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Karnataka High Court
The State Of Karnataka vs Thaniyappa Purusha on 22 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON’BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON’BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.1064 OF 2017
ALONG WITH
CRIMINAL APPEAL NO.1066 OF 2017
In Criminal Appeal No.1064 of 2017:
BETWEEN:
The State by Puttur Town
Police Station,
Represented by State
Public Prosecutor,
High Court Building,
Bengaluru – 560 001. …Appellant
(By Shri B.N.Jagadeesha, Additional State Public Prosecutor)
AND:
Thaniyappa Purusha
Son of late Annappa Purusha,
Aged about 53 years,
Coolie by work,
Residing at Thirthara Kadu Site Mane,
Mudipu, Kairangala Village and Post
Bantwal Taluk – 574 211 …Respondent
(Shri Suyog Herele.E., Advocate)
2 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
This Criminal Appeal filed under Section 378(1) and (3) of
Cr.P.C praying to appeal against the impugned judgment and
order of acquittal dated 28.09.2016 passed by the VI Additional
District and Sessions Judge, D.K., Mangaluru in S.C.No.50/2016
– acquitting the Respondent for the offences punishable under
Sections 376 and 506 of IPC.
In Criminal Appeal No.1066 OF 2017:
BETWEEN:
The State of Karnataka
by Puttur Town Police Station,
Represented by State Public Prosecutor,
High Court Building,
Bengaluru – 560 001. …Appellant
(By Shri B.N.Jagadeesha, Additional State Public Prosecutor)
AND:
Thaniyappa Purusha
Son of late Annappa Purusha,
Aged about 53 years,
Coolie by work,
Residing at Thirthara Kadu Site Mane,
Mudipu, Kairangala Village and Post
Bantwal Taluk – 574 211 …Respondent
(Shri Suyog Herele E., Advocate)
This Criminal Appeal filed under Section 377 OF Cr.P.C.
praying to modify the Judgment and Order dated 28.09.2016
passed by the VI Additional District and Sessions Judge, D.K.,
Mangaluru in S.C.NO.50/2016 in passing inadequate sentence
for the offence punishable under Section 417 of IPC and impose
proper adequate sentence for the offence punishable under
Section 417 of IPC.
3 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
These Criminal appeals coming on for further arguments,
having been heard through physical hearing/video conferencing
and reserved for judgment on 06.12.2023, coming on for
pronouncement this day, UMESH M ADIGA J., delivered the
following :
JUDGMENT
Both these appeals are filed by the State under
Section 378 (1) and (3) of the Code of Criminal Procedure,
1973 (hereinafter for brevity referred to as ‘the Cr.P.C.’),
challenging impugned judgment passed in S.C.50 of 2015
dated 28.09.2016 by the VI Additional District and Sessions
Judge, Dakshina Kannada, Mangaluru (hereinafter referred
as ‘Trial Court’ for short) wherein the accused was
acquitted for the offence punishable under Sections 376
and 506 of the Indian Penal Code, 1860 (hereinafter for
brevity referred to as ‘IPC’) and convicted for the offence
punishable under Section 417 of IPC.
Crl.A.1064 of 2017 is filed challenging the acquittal of
the accused for the offence punishable under Sections 376
and 506 of IPC and Crl.A.No.1066 of 2017 is filed for
enhancement of sentence imposed against accused for the
offence punishable under Section 417 of IPC.
4 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
Hence both the appeals are taken up together for
disposal.
2. Brief facts of the case of the prosecution are
that, PW-1 victim girl is daughter of PW-2/Smt.Devaki and
CW-2/Ganesha Purusha. Accused is a distant relative of
PWs-2. Prior to the incident, he was oftenly visiting the
house of PWs-1 to 3. He was assuring and promising PW-1
that he would marry her.
