State appeal against acquittal of accused charged under Sections 417 and 506 IPC for breach of promise to marry and criminal intimidation. On re-appreciation, most witnesses turned hostile and no cheating intention was proved. Following precedent on limited scope of interference in acquittal appeals, appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100141 OF 2017 (A)
BETWEEN:
STATE OF KARNATAKA REPRESENTED BY THE POLICE INSPECTOR, GOKARNA POLICE STATION, KUMTA, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.
…APPELLANT
(BY SRI M.M.KHANNUR, AGA)
AND:
Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA
JANARDHAN S/O. HOSABU PATAGAR, AGE: 28 YEARS, R/O: HIREGUTTI, TQ: KUMTA.
(BY SRI HAREESHA S.NAYAK, ADVOCATE AND SIR VYAS DESAI, ADVOCATE)
…RESPONDENT
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 07.11.2015 PASSED BY THE ADDITIONAL J.M.F.C., KUMATA IN C.C.NO.848 OF 2006 AND ETC.,
THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the judgment of acquittal dated 07th November, 2015, passed in CC 848 of 2006 by the Additional JMFC, Kumta (for brevity, hereinafter referred to as the “trial Court”.
members and filed a complaint with Gokarna police. On investigation, the Gokarna Police filed a charge sheet against the accused under Sections 417 and 506 Indian Penal Code.
After filing the charge sheet, case was registered in CC No.848 of 2006. In pursuance to summons issued by the trial Court, the accused appeared before the trial Court and took bail. Charges were framed for the commission of offence punishable under Sections 417 and 506 of Indian Penal Code and the same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution, in all, examined 12 witnesses as PWs.1 to 12 and marked 10 documents as per Exhibits P1 to P10. On closure of prosecution side evidence, statement under Section 313 of Code of Criminal Procedure was recorded. Accused has denied all the incriminating evidence of prosecution side, but has not led any defence evidence on his behalf. Having heard both sides, the trial Court acquitted the accused. Being aggrieved by the judgment of acquittal, the State has preferred this appeal.
the case to Sessions Court has resulted in miscarriage of justice. The trial Court has not exercised its power under Section 323 of Indian Penal Code though there is ample evidence on the record to show that the accused committed sexual assault on the victim which is punishable under Section 376 of Indian Penal Code. Failure to commit the case has prejudiced the interest of prosecution. The trial Court, without committing the case to the Sessions Court, has discussed the
evidence and acquitted the accused. Same is without jurisdiction and is not sustainable in the eye of law. The trial Court ought to have convicted the accused by taking into consideration the evidence of PWs.1 to 4 and other circumstantial evidence of PWs.5, 6, 11 and 12 and Medical Officers PWs.8 and 9. Failure of non-consideration of evidence, has resulted in miscarriage of justice. On all these grounds sought to allow the appeal.
argument, he relied upon the decision of the co-ordinate Bench of this Court in Writ Petition No.101484 of 2021 decided on 11th April 2022 rendered in the case of VINAYAK v. SMT. VISHRANTI AND OTHERS.
Point No.1: in the negative;
Point No.2: as per final order.
Regarding Point No.1:
NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017
“23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-
“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere
with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(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 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.
(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. ”
OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:
“ 16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed
by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. … ”
RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:
“4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the misappreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the
NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017
High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.… ”
RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:
“8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction
to be more probable. The interference would be warranted only if the view taken is not possible at all.”
“12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.”
2005 and conveyed the same to the accused. Accused promised to marry her and told not to disclose the same to anyone. It is only during her sixth month pregnancy, the accused denied to marry her and threatened her with dire consequences. Then in the month of March, 2006 she disclosed about her pregnancy to her family members and filed a complaint with Gokarna police. To substantiate the case of prosecution, in all, examined 12 witnesses as PWs.1 to 12 and marked 10 documents as Exhibits P1 to P10. During the course of cross-examination of PW1 witness, Exhibits D1 to D3 marked. As could be seen from the charge sheet, there are 13 witnesses. Out of them 12 witnesses are examined as PWs.1 to 12. CW2-father of PW1-victim and PW3 is the mother and
PW4 is the brother of the victim, have not supported the case of prosecution. PW5 who is the hearsay witness has also not supported the case of prosecution. PW6 has not supported the case of prosecution. PW7 has deposed as to his part of investigation. PW8-Prashant Ganapati Bhatta, Doctor has deposed as to the potentiality of the accused and issuance of certificate Exhibit P7 which is issued as per request of police as per Exhibit P6.PW9-Dr. Prashanth Manakikar, has deposed that
on 10th May, 2006, the complainant came to hospital with the complaint of labour pain and at 3.30 am, she delivered a girl child and she has taken treatment as an out-patient from 05th May, 2006. PW10-Raghavendra Gaonkar, PW11-Savita Gaonkar, PW12-Shivananda Subbaraya Patagar, have not supported the case of prosecution. Even in their crossexamination made by the Assistant Public Prosecutor, after treating them as hostile witnesses, the prosecution has failed to elicit any favourable answer from any witness. During the course of cross-examination of these witnesses the prosecution has marked Exhibits P3, 9 and 10 said to have been recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure and the same was denied by these witnesses.
