State vs Raja @ Nathegowda, Doddalingaiah @ Doddakariyaiah, Chikkaiah Mariagowda and Boregowda Hydegowda

This appeal is filed u/s 378(1) and (3) Code of Criminal Procedure by the State of Karnataka represented by K.M. Doddi Police, against the judgment of acquittal dated 5-6-2006 in S.C. No. 163/2003 on the file of Fast Track Court-II, Mandya.

The relevant facts leading to this appeal are as follows:

i) The first Respondent-accused Raja @ Nathegowda is the neighbour of the victim. He was pretending that he loves the victim and in order to won over her he tried to have bodily intimacy with the victim.

ii) One day when the victim had been to the fields to cut grass, the first Respondent-accused forcibly had sexual intercourse with her. He continued his illicit intimacy with the victim, on account of which the victim became pregnant. The first accused started insisting the victim to terminate the pregnancy and paid money for the same. After the victim got the pregnancy terminated, the victim suspected that first accused would cheat her and informed her parents, who in turn brought to the knowledge of elders of the community.

iii) 13-1-2003 a panchayath was convened near Beereshwara temple, which was headed by one Igluru Wodeyar Puttaswamy. The panchayath summoned the first accused, his father and uncle. In the panchayath the first accused admitted about his love affair with the victim and the termination of her pregnancy. He agreed to many the victim. On that day the father of first accused demanded for a site. The father of the victim gave a site in the joint names of the victim and first accused. Their marriage was fixed on 6-3-2003. But, the first accused at the instance of Respondent-accused Nos. 2 to 4 left the village a day prior to the date fixed for the marriage.

iv) After 10 or 15 days prior to 2-5-2003 the victim gave complaint to the police stating that the first accused married another girl. PW-13 B. Puttaswamy, ASI, registered a case in Crime No. 94/2003 for the offences punishable under Sections 376, 420, 109 read with Section 34 IPC and send FIR Ex.P11. He sent the victim for medical examination to Government Hospital at K.M. Doddi. Thereafter, PW 14 Venkatesh, CPI, took-up investigation.

v) On 3-5-2003 the first accused was arrested and sent for medical examination and spot mahazar Ex.P5 of scene of offence pointed-out by the victim in the presence of punch witnesses was drawn and recorded the statements of the victim and others. After completion of the investigation and receipt of medical officer, charge sheet was filed.

vi) After hearing the learned Counsel for the accused and the Public Prosecutor, the Presiding Officer of Fast Tract Court framed charges u/s 376, 420, 109 read with Section 34 IPC. "The accused pleaded not guilty". In order to bring home the guilt of the accused, the prosecution examined PWs 1 to 4 and marked Exs.P1 to P12. The accused-Respondents did not chose to examine any defence witness.

v) On consideration of the material relied upon by the prosecution, the trial Court found the accused not guilty of the offences for which they were charged, mainly on the ground that there was no promise by first accused to marry the victim before he had sexual intercourse with her, question of fulfilling the promise or breach of promise does not arise and that the alleged sexual intercourse also found doubtful. Consequently, the accused were acquitted.

Learned Public Prosecutor submitted that the learned trial Judge has not appreciated the evidence on record in a proper perspective, which resulted in miscarriage of justice. He further submitted that first Respondent induced the victim to have sexual intercourse with him promising to marry her and he continued to maintain the relationship with the victim, as a result of which she became pregnant. After the first accused got terminated the pregnancy the victim informed her parents. In the panchayat the first accused agreed to marry the victim and his parents also agreed to perform their marriage. Wedding date was fixed and even wedding cards also got printed. But, a day prior to the marriage the first accused escaped from the village at the instigation of remaining accused persons. Therefore, the accused are liable for punishment for the offences alleged against them.

Mr. Sriram Reddy, learned Counsel for the accused-Respondents submitted that first Respondent never promised to many the victim and he never had any sexual intercourse with her. He has further submitted that the first accused has not insisted the victim to get the pregnancy terminated and the theory of prosecution is false. He also submitted that there is abnormal delay in lodging the complaint. The counsel also submitted that the first accused is married and having children and that the victim also subsequently got married and is leading happy married life. Under the circumstances, the learned Counsel prays for dismissal of the appeal.

According to the prosecution, the first accused committed rape on the victim when she went to the field to cut grass. He even promised to marry her and not to reveal the same to anybody. The victim became pregnant. The first accused insisted the victim to get the pregnancy terminated and told that he would marry her if pregnancy is terminated. The victim got the pregnancy terminated and informed the same to her mother Smt. Gowramma. But, Gowramma did not support the case of the prosecution.

The prosecution examined PWs 2 and 3 who acted as elders in the panchayath. They stated that first accused agreed to marry the victim. The learned trial Judge relying on the decision reported in 2005 (1) SCC 38 has observed that the alleged sexual intercourse was with the consent and willing of the victim. The evidence further indicates that whenever the victim used to go to cut grass, the first accused used to meet her and he developed bodily intimacy with her. Therefore, the evidence of victim that first accused committed rape on her does not inspire confidence and cannot be believed, especially when she continued her intimacy with the first accused for about three months.

The victim and her parents did not chose to give complaint to the police immediately after the alleged rape. Therefore, it can be safely inferred that the victim was a consenting party and therefore the first accused is not punishable u/s 376 IPC also.

In so far as the other offences are concerned, it is the case of the prosecution that accused Nos. 2 to 4 instigated the first accused not to marry the victim and on their advice he left the village just prior to the date of marriage and therefore they are liable to be punished. On this aspect, the prosecution did not adduce any evidence that first accused promised the victim to marry her before he had sexual intercourse with her. Therefore, question of fulfilling the promise or breach of promise does not arise.

Learned Government Advocate referring to the contents of Ex.P-1 the letter of Panchayath and Ex.P-7 the Assessment Register extract contended that during the panchayath the accused insisted the parents of the victim to transfer a vacant site measuring 57 x 57 feet in the name of first accused and accordingly the said site had been mutated jointly in the names of the victim and first accused. According to him, this is one strong circumstance against the first accused that he promised to marry the victim and had intercourse with her. Learned Counsel for the accused-Respondents denied the same and has filed the Affidavit of first accused stating that he has no right, title and interest over the same and that he has no objection to transfer the katha in the name of victim''s father Javaregowda.

Considering the submissions of learned Counsel on both sides and the affidavit filed by the first accused and as there are no incriminating circumstances against any of the accused, we find that the prosecution has failed to prove the offences under Sections 417 and 109 read with Section 34 IPC.

The accused are rightly acquitted by the trial Judge and there are no reasons to interfere with the impugned judgment of acquittal.

The appeal is dismissed.