3. On the fateful day, when PW-1 was alone at
home, accused came to her house and persuaded her to
have sex with him and forcefully had sex with her, inspite
of her refusal. He also threatened her with dire
consequences, if she tells the said information to her
parents or others. The accused had committed similar acts
few more times against her wish and assured her that he
would marry her. She conceived and she informed the said
fact to the accused and requested him to marry her.
Accused initially postponed the marriage on one or other
pretext and later on refused to marry her and threatened
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Crl.A.No.1066/2017
her of dire consequences, if she informs the same to
others.
4. On one day, while giving bath to PW-1, PW-2
came to know that PW-1 was pregnant and on enquiry,
PW-1 revealed above facts and also told her that due to
threat of the accused and also his promise to marry her,
she did not reveal these facts to anybody. On 21.11.2013
PW-1 delivered baby boy at Government Hospital, Puttur.
Medical officer enquired name of her husband. PW-1
revealed all the above facts to the doctor. Hence, the said
doctor informed to the Police. Police came to the hospital
and recorded statement of PW-1 as per Ex.P1 and on that
basis, registered a case in Crime No.14 of 2013 dated
21.11.2013 for the offence punishable under Section 417
and 506 of IPC.
5. The Complainant-Police investigated the case
and submitted charge-sheet against accused before the
jurisdictional Magistrate, for the offences punishable under
Sections 376, 417 and 506 of IPC. The learned Magistrate
6 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
took cognizance of the offence; secured presence of
accused; supplied copy of charge-sheet to the accused. The
offence punishable under Section 376 of IPC is triable by
the Court of Sessions and hence, learned Magistrate
committed the case to the Court of Sessions.
6. The learned Sessions Judge on receipt of charge
sheet from Committed Court, re-registered the case. Heard
both the accused and prosecution and framed charges for
the offences punishable under Sections 376, 417 and 506
of IPC. The accused pleaded not guilty and claimed to be
tried.
7. The prosecution in support of its case, has
examined PW-1 to PW-14 and got marked Exs.P1 to P19
and closed its evidence. The learned Sessions Judge
examined the accused under Section 313 of Cr.P.C. and his
answers were recorded. The accused did not lead defence
evidence.
7 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
The defence of the accused is of total denial and in
the alternative, he had contended that it was a consensual
sex.
8. The learned Sessions Judge heard the
arguments on both sides and formulated following points
for his determination:
1. Whether the prosecution has proved
the guilt of the accused beyond all reasonable
doubt that in the first week of February, 2013 he
had been to the house of PW-1 in Narimogaru
village, where he promised her that he would
marry her with an intention to have sexual
intercourse and had forcibly sexual intercourse on
her, without her consent. So he has committed
an offence punishable under Section 376 of IPC?
2. Whether the prosecution has proved
the guilt of the accused beyond all reasonable
doubt that in the first week of February, 2013 he
had been to the house of PW-1 in Narimogaru
village, where after the sexual intercourse on her,
he gave life threat to kill her, if she informed the
matter to others. So he has committed an offence
punishable under Section 506 of IPC?
8 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
3. Whether the prosecution has proved
the guilt of the accused beyond all reasonable
doubt that in the first week of February, 2013 he
had been to the house of PW-1 in Narimogaru
village, where he had forcibly sexual intercourse
on her stating that he would marry her.
Thereafter, even she was pregnant he refused to
marry and cheated her. So he has committed an
offence punishable under Section 417 of IPC?
4. What order?
9. The learned Sessions Judge appreciating
evidence on record, answered Point Nos.1 and 2 in the
negative and Point No.3 in the affirmative. The learned
Sessions Judge by the impugned judgment convicted the
accused of the offence punishable under Section 417 of IPC
and acquitted him of the offence punishable under Sections
376 and 506 of IPC. The learned Sessions Judge after
hearing the accused and the prosecution sentenced the
accused to undergo imprisonment for two months and pay
compensation of `20,000/- and in default of payment of the
same, he shall undergo simple imprisonment for two
months. The benefit of Section 428 of Cr.P.C. was also
9 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
given to the accused. The same is challenged in the present
appeals.
