Vasudha Vs Rakesh B

This Appeal is filed under Section 372 of Code of Criminal Procedure, praying to allow the appeal and set aside the judgment and order of acquittal dated 06.05.2017 made in S.C.No.6/2016 by the Additional District and Sessions Judge, Udupi (sitting at Kundapura) Kundapura and convict the accused/respondent for the offence punishable under Section 376 and 417 of IPC in the interest of justice.

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IN Crl.A.No.1878/2017

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BETWEEN:

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State of Karnataka by C.P.I. of Kundapura circle, Kundapura Police Station, Rep.by State Public Prosecutor, High Court Building, Bengaluru -560 001.

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… Appellant

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(By Smt. K.P. yashodha, HCGP)

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AND:

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Rakesh B. Aged about 43 years, S/o. Kamalaksha Bekal, Residing at Betkeri, Vitalavadi Road, Kundapura Kasba village, Kundapura Taluk -576207

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…..Respondent

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(By Sri. Sandesh Shetty T., Advocate)

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This Appeal is filed under Section 378 (1) and (3) of Code of Criminal Procedure, praying to grant leave to file an appeal against the judgment and order of acquittal dated 06.05.2017 passed by the Additional District and Sessions Judge, Udupi (sitting at Kundapura) Kundapura in S.C.No.6/2016 acquitting the accused of the offences punishable under Sections 376 and 417 of IPC (b) Set aside the judgment and order of acquittal

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dated 06.05.2017 passed by the Court of Addl. District and Sessions Judge, Udupi (Sitting at Kundapura), Kundapura in Sessions Case No.6/2016, acquitting the accused of the offences punishable under Sections 417 and 376 of IPC (c) Convict and sentence the respondent-accused for the offences punishable under Sections 417 and 376 of IPC, in the interest of justice.

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These Criminal Appeals having been heard through Physical Hearing/Video Conferencing Hearing and reserved for judgment on 04.12.2023 , coming on for pronouncement this day, Dr.H.B.Prabhakara Sastry J . delivered the following:

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COMMON JUDGMENT

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The appellant-complainant has filed Criminal Appeal No.1266/2017 under Section 372 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as the Cr.P.C.') and the State has filed Criminal Appeal No.1878/2017 under Section 378 (1) and (3) of Cr.P.C., both challenging the judgment of acquittal dated 06.05.2017 passed by the Additional District & Sessions Judge, Udupi (sitting at Kundapura) Kundapura (hereinafter for brevity referred to as the Sessions Judge's Court') in S.C.No.6/2016 acquitting the accused of the offences punishable under Sections 376 and 417 of

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Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’).

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The summary of the case of the prosecution as stated in the charge sheet is that the accused-respondent was working as an Assistant Executive Engineer at Kumata, Hubballi Electricity Supply Company (HESCOM for short) and was residing in the neighbourhood of the complainant (henceforth for brevity referred to as 'the victim'). During that time victim was going to college pursuing her B.Ed. course in the year 2006-07. The respondent No.1/accused got acquainted with the victim and the acquaintance turned into friendship and friendship into love between each other. It is the case of the prosecution that the respondent No.1/accused

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promised of marrying the victim and gained her confidence as well as of her parents, siblings, and was visiting the house of the victim. When the accused and the victim were so close and friendly, the mother of the victim passed away and the accused attended the obsequies ceremony of the deceased. On some occasion

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he has also taken the victim to his place of work and had introduced her to his staff and colleagues as his would-be wife. Both the accused and the victim were moving together freely in the society. It is also the case of the prosecution that in the year 2009, accused was transferred to Bantwala and thereafter to Kundapura. During that period also he was in contact with the victim and was making telephone calls to her over her cell-phone and was reiterating his assurance that he is going to marry her.

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Further it is the case of the prosecution that on the date 09.01.2015 at about 9.00 O'clock in the night, the accused called the victim over the phone and asked her to come to Kundapura KSRTC bus stand on 11.01.2015 in the afternoon. Accordingly, the victim went to Kundapura KSRTC bus stand on 11.01.2015 at about 2.00 p.m. The accused picked her up from the bus stand and took her in a car bearing registration No.KA-20-P-1403 to a secluded house in a Rubber Plantation called Shedimane in Kundapura, on the pretext that he had to collect some

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rubber sheets from there. The said house was vacant without any residents. There were no neighbours at the close proximity. After entering the house the accused while with conversation with the victim embraced her and eventually committed sexual intercourse with her without her consent. The victim was very specific that she did not want to have any physical contact with the accused but on its being committed to her, without her consent, she started weeping. For which, accused consoled her assuring of marrying her which made her to believe him. He also asked her not to disclose about the act to anyone.

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After the incident, the accused dropped the victim to Bhatkala in his car, from there she took a bus to her native Kumata. After the incident the accused was behaving normally with the victim for about one and a half month and was assuring of marrying her after speaking to his elders. The victim was reminding him about their marriage since a month prior to filing complaint on 06.06.2015. However, the accused went on giving excuses that his elders are against their marriage as they both

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belong to different caste and finally stopped visiting or attending phone calls of the victim. It is only then, the victim came to know that accused would never perform his promise of marrying her and that he had given a false promise of marrying her. Accordingly, she proceeded to lodge a complaint against him on 06.06.2015 at 6.00 p.m. The same was registered by the complainant Police Station in Crime No.33/2015 against the accused for the offences punishable under Sections 417 and 376 of IPC. After completing the investigation, the complainant Police have filed charge sheet against the accused for the offences punishable under Sections 417 and 376 of IPC.

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After perusing the materials placed before it

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and hearing both side, the Sessions Judge's Court framed charges against the accused for the offences punishable under Sections 376 and 417 of IPC. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all fourteen (14) witnesses as

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PW-1 to PW-14, got produced and marked documents from Exs.P.1 to P.38(a). From the accused side none of the witnesses were examined however, three documents were got marked as exhibits from Exs.D.1 to D.3.

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After hearing both side, the learned Sessions Judge’s Court by its judgment dated 06.05.2017 acquitted the accused of the offences punishable under Sections 376 and 417 of IPC. Aggrieved by the same, the victim has preferred the appeal in Crl.A.No.1266/2017 and State has preferred the appeal in Crl.A.No.1878/2017.

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In Crl.A.No.1878/2017 the appellant –State is represented by the learned High Court Government Pleader (HCGP for short) and in Crl.A.No.1266/2017 the appellant and respondent/accused are represented by their respective learned counsel. The learned High Court Government Pleader and the learned counsel for the appellant and learned counsel for respondent (accused) in both appeals are physically appearing in the Court.

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The Sessions Judge’s Court records were called for and the same are placed before this Court.

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Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge’s Court records.

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For the sake of convenience, the parties would

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be henceforth referred to as per their rankings before the learned Sessions Judge’s Court.

