

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(a) Our Hon’ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:

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“ 42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence

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that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

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42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.”

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(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra), the Hon’ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.

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(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:

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“ 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in the case of Roopwanti Vs. State of Haryana and others reported in AIR 2023 SUPREME COURT 1199.

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It is keeping in mind the above principles laid down by the Hon’ble Apex Court, we proceed to analyse the evidence placed by the prosecution in this matter.

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Among the seven witnesses examined by the prosecution to prove the alleged guilt against the accused, the primary, material and most important witness is, PW-3 (CW-1) - the victim.

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In her examination-in-chief, PW-3 (CW-1) - the victim has stated that, the accused, by relationship is her maternal uncle’s son. The father of accused by name Sri.Govindaiah is her maternal uncle and his wife by name

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Smt. Gowramma is the mother of the accused. The accused is the resident of the very same village where the victim resides. Eighteen (18) years to nineteen (19) years prior to the date of her (victim's) evidence (her examination-in-chief was recorded on the date 04-10-2016), for about two years, she has worked in the house of the accused. At that time, since the mother of the accused - Smt. Gowramma was not keeping good health, at the request of the parents of the accused, she (the victim) was staying in the house of the accused and

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was attending to their household work. The parents of accused, i.e. Sri.Govindaiah and Smt. Gowramma have

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five daughters and three sons, however, the daughters were residing separately in their respective matrimonial homes. The accused alone was staying with his parents in the village. The parents of the accused were now and then visiting their daughters' houses, as such, whenever they used to go out of the village to visit their daughters' houses, they used to entrust the entire responsibility of their house to her (the victim).

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The witness has further stated that, when such being the case, about eighteen years prior to the date of her evidence, one day, the parents of the accused had been to Bengaluru to visit the house of their daughter. On that night, at about 20:30 hours (8:30 p.m.), after finishing the cooking work, she was sitting in the house of the accused. At that time, the accused who returned to the home asked her to love him, for which, she did not agree. Since she did not agree, the accused forcibly committed rape upon her. After the incident of rape, when she was weeping, the accused then promised her that he would marry her and told her not to reveal about the incident to

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anybody. The witness has stated that, after the said incident, love developed between them for about six months. During the said period, she conceived and became pregnant of three months. She informed the accused about she becoming pregnant of three months, for which, the accused advised her to get the pregnancy aborted and gave her few tablets to consume. Scared by it, she did not consume those tablets.

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The witness has further stated that, the accused started searching for a girl to marry. She enquired as to why he was looking for some other girl to marry, for which, the accused replied stating that, it was his wish and he physically threw her away from his house. The said act of the accused throwing her (the victim) out of his house by pushing her, holding her neck was seen by Sri. Revanna, Sri. Chandrappa and Sri. Srinivasa, who are the residents of the very same village. It is those people who informed the same to her parents. The witness stated that on the same evening, her parents visited the house of the accused and requested the parents of the

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accused to take the victim as their daughter-in-law by getting her married to the accused, however, the parents of the accused refused to it. This made her (victim) to go to the complainant Police Station on the next day morning and lodge a complaint against the accused. Stating so, the witness has identified the complaint said to have been lodged by her at Ex.P-1. She stated that, at the time of lodging the complaint, she was pregnant of six months.

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The witness further stated that, after she lodged the complaint, the Police visited the house of the accused and also enquired the neighbours. They also took her signature to a document which she has identified at Ex.P-4. She also stated that three months after she lodging the complaint, she gave birth to a male child in the Vani Vilas Hospital at Bengaluru. Thereafter, she started living with her parents in Heruru village, however, later, she shifted to Bengaluru and was residing at Bengaluru. She also stated that as on the date of her evidence, the age of her son was 16 years.

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Since PW-3 did not give the details of the document at Ex.P-4, the prosecution got her treated as hostile and

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cross-examined her. In her cross-examination from the prosecution side, she admitted a suggestion as true that on the date 01-05-2000, the complainant Police visited the spot as shown by her and drew a scene of offence panchanama as per Ex.P-4. The said panchanama was witnessed by one Sri. Shivanna and Sri. Srinivasa. However, due to long lapse of time, she could not able to recollect the same.

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The victim (PW-3) was subjected to a detailed crossexamination from the accused' side. The details of her family and the brothers to her father and the location of their house were all elicited in her cross-examination. Similarly, it was also elicited in her cross-examination that, the father of the accused had five daughters and three sons, among whom, one son was dead and all the five daughters of Govindaiah were married and residing at Bengaluru. She admitted a suggestion as true that the accused studied Diploma course at Bengaluru by staying in the house of his maternal aunt, however, she denied that he was running an STD Booth at Bengaluru after

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completion of his education. She admitted a suggestion as true that the father of the accused has sufficient landed property and getting an income of 10.00 to 15.00 lakhs per annum, on the other hand, her father did not own any agricultural property except some dry land and that his annual income from agriculture was 50,000/-. She also admitted that her father and her uncles were working as Coolies to eke out their livelihood.