10. The learned Additional State Public Prosecutor
has vehemently contended that the Sessions Court has not
appreciated the evidence properly. PW-1 in her evidence
has repeatedly stated that inspite of her refusal, the
accused had forceful sex with her not only once, but thrice,
on different days. He assured her that he would marry her.
PW-1 is innocent, not having worldly knowledge, believed
the words of the accused and did not disclose these facts to
her parents. Due to the threat of accused, even she did not
inform to her parents about her pregnancy. When she was
about eight (8) months pregnant, her mother noticed and
during enquiry, PW-1 revealed her all these facts.
Thereafter also, PW-1 requested the accused to marry her;
However, the accused postponed to marry her on one or
the other pretext and also threatened her of dire
consequences, if she informs the same to others. In view
of these reasons and also due to fear of social stigma she
kept quiet. When she delivered a baby boy, on enquiry by
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Crl.A.No.1066/2017
the concerned Doctor of the hospital, she informed the said
fact, who in turn informed the same to the police and a
case was registered against the accused. The facts and
circumstances of the present case clearly reveals that PW-1
is innocent and has no worldly knowledge. She did not take
action immediately against the accused. That cannot be
considered as consent for sexual acts by the accused.
11. The learned State Public Prosecutor further
submits that PW-1 in her evidence has stated in detail
about these facts. Her evidence is corroborated by PW-2.
PW-3 has stated about delivery of baby boy by PW-1. With
the permission of the Court, blood sample of the accused
was obtained in the open Court and sent for DNA test along
with blood sample of PW-1 and her baby boy. The DNA
Centre of Forensic Science laboratory (for short, FSL),
Bengaluru gave report as per Ex.P11, stating that accused
is the biological father of the said child of PW-1 by name
Sandeepa. These facts undoubtedly prove that the accused
is responsible for birth of the said child, through PW-1.
11 Crl.A.No.1064/2017 a/w
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The learned Additional SPP would further submit that
in the cross-examination of PW-1, accused admitted of
having sex with PW-1. However he has stated that with the
consent and without any assurance, he had sex with PW-1.
The onus lies on the accused to prove that victim girl has
consented for sexual acts. Under Section 114-A of the
Indian Evidence Act, the Court shall presume, in such
cases, that the victim had not given consent, if she denied
such consent, during the course of the trial. Therefore,
Section 114-A of the Indian Evidence Act would help the
prosecution to prove the guilt of the accused.
12. The learned Additional State Public Prosecutor
has further submitted that in the cross-examination of PW-
1, by the accused, she has stated that she refused to have
sex with accused till he marries her. She stoutly refused for
the same, shouted for help and repeatedly begged accused
not to spoil her life but accused did not listen to her and
had sex with her. Her house is situated at isolated place
and her neighbours had no good relationship with them.
Therefore, nobody came to her rescue. She has also stated
12 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
in her cross-examination, that, at another time, even she
refused to open the door; thereafter, when the dogs
started barking, just to see the same, she opened the door
and by that time, accused gained entry in the house and
promised her that he would marry her and had sex with her
inspite of her refusal. These facts were not considered by
the Trial Court in the impugned judgment.
13. The learned Additional State Public Prosecutor
would further submit that the Sessions Judge in the
impugned judgment accepted that the accused had sex
with the victim girl and that was reason for her pregnancy.
However, the Sessions Judge accepted the defence of the
accused that, with false promise of marriage, PW-1 had
given consent for having sex with her. Hence, he convicted
the accused for the offence punishable under Section 417
of IPC. The accused did not challenge the said verdict of
the Sessions Court and therefore, he has accepted the
findings of the Sessions Court. PW-1 by her evidence
proved that she did not give consent for sexual act by the
accused. Under these circumstances, the essential
13 Crl.A.No.1064/2017 a/w
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ingredients under Section 376 of IPC is clearly proved by
the prosecution.