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Learned counsel for the victim (appellant in Crl.A.No.1266/2017) in his argument submitted that the evidence of PW-13 - the victim is fully believable. She has given a complete account of her acquaintance with the accused and how the accused misused the said acquaintance with her and on the pretext of marrying her, which later turned out to be a false promise, he subjected the victim for multiple sexual intercourses which are the rapes committed upon her and thus, has committed the

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alleged offence. Evidence of PW-11 who admittedly is the colleague of the accused corroborates the evidence of PW-13. His evidence is fully believable and establishes how the accused cheated the victim. He also submitted

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that no women in Indian society falsely claims that she was subjected to rape. Under the said circumstances, the evidence of PW-13 that she was subjected to rape by the accused, which is trustworthy and believable, proves the guilt of the accused beyond reasonable doubt. However, the trial Court without appreciating the evidence in its proper perspective and without even noticing that in the circumstances of the case, the victim was made to wait hoping that the accused would marry her, has caused delay which has sufficiently been explained, has failed to appreciate the facts in the proper perspective, resultantly, it proceeded to pass an erroneous judgment. In his support he relied upon the judgment of Hon'ble Apex Court in the case of ANURAG SONI Vs. STATE OF

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CHHATTISGARH reported in AIR 2019 SC 1857 .

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Per contra, learned HCGP for the State-

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appellant in Crl.A.No.1878/2017 which is also respondent No.2 in Crl.A.No.1266/2017 in her argument submitted that it is an admitted fact that the accused and the victim knew each other since several years prior to the incident. It is not denied that the accused was visiting the house of the victim and was acquainted with her parents also. Both the accused and victim were moving together. As such, the victim had every reason to believe the words of the accused that he would marry her. However, the accused taking undue advantage of the said trust and confidence reposed in him, had not only subjected her to rape against her consent but also failed to keep up his promise of marrying her. She further submitted that the alleged consent of the victim for subsequent acts of sexual intercourse by the accused were also with no consent, since her consent was obtained by a false promise made by the accused. As such, as per Section 114 A of the Evidence Act presumption forms in favour of the victim.

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She also stated that though the incident has happened in a

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house called Shedimane in a rubber plantation, there were no neighbouring houses for a distance about 300 mtrs. as such, the protest of the victim on 11.01.2015, when the accused subjected her to the rape, could not get any help from any person.

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She further stated that the victim as a complainant has explained the alleged delay caused in filing the complaint. The cause shown by her for the delay is fully convincing and cannot be doubted. However, the Sessions Judge's Court without appreciating the evidence placed before it, in its proper perspective, has proceeded to pass erroneous judgment which warrants interference at the hands of this Court. In support of her argument learned HCGP relied upon the judgment of Hon'ble Apex Court in the case of KARTI ALLIAS KARTHICK VS. STATE REPRESENTED BY INSPECTOR OF POLICE, TAMIL NADU reported in (2013) 12 SCC 710 .

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Learned counsel for the accused/respondent in both the appeals in his argument submitted that though he would not deny that the accused and victim were known to each other since few years and that they were

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meeting quite often, but, he would strongly deny that there was any act of rape by the accused upon the victim. If at all, any sexual intercourse between them has been established, the same is with the consent by each of them against the other. As such, the very conduct of PW-13 as a consented party is highly suspicious and doubtful. Thus, it is not safe to believe her version.

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Learned counsel further submitted that there is a delay of four (4) months twenty five (25) days in filing the complaint which has not been properly explained by the prosecution. The evidence of PW-11- Babanna Poojari is not believable, because, admittedly as a subordinate to the accused, in the employment, he was served with two memos issued to him by the accused. He also submitted that evidence of PWs-1, 3 and 6 shows that in the alleged house in a rubber plantation at Shedimane, where the first incident was said to have taken place was not a vacant house, but, it was occupied by the workers. Therefore, in the instant case, committing the act of rape upon the victim in the said house is not possible. Learned counsel submitted that it is

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considering these aspects, the trial Court has rightly disbelieved the case of the prosecution and acquitted the accused. As such, the impugned judgment does not warrant any interference at the hands of this Court. In his support he relied upon a judgment of Hon'ble Apex Court in the case of G.V. RAO Vs. LHV PRASAD AND OTHERS reported in (2000) 3 SCC 693 .

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After hearing the learned counsels from both side, the points that arise for our consideration in this

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appeal are:

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(i) Whether the prosecution has proved beyond reasonable doubt that on the date 11.01.2015 at about 3.00 p.m. in the house of PW-1(CW-6) Joes Cherian situated in the rubber plantation at 9^th Milestone, at Albady village, Kundapura Taluk within the limits of complainant police station the accused committed rape of the victim (PW-13) and thereby committed an offence punishable under Section 376 of IPC?

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(ii) Whether the prosecution has proved beyond reasonable doubt on the date,

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time and place mentioned in point No.1 above, the accused after committing rape on PW-13 (CW-1) the victim, made a false and dishonest promise to the victim stating that he would marry her and that she should not reveal about the incident to anyone including giving any complaint and succeeded in the victim not disclosing the incident immediately or to proceed lodging any police complaint against him and further repeating his dishonest promise that he would marry the victim fraudulently induced her in consenting to be in association with him and the accused having subsequent sexual intercourse with her, which consent she would not have given, if, she was not so deceived and the said act of the accused has caused harm to the victim both in her body, mind and her reputation and thereby has committed an offence punishable under Section 417 of IPC?

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(iii) 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 offences punishable under Sections 376 and 417 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

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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.

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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,

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at Paragraph 25 of its judgment, the Hon’ble Apex Court

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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 fourteen (14) witnesses examined by the prosecution in order to prove the alleged guilt against the accused the material and most important witness is PW-13 (CW-1) the victim. The said witness in her evidence has stated that she has been residing in her house at Kumata along with her father, two sisters by

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name Shyamala and Deepa and one elder brother. Her father is a retired teacher and she has lost her mother in the year 2013. She is a B.A. B.Ed. graduate. The accused was working as an Assistant Executive Engineer in HESCOM at Kumata in the year 2006-07 and he was residing near her house, at which time, she was pursuing her B.Ed. graduation. At the act of accused drawing her attention towards him friendship developed between them.

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In the year 2009 accused was transferred to other branch at a place called Bantwala. In the meantime, the

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accused was contacting her over the cell-phone and close intimacy had developed between them. The accused had also promised that he would marry her. About three or four months thereafter, the accused was once again transferred to Kundapura. Even after he transferred to Kundapura the accused continued his contact with her and contacted her over cell-phone and also asking her to come to either Bhatkala or to Kundapura. The accused while at Kumata was calling her from cell-phone No.9448149914 and after his transfer to Kundapura he was talking to her from a contact No.9448289500.

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PW-13 has further stated that while the accused

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was at Kumata, Bantwala and Kundapura he was quite often visiting her house at Kumata. One month prior to she lodging complaint against the accused, he was often promising her that he would marry her. He had even participated in the obsequies ceremony of her mother and participated in all religious and family rituals. On that occasion, along with him, his colleague by name Babanna

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Poojari has also participated in obsequies ceremony. The marriage proposal given by the accused was accepted by her.