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An attempt was made in the cross-examination of PW-3 (the victim) to bring out that, both the victim and her mother are not of good character. However, several suggestions made in that regard were categorically denied by the witness. The witness in her cross-examination stated that, after she lodged a complaint, the Police had taken her to the Government Hospital at Kunigal for her medical examination. The denial suggestion made to her about the evidence given in her examination-in-chief regarding the alleged incident and the involvement of the accused in the alleged incident were all not admitted as true by the witness.

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The second important and material witness upon whom the prosecution is banking upon is, PW-5 (CW-3) - Smt. Lakshmamma - the mother of the victim. This witness has stated that the victim who is her daughter was attending to the household work of the parents of the accused with whom the accused was residing in their village Heruru. All the daughters of Sri. Govindaiah (father of the accused) were given in marriage and were living in their matrimonial homes at Bengaluru. The accused alone was residing with his parents in the village. The brother of the accused by name Sri. Vasantha was dead few years back. It is after the death of said Vasantha, which was about sixteen (16) years prior to the date of her (PW-5's) evidence, at the request of Smt. Gowramma - the mother of the accused, she had

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sent her daughter (PW-3-victim) to the house of the accused to work in their house and to attend to the household works there. She further stated that, though initially the victim refused to go to their house, however,

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after being convinced by them (this witness and her husband) she (the victim) went to the house of the

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accused and was looking after the household work, where she used to stay in the house of the accused, however, whenever the parents of the accused were leaving the village, she used to return to her house for sleeping in the night.

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About the incident, the witness (PW-5) has stated that, during that time, while the victim was working in the house of the accused, one day, at about 8:00 p.m., the victim came weeping to their house. When enquired, she (the victim) stated that the accused had committed rape upon her, stating that he would marry her. The witness has also stated that, her daughter had told her that even prior to the said date, the accused had already committed rape upon her, due to which, she had conceived and become pregnant. She stated that her daughter had also told her that, she (the victim) insisted the accused to marry her, however, the accused refused to marry her, on the other hand, advised her to get the pregnancy aborted. The witness stated that her daughter also told her that, on the date and time when the accused had committed rape

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upon her, both the parents of the accused were not in the house.

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This witness further stated that, the Doctor who examined her daughter confirmed pregnancy, stating that she was four months' pregnant then. Noticing these, she, joined by her husband and other relatives, went to the house of Govindaiah - the father of the accused and requested the accused and his parents to get the victim married to the accused. However, they denied the allegation that the accused had committed rape upon the victim and quarrelled with these people. This made the complainant (victim) to lodge a Police complaint against the accused. She also stated that the victim gave birth to a male child, who was aged about sixteen (16) years as on the date of her evidence.

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This witness was also subjected to a detailed crossexamination from the accused' side. It was admitted in her cross-examination that, if there is a mangalya chain around the neck of a woman and if she is wearing toerings, then she is a married woman, however, the witness denied that the victim was married. The witness

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voluntarily stated that the victim was wearing toe-rings only to avoid the evil look of the gents in the society. The witness stated that the victim was not wearing mangalya chain.

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Several suggestions were made to the witness assassinating her character so also that of the victim, however, the witness has specifically denied all those suggestions. She also denied that the accused is staying at Bengaluru by running an STD Booth. She denied the suggestion that the victim was not working in the house of the accused. The denial suggestions made to her regarding the incident were also not admitted as true by this witness. Thus, the defence could not elicit any statements favourable to the accused in the crossexamination of either PW-3 or PW-5.

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Both these witnesses have completely adhered to their original version given in their examination-in-chief. 18. The other witness who has spoken about some part of the alleged incident is, PW-4 (CW-4) - Sri. Revanna.

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PW-4 (CW-4) - Sri. Revanna has stated in his examination-in-chief that, he knows both the accused, the victim and their families. He has seen the victim working in the house of the accused for one to two years, by which time, all the daughters of Sri. Govindaiah - the father of the accused had already got married and they were residing with their families in their matrimonial homes. The mother of the accused was not maintaining good health.

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About the incident, what he (PW- Revanna) claims to have stated is that, on the date 13-04-2000, at about 7:30 p.m., in the house of the accused, both the accused and the victim were quarrelling, at which time, the parents of the accused were also present. He was at Ganapathi Temple which was nearby to the house of the accused. On the said date, himself, Chandrappa and Srinivas had been to the house of the accused. At that time, the victim was requesting the accused to marry her stating that she has become pregnant of six months, however, the accused was refusing to it and pushed her out of the house,

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holding her neck. Thereafter, the victim, by weeping, went towards her house.

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The witness has further stated that, at his enquiry with the victim, she told that by the act of the accused, she has conceived and become pregnant of six months, however, the accused was then refusing to marry her, as such, the quarrel took place. After stating these aspects, the witness also stated that the Police has obtained his signature on a document marked at Ex.P-4. However, he did not explain what the said document was, as such, the prosecution, with permission, treated him as hostile and subjected him to a cross-examination, wherein, he admitted a suggestion that the document at Ex.P-4 was the scene of offence panchanama drawn by the Police in his presence and the spot of the offence was shown by none else than the victim. He also stated that because of the long passage of time of about seventeen years, he could not clearly remember as to in which place he has signed to the document at Ex.P-4.