14. The learned Additional State Public Prosecutor
has further submitted that PW-1 in her evidence has stated
that the accused had given threat to PW-1 and prevented
her from disclosing these facts as well as her pregnancy to
others, including her parents. It appears from the conduct
of the PW-1 and PW-2 that due to said threat, PW-1 did not
inform the fact of sexual assault on her by the accused and
her pregnancy to PW-2. These facts prove that the accused
had given serious threat to PW-1 and thereby, prosecution
proved that accused had committed an offence punishable
under Section 506 of IPC.
15. The learned Additional State Public Prosecutor
has further submitted that for the offence punishable under
Section 376 of IPC, the Court shall not expect corroboration
of the evidence of the victim and the evidence of victim has
to be considered. In this case, as per the case of the
prosecution, most of day time, PW-1 was living alone in her
14 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
house. Accused being a distant relative of PW-2 and
familiar with the affairs of house of victim by frequently
visiting to the said house, hatched a plan and committed
alleged offences on innocent girl. Considering these facts,
the Sessions Court ought to have convicted the accused for
the said offences. However, the Sessions Judge convicted
the accused for a minor offence of the Section 417 of IPC.
The Sessions Court even not sentenced the accused
adequately, on the contrary, sentenced the accused to
undergo imprisonment for a period of two months and to
pay compensation of `20,000/-, which is highly
disproportionate and inadequate to the offence committed
by the accused. Therefore, prayed to allow the appeals by
convicting the accused for the offence punishable under
Section 376 and 506 of IPC and enhance the sentence of
the accused under Section 417 of IPC.
16. The learned advocate appearing for the
respondent-accused has vehemently contended that
prosecution has not proved the alleged offence punishable
under Section 376 and 506 of IPC. The accused was not a
15 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
stranger and known person to the family of PWs-1 and 2.
The accused was aged about 54 years as on the date of the
alleged incident. The age of victim as per Ex.P7 was 22
years. It is admitted by PW-2 that they received marriage
invitation of daughter of accused. It is the case of accused
that he used to attend religious functions of the family
along with his wife and children and these facts were
known to both PW-1 and PW-2. Hence, it is difficult to
accept the contention of the accused that she accepted or
believed the alleged promise of the accused to marry her.
Therefore, the said contention is not acceptable.
17. The learned advocate for the respondent-
accused further submitted that if accused had committed
sexual offences on her, then, she should have intimated
this fact atleast to her mother and initiated action against
the accused. PW-1 was not at the mercy of the accused.
Under these circumstances, nothing was prevented her to
lodge the complaint against the accused. Legal action was
taken after about nine (9) months from the alleged incident
of rape. In Ex.P1 or Ex.P3, delay is not properly explained
16 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
by the prosecution to lodge the complaint. Even there is no
reference about alleged forceful sexual acts on PW-1 inspite
of her refusal or alleged threat said to be given by the
accused. These facts were stated in the evidence, that
indicates, the prosecution improved its version during
evidence. Hence, the said evidence is not acceptable.
18. The learned advocate for respondent would
further submit that the accused did not challenge the
impugned judgement of conviction against him for the
offence punishable under Section 417 of IPC, does not
mean that he had admitted of having committed an offence
punishable under Section 376 of IPC. Even if it is believed
that he had sexual acts with PW-1, then at the worst, it
might be with her consent. Facts and circumstances of the
present case indicates that she had consented for sexual
acts with the accused and hence, it does not attract the
provisions of Section 376 of IPC.
19. The learned Sessions Judge, after hearing the
prosecution and the accused and considering the mitigating
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circumstances, sentenced the accused for the offence
punishable under Section 417 of IPC. The maximum
sentence of imprisonment prescribed for the offence
punishable under Section 417 of IPC is for one (1) year.
Therefore, enhancement of the same do not arise.
Therefore, prayed to dismiss both the appeals.