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About the incident, PW-13 has stated that on the date 09.05.2015 at about 9.00 p.m. the accused from his cell-phone No.9448289440 contacted her to her cellphone No.8277516173 and asked her to come to Government Bus Stand at Kundapura at 2.00 p.m. on the date 11.01.2015. Accordingly, she went to the said bus stand at Kundapura on 11.01.2015. The accused having gone there in a white colour Swift Motorcar with registration No. KA-20-P-1403 took her in his Car to a place called Shedimane to a rubber plantation stating that he has to collect some rubber sheets which are put up for drying in the said place. By 3.00 p.m. when they went to a house at Shedimane, none were there in the said house. The accused after shifting the dried rubber sheets from the adjacent shed to the house and while talking to her all of a sudden held her firmly and embracing her started

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kissing her. In the deposition sheet it is recorded by the Sessions Judge's Court that at that time, the witness was weeping and took sometime to continue her evidence.

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PW-13 has further stated in her evidence that thereafter the accused started pressing her chest with his hands despite the protest made by her. In spite of her protest, he undressed her and threw her on the ground and subjected her to the rape (the witness has explained the act of rape). Since the accused was stronger than her, she could not get away from him. When she started weeping at the act of the accused, he made her to believe stating that he would marry her. She believed him and then she wore her dress back so also the accused. Later, the accused in the very same motorcar brought her back to Government bus stand at Bhatkala and dropped her. In a bus she returned to her home.

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PW-13 has further stated that after the above incident accused continued to behave with her in the usual manner and was also talking to her by calling her over the

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telephone and visiting her. At all times she was enquiring about their marriage, for which, he was promising that he will enquire with his mother and his family members and let her know. Later, for her repeated enquiry accused told

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her that since he belonged to a community called 'Sheregar' and the victim belonged to a community called 'Namdhari' his mother, elder brother and sister-in-law are objecting for their proposed marriage.

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PW-13 stated that since 1½ months prior to she lodging a complaint as per Ex.P.10 accused started rejecting her telephone calls. It is thereafter, she after informing the matter in her house and taking a decision, has lodged a complaint against him with the complainant Police Station on 06.06.2015 in the evening as per Ex.P.10. Witness has identified the complaint and her signature therein.

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PW-13 further stated that after lodging complaint on 07.06.2015 they came to Kundapura on 08.06.2015. The police drew a scene of offence

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panchanama as per Ex.P.2 and a rough sketch as per Ex.P.3 and they also took a photograph, which the witness has identified as Ex.P.4. PW-13 further stated that on the date 17.06.2015 the Investigating Officer produced her before the Magistrate who recorded her statement, which the witness has identified as Ex.P.13. She identified accused in the Court as the one who by inducing her, made her to believe him that he will marry her had subjected her to rape. PW-13 also stated that the Investigating Officer had sent her for medical examination to the Government Hospital at Kundapura, where the

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Doctor medically examined her. She stated that since the accused had made her to believe that he would marry her she did not lodge complaint immediately after the incident of rape. The witness further stated in the Court that sisterin-law of the accused by name Sushma was messaging

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her. The elder brother of the accused by name Nandeesh was sending her threat messages. They were also giving several missed calls to her phone but were not receiving

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the return calls. In that connection, she has informed the police who had filed a FIR.

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She also stated that even during the pendency of the matter, in the Sessions Judge's Court, on 04.07.2016, while she was going to the Court a person coming on a motorcycle threatened her that she should not give evidence against the accused. In that regard, she has lodged a police complaint. She has marked three photographs of the messages said to have been received by her over the cell-phone at Exs.P.14, P.15 and P.16. Similarly, two photographs to show that she received few calls from cell-phone No.9480692279 at Exs.P.17 and P.18. She also marked two photographs at Exs.P.19 and P.20 stating that they were the photos of the messages received by her from cell-phone No.8867005999. Marking nine photographs from Exs.P.21 to P.29 the witness stated

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that they were the messages received by her from cellphone No.9845061796. Similarly, marking one more photo at Ex.P.30 witness stated that it shows the call and the message received from Sushma from the cell-phone

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No.9901552657. She got produced a photocopy of Bank passbook of Syndicate Bank at Ex.P.31. Copy of FIR in Crime No.227/2016 of Kundapura Police Station at Ex.P.32. The endorsement said to have been issued by

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Station House Officer of Kundapura Police Station at Ex.P.33. The endorsement given by Kundapura Police to her application under RTI Act at Ex.P.34. Stating that it is a document of registration with respect to two wheeler bearing registration No.KA-19-K-7394 belonging to the brother of the accused, the witness marked a document at Ex.P.35. A copy of the application said to have been given by one Sri.Babanna Poojari (PW-11) to the Circle Police Inspector, Kundapura, the witness has got it marked at Ex.P.36. A copy of the statement said to be of one Sri. Janardhana Markodu before the police was marked at Ex.P.37.

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PW-13 was subjected to a detailed cross-

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examination from the accused side. In her crossexamination though it was attempted to elicit the date of

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inception of friendship between the witness and the accused and the absence of any document to show their alleged friendship and love affair, however, it was not denied in her cross-examination that accused and PW-13 were known to each other much prior to the alleged incident. She denied the suggestion that accused had not promised that he would marry her.

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About the place of the alleged incident of rape on 11.01.2015, more details were elicited in the crossexamination of the witness from the accused side. The witness stated that they went to the said home which was locked, however, the accused himself opened the said lock. The witness has given the description of the position of the rooms, bathroom, kitchen etc., in the said house. She stated that it was only at a distance of 300 mtrs. away from the said house there were the other houses. She denied that people used to walk adjacent to the said house. She denied a suggestion that a family was residing in the house where the incident took place. She denied a

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suggestion that since the family members of the accused refusing the marriage proposal of herself with the accused, she making use of her acquaintance with the accused has filed a false complaint as per Ex.P.10. She gave more details about her travel from Kundapura to Shedimane on the date of alleged incident. She stated that after the incident, on the said day, she had not revealed about the same either to her father or to her sister. She denied that she had not gone to house at Shedimane and no incident of rape taken place there. She stated that after an attempt of settlement in Kundapura Police Station on 07.11.2015, she had got issued a public notice in Udayavani Kannada Newspaper dated 25.04.2016 stating that accused should not marry any other girl. The said paper publication shown to her from the accused side, was identified by her and it was marked as Ex.D.3. She denied a suggestion that since

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the accused was in a good post, it is for her safety, she proposed to marry him and as the accused refused the same she has filed a false complaint.

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PW-9 (CW-2) Narasimha B. Nayaka in his evidence has stated that he is a retired Teacher and father of the victim, who is his elder daughter and followed by her he has two more daughters. He has a son by name Vinayaka. All of them are residing together. He is a widower and his wife Savithri is dead. His first daughter i.e., the victim is a B.A. B.Ed. graduate. The accused was working in Kumata branch of HESCOM an electricity company as an Assistant Executive Engineer in the year 2006-07. Accused was residing near a house of these people in Kumata. Accused was in Kumata for about 3 to 4 years from the year 2006. At that time the victim was pursuing her B.Ed. studies and going to college. He stated that in the year 2006-07 PW-13 told to him that the accused was loving her, and accused was also visiting their house. At that time, Savithri (wife of this witness) was alive. Somewhere in the year 2008-09 the accused transferred from Kumata to Kundapura due to departmental transfers.