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In his cross-examination from the accused' side, he maintained the original stand that he has seen the quarrel

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that had taken place between the accused and the victim and has given more details about the said incident. The denial suggestions made to him were not admitted as true

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by this witness. Thus, his evidence given in his examination-in-chief could not be shaken in his crossexamination from the accused' side.

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The evidence of the victim as PW-3 and her mother as PW-5, that the accused is a close relative of the victim and the houses of the accused and the victim are not only located in the same village but also quite nearby to each other, are not in dispute. Further, the evidence of PW-3, PW-4 and PW-5 which has come in uniformity to the extent that in order to help the parents of the accused and at their request, the victim was assisting in the household works of the accused including cooking, cleaning the house and washing the cloths etc., could not be shaken in the cross-examination of those witnesses.

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Thus, it stands proved that, the accused and the victim were known to each other and also they were close relatives. The victim was working in the house of the

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accused at the relevant point of time and on several days used to stay in the house of the accused, to help the parents of the accused at their request, who were not only old aged but the mother of the accused was also ailing with some health issues.

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The learned counsel for the respondent No.2 (accused) in his argument contended that, when PW-3 herself has stated that, whenever the parents of the accused used to go out of the village, the victim used to return to her house in the night to sleep and if that were to be the case, then what made the victim to be present in the house of the accused at the time of the alleged incident, is not explained by the prosecution.

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The said doubt from the accused' side finds a convincing answer in the evidence of none else than the victim (PW-3) herself. The evidence of PW-3 on the said point goes to show that, whenever the parents of the accused used to go out of their village, she (the victim) used to return to her home to sleep in the night. On the date of the alleged incident also, according to PW-3, after

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attending to the household works and completing cooking, at about 8:30 p.m., she was sitting in the house of the accused. At that time, the accused came to the house from outside and demanded her to love him, for which, she did not agree. Thus, she has shown that, as a routine, she has attended to the household works including cooking. Though she was supposed to go to her house in the night, as the parents of the accused were not at home, her evidence shows that she was waiting for the accused to return home, so that she can leave that place and go to her house. Further, it was not too late in the night and it was just 8:30 p.m. Therefore, there is nothing unnatural, or uncommon or unusual in she being present in the house of the accused at 8:30 p.m. on the alleged date of the incident.

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The evidence of PW-3 (CW-1) victim would further go to show that, at the time when she was waiting for the accused to return, so that she could leave the said place to return to her house, the accused who returned to his house at 8:30 p.m., when his parents were not in the

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village, demanded the victim to love him, for which, she refused. It is to be noticed that at the time of the alleged incident, the accused must have been aged about 29 years.

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The medical examination report about the accused at Ex.P-5 as on 28-04-2000 has assessed the age of the accused at 29 years. On the backside of the said document, the date of birth of the accused is shown to be 19-09-1971. Since the said date of birth is not attested

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by the Doctor through his signature beneath the said mentioning, the said date of birth need not be taken as a proven fact. Still, the medical assessment made by the Doctor at Ex.P-5 which is not disputed from the accused' side and the evidence of the said Doctor as PW-6 who has stated that, at the request of the complainant Police, he has medically examined the accused on the date 28-04-2000 and gave his endorsement as per Ex.P-5(a) establishes that as per the medical assessment, the accused was aged about 29 years. It is nobody's case that, as on the said date, or on the date of the alleged

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incident of alleged rape or as on the date of the medical examination of the accused on 28-04-2000, the accused was a married person.

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Similarly, the victim in her complaint at Ex.P-1 has shown her age as 19 years, as on the date of the complaint which is 28-04-2000. The medical evidence of the Doctor (PW-6) who examined the victim on the date 28-04-2000 also shows that the Doctor has opined that the age of the victim was 19 years as on the said date. Further, the Doctor has also opined as per Ex.P-5(a) that, the accused was capable of doing sexual intercourse. The said evidence of the Doctor about the age of the accused and the victim and the capacity of the accused to have sexual intercourse, have not been denied or disputed in his cross-examination. Thus, the evidence of the prosecution witnesses establishes that both the accused and the victim were young adults in their age and both of them were unmarried as on the date of the alleged incident.

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Learned counsel for the appellant (victim) in her argument contended that, the evidence of PW-3 (victim)

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that, she was subjected to rape by the accused is further corroborated by the medical document at Ex.P-7 which is marked with consent, which shows that the victim gave birth to a male child on the date 04-08-2000, which delivery was considered by the Doctor as a Full Term Normal Delivery (FTND). Further, the very same medical record also shows that the victim had no menstruation (Amenorrhea) since nine months. The same would go to show that, as on the date of the complaint at Ex.P-1, the victim was pregnant and that the alleged act of rape by the accused upon the victim was about six months prior to the date of the complaint, also stands proved.