20. The following points emerges for our
determination:
1. Whether the prosecution has proved
beyond reasonable doubt that during February,
2013, at Markaru Dasara Mane of Narimogaru
village, Puttur Taluk, the accused has repeatedly
committed rape on victim on different days, when
she was alone at her house, against her will and
wish and committed an offence punishable under
Section 376 of IPC?
2. Whether the prosecution has proved
beyond reasonable doubt that on the above place,
date and time mentioned at Point No.1, the
accused criminally intimidated the victim given
threat to her life if she informs the alleged act of
rape to anybody and thereby, accused had
committed an offence punishable under Section
506 of IPC?
18 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
3. Whether the sentence imposed by the
learned Sessions Judge for the offence punishable
under Section 417 of IPC is inadequate and
interference in the said finding is required?
4. Whether findings of learned Trial Judge
is arbitrary, absurdity and perverse and
interference is required?
5. What Order?
The above points are taken up together for discussion
since Point Nos.1 to 4 are inter-connected.
21. Main and star witness of this case is PW-1. In
her evidence, she narrated facts of the case. According to
her, prior to the incident, the accused was frequently
visiting her house, who is a distant relative of her mother.
Accused told her that he would marry her. Thereafter, on
one day, when she was alone at home, the accused
forcefully and not heeding to her request, against her wish
had sexual intercourse with her. He also threatened her of
dire consequences, if she disclose the said facts to others.
Thereafter, on different dates, when she was alone in the
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house, he gained entry to her house and forcefully had
sexual intercourse with her, inspite of her resistance. She
became pregnant and again requested the accused to
marry her as per his promise. However, he postponed on
one or the other pretext. When she was about eight (8)
months pregnant, her mother noticed that she was
pregnant and on enquiry by her mother, she told about the
incident of forceful sexual assault on her by the accused
and also his promise to marry her.
22. It is further evidence of PW-1 that she delivered
a baby boy in Government Hospital at Puttur and was
subsequently named as “Sandeep”. PW-3, Dr.Dinesh
Kamath, Medical Officer of Government Hospital, Puttur
informed the said fact to the police and police came to the
hospital and recorded the statement of PW-1 as per Ex.P1
and she signed Ex.P1(a). After discharge from the hospital,
she showed the police place of incident wherein the
accused committed rape on her and police drew mahazar
and obtained her signature. She also stated about taking
her blood sample as well as of her son, in the Court. She
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also stated about recording of her statement by the learned
Magistrate as per Ex.P3 and her further statement by the
concerned police.
23. It is the further evidence of PW-1 that when
accused was visiting her house frequently, she had no
knowledge that he was married. She has not filed the
complaint immediately after the incident, due to threat of
the accused.
PW.1, in her cross-examination has elaborated about
incidence. The accused had sex with her three to four
times. When accused came to her house to have sex with
her, she refused to have physical relationship with him and
tried to prevent him. She had also shouted for help.
However, nobody were near her house to rescue her. Her
uncle’s house was situated nearby her house, but they
were not in good terms with them. She did not inform
about incident to the members of the family.
24. In the further cross-examination, PW-1 has
stated that four months after the first incident, when she
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was alone at home, the accused came to her house.
Normally, she used to close the door of the house when she
was alone. On that day, she did not allow the accused to
gain entry to the house. After sometime, she heard dogs
barking and hence opened the door, by that time, accused
gained entry in the house and had forceful sex with her,
against her wish. When he came for the second time, she
conceived. She told to the accused that she was pregnant
and asked him to marry her. However, accused threatened
her. She has also stated that even though her parents
were trying to arrange her marriage, the accused did not
allow her to marry others. Due to threat of the accused, till
her mother noticed that she was pregnant, she did not
inform anybody.
25. There are no reasons to disbelieve the evidence
of PW-1. On plain reading of evidence of PW-1, one can
understand her innocence and helplessness. It clearly
indicates misuse of her innocence by the accused. Evidence
of PW-1 inspire confidence in the mind of prudent person.