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PW-9 further stated in his evidence that when

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his wife Savithri died in the year 2013 it was informed to the accused who was in Kundapura. Then, after hearing the same, the accused came to Kumata from Kundapura and participated in the funeral and undertook the rituals, obsequies ceremony as per the family custom. Accused was calling the victim over the phone and taking her outside for roaming. However, he was not objecting to the same since, the accused had told that he would marry her. Till about the year 2015 the accused and the victim were had intimacy and roaming together. Though he had informed his daughter that it was not correct to move with the accused in such a manner, however, she stated that accused had promised her that he would marry her. The witness stated that from May 2015 the accused stopped contacting the victim over the phone and also meeting her. He enquired his daughter about the same, then his daughter (victim) told him that as asked by the accused she had been to Kundapura on 11.01.2015 and the accused had taken her to a house at

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Shedimane in a rubber plantation and subjected her to rape. When she started crying, after the incident, the accused promised that he would marry her and she should not reveal to anybody about the incident. As such, the incident was not revealed to him till May 2015. When the accused was attempted to contact over the phones he was not receiving the telephone calls and from his mobile response was coming as switched off. As such, the witness stated that on the date 06.06.2015 his daughter (CW-1) lodged a complaint with the police accusing that the accused has subjected her to rape and has given false promise that he would marry her and has cheated her. The witness also stated that CW-5 (PW-11) was working in MESCOM at Kundapura and he was going to their house along with the accused. Witness identified the accused in the Court.

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Nothing much could be elicited in the crossexamination of PW-9 from the accused side, which could shake the credibility of the evidence given by him in his examination-in-chief. It was attempted to know the day and month when the victim was said to be in friendship with

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the accused specifically, so also the exact date when the accused was said to have given promise to the victim that he would marry her. The witness could not give a specific month, day or date. However, he stated that it was in his presence, the accused has stated that he would marry PW13. He denied a suggestion that his family made a marriage proposal of PW-13-the victim, with the accused and since accused rejected the proposal as they belong to different caste, as a retaliation a compliant as per Ex.P.10 was lodged through PW-13 against the accused.

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PW-10 (CW-3) Shyamala the another sister of

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PW-13 and the daughter of PW-9 has stated that while accused was working in electricity company (MESCOM) at Kumata in the year 2006-07 as an Assistant Executive Engineer, was residing near to the house of this witness. The accused was there at Kumata for about three to four years. At that time, her sister PW-13 (CW-1) was pursuing her B.Ed course. The road leading to her college was in front of the office where the accused was working. The accused

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started talking to her sister and developed friendship with her. Obtaining the cell-phone number of her sister 8777516673 the accused was calling her sister very often. Both of them were roaming together. In the year 2006-07, when enquired accused had promised her that he would marry her. The said relationship continued up to the year 2015.

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The witness further stated that her sister PW-13 (CW-1) further told to her and her father that accused had called her to come to Kundapura. Accordingly, she had been to Kundapura on 11.01.2015. The accused having taken her in a Maruti Suzuki Swift car to a house in the rubber plantation called Shedimane had subjected her to rape. After the incident of rape, while her sister was crying, the accused promised her that he would marry her and asked her not to disclose about the incident before anyone. The said detail about the incident was given to her by her father and by her sister in May 2015. Thereafter, when enquired, since the accused refused to

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marry her sister a police complaint was lodged by her sister. The witness has identified the accused in the Court. She was subjected to a short cross-examination, wherein, denial suggestions were made to her about the alleged

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love affair between the accused and the victim, which was not admitted as true by her.

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The another witness in the series who could speak about the acquaintance of the accused with the victim of the alleged incident is PW-11 (CW-5) - Babanna Poojari. The said witness in his evidence has stated that he is a Junior Engineer at MESCOM. In the year 2010 the accused came on transfer to Kundapura as his Higher Officer. Once the accused had brought the victim (CW-1) to their office and introduced her to him stating that he (accused) is going to marry her. The accused and CW-1 were roaming together, both of them had been to his house for a tea. When the mother of the victim died, the accused had taken him along with him to the house of CW-1 (victim) at Kumata. PW-11 further stated that

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thereafter one evening CW-1 (victim) telephoned him stating that on the date 11.01.2015 the accused had called her to Kundapura and getting her there he took her to Albady village and cheating her had sexual intercourse with her and cheated her by not keeping his promise that he would marry her. He also came to know that in that regard CW-1 had lodged a complaint. Stating that accused was his colleague he had identified the accused in the Court. He stated that police had recorded his statement.

¶176

In the cross-examination of PW-11 it was elicited that while he was working in Gopadi branch the accused was his superior. The said accused had issued two notices to him for alleged dereliction of duty as per Exs.D.1 and D.2. He denied the suggestion that because of the enmities between him and the accused, he is giving false evidence against the accused.

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From the evidence of the above witnesses it stands established that the accused in the year 2006-07 was working as an Assistant Executive Engineer in the

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Electricity Department at Kumata and was residing near the house of the victim. It is also not denied from the accused side that the accused and the victim were known to each other and friendship developed between them. The evidence of PWs-13, 9 and 10 further go to show that the accused was frequently visiting the house of the victim, as such, he was known to the family of the victim. The evidence of these witnesses on this aspect has not been denied in their cross-examination. The evidence of PWs-9 and 13 that in the funeral and obsequies ceremony of the mother of the victim the accused had also participated and conducted some rituals as per the customs of the victim, also not been specifically denied from the accused side. The evidence of PW-11 that the accused had brought the victim to his office at Kundapura and introduced the victim as his would-be wife and that both the accused and the victim were roaming, has not been denied in the cross examination of PW-11. The evidence of PW-11 that accused had taken him also along with him to attend the funeral and obsequies ceremony of the mother of the

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victim, has not been specifically denied in his crossexamination. Similarly, the evidence of PWs-9, 10 and 13 that accused was roaming with PW-13 for quite a long time since 2006-07 up to 2015, has not been specifically denied in the cross-examination of those witnesses. Thus, it stands proved that accused and the victim were known to each other and their friendship had even gone to the extent of both accused and victim roaming together for several years.

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About the incident said to have taken place on 11.01.2015 is concerned, the evidence of PWs-9, 10 and 11 are only a hearsay. The evidence of PW-13 alone is material evidence about the said incident.

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According to PW-13-the victim, the accused subjecting her to rape on 11.01.2015 took pace in a house belonging to one Sri. Joes Cherian situated in the rubber plantation called Shedimane of Albadi village, Kundapura Taluk at about 3.00 p.m. It was elicited in her crossexamination from the accused side that when the accused

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took her to the said house Shedimane, it was locked and it

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was the accused who opened the lock. The said Joes Cherian was examined as PW-1 (CW-6). The said witness in his evidence stated that the accused is his friend who frequently visits his house. The witness stated that he has a house in his rubber plantation at Albady village. He pleaded his ignorance about the acquaintance between the accused and victim and they roaming together. He also pleaded his ignorance that the accused and the victim were meeting quite often in the said house in a rubber plantation at Albady. He pleaded his ignorance about accused having sexual intercourse with the victim in the said house. Since he did not support the case of the prosecution as expected by it, he was treated as hostile and the prosecution was permitted to cross-examine him further. He denied a suggestion made by the prosecution

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that he had given a statement before the police as per Ex.P.1. In his cross-examination from the accused side the witness stated that the said house in the rubber plantation

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through out the year a worker and his wife reside as tenant.