¶184

The learned counsel for the appellant (victim) further contended that during the pendency of the matter before the Trial Court, the prosecution had filed an application, seeking permission to subject the accused for a DNA matching test, however, the said application came to be rejected. The victim filed a criminal petition before this Court in Criminal Petition No.3905/2011 which came to be disposed of by this Court

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on the date 19-11-2015, with an observation that, though the accused cannot be coerced to submit himself for a DNA test, however, it is always open for the prosecution to contend before the trial Court while addressing arguments to take necessary inference under Section 114 illustration (h) of the Evidence Act, if he does not co-operate for the DNA test. With this, the learned counsel submitted that since the accused did not co-operate for a DNA test, an adverse inference has to be drawn to the effect that, the accused is the father of the male child born to the victim.

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Learned counsel for the respondent No.2 (accused) in his argument though conceded that the Criminal Petition No.3905/2011 was filed before this Court

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and the same came to be disposed of on the date 19-11-2015, however, contended that even if DNA test would have been done and the matching result had come, still, the same, at the best, would only go to establish the parentage of the male child born to the victim but not the act of rape committed upon the victim.

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The learned counsel for the appellant (victim) along with a memo dated 15-11-2023 has filed a copy of the order dated 19-11-2015 passed by a co-ordinate Bench of this Court in Criminal Petition No.3905/2011. The said order would go to show that the appellant herein who is said to be the victim had filed a petition under Section 482 of the Cr.P.C. praying to set aside the order dated 23-04-2008 passed in Criminal Revision Petition No.86/2007 by the Presiding Officer, Fast Track Court-V, Tumkur and also the order dated 30-04-2009 passed by the Trial Court in C.C.No.1838/2003. As observed above, the prosecution had filed an application under Section 311 read with Section 91 of the Cr.P.C. in the Trial Court for conducting the DNA test of the accused and after contest, the said application came to be rejected by the Trial Court. Aggrieved by the same, a revision petition came to be filed in Criminal Revision Petition No.86/2007, which also came to be rejected. Challenging the said order, the victim had filed a criminal petition in Criminal Petition No.3905/2011 before this Court. By its order dated 19-11-2015, a coordinate bench of this Court disposed of the said criminal

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petition with an observation made as below in paragraph 7 of its order:

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"Having regard to the scope of present proceedings, it is quite probable that the DNA test, which can conclusively throw light on the parentage of the child born to the complainant, would also have bearing on the merits of the case also. But, there cannot be any coercive order on the accused to submit himself for DNA test. It is always open for the prosecution to content before the trial Court while addressing arguments to take necessary inference under Section 114(h) of Indian Evidence Act, if he does not co-operate for DNA test.

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It is upto the trial Court to consider such submission within scope of the present criminal proceeding for which the accused is now charged.

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With the above observation, the petition stands disposed of. Since the complaint is of the year 2000, the trial Court is permitted to expedite the matter."

¶199

The present impugned judgment upon which the present appeal has arisen does not appear to have considered the observation made by this Court in the above said Criminal Petition No.3905/2011 dated 19-11-2015. Thus, it is not clear whether the prosecution

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has addressed its arguments requesting the learned

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Sessions Judge's Court to draw necessary inference under Section 114 illustration (h) of the Evidence Act.

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It is not in dispute that subsequent to the disposal of the Criminal Petition No.3905/2011, till date, no DNA test of the accused has been conducted in the matter. Admittedly, the prosecution and thereafter, the victim made continuous efforts to obtain the order/permission for getting the DNA test of the accused conducted, however, this Court, under the above order dated 19-11-2015, passed in Criminal Petition No.3905/2011, did not entertain the said request. Since the victim, as an appellant, now has addressed the arguments requesting this Court to draw necessary inference under Section 114, illustration (h) of the Evidence Act, the necessity of drawing such an inference, as sought for, is required to be looked into.

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Learned counsel for respondent No.2 (accused)

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has not opposed the drawing of any such inference. However, his contention is that, the said inference, at the best, may lead to drawing an inference about the

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parentage of the child born to the victim but not about the alleged act of rape. Section 114 of the Evidence Act

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and illustration (h) to the said provision reads as below:

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"114. Court may presume existence of certain

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facts:

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The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

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Illustrations:

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The Court may presume-

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(h) that if a man refuses to answer

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a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

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But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:

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As to illustrations (a) to (g) xxx xxx

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As to illustration (h): A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters

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unconnected with the matter in relation to which it is asked."

