Allowed

Sri Sharath Shetty v. State of Karnataka

Karnataka HC14 Feb 2024CRL.RP/621/2021

Case brief

AI extract

What is this about?

Revision against rejection of discharge in a rape-on-promise-of-marriage case where a DNA report showed accused No.1 was not the biological father of the victim's child. The High Court held continuing trial would abuse process and discharged both accused.

What did the court decide?

Order dated 27.01.2020 in S.C.No.41/2017 set aside; petitioners discharged for offences under Sections 376(2)(n), 417 and 509 IPC.

Sri Sharath Shetty Vs State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC:6237 CRL.RP No. 621 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S RACHAIAH

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CRIMINAL REVISION PETITION NO. 621 OF 2021

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BETWEEN:

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SRI SHARATH SHETTY AGED ABOUT 28 YEARS S/O VITTAL SHETTY R/AT DEVIKRIPA HOUSE NEERE VILLAGE KARKALA TALUK-574104. UDUPI DISTRICT.

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Digitally signed by SUDHA S Location: HIGH COURT OF KARNATAKA

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SRI SUDHEER SHETTY AGED ABOUT 32 YEARS S/O VITTAL SHETTY R/AT DEVIKRIPA HOUSE NEERE VILLAGE KARKALA TALUK-574104 UDUPI DISTRICT.

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…PETITIONERS

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(BY SRI. K PRASANNA SHETTY, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE KARKALA CIRCLE, UDUPI DISTRICT,

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REPRESENTED BY OFFICE OF SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE-560001.

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SMT CLEMENTINE HEMALATHA D/O EBNISER ANCHAN AGED ABOUT 27 YEARS R/AT ANCHAN VILLA PILIKALLU GOVINDUR POST NEERE VILLAGE KARKALA TALUK-574104 UDUPI DISTRICT.

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…RESPONDENTS

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(BY SRI. RAJESH RAI K, HCGP FOR R1; SRI. NISHIT KUMAR SHETTY, ADVOCATE FOR R2;)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING

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TO SET ASIDE THE IMPUGNED ORDER DATED 27.01.2020 IN S.C.NO.41/2017 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI (DOCUMENT NO.1) AND DISCHARGE THE ACCUSED FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTION 372 (2) (n), 417, 509 OF IPC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Criminal Revision Petition is filed by the petitioners, being aggrieved by the order dated 27.01.2020 in S.C.No.41/2017 on the file of the Principal District and Sessions Judge, Udupi.

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The petitioners who are the accused Nos.1 and 2,

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being aggrieved by the rejection of discharge application, are before this Court.

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Brief facts of the case are as under:

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The case of the prosecution is that the victim was working as a Staff Nurse at KMC Hospital, Manipal. Accused No.1 was the Member of the Panchayath, Neere village and he was working as an autorickshaw driver. The victim used to travel to her workplace in the autorickshaw of accused No.1. Both have developed intimacy and started loving each other. The accused No.1 stated to have proposed for marriage. It is alleged that the accused No.1 is stated to have committed rape on several occasions and hence, she became pregnant. The victim intimated the said fact to the accused No.1 and asked him to marry her, however, the accused No.1 promised her

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that he would speak to his family members and marry her. Believing his words, the victim continued with the pregnancy. On 27.11.2016, she got labour pain and went to the hospital

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and she gave birth to a female child at KMC Hospital on the next day. After she gave birth to the child, accused No.1 started avoiding her and behaving with her differently and he did not want to marry her. Being annoyed by the act of accused No.1, she handed over the child to the Child Welfare Committee.

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At the intervention of the elders and well-wishers,

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accused No.1 agreed to marry the victim. Accordingly, all of them decided to go to the Sub-Registrar’s Office for registered marriage on 02.12.2016, however, accused No.1 switched off his mobile and did not go to the Sub-Registrar’s Office. Immediately, the victim contacted the Women Helpline and the Women Helpline contacted the accused No.1, but the accused No.1 did not agree for the marriage on suspecting the character of the victim. Being aggrieved by the same, the victim has lodged a complaint against accused Nos.1 and 2. The jurisdictional police after having registered the case, conducted investigation and submitted charge sheet for the offences under

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NC: 2024:KHC:6237 CRL.RP No. 621 of 2021

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Sections 376(2)(n), 417 and 509 of the Indian Penal Code (for short ‘IPC’).

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The petitioners herein, being aggrieved by the filing of charge sheet, have approached the Trial Court by filing an application under Section 227 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) for discharge from the offences stated supra , and the said application came to be rejected. Hence this revision petition.

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Heard Shri K.Prasanna Shetty, learned counsel for the petitioners, Shri Rahul Rai.K, learned High Court Government Pleader for the respondent No.1-State and Shri Nishit Kumar Shetty, learned counsel for respondent No.2.

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It is the submission of learned counsel for petitioners that the allegations made against the accused Nos.1 and 2 are baseless and false. Accused No.1 co-operated with the investigation and the blood samples of accused No.1 and the child were drawn to send it for DNA profile, however, the said report discloses that accused No.1 is not the biological father of the child. The Hon'ble Supreme Court time and again reiterated that to determine the paternity of the child, DNA

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profiling is one of the safest and most significant methods. The Investigating Officer after having received the DNA report, ought not to have filed charge sheet against accused No.1. Filing charge sheet itself is bad and moreover, there are no ingredients to attract the provisions under Section 375 of IPC. Such being the fact, the Trial Court without considering the merits of the case, rejected the application which is bad not only in law but also on facts. Therefore, the order of the Trial Court is required to be set aside. Making such submission, learned counsel for petitioners prays to allow the revision petition.