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PW-2(CW-7) Sudheer Bhat has stated that the scene of offence panchanama and a rough sketch of the spot was drawn in his presence by the complainant police which document he has identified as Exs.P.2 and P.3 respectively, stating that at that particular point of time a photograph was also taken. The witness has identified the photograph as Ex.P.4 and his presence in the said photograph. He stated that the said spot was shown by the victim.

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33.One Sri. H. Gopala Nayaka PW-3 (CW-8) though was examined by the prosecution projecting him as a pancha for the scene of offence panchanama Ex.P.2, however, the said witness did not support the case of the prosecution. Except stating that the police had visited his house and after taking him to a shed at rubber plantation had verified the place and took photograph. He pleaded his total ignorance about drawing of scene of offence panchanama. After treating him as hostile, though prosecution

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attempted to get his support, however, the witness did not support the case of the prosecution any further. This witness also in his cross-examination from the accused side stated that in the house of PW-1 situated at rubber plantation, the family of worker who does rubber tapping is residing.

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PW-6(CW-11) Nagendra, Panchayat Development Officer of Belve village stated that at the request of Investigating Officer he has verified the documents with respect to the place of offence which is a house in Shedimane, Albadi village in the rubber plantation and issued a certificate stating that the said house stands in the name of one Sri. Joes Cherian. The witness has identified the said certificate at Ex.P.8. In his crossexamination from the accused side he stated that the said house is a residential house in an agricultural land and according to his information labour doing rubber tapping are residing in the said house.

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35.The above evidence of PWs-1, 2 and 6 proves that one Sri. Joes Cherian is the friend of the accused and said

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Joes Cherian owns a house in the rubber plantation at Shedimane, Albady village. It is the very same house which the victim is stated that the incident dated 11.01.2015 took place. According to PW-2 it was the victim who shown the said house for drawing the scene of offence panchanama as per Ex.P.3. Thus, the place of alleged offence dated 11.01.2015 stands proved as the house of PW-1 in rubber plantation at Shedimane at Albady village within the limits of complainant police station.

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The learned counsel for the accused/respondent in his argument vehemently contended that PWs-1, 3 and 6 have stated that workers of rubber plantation reside in

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the said house. Thus, the question of accused taking the victim to the said house and subjecting her to rape does not arise.

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No doubt PWs-1, 3 and 6 have stated about the said house of PW-1 being occupied by some occupant, however, it is to be noticed that none of these

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witnesses stated as to since how long that house was occupied by any workers in the rubber plantation or any family of the labour of the rubber plantation. As such, in the absence of any specific detail about the same it cannot

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be taken that as on the date of incident i.e., on 11.01.2015 the said house was occupied by some occupants, as such, it was under lock and key.

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The above inference gains support for the reasons that even though PW-1 has stated that the worker (coolie) with his wife are residing in the said house as a tenant, but, he has not given any details of said worker and the tenancy. Had really the said house was occupied by the tenant, then, PW-1 should have necessarily had documents of tenancy including rental agreement, rent receipt etc., and produced the same before the Investigating Officer or in the Court. However, he has not produced any documents nor even given any details about the alleged tenancy. PW-3 has stated that a worker's family resides there. The say of PW-1 that the alleged residence of single worker with his wife, whereas,

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according to PW-3 it is workers which is more than one and their family in the house. Thus, there is discrepancy between the evidence of PW-1 and 3 about the alleged residence of some worker or workers in the said house. Further, the say of PW-6 also that coolie workers stay in the said house, however, he has stated that it is only an information to him. As such, the witness himself is not quite sure about the residence of any worker and/or their family in the said house.

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Thus, when none of these witnesses have given any details about the alleged residence of the said house and also since how long they are residing in the said house and more importantly, since the evidence of PW-3, that it was the accused who opened the lock of the door of the said house and the evidence of PW-1 that the accused was his friend, who quite often visited him, would clearly go to show that the said house Shedimane was not occupied as on the date of alleged incident, which was 11.01.2015 and accused being a close friend of PW-1 and visiting him quite often, had a key of the said house on the said day to

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enable him to open the lock of the house and enter. As such, the evidence of PW-13 that she was taken to the said house and the said house was vacant and unoccupied on the said day requires to be believed.

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About the incident of alleged rape, the victim has stated that after they entered the house in the rubber plantation at Shedimane, while talking to her the accused all of a sudden embraced her and holding her firmly started kissing her. It is thereafter he started pressing her chest with his hands and despite her protest he undressed her and made her to fall on the ground and committed rape on her. The witness has given the details of the act of the alleged rape said to have been committed by the accused. She stated that it is only thereafter, when she started weeping, the accused promised her that he would marry her and made her to believe the same. Stating so, the witness has made it clear that at the act of the accused was not accepted by her and she had not consented for his act of having sexual intercourse with

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her. She also has clearly stated that the promise of the accused that he would marry her was only after the accused raping her and after she started weeping after the incident. Thus, it is in the evidence of the victim that she had neither directly or indirectly or actively or passively given her consent for accused having sexual intercourse with her.

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In the cross-examination of PW-13 it was not denied that the accused had sexual intercourse with the victim. On the other hand, at various places suggestions were made to the witness which can be termed as admission suggesting from the accused side that he had sexual intercourse with the victim. Some of them are

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reproduced here below:

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"at page 11 of the cross-examination -

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It is not true to suggest that I did not scream when the incident occurred on the said day.

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It is not true to suggest that I did not protest when the incident occurred."

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Thus, a mere simple suggestion made to PW-13 denying the alleged incident is not in any way affect the credibility of the evidence of PW-13 for the alleged act of rape said to have been committed by the accused. The evidence of PW-9 - the father, PW-10 - another sister of the victim also go to show that the intimacy between the accused and the victim were known to them and believing the accused they were not objecting the victim for roaming with the accused quite often. This evidence of PWs-9 and 10, as well the evidence of PW-13 though go to show that the victim and the accused were quite intimate and were roaming together, but, that cannot be a passport for the accused committing sexual intercourse against the victim, nor can it be taken that the victim consented to the act of the accused in subjecting her to sexual intercourse.

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PW-9 and PW-10 have also stated the

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revealation of the accused committing rape upon her by the victim to them off-late, only after May 2015 when the accused stopped talking to the victim over the phone and

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meeting her and on the specific enquiry of PWs-9 and 10 with the victim. In that regard, both of them have stated that it is only thereafter the victim revealed to them about the accused subjecting her to rape on 11.01.2015 when she had been to Kundapura to meet the accused and at his request. Both of them have also stated that the victim also told them that after the incident, the accused promised that he is marrying her and had requested her not to reveal about the incident before anybody, as such, she has not disclosed the same to them. Therefore, nothing uncommon can be found in the act of the victim in not disclosing about the incident at the earliest point of time, even before her father and her sister. It is not expected that a matured girl would reveal this kind of act even to her family members immediately, when she having every reason of believing the accused and his promise that he is going to marry her. Under the said circumstance, the evidence of PW-13-the victim alone is sufficient to hold that the accused has committed rape upon her on 11.01.2015 against her will or consent.