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In the instant case, the contention of the

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appellant (victim) throughout has been that, the accused apart from initially subjecting her to an act of rape against her will and consent, also had the occasion to have subsequent sexual intercourses with her, since after the incident of alleged rape, both of them developed intimacy or love against each other. As such, due to the sexual intercourses the accused had with her over a period of six months from the date of the alleged act of rape, she conceived and became pregnant and gave birth to a male child on the date 04-08-2000. The discharge cum identity card of the Vani Vilas and Children's Hospital, Bangalore, which is marked as a consent document at Ex.P-7 shows that the victim gave birth to a male child on the date 04-08-2000 at 2:30 a.m., which was a Full Term Normal Delivery (FTND) of a live baby. The very same Hospital record also shows that the patient had the history of Amenorrhea (no menstruation) since nine months. The Referral Card issued by the General Hospital, Kunigal,

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which is at Ex.P-6 shows that the Gynecologist who was examined as PW-6 apart from recording the examination of the victim in their Hospital on the date 28-04-2000 at 1:30 p.m. has also considered it as a Medico-Legal Case (MLC) and recorded the history of victim as Amenorrhea (state of no menstruation) since six months, which means, as on the date of the complaint itself, the victim had not undergone menstruation for nearly six months, which has led him to believe that, she was pregnant, which, according to her, was of six months. Consequently in continuation of the same, as per Ex.P-7, she delivered a male child on the date 04-08-2000 after completion of full term of nine months of pregnancy. Therefore, it stands established that, as on the date of lodging the complaint on the date 28-04-2000, the victim was a pregnant woman. Her evidence as PW-3 that, after the initial act of rape, the accused, on the pretext of marrying her, had occasion to have sexual intercourses with her since both of

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them had developed love against each other, gives no scope to suspect it.

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Further it is also the evidence of PW-3, PW-4 and PW-5 that, a day prior to the date of the complaint, when the victim is said to have approached the accused and his parents and requested them through her parents to get her marriage done with the accused, neither the accused nor his parents denied that the accused had no reason to develop intimacy with the victim. On the other hand, they generally denied the allegation and are said to have rejected the request of the victim and her parents. According to PW-3, PW-4 and PW-5, apart from they rejecting the request of the victim and her parents, the accused also pushed the victim, by holding her neck, out of his house.

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PW-4 in his evidence has supported the said evidence of PW-3 (the victim). There is no reason to suspect the evidence of PW-4 -Revanna, who is known to the families of both the accused as well the victim, as such, as an un-biased independent witness, he has only stated what he has seen. Thus the evidence of PW-3, PW-4 and PW-5 establishes that before approaching the

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Police, the victim and her parents apart from approaching the accused and his family and bringing to their notice that the accused has committed the act of sexual intercourse with the victim which, at the first instance was rape, had also pleaded them to put an end to the matter by agreeing to get married the victim to the accused.

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The above evidence of PW-3, PW-4 and PW-5 gains support through the refusal of the accused to subject himself for a DNA test. As observed by this Court in the above mentioned Criminal Petition No.3905/2011, an inference may have to be drawn under Section 114 illustration (h) of the Evidence Act. The said inference would be to the extent that, the accused had sexual intercourse with the victim, consequent to which, the victim conceived and became pregnant and after the completion of full term of pregnancy gave birth to a male child on the date 04-08-2000. Thus, the parentage of the child can be inferred that, the accused is the father of the said male child, however, as contended by the learned counsel for the respondent No.2 (accused), by that

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inference itself, it cannot be concluded that the victim was subjected to rape by the accused. For the said aspect, it is the evidence of PW-3, PW-4, and PW-5 which requires a re-visit on the said aspect.

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PW-3, both in her complaint at Ex.P-1 as well in

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her evidence as PW-3, has specifically and clearly stated that the first act of sexual intercourse by the accused upon her was against her will and consent. Despite her rejection and protest, the accused subjected her to rape on the date of first incident. No doubt, neither in the complaint nor in her evidence as PW-3, the victim has given the exact date of the alleged incident, however, when the accused was a person known to the victim, being her relative and in whose house the victim was working as a domestic aide, it can be inferred that she had faith in the accused. Further, the recital in the complaint at Ex.P-1 as well the evidence of PW-3 would go to show that, after the incident, the accused stated to her that he would marry her, as such, she should not disclose about the incident to anybody. Believing him, the victim who was also at that

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time young adult developed love towards him, resultantly, she conceived and became pregnant and subsequently delivered a male child. Under the said circumstance, it is not expected that the victim should have necessarily remembered the date of the alleged first act of rape by the accused and should have mentioned the specific date of the act of rape in the complaint which was undisputedly filed by her, six months after the alleged incident.

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Further, the evidence of PW-4 - Revanna also shows that, he, along with Srinivas and Chandrappa had witnessed the quarrel said to have taken place on the date 13-04-2000 at 7:30 p.m. in front of the house of the accused where the victim was telling the accused and his parents that she was subjected to injustice by them. According to PW-4, the victim also told him at his enquiry that, it is because of the act of the accused, she has become pregnant of about six months and that the accused has been refusing to marry her. The said evidence which is in consonance with the similar evidence of PW-5 - the mother of the victim would also go to show that, the

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accused, by falsely promising the victim that he would marry her, had sexual intercourses with her resulting in the victim conceiving and becoming pregnant. Thus, the medical evidence shows that the victim was a pregnant woman of six months as on the date of her medical examination and after three months, she delivered a male child. The inference drawn under Section 114 illustration (h) of the Evidence Act shows that the accused is the parent of the male child given birth by the victim on the date 04-08-2000.