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Per contra , learned counsel for respondent No.2 vehemently justified the order of rejection on application under Section 227 of Cr.P.C., passed by the Trial Court and submitted that the evidence of the prosecutrix / victim assumes greater significance than the report. There might be circumstances under which the DNA profile may be wrong and the said profile may not be a conclusive proof. When the mother of the child discloses the paternity of the child, the Court should consider the said aspect and importance should be given to such evidence.

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NC: 2024:KHC:6237 CRL.RP No. 621 of 2021

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In the present case, the victim has established that she was going to her workplace every day in the autorickshaw of the accused No.1 and both have developed intimacy which resulted in giving birth to the child. The said aspect has been considered by the Trial Court which resulted in passing the order which is appropriate and proper and therefore, this revision petition needs to be rejected.

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It is further submitted that at the time of considering the application under Section 227 of Cr.P.C., the Court has to see whether prima facie case is made out against the accused or not. It is not necessary at the stage of considering the application for discharge to conduct a roving enquiry and it is also not necessary to conduct mini-trial to frame the charge. The Trial Court has rightly recorded the reasons for rejecting the said application. Therefore, it is not necessary to interfere with the said findings and set aside the order. Making such submission, learned counsel for respondent No.2 prays to dismiss the revision petition.

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Similarly, learned High Court Government Pleader for respondent No.1, submitted to adopt the arguments of

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learned counsel for respondent No.2 and justified the impugned order passed by the Trial Court and prays to reject the revision petition.

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After having heard learned counsel for the respective parties and also perused the findings of the Trial Court, it is relevant at this stage to take note of the ingredients of the provisions to ascertain as to whether the petitioners herein have made out a case or not.

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In order to avoid repetition of the facts, it is appropriate to state the facts in brief. The victim is stated to be the resident of Neere Village, Karkala Taluk and the accused Nos.1 and 2 are also the residents of the same village. The victim was working at Manipal Hospital as a staff nurse and she was traveling with accused No.1 in his auto every day. It is stated that both the victim and accused No.1 developed intimacy and he committed rape on the pretext of marriage. It is further stated that the victim gave birth to a child and DNA profile was conducted to confirm the paternity of the child, however, it was negatived. Being aggrieved by the false implication, the petitioners approached the Trial Court to

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discharge them from the case. However, the Trial Court rejected their contention and proceeded to frame the charge.

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On reading of the complaint averments, the victim did not inform her family members regarding the alleged rape, till she gave birth to a child. On 06.12.2016, she gave a complaint to the respondent - Police, however, the date of the alleged rape had not been mentioned in the complaint. The victim being an educated woman and having sufficient knowledge regarding commission of such offence, she should have lodged a complaint or she should have brought to the notice of her parents regarding the incident. As per the averments of the complainant, the accused No.1 would be the father of the child, however, the DNA report is contrary to the averments of the complaint regarding paternity of the child. It is needless to say that the paternity of the child can be determined on the basis of DNA profile.

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It is settled principle of law that to determine the paternity of the child, the DNA profile is the conclusive proof and it has been followed without any hesitation in a number of cases. In case, if the evidence of the mother of the child is

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believed, Pandora's box would be opened and number of like cases would be rushed to the Court. It is needless to say that whenever there is a dispute with respect to paternity, the scientific method to determine the paternity assumes a greater significance. Similarly, in this case, the DNA profile shows that accused No.1 is not the biological father of the child of which the victim alleged that accused No.1 is the father of the child. Such being the case, the contention of the victim would be rendered as not proved. When the fact of the case at the initial stage is not established, asking the petitioner to undergo the ordeal of trial would be construed as an abuse of process of law. Therefore, the accused No.1 has to be discharged from the case.

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The allegation made against accused No.2 is that the accused No.2 being the brother of accused No.1 said to have scolded the victim when the member of Santhwana Kendra called over to his mobile phone in front of the public. Further, it is stated that accused No.2 had insulted her profession and also defended the act of his younger brother and stated that his younger brother could not have done such an act of alleged rape to the victim. Therefore, Section 509 of

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IPC has been registered against accused No.2. On careful reading of the witness list, none of the members of the Santhwana Kendra were cited as witnesses to the incident. Even though it is stated in the statement of the victim that the member of the Santhwana Kendra had called accused No.2 over his mobile phone, the said phone has not been seized by the Investigating Officer nor collected any call details to substantiate the contention of the victim. Therefore, the alleged abuse or insult made to the victim needs to be set aside as not established by the victim.

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On overall reading of the facts and circumstances and also the averments of the charge sheet, I am of the considered opinion that the allegations made against accused Nos.1 and 2 are not sufficient to prove the case even if the trial is held to the accused. Therefore, both the accused are deserved to be discharged from the case.

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In the light of the observations made above, I proceed to pass the following:-

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ORDER

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(i) The Criminal Revision Petition is allowed.

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(ii) The order dated 27.01.2020 in S.C.No.41/2017 on the file of the Principal District and Sessions Judge, Udupi is hereby set aside.

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(iii) The petitioners are discharged for the offences under Section 376(2)(n), 417 and 509 of IPC.

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Sd/JUDGE

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BSS List No.: 1 Sl No.: 30

Sri Sharath Shetty v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Sharath Shetty v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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