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Our Hon’ble Apex Court, in the case of STATE

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OF PUNJAB VS. GURMIT SINGH AND OTHERS reported in (1996) 2 Supreme Court Cases 384, was pleased to

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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 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.

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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

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justice a casualty. Courts cannot 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 ,

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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

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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,

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it is no ground to disbelieve the sole testimony of

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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 reported in (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

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why the sole testimony of the prosecutrix should not be

¶252

believed. The Court further observed that in the case before it, even after 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 at a rubber plantation and the accused being a known person to the victim, it cannot be accepted that there would be any eye witness or any other witnesses to corroborate the evidence of victim (P-13). Her evidence which is consistent throughout, is reliable, believable and trustworthy to prove

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the incident of rape and the alleged guilt of the accused in subjecting her to rape. The medical evidence of PW-4 (CW-13) Dr. Chandra Marakala shows that even before the doctor, the history was given as a sexual intercourse committed by the accused - Rakesh with a promise that he

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would marry her. The Doctor, no doubt, did not find any injuries on the private organ of the victim showing any signs of rape. However, she stated that after the incident of nearly six months it is not possible to confirm the act of rape. In that regard, she has identified her opinion given at Ex.P.5. She also stated that since the Investigating Officer wanted a clear medical opinion she has given an opinion stating that as observed by her it can only be confirmed that the victim might have been undergone sexual intercourse earlier. Ever-since six months time has been lapsed after the alleged incident, no evidence has been left out to categorically say that she was subjected to sexual intercourse. The said opinion she has marked at Ex.P.6. This witness was not cross-examined from the accused side. Thus, the medical opinion also does not rule out any possibility of the rape upon the victim but has not

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specifically confirmed the incident of rape since, admittedly, the victim was examined by the doctor nearly six months after the incident. Therefore, the medical report though not directly corroborate the case of the

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prosecution, however, would show that there is nothing to doubt that victim was subjected to sexual intercourse earlier.

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PW-5(CW-12) Dr. Savita who stated that as a Medical Officer at Government Hospital, on 07.06.2016 has opined that there is nothing to suggest that the accused was not capable of performing sexual act and also there is nothing to suggest that the accused was impotent. The said un-denied evidence of PW-5 shows that accused, as a male, was not incapable of having sexual intercourse. Thus, the evidence of none else than the victim and several admissions made in her cross-examination from the accused side about the accused having sexual intercourse with her and the evidence of PWs-9 and 10 and also the medical evidence corroborates each other and establishes that on the date 11.01.2015 in a house at rubber plantation called Shedimane at Albady village, the accused had committed rape upon the victim.

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In the above circumstance, the non-supporting of PW-7(CW-9) Surendra, PW-8 (CW-10) K. Arun Kumar who

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were projected as panchas for car seizure panchanama at Ex.P.9 would not weaken the case of the prosecution in any manner.

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It is also for the reason that the evidence of prosecution witnesses, more particularly, that of PW-13 that accused was owning a car bearing registration No. KA-20-P-1403 has not been specifically denied in her cross-examination. As such also, one more attempt made by the learned counsel for the accused-respondent, to show the case of the prosecution is not free of doubt, as such, it is not believable, would not succeed. On the contrary, as observed above, the prosecution could able to establish that the victim was subjected to an act of rape by the accused.

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The accused is also charged for the offence punishable under Section 417 of the IPC. It is also the allegation of the complainant that accused made a false and dishonest promise to the victim stating that he would marry her and that she should not reveal about the

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incident to anyone including giving any complaint and succeeded in the victim not disclosing the incident immediately or to proceed lodging any police complaint against him. Further, repeating his dishonest promise that he would marry the victim, the accused fraudulently induced her in consenting to be in association with him and having subsequent sexual intercourse with her, which consent she would not have given, if, she were not so deceived. As such, the accused has caused harm to the victim both in her body, mind and her reputation and thereby committed an offence punishable under Section 417 of IPC.

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In order to prove the said charge punishable under Section 417 of IPC it is once again the evidence of PWs-9, 10 and 11 and PW-13 are very material and relevant. As analysed above, all these witnesses have clearly in their evidence stated that accused had promised that he would marry the victim. As the father of the victim PW-9 has stated that after developing intimacy with his

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daughter (victim) accused was taking her outside for roaming for which he (this witness) was not objecting since, the accused was stating that he is going to marry her. This act of the accused continued up to the year 2015. PW-9, as a father of the victim, has also stated that he told the victim that it is not correct to move with the accused. For which, she stated that the accused is going to marry her and after enquiring the accused she told him (PW-9) that accused had told her he would discuss with his mother and would marry her. PW-9 has also stated that after the incident of rape also the accused promised his daughter (PW-13) that he would marry her and that she should not disclose about the incident (of rape) before anyone. PW-9 has stated that the accused thus has made his daughter (PW-13) to believe him that he (accused) would marry her and committed rape upon her.

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In his cross-examination also PW-9 reiterated about the false promise said to have been made by the accused and also stated that the said promise that accused would marry the victim was made in his presence also. PW-10,

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the another sister of the victim, also in her evidence has reiterated about the accused promising her sister (PW-13) that he is going to marry her and misusing the intimacy with her sister of subjecting her to rape.

¶277

More particularly, PW-11, the colleague cum subordinate of the accused, has stated that the accused having brought the victim with him to his office at Kundapura had introduced the victim to his colleagues, including to him (this witness), stating that she was his would-be wife. The witness also stated that accused and the victim were moving together and they had visited his house also for having tea. His evidence that at the death of mother of the victim the accused while going to Kumata to the house of the victim had also taken PW-11 with him is corroborated by the evidence of PW-9 and PW-13. Therefore, the accused giving promise to PW-13-the victim stands established by the above evidence.

¶278

Learned counsel for the accused - respondent in his argument submitted that PW-11 was served with two

¶279

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notices by the accused about the dereliction of the duty as per Ex.D.1 and D.2. As such, with the said grudge PW-11 has falsely deposed against the accused. PW-11 has admitted that two notices as per Ex.D.1 and D.2 were given to him, however, merely because two notices were said to have been given by the accused to PW-11, by that itself it cannot be inferred that PW-11 had any grudge against the accused, as such, his evidence is not safe to believe.

¶281

On the other hand, it can be analysed in the manner that undisputedly the accused was in a superior position to that of PW-11 who was his sub-ordinate. That being the case, accused being in the dominating position to that of PW-11, the possibility of accused taking undue advantage of his position is more probable than PW-11 taking the risk of attracting more ruth of his superior by giving false evidence against him. Normally, a sub-ordinate in hierarchy would not venture to take such risk. Still, PW-11 has proceeded to state that accused had introduced the victim to him and several colleagues in the office as his

¶282

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would-be wife. Had really PW-11 intended to give false evidence against the accused, then, PW-11 would have stated more against the accused including stating that he had personal knowledge of accused taking the victim to a lonely house in rubber plantation at Shedimane. However, PW-11 had confined his evidence only in stating that accused was moving along with the victim and had introduced the victim as the one with whom he is intending to marry. Therefore, it stands proved that accused had promised the victim that he is going to marry her.

¶284

The next question would be whether the said promise of the accused was his deceitful act attracting the offence punishable under Section 417 of IPC.