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Thus, it stands proved that the accused had sexual intercourses with the victim in the span of six months immediately prior to the date of the complaint at Ex.P-1.

¶251

Even though it is established that the accused had sexual intercourses with the victim, however, the first act of sexual intercourse which the accused had with the victim was not with the consent of the victim, but against her will and wish. The complaint at Ex.P-1 as well the evidence of PW-3 clearly goes to show that it is only after the accused committing rape upon the victim and when

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the victim started weeping, the accused told her that he would marry her and that she should not reveal about the incident to anyone. Thus, the first act of the accused as against the victim proves to be not with consent of the victim but it was an act committed by the accused against her will and consent, as such, the said act of the accused is a rape committed upon the victim.

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No doubt, except the strong evidence of the victim as PW-3, there are no direct evidence about the act of rape upon her by the accused. Like any other single instance of rape and upon the immediate medical examination of the victim, accused and the dress materials worn by them, which may show the presence of some signs of sexual intercourse like presence of semen, pubic hair etc., no such signs or evidences can be expected in the case on hand, since as has been repeatedly observed above, the alleged act of sexual intercourse was spread over a period of six months after the first act of rape. Therefore, no other evidence including medical evidence can be expected in the case on hand. However, the birth

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of the child and the inference drawn about the parentage of the child would come to the support of the victim and her evidence.

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Thus, the sole evidence of the victim, who is the prosecutrix in the instant case, proves to be truthful, trustworthy and believable.

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Our Hon’ble Apex Court, in the case of STATE OF PUNJAB VS. GURMIT SINGH AND OTHERS reported in (1996) 2 Supreme Court Cases 384, was pleased to observe in paragraph 8 of its judgment as below:

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" ….. ….The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial

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conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot

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cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."

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In the case of Moti Lal vs. State of Madhya Pradesh reported in (2008) 11 Supreme Court Cases 20 , which was a case involving offences punishable under Sections 375, 376 and 450 of the IPC, the question of conviction on the sole testimony of prosecutrix for the alleged offences was involved. The medical evidence was not helpful to the prosecution. The Hon'ble Apex Court in paragraph 12 of its judgment reiterated its observation made in its previous judgment in the case of Om Prakash

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vs. State of Uttar Pradesh reported in (2006) 9 Supreme Court Cases 787, wherein it was observed that it is a settled law that the victim of sexual assault is not treated as accomplice and as such her evidence does not require corroboration from any other evidence including the evidence of the Doctor. In a given case, even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole

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testimony of prosecutrix. In a normal course, a victim of sexual assault does not like to disclose such offence even before her family members, much less before the public or before the Police. The Indian women have a tendency to conceal such offence because it involves her prestige as well as the prestige of her family.

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Our Hon'ble Apex Court in the case of PHOOL

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SINGH VS. STATE OF MADHYA PRADESH reported in (2022) 2 Supreme Court Cases 74, has summarised the principles as to when the sole testimony of the victim/prosecutrix be taken as a basis for conviction even in the absence of corroboration. The Hon'ble Apex Court relying upon its previous judgment in the case of STATE OF PUNJAB VS. GURMIT SINGH AND OTHERS (1996) 2 Supreme Court Cases 384 and analysing the facts before it, observed that the prosecutrix in the case before it had fully supported the case of the prosecution and she had been consistent right from the very beginning, nothing had been specifically pointed out as to why the sole testimony of the prosecutrix should not be believed. The Court further observed that in the case before it, even after

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thorough cross-examination, she had withstood by what she had stated and had fully supported the case of the prosecution. With this the Hon'ble Apex Court observed that they see no reason to doubt the credibility and/or the trustworthiness of the prosecutrix.

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In the instant case, as observed above, since the incident has occurred inside the house of the accused in the late evening and accused being not only a known person, but also a relative of the victim in whose house the victim was working as a domestic aide, it cannot be expected that there would be any eye witnesses or other witnesses to corroborate the evidence of the victim (PW-3). Her evidence which is consistent throughout alone is reliable, believable and trustworthy to prove the incident of rape and the alleged guilt of the accused in subjecting her to rape. The subsequent developments which took place after the incident of rape and subsequent sexual intercourses committed by the accused upon the victim have been corroborated through the evidence of PW-4 and PW-5, who have successfully withstood the thorough cross-examination from the accused' side.

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The evidence of PW-1 (CW-9), the then Police Sub-Inspector of the complainant Police Station corroborates the evidence of PW-3 that she lodged a complaint with the complainant Police as per Ex.P-1 on the date 28-04-2000 at about 07:15 a.m. PW-1 has also stated that after registering the complaint in their Station, he prepared an FIR as per Ex.P-2 against the accused for the offence punishable under Section 376 of the IPC.