about her pregnancy in the month of October, 2005. The accused told her not to disclose about her pregnancy to her family members and hence she has not disclosed the same to her family members. She requested the accused to marry her. He continued to promise her that he will marry and stated that she has to seek permission from his family members. When she was sixth month pregnant, the accused refused to marry her and also threatened her that if she gives complaint, he will finish her. Thereafter, she disclosed to her family members about her being pregnant, and on 26th April, 2006 she gave complaint to the Police as per Exhibit P1. Further, she has deposed that on 10th May, 2005 she gave birth to a girl baby and the child is in her custody.
“41. In this types of cases for proving the alleged relationship between the accused and complainant evidence of the victim is important. The prosecution examined the complainant as PW1. In sexual inter course matter victim evidence plays vital role but that evidence should be credible. In the present case the complainant has stated that the accused promised her that he will marry her and he developed physical
relationship with her. To prove the physical relationship and pregnancy and by accused the complainant become pregnant medical evidence is very important. In the present case the investigation officer has not sent the accused and complainant for DNA test. Further it is the case of the prosecution that the complainant and accused were in love since last 3 years from the date of lodging the present complaint and several persons know about the same. But in the present case family members, close friend and neighbours’ of the complainant are turned hostile. Further the prosecution stated that there was a panchayath by the community leaders but none of them have been examined in this case.
42. The PW1 in her cross examination stated that at the time of alleged relationship she was major and she know the consequences. Further she admitted that she, on her own will she started illicit relationship with the accused. In the present case the prosecution has failed to prove the alleged fact and ingredients' of section 415 of IPC. The PW1 stated that her love matter was known to one Kamala Patagar but she is not examined in this case. Further she stated that when she was carrying her 3months pregnancy she informed about the same to her parents but her parents in their evidence denied the same. It is common that when a boy and girl are in love for a long time in a small village it will come to the knowledge of some persons at least to the friends and neighbors' but in the present case except CW1 none know about her love which creates doubt about the allegation of the CW1.
43. In the present case if the CW1 was carrying 6 months at the time of lodging complaint her mother would have noticed and it is common when a women is carrying her 6 months pregnancy it is visible to a common man. But in the present case the family members of the CW1 have stated that they do not know about the pregnancy of the CWI till lodging the
present case, which is unacceptable story. In the present case the prosecution has not stated a single word produced any evidence about cheating and dishonest intention of the accused and the investigation officer has not investigated on these points.
44. To find out the alleged relationship mere test (potentiality) of the accused is not sufficient and it proves the accused ability only. But to prove the physical relationship it will not help, it requires only in case where the accused claims he is suffering from impotency. Even for conducting the said test, also court permission is required in the present case the investigation officer has not taken any permission from the court.”
the prosecution, since there was no cogent, convincing, trustworthy and corroborative legal evidence before the trial Court, the trial Court has acquitted the accused by giving benefit of doubt to the accused.
examination of entire evidence on records, and keeping in mind the abovementioned decisions, I do not find any error/legal infirmity/illegalities in the impugned judgment. Hence, I answer point No.1 in the negative.
Regarding Point No.2:
O R D E R
Appeal is dismissed.
Sd/JUDGE
LNN List No.: 1 Sl No.: 25
2 issues framed by the court
Whether the appellate court should interfere with the trial court's judgment of acquittal under Sections 417 and 506 IPC.
Whether a mere promise to marry followed by refusal constitutes cheating under Section 417 IPC.
Colour shows how this judgement treated each authority
Motiram Padu Joshi & Others v. State of MaharashtraRelied on¶9
2018 SCC ONLINE SC 676 · Who else cites this
Munishamappa & Others v. State of KarnatakaRelied on¶10
2019 SCC ONLINE 69 · Who else cites this
Hari Ram & Others v. State of RajasthanRelied on¶11
2000 SCC ONLINE 933 · Who else cites this
State of Rajasthan v. Kistoora RamRelied on¶12
2022 SCC ONLINE 684 · Who else cites this
Mahavir Singh v. State of Madhya PradeshRelied on¶13
(2016)10 SCC 220 · Who else cites this
Vinayak v. Smt. Vishranti and othersRelied on¶17
Writ Petition No.101484 of 2021 decided on 11th April 2022
3 provisions across 2 enactments
State of Karnataka represented by the Police Inspector, Gokarna Police Station
Janardhan S/o Hosabu Patagar
G Basavaraja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