¶285

In Anurag Soni case (supra) relied upon by the learned counsel for the victim, the Hon'ble Apex Court was pleased to refer to its previous judgment in DEEPAK GULATI VS. STATE OF HARYANA reported in (2013) 7 SCC 675 wherein it had observed as below:

¶286

"21. Consent may be express or implied, coerced or misguided, obtained willingly or

¶287

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through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for

¶290

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rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

¶293

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e., at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."

¶294

There is a clear distinction between rape and consensual sex. In a case like this the Court must very

¶295

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carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach

¶298

of a promise and not fulfilling a false promise.

¶299

Further in the same case the Hon'ble Apex Court at paragraph 12 of its judgment was pleased to observe as

¶300

below:

¶301

"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."

¶302

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¶303

In the instant case a careful analysis of evidences of PWs-9, 10 and PW-13 would go to show that accused was repeatedly telling that he is going to marry the victim, as such, none of the family members of PW-13 including herself, objected for accused taking leniency with the victim and both victim and the accused moving around together. Still PW-9 as a responsible father of PW-13 (victim) advised her that it was not correct to move along with the accused which was in practice for a long time. To that, as PW-9 has stated, his daughter (victim) again consulted the accused who reiterated his statement that he is going to marry her which she honestly believed. Even after the incident of rape on 11.01.2015 also, PW-13 has stated that she was once again made to believe the words of the accused that he is going to marry her. Ultimately, the fact remains that the accused had not married the victim, rather by making suggestion to PWs-9 and 13 he has shown his defence that it was from the victim side a proposal was made for a marriage of the victim with the accused, however, due to the difference in their casts the

¶304

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accused rejected the said proposal, as such, a false complaint has been lodged.

¶307

PWs-9 and 13 have not admitted the said suggestion as true. By making such suggestion to PWs-9 and 13 the accused has shown that he was never intended to marry the victim.

¶308

When the accused and the victim developed friendship between them, both of them were matured in their mind. Accused was already working as Assistant Executive Engineer in an electricity supply company and the victim was pursuing her B.Ed. graduation. Therefore, both of them being matured in their age, with sufficient worldly knowledge, were capable of taking decision on their own. Under the said circumstance, the accused expecting the consent of any of his family members for the proposed marriage with the victim does not arise. The alleged difference in the caste was not a subsequent development that has crept in the matter. By birth, and since the day one of their friendship with each other, both

¶309

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the accused and the victim knew about their respective castes. As such also, the accused as an educated person having worldly knowledge could have anticipated any resistance from his family for his marriage with the victim. Since the accused did not whisper anything about his alleged inability to perform his promise to marry the victim, until he subjected her to rape and for few months thereafter, would only go to show that from the inception the accused had no intention to marry the victim and his only desire was to misuse the victim and have sexual intercourse with her. It is after his lust for sex was fulfilled he started avoiding the victim.

¶311

Though the victim as PW-13 has produced photographs of several exchange of the messages between her and the accused and got them marked from Ex.P.14 to Ex.P.29, however, even without those documents the very trustworthy and believable evidence of PWs-9, 10 and 13 and suggestions made in the crossexamination of PW-9 would clearly go to show that

¶312

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accused had no intention of performing his promise from the inception.

¶315

On the other hand, the victim honestly believed him and even restrained herself from disclosing the act of rape upon her by the accused and waited for the accused to marry her for few months, it is only after she was confirmed that the accused is not marrying her, she proceeded to lodge the complaint.

¶316

The learned counsel for the accused/respondent in his argument relied upon the judgment in G.V. Rao's case (supra). In the said case the Hon'ble Apex Court had an occasion to analyse the Section 415 of IPC and proceed

¶317

to observe that Section 415 of IPC has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; the second need not necessarily relate to property. In the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the

¶318

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inducement should be intentional. A guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, " mens rea " on the part of that person, must be established.

¶321

In the instant case as analysed above, the accused induced the victim for forbearing from approaching the police or disclose before anybody about the act of rape dated 11.01.2015. Thus he succeeded in ensuring that the victim concealed the fact of she being subjected to rape within herself without disclosing the same to her father and to her sister. His promise to marry the victim has by virtue of the analysis made above proved to be a false promise from its inception. Thus, the act of the accused becomes an act of cheating even according to the judgment in G.V. Rao's case (supra) relied upon by the learned counsel for the accused - respondent. Thus, the prosecution could able to prove beyond reasonable doubt that the accused has cheated the

¶322

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victim and thus, has committed the offence punishable under Section 417 of IPC.

¶324

One more point of the argument of the learned counsel for the accused - respondent, as well the observation made by the Sessions Judge's Court in its impugned judgment to disbelieve the case of the prosecution is the delay in lodging the complaint by the victim about the incident. The act of rape has taken place on 11.01.2015, admittedly, the complaint came to be lodged by PW-13 only on 06.06.2015. Thus, there is a long delay of nearly five (5) months in lodging the complaint.

¶325

Learned counsel for the accused-respondent submitted that said delay creates a serious doubt in the case of the prosecution and goes to the root of the case of the prosecution and makes it unsafe to believe.

¶326

Similarly, the Sessions Judge's Court also in its impugned judgment has noticed the delay and proceeded to disbelieve the case of the prosecution even on the point of delay also.

¶327

No doubt, normally a delay in lodging police complaint with respect

¶328

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to a criminal offence would create a doubt in the mind of the Court to believe the case of the prosecution. However, if, the delay is properly explained with convincing reasons, the same would not be an obstacle for the prosecution to prove its case.

¶330

In the instant case, at the very first instance, in her complaint, which is at Ex.P.10, the victim has shown the reason for the delay in lodging the complaint. She has specifically stated that since the accused was repeatedly promising her that he is going to marry her, she was patiently waiting all along for him to marry her. It is only after the accused started avoiding her and not receiving her telephone calls, since a month prior to she lodging complaint, she was confirmed that accused had no intention to marry her and that he had given a false promise. The complainant as PW-13 has reiterated the same in her evidence. She has shown through her evidence that having been established a close friendship with the accused and was loving him, she was believing

¶331

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his words that he would marry her one day or the other.

¶334

She has stated that repeatedly she was asking the accused to marry her, however, accused was postponing stating that definitely he is going to marry her. She believed him and waited for him to marry. She stated in specific words that since the accused had made her to believe that he would marry her she did not lodge the complaint immediately after the occurrence of the incident. The said statement of PW-13 stands corroborated through the evidence of PW-9 and PW-10 also.

¶335

The evidence of PW-11 also go to show that the accused was introducing the victim to others, including to PW-11, as his would-be wife. Therefore, PW-13 had all the reason to believe the accused and wait for him to marry her for nearly five months after the incident of rape.

¶336

In a similar circumstance our Hon'ble Apex Court in Karti’s case ( supra ), which is relied upon by the learned HCGP in her argument, was proceeded to hold that there was no delay in lodging the complaint. In the Karti ’s case

¶337

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( supra ) also the proven fact revealed that the accused was the appellant before the Hon'ble Apex Court had developed friendship with the victim and against her will and consent had subjected her to sexual intercourse. He told the victim not to reveal the incident to anyone on the assurance that he would marry her. He had allegedly promised her marriage by placing his hand on her head. Believing the promise made by the accused the prosecutrix did not reveal the occurrence to anyone. After the first occurrence the accused and prosecutrix were repeatedly engaged in consensual sex at different places.

