Shivalingaiah vs The State of Karnataka

B.V. Pinto, J.—This appeal is filed challenging the judgment dated 7.12.2004 passed by the Presiding Officer, Fast Track Court II, Mysore in S.C. No. 32/00 convicting the Appellant for the offence u/s 376 IPC and sentencing him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- in default to undergo rigorous imprisonment for six months and further convicting him for the offence u/s 506 IPC and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for one month.

It is the case of the. prosecution that on or about 18.4.98 at about 12.30 p.m., at the house of C.W. 6 Shambamma at No. 4162/4, 10th cross, Gandhinagara, Mysore, the accused committed rape on the victim, by forcible sexual intercourse with her, thereby he is alleged to have committed an offence u/s 376 IPC, ft is further alleged that on 23.09.99 at 3 p.m., the accused criminally intimidated, the complainant and threatened to stab her with knife if she were to disclose the offence committed by him, thereby he is alleged, to have, committed an offence u/s 506 IPC.

In order to prove the case the prosecution has examined in all 10 witnesses and got marked Ex. P-1 to P-8. The defence of the accused, was one of total denial and he has got marked Ex. D-1 and D-2 being the portion, of the statement of the witnesses. The learned Sessions Judge having heard the prosecution and defence found the accused/Appellant guilty and convicted and sentenced him as herein before mentioned. The convicted, accused has fifed this appeal.

Heard Sri K. Chandrashekhar, learned Counsel for the Appellant and Sri Vijaya Kumar Majage, learned HCGP for the Respondent-State.

The learned Counsel for the accused, submits that the victim, is aged about 22 years and it is her case that, she was in love with the accused, and he is also a distant relative. The incident is alleged to have happened one and half year prior to the giving of complaint by the victim to the Police, Therefore, for the alleged act if any committed by the accused, she is a consenting party. He further submits that it is in the evidence of P.W. 1 the victim they had repeated the act of intercourse for 8 to 9 tunes and under the circumstances, at any stretch of imagination, it cannot be held that the victim has been, either forced or induced to commit sexual act. On the other hand, the very conduct of the complainant indicates that the act of the accused and the victim is committed by consent and understanding. Hence, he submits that the order of conviction, may he set aside and the appeal may be allowed.

The learned HCGP submits that the order of conviction is based on evidence on record and does not call for interference. Hence, he submits that the appeal may he dismissed. Further he submits that the accused has no intention at all to many the victim.

The proceeding in this case was commenced with, the filing of the complaint by the victim on 4.10.99 before the Woman Police Station, Mysore. In the said complaint, the complainant has stated that when she was studying in 2nd PUC, two years back, she had developed friendship with the accused and both of them were loving each other. The accused was a relative and he had promised to marry her and therefore, they were moving together. He has also written, love letters, which, are in her possession. It is in the complaint that when she was in her grand-mother''s house at No. 4162/4 10th cross, Gandhinagara, Mysore, the accused was visiting her. On 18.4.98 the accused came to their house, when her grand mother was riot in the house at about 12.30 p.m., and he committed forcible intercourse with her and threatened her that if she were to disclose anybody, he would stab her with, knife and kill her. Thereafter, on. 7-8 occasions the accused had come to the house of her grand-mother and they had physical intimacy with each, other. Hence, she became pregnant for five months and on 18.9.98 she had undergone abortion in Sudha Nursing Home at 100 feet road, Mysore. When she forced the accused, to many her, the accused, demanded Rs. 50,000/- as dowry and told her to inform the same to her parents hut being afraid of parents, she did not tell the same in the lipase. On 23.9.99 the accused came to her grand-mother''s house and asked her to come along with him and if she objected, he threatened to kill her. She informed this fact to her parents and told her parents that she will marry him and when her parents asked, the accused regarding her marriage with the accused, he has married another woman and refused to many the complainant. Hence, she prayed, for action against the accused.

The Police on receipt of the said complaint registered the same in Crime No. 129/99 for offence u/s 376 and 506 IPC. After investigation, the charge sheet for the said offence has been filed by the Police.