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The learned Trial Judge accepted and believed her
evidence, but erroneously held that it was consensual sex.
26. In Ex.P1, which is recorded by PSI on
21.11.2013, it is stated that the accused use to come to
her house when she was alone and promised her to marry
her and had physical relationship. Her statement was
recorded by learned Magistrate under Section 164 of
Cr.P.C., on 30.12.2015, wherein she has stated that the
accused had assured her that he would marry her and on
the said false assurance he had physical relationship with
her, inspite of her refusal. She had also stated before the
learned Magistrate that due to criminal intimidation of the
accused, she did not lodge the complaint to the police or
informed her parents, against accused.
27. The learned counsel for respondent-accused
contends that in Ex.P1, it is not stated that accused had
sex with her against her wish and in Ex.P3 as well as during
evidence, she had improved her case. Therefore, the said
evidence is not reliable.
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The said submission is not acceptable. It is pertinent
to note that on 21.11.2013, the said victim gave birth to a
baby boy and within a short time her statement was
recorded by the police. One has to evaluate the trauma she
had been suffering at that point of time. She was cheated
by accused; She had social stigma of having delivered a
baby without marriage and immediately thereafter, enquiry
by police. At that point of time, it cannot be expected that
she could give details of the incidents. It is not in serious
dispute that accused had sex with her. Hence, absence of
said facts in Ex.P1 do not injure credibility of her evidence
before Court which is subject to cross-examination.
28. PW-1 was a young lady aged about 20 years at
the time of incident, became pregnant and delivered a baby
without marriage. She was residing in a small village of
Puttur Taluk. She suppressed her pregnancy and even she
did not inform to her mother. She appears to be studied till
VII standard and thereafter she remained at house doing
house hold work and rolling beedis. She had no social or
public interactions. It appears that she had no worldly
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knowledge. The accused was aged about 54 years. He
promised to marry her and misused her innocence. She
innocently believed it. Even she did not inform her
pregnancy to her mother or complained to police. She
might be having a ray of hope in her mind that the accused
would give life to her and the child born out of the said
physical relationship. But inspite of lodging a complaint, the
accused did not agree to marry her and look after her and
her son. All these facts shows that evidence of PW-1 is
trust worthy.
29. The scientific evidence i.e., DNA report prove
that accused is genetic/biological father of the said child,
born to the victim. Hence, the contention of the accused
that PW1 had worldly knowledge and it was consensual
sex, is untenable. Accused could not get any admission of
the fact that PW-1 has knowledge that accused was
married and having children.
30. It is the contention of the accused that “he was
already married and having children and he is the distant
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relative of PW-2. He had sent marriage invitation of his
daughter to PW-2, which was admitted by her in her cross-
examination. The accused used to attend the family
functions along with his wife and children, where PW-2, her
husband and children had also participated. PW-1 also
knew that accused was married. Therefore, allegation that
accused had sex with her by deceitful means is not
believable”.
Looking to the materials available on record, it
appears that there is communication gap between PWs-1
and 2 as well as father of PW-1. There is no evidence on
record to show that PW-2 had informed about marriage of
daughter of accused and receipt of marriage invitation to
PW-1. She has not stated in her evidence that she and PW-
1 attended the marriage ceremony of daughter of accused.
There is no legal presumption that if marriage invitation is
sent to the members of a family, then each member has
knowledge of the same. From the evidence of PWs-1 and 2,
it shows that there is a communication gap between them.
PW-2 did not notice that PW-1 was pregnant till the
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completion of eight months of her pregnancy. All these
circumstances, indicate that what ever information got by
PW-2, were not conveyed to PW-1. Under such
circumstances, PW-2 received marriage invitation card of
daughter of accused, cannot be a ground to believe that
PW-1 had knowledge that accused is married having
children, prior to the incident.