¶339

During the entire interregnum appellant sworn that he would marry her. Later, however accused refused to marry her. Consequent upon the refusal, the prosecutrix allegedly divulged the entire factual position to her brother and other family members. A panchayat was held in the presence of village elders for settling the dispute. The panchayat made efforts to persuade the accused to marry the prosecutrix to which he refused. It is only thereafter at the advise of the elders in the village the prosecutrix lodged

¶340

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the complaint. After the trial the accused was convicted under Sections 376 and 417 of IPC.

¶343

The Hon'ble Apex Court on the point of delay observed that there was no delay whatsoever at the hands of prosecutrix. As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting offence of rape under Section 376. It is only after appellant declined to marry prosecutrix, that a different dimension came to the type of physical relationship, which had legitimately continued over past six months. Things changed when appellant declined to marry the prosecutrix. After promised alliance was declined the prosecutrix without any delay disclosed entire episode to her immediate family. Without any further delay the brother and father of the prosecutrix approached village elders who made efforts to settle the issue amicably. It is only on refusal of appellant to marry prosecutrix the question of making criminal complaint arose.

¶344

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Under the said circumstance, the Hon'ble Apex Court

¶347

observed that it was not possible for them to hold that any doubt can be said to have been created in the version of the prosecution, merely on the count of delay in the registration of FIR.

¶348

In the case on hand also, as analysed above, the victim went on believing the promise that was being made by the accused repeatedly that he is going to marry her and it is on the specific promise made by the accused

¶349

that he would marry her as such she should not disclose about the incident of sexual intercourse dated 11.01.2015 to anyone, the victim did not disclose the same even to her father and sister till she came to know that accused is

¶350

not ready to marry her. As analysed above, the very defence taken by the accused that due to the difference in the caste, the family of the accused refused to get the victim in marriage to the accused was not any subsequent development.

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¶352

On the other hand, as observed above, since

¶353

the day one of their friendship accused and the victim were aware of their caste and possible shadow of the caste falling on their future marriage. As has come out in the evidence of PW-9, the father of the victim, they had no objection for the marriage between the accused and the victim, whereas, the objection was from the accused side, only after the accused satisfied his lust of sex with the victim. It is only then the victim realized that the accused's promise was fraudulent from the inception and he had never intended to marry her. This made her to approach the police with her complaint with delay. However, this aspect was not appreciated by the trial court in its proper perspective. On the other hand, it considered the delay in calendar days but not the cause for the delay. Consequently, it proceeded to hold that the prosecution could not able to prove the guilt against the accused. Since, the said judgment now proved to be erroneous and the prosecution could able to prove the charges levelled

¶354

against the accused beyond reasonable doubt, the

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¶356

impugned judgment warrants interference at the hands of this Court.

¶357

Accordingly, we proceed to pass the following:

¶358

ORDER

¶359

i. The Criminal Appeal No.1266/2017 and Criminal Appeal No.1878/2017 stand allowed.

¶360

ii. The judgment in Sessions Case No.6/2016 dated 06.05.2017 passed by the Additional District and Sessions Judge, Udupi (sitting at Kundapura), Kundapura acquitting the accused of the offences punishable under Sections 376 and 417 of the Indian Penal Code, 1860, stands set aside ;

¶361

iii. The accused Rakesh B., son of Kamalaksha Bekal, aged about 43 years, resident at Betkeri, Vitalavadi

¶362

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¶363

Road, Kundapura Kasba Village,

¶364

Kundapura Taluk, is convicted for the offence punishable under Sections 376 and 417 of Indian Penal Code, 1860.

¶365

To hear on sentence, the matter is passed over.

Sd/JUDGE

Sd/JUDGE

BVK

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Dr. HBPSJ & UMBAJ:

¶372

05.01.2024

¶373

HEARING ON SENTENCE

¶374

Heard the submission of the learned counsel for respondent No.1 and the learned HCGP for respondent No.2 on the quantum of sentence.

¶375

Learned counsel for the accused/respondent No.1 submits that the accused/respondent No.1 is a family holder with wife and children who are dependent upon him. He is a public servant having reputation in the society. The incident is also more than eight years old incident as on date, as such, the Court may take a lenient view in the matter.

¶376

Per contra , learned counsel for the victim and learned HCGP for the State in their submissions submitted that the offence committed by the accused is very heinous. The accused being himself a literate and having the knowledge of worldly affairs has not only given false promise to the victim, cheated her but also committed

¶377

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rape upon her, thus subjected her to a constant mental turmoil spoiling her future life. As such, maximum punishment prescribed under law be ordered against the accused.

¶380

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.

¶381

The circumstance of the case would go to show that both the accused and the prosecutrix were educated at the time of the offence. The accused was in a responsible position in the society and working as an Assistant Executive Engineer in an Electricity supply company. As such, it was expected of him to exercise some restraint on his sexual urge before subjecting the victim to rape. Merely he having a family would not be a ground to seek most liberal view in the quantum of sentence. Under the proven facts and circumstances of the case, the accused is not entitled for the benefit under the Probation of Offenders Act, 1958.

¶382

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¶384

Hence after considering the mitigating factor

¶385

canvassed on behalf of the accused and taking into consideration the facts and circumstances of the case, we proceed to pass the following order on sentence.

¶386

ORDER ON SENTENCE

¶387

The accused/respondent No.1- Rakesh B., son of Kamalaksha Bekal, aged about 43 years, resident at Betkeri, Vitalavadi Road, Kundapura Kasba Village, Kundapura Taluk, is sentenced to undergo seven (7) years Rigorous Imprisonment and to pay a fine of `50,000/- (Rupees Fifty Thousand Only), and in default of payment of fine, to undergo an additional rigorous imprisonment for six (6) months for the offence punishable under Section 376 of the Indian Penal Code, 1860.

¶388

The accused/respondent No.1 is sentenced to undergo for six (6) months

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rigorous imprisonment for the offence punishable under Section 417 of the Indian Penal Code, 1860.

¶391

Both sentences to run concurrently.

¶392

Out of the fine amount, deposited, if any, by the accused, a sum of 45,000/- be paid to the victim (PW-13), 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;

¶393

The victim (PW-13) is also entitled for compensation under Section 357A of the Code of Criminal Procedure, 1973;

¶394

The District Legal Services Authority, Udupi, is directed to decide the quantum of compensation payable to the victim (PW-13) under the Scheme under Section

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¶396

357A of the Code of Criminal Procedure, 1973, and to take appropriate steps for compensating the victim (PW-13) 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.

¶397

The accused/respondent No.1 - Rakesh B., S/o. Kamalaksha Bekal, Aged about 43 years, Residing at Betkeri, Vitalavadi Road, Kundapura Kasba Village, Kundapura Taluk, shall surrender before the learned Sessions Judge’s Court, within forty five (45) days from today and serve the sentence;

¶398

The respondent No.1 (accused) is entitled for the benefit of set-off for the period, if any, undergone by him in Judicial Custody in the matter, under Section 428 of the Code of Criminal Procedure, 1973;

¶399