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The evidence of PW-7 (CW-12) - G. Hanumantha Reddy that during the course of investigation, he arrested the accused and sent both the accused and the victim to the General Hospital at Kunigal and got them medically examined, stands corroborated by the evidence of PW-6 (Doctor). The further evidence of PW-7 - Investigating Officer that, he also visited the scene of offence as shown by the victim and drew a scene of offence panchanama as per Ex.P-4 stands corroborated by the evidence of PW-3 and PW-4.

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The document at Ex.P-7 which was marked with consent shows that the victim girl gave birth to a male child at Vani Vilas Hospital at Bengaluru. The evidence of

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PW-2 (CW-13) - Sri. T.R. Krishnamurthy, the other Investigating Officer shows that he has secured the certified copy of the birth Certificate with respect to the said child which was marked at Ex.P-3. It is PW-2, who, after completing the investigation, has filed the charge sheet against the accused. Thus, the investigation shown to have been conducted in the matter stands corroborated by the evidence of PW-3, PW-4, PW-5 and PW-6.

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The defence of the accused was multi-fold. All those defences were taken by the accused in the form of suggestions made to PW-3 and PW-5 in their crossexaminations.

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The main defence of the accused was that, both the victim and her mother were of loose character and the mother of the victim had extra marital relationship and the victim also had relationship with several boys during her studies in X Standard (SSLC), however, both PW-3 and PW-5 have denied the said suggestion as true.

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The other defence taken up by the accused was that, the accused and his family were rich and the victim

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and her family were poor, as such, the victim wanted to lead a well-to-do life and thus the victim had lodged a false complaint against the accused.

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No doubt, in the cross-examination of PW-3, it was elicited that the father of the accused had a vast area of landed agricultural property from which he was getting annual income of a sum of 10.00 to 15.00 lakhs, on the other hand, except some piece of dry land, the father of the victim had no other immovable property and his annual income was only a sum of 50,000/-, however, by mere considerable difference in their respective income itself, it cannot be inferred that the victim had any intention to give a false complaint as against the accused and through it, had compelled the accused to marry her. PW-3 has denied a suggestion made to that effect in her cross-examination from the accused' side.

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The last defence taken up by the accused was that, the accused, after completion of Diploma course, was running an STD Booth at Bengaluru, as such, he was residing at Bengaluru. Suggestions to that effect were

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made to PW-3 and PW-5 in their cross-examination from the accused' side, however, both these witnesses denied the said suggestion. Even though the accused could have produced sufficient documentary evidence to show that, he was residing at Bengaluru and running an STD Booth there, however, he has not chosen to place any documentary evidence in support of his defence.

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As such, all the defences taken up by the accused in his support, could not, in any way, successfully create any doubt in the case of the prosecution.

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Thus, it has to be held that the prosecution has proved beyond all reasonable doubts that, the accused has committed rape upon the victim.

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However, the Sessions Judge's Court failed to appreciate the evidence both oral and documentary placed

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before it in its proper perspective. It has observed that, the victim has not produced any evidence to show that, as on the date of the compliant, she was pregnant. In arriving at such a conclusion, the Sessions Judge's Court has ignored the complaint at Ex.P-1, which categorically

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stated that the complainant was pregnant as on the date of lodging the complaint and also the medical documents at Ex.P-6 and Ex.P-7, out of which, the particular document is at Ex.P-7 which shown that the victim had delivered a child on the date 04-08-2000 after full term pregnancy, which is of nine months. As such, obviously as on the date of the complaint, the victim should have necessarily been a pregnant woman, as contended by her.

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The Sessions Judge's Court also observed that there were inconsistencies among the evidence of witnesses, however, it failed to notice as to what those inconsistencies were. It observed that when PW-3 is said to have met the Doctor, she has not informed him as to who was responsible for her pregnancy and she also did not inform the Doctor about the duration of her pregnancy as on 28-04-2000. The learned Sessions Judge's Court enlarged the said doubt to such an extent to disbelieve the evidence of PW-3. That reasoning of the Sessions Judge's Court is not convincing, in the light of the analysis of the evidence of the prosecution witnesses made above.

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When the very examination of the victim by PW-6 (Doctor) on the date 28-04-2000 as a Gynecologist in the General Hospital at Kunigal was upon the reference by the Police and treating the case as a Medico-Legal Case (MLC) and also when in her complaint before the Police, the victim, as a complainant, had already alleged that, it was the accused who was the cause for her pregnancy, it is not necessary that the victim should have ensured the reporting of the same by the Doctor in the medical slip at Ex.P-6.

¶309

The other observation of the learned Sessions Judge's Court that, the evidence of PW-4 discloses that he made statement to the Investigating Officer (PW-7) stating that he saw PW-3 in the house of Govindaiah, whereas the evidence of PW-7 (Investigating Officer) does not disclose that PW-4 had made such type of statement to him, is too minor a discrepancy and would not result in disbelieving the evidence of PW-4 or the case of the prosecution. In the process, the Sessions Judge's Court also ignored the fact that there was a gap of more than

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Crl.A.No.1386/2017

¶311

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seventeen (17) years from the date of the occurrence of the alleged incident to the time of recording the evidence of PW-4. Further, the alleged improvement made by the witness was not at all a material improvement. Whereas the Sessions Judge's Court, by making a mountain out of a molehill, has proceeded to pronounce the judgment of acquittal, which, in our view, is erroneous and warrants interference at the hands of this Court.