For sake of discussion, even if it is accepted that
PW-1 had knowledge of marriage of accused it does not
make much difference. There are no reasons to PW-1, for
falsely implicate the accused. Even if accused was intended
to marry PW-1 it would not permit him to commit offence
of rape. PW-1 unequivocally deposed that she has not
consented for sexual intercourse and accused forcefully had
sex with her against her wish, under Section 114A of Indian
Evidence Act, the Court shall believe that she did not give
consent for sexual acts. By the evidence of PW-1,
prosecution is able to prove that accused had sexual
intercourse with PW-1, against her wish and due to threat
of accused, she did not tell the said facts to others.
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31. Prosecution has examined PW-2, who is the
mother of PW-1. In her evidence, PW-2 has narrated about
her blood relationship with accused and PW-1. She has
stated that while giving bath to PW-1, she came to know
that PW-1 was pregnant and she took PW-1 to the hospital
and got confirmed it. On enquiry with PW-1, she told that
accused was responsible for her pregnancy and he
threatened her, therefore, she did not reveal the said facts
to others. In her detailed cross-examination, she has
elaborated the facts of the case and marital status of
accused. The said cross-examination is not helpful for the
accused to disbelieve her evidence. PW-2 fully corroborated
the evidence of PW-1. She is not an eye-witness.
Therefore, her evidence corroborate the prosecution to
prove that usually PW-1 will be alone at home from
morning till evening and her house is at an isolated place.
32. PW-3 is medical officer, who has stated about
delivery of baby boy by PW-1 on 21.11.2013. Accordingly,
28 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
he issued a certificate as per Ex.P6. The birth of a boy to
PW-1 on 21.11.2013 is not seriously disputed.
33. PW-4 is medical officer of Government Hospital,
Puttur. He has also stated about delivery of baby boy by
PW-1 on 21.11.2013 and on enquiry to PW-1 about name
of father of baby, PW-1 revealed the facts and acts of
accused. PW-4 got it confirmed from PW-2. Therefore, he
reported the said information to Puttur Police Station under
Ex.P7. He gave inpatient medical records as per Ex.P8 and
OPD chit as per Ex.P9 to police. He has also stated that on
23.11.2013, PW-1 was discharged from the hospital. The
said facts was not denied in his cross-examination. The
evidence of PW-3 and PW-4 corroborate the evidence of
PW-1 about the delivery of baby boy and the issue of birth
certificate of a baby.
34. PW-7/Rohini is witness to spot mahazar. She
has stated about visit of police to the house of PW-1,
drawing of Ex.P2 and obtaining her signature on Ex.P2.
She enquired with PW-1 and got information that accused
29 Crl.A.No.1064/2017 a/w
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raped her, due to which, she became pregnant and
delivered the baby boy and she corroborated case of
prosecution about drawing of mahazar.
35. After arrest of the accused, he was produced
before the Medical Officer of Government Hospital, Puttur,
i.e., PW-5. She has examined the accused and given
certificate as per Ex.P10, opining that there were no
evidences to suggest that accused was incapable of
performing the sexual intercourse. Accused has not denied
evidence of PW-5 and Ex.P10. It is pertinent to note that
in the cross-examination of PWs-1 and 2, the accused had
suggested that he has wife and children indicating about
his potentiality to have sexual intercourse. Evidence of
PW-5 helped prosecution to prove the same.
36. PW-5 had also obtained the blood sample of the
accused in the open Court of JMFC, Puttur and sent through
police to DNA Centre. She has deposed the same before
the Court. In her cross- examination, nothing is brought
out to discard her evidence. The evidence of PW-5 proves
30 Crl.A.No.1064/2017 a/w
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that blood samples of the accused, PW-1 and her baby boy
Sandeep was obtained in the open Court on 18.03.2014.
37. The prosecution examined PW-6, who was in-
charge Head Master of Karnataka Higher Primary School.
He has stated that he gave date of birth certificate of PW-1
on 15.12.2013 as per Ex.P12 and her date of birth was
03.01.1991 as per school register. It is not in dispute that
she was a major as on the date of the alleged incident.