In the Court, P.W. 1 the victim Jyothi has reiterated the facts as narrated in the complaint. She has stated that since the accused promised to many her, she had, sexual intercourse with the accused as a result of which she became pregnant for 5 months. When she disclosed this fact to the accused, he brought some medicines for her. The accused also informed her that if abortion does not take place, he will take her to a doctor for abortion. The accused took her to Sudha Nursing Home at Mysore and terminated her pregnancy through doctor. When the complainant proposed to marry, tire accused demanded a sum of Rs. 50,000/- as dowry and also for transfer of a site adjacent to the house of the accused. Thereafter, she informed this feet to her mother and the complaint was lodged, at Mahila Police Station at Mysore, Thereafter, she was got examined by tire doctor at Cheluvamba hospital Mysore. She has stated that she had disclosed, the fact before her grand-mother and also C.W. 5 Pramila who is staying as tenant under her grand-mother. The love letters said to have been written by the accused are marked as Ex. P3 and P4 and the greetings sent by the accused is marked as Ex. P-5. It is in her evidence that in Ex. P-3, the accused has mentioned about her pregnancy and for taking of medicines after meals. She has stated that the accused has cheated her by not marrying her in spite of sexual assault on her. In the cross examination, she has admitted that both herself and the accused are natives of Ganangaloor Srirangapatna taluk. She has stated that since two years prior to her pregnancy she has developed love affair with the accused. She has further stated that it is due to their love affair, they developed sexual intercourse. However, she has stated, that she was not willing for the said act. She further states that because the accused was threatening her, she has not disclosed the fact to anybody. It is suggested to her that the accused has not forcibly committed any offence against her and that the complaint is filed only to harass him.

P.W. 2 is the mother of P.W. 1. She has stated that she has taken P.W. 1 to Mahila Police Station and lodged the complaint. She has stated that since P.W. 1 was studying in her grand-mother''s house, she did not come to know about the pregnancy. She has further stated that they did not approach the village elders nor any Panchayath was convened regarding the act of accused.

P.W. 3 Pramila is a tenant in the house of grand-mother of the victim. She has stated that P.W. 1 had disclosed about the love affair and also regarding refusal of the accused to many her and the demand of money in consideration of marriage.

P.W. 4 Shankarappa is the signatory to Ex. P-2 which is a mahazar of scene of occurrence, P.W. 5 is eider brother of P.W. 1. He has stated regarding P.W. 1 telling him that the accused is demanding Rs. 50,000/- and a site in consideration of marriage, and his inability to give the same. In the cross examination, he has stated that he and his parents have asked the parents of the accused for the marriage of accused with P.W. 1 as they had love affair and he was told that if the accused is willing, they could perform the marriage.

P.W. 6 Rangalakshmi is the woman constable who was present at the time when mahazar Ex. P 2 was drawn P.W. 7 Radhamani is the Inspector of Police at Mahila Police Station, Mysore. She has registered a case in Crime No. 129/99 on the basis of the complaint given by P.W. 1, secured the accused, subjected, the victim and the accused for medical examination and conducted part of investigation. P.W. 8 Dhanalakshmi is the Woman Police Constable who had accompanied P.W. 1 to the hospital for examination. P.W. 9 Rathan Kumar, was working as Police Constable in Udayagiri Police Station, Mysore. He has apprehended the accused in this case. P.W. 10 Dr. P.K. Devadas has examined the victim on 4.10.99 and has issued the certificate Ex. P-7 regarding the physical examination of the victim P.W. 1. He has also examined the accused and has issued Ex. P-8 opining that there is nothing to suggest that, the accused is incapable of performing sexual act.

It is from the above evidence of the witnesses, the learned Sessions Judge has found the accused guilty. I have gone through the evidence of the witnesses and also carefully noted the submissions made by the counsel on either side. It seen that there is inordinate delay in approaching the police after the alleged first act of forcible intercourse by the accused on the victim. It is the case of the complainant herself that there was love affair between her and the accused and the complement is a mature person. The act committed by the accused with due complainant is out of her own volition find with discretion of n major. I do not find any element of force or inducement or coercion in the act of the accused and the victim. Therefore, I hold that the prosecution has not proved that the victim was subjected to sexual intercourse either against, her will or Without her consent. Under the circumstances, the ingredients of offence u/s 376 IPC are not made out from, the prosecution witnesses. Hence, the accused is entitled for an order of acquittal.

In the result, the appeal is allowed. The order of conviction passed against the accused is hereby set aside and the Appellant is acquitted of the offence u/s 376 and 506 IPC. The bail bonds are discharged. The fine amount, if any, deposited shall be refunded to the Appellant.