¶313

Accordingly, we proceed to pass the following:

¶314

O R D E R

¶315

[i] The Criminal Appeal stands allowed ;

¶316

[ii] The impugned judgment in Sessions

¶317

Case No.38/2011, dated 30-05-2017, passed by the learned VI Additional District and Sessions Judge at Tumakuru, is hereby set aside;

¶318

[iii] Respondent No.2 (Accused) – Sri.H.G. Prabhu, S/o. Govindaiha, Aged about 40 years, Herur Village, Kasabha Hobli, Kunigal Taluk - 572130, is convicted for the offence punishable

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Crl.A.No.1386/2017

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under Section 376 of the Indian Penal Code, 1860;

¶322

To hear on sentence, the matter is passed over.

Sd/JUDGE

Sd/JUDGE

BMV*

Crl.A.No.1386/2017

Dr.HBPSJ & UMBAJ:

¶329

13-12-2023

¶330

HEARING ON SENTENCE

¶331

Heard the learned counsels for the parties, on sentence.

¶332

Learned counsel for the second respondent (accused) submits that, the alleged incident has taken place more than two decades back and the accused is already married having a child and dependents to take care of, as such, a lenient view be taken.

¶333

Per contra, learned counsel for the appellant (victim) and the learned High Court Government Pleader for respondent No.1 - State, submitted that, the offence committed against the victim is heinous in nature and the victim being deserted by the accused has been suffering throughout her life including in bringing up her son, for nearly two decades. Every day, she has undergone mental agony and insult in the society. Under the said circumstance, the accused deserves maximum punishment which the law prescribes for the proven guilt.

¶334

Crl.A.No.1386/2017

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¶336

It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.

¶337

Though the incident is said to have happened about twenty-three years back, however, apart from the accused who is said to have got the responsibility of a family and dependents to take care of, the victim is said to have been deprived of her family life for ever. She is said to have been living alone taking care of her son.

¶338

According to the learned counsel for the appellant (victim), the victim, being the mother of a child born without marriage, has been undergoing lot of turmoil and humiliation in society and her grown up son has not only been deprived of his father's love and affection, but also the identity of the father.

¶339

As such, keeping in mind the facts and circumstances

¶340

of the present case and other mitigating factors canvassed by the learned counsel for the parties, we proceed to pass the following:

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Crl.A.No.1386/2017

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¶343

ORDER ON SENTENCE

¶344

[a] For the offence punishable under

¶345

Section 376 of the Indian Penal Code, 1860, the accused – Sri.H.G. Prabhu, S/o. Govindaiha, Aged about 40 years, Herur Village, Kasabha Hobli,Kunigal Taluk - 572130, is sentenced to undergo Rigorous Imprisonment for a period of eight years and shall also be liable to pay a fine of a sum of `50,000/- (Rupees Fifty Thousand Only), in default of payment of fine, he shall undergo an additional rigorous imprisonment for a period of six months;

¶346

[b] Out of the fine amount, deposited, if any, by the accused, a sum of 45,000/- be paid to the victim (PW-3), as victim's compensation under Section 357 of the Code of Criminal Procedure, 1973. The remaining sum of 5,000/be paid to the State;

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Crl.A.No.1386/2017

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[c] The victim (PW-3) is also entitled for compensation under Section 357(a) of the Code of Criminal Procedure, 1973;

¶350

[d] The District Legal Services Authority, Tumakuru, is directed to decide the quantum of compensation payable to the victim (PW-3) under the Scheme under Section 357 (a) of the Code of Criminal Procedure, 1973, and to take appropriate steps for compensating the victim (PW-3) under the Scheme at the earliest, but not beyond a period of six months from the date of receipt of a copy of this judgment.

¶351

[e] The accused - Sri.H.G. Prabhu, S/o. Govindaiah, Aged about 40 years, Herur Village, Kasabha Hobli, Kunigal Taluk - 572130, shall surrender before the learned Sessions Judge’s Court, within forty five (45) days from today and serve the sentence;

¶352

[f] The respondent No.2 (accused) is

¶353

entitled for the benefit of set-off for the period, if any, undergone by him in Judicial Custody in

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Crl.A.No.1386/2017

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the matter, under Section 428 of the Code of Criminal Procedure, 1973;

¶357

furnished to the accused, immediately by the Registry.

¶358

Registry is directed to send a copy of this judgment to the District Legal Services Authority, Tumakuru, immediately, for doing needful in the matter.

¶359

Registry is also directed to transmit a copy of this judgment to the Sessions Judge’s Court, forthwith along with its records, for doing the needful in the matter in securing the accused for serving the sentence and in accordance with law.

¶360

Sd/JUDGE

¶361

Sd/JUDGE

¶362

BMV*

Smt Shobha H T v. State of Karnataka

Case brief

What is this about?

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Smt Shobha H T v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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