Therefore, evidence of PW-6 is not of much importance and
the accused has not cross-examined PW-6.
38. PW-12/Dr.Vinod J Lakkappa is Assistant Director
of FSL. He has stated about examining the blood samples
of PW-1, her baby boy and accused and gave DNA report
stating that as per the said DNA report, “accused is
biological father of son of PW-1, by name, Sandeepa and
he gave certificate in this regard as per Ex.P13”. In his
cross-examination, some technical questions were asked
not pertaining to the DNA report, but regarding the other
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procedures, but they do not help to demolish the evidence
of PW-12 or disbelieve DNA report – Ex.P13.
39. PW-8 is not so important witness. He received
DNA report from the office of the Deputy Superintendent of
Police as per Ex.P13(a).
40. PW-9 has drawn Ex.P2 in the house of PW-1 and
has stated about the same. His evidence corroborate case
of prosecution and evidence of PW-7.
41. PW-10 is Police Constable who handed over
blood samples of PW-1, her son and accused to the FSL
and is not material witness.
42. PW-13 is Assistant Police Inspector and Station
House Officer of Puttur Town Police Station has stated that
on 21.11.2013, he received memo from the Government
Hospital, Puttur and thereafter, he went to Government
Hospital, recorded statement of PW-1 and on that basis
registered FIR as per Ex.P19 and handed over file to his
superior officer.
32 Crl.A.No.1064/2017 a/w
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43. PW-11 is Investigating Officer who has partly
investigated the case. He has also stated that he submitted
Ex.P17 to the Court and added Section 376 of IPC in the
FIR. On 14.09.2015, he arrested the accused and produced
before the Court. He recorded further statement of PW-1
and other witnesses and submitted the charge-sheet to the
Court. In his cross-examination, nothing is brought out to
discredit his evidence.
44. PW-14 is Sub-Inspector of Police who had partly
investigated the case. She has narrated about part of
investigation done by her, i.e., taking up blood sample of
the accused with the permission of the Court, drawing up of
the mahazar, securing the date of birth certificate from
school records of PW-1, producing the accused before the
medical officer for clinical test. In her cross-examination,
nothing is brought out, that favours accused.
45. By the evidence of PW-1, prosecution proved
that accused has made false promise of marriage to PW-1,
had close intimacy with her and had forceful sex with her,
misusing her innocence and threatened her with dire
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consequences, if she reveal the said fact to others. The
accused had sexual intercourse with her three to four
times. When she conceived, he went on dodging his
marriage with PW-1. She delivered baby boy in
Government Hospital, Puttur by name Sandeepa. The blood
sample of PW-1, her son and accused were taken for
securing expert opinion, i.e., DNA report. The DNA report
also proved that the accused is biological father of the said
boy. In the defence, accused accepted that he had sex
with PW-1. But his contention is that, it was consensual
sex. The said contention was denied by PW-1. Evidence on
record also prove that she did not give consent for sexual
intercourse with her. All these circumstances prove beyond
all reasonable doubt that the accused had committed an
offence punishable under Section 376 of IPC.
46. It is the evidence of PW-1 that accused has
given threat to her/criminally intimidated her of dire
consequences if she disclosed the incident to others.
Therefore, she did not inform anybody including her mother
or she has not filed any complaint against accused. In the
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cross-examination, there is no specific denial about
evidence given by PW-1. Even in her cross-examination by
the accused, she has stated that accused has given threat
to her, not to disclose the fact of sexual assault on her to
others, including her mother. In the cross-examination, she
has stated that due to threat of the accused, she has not
informed about the incident to police or her mother. There
are no reasons to disbelieve the said fact.
47. It is pertinent to note that accused is none
other than distant relative of PW-2 and most of the time
PW-1 alone was at home during day time. Therefore, she
might have feared that accused may materialise threat
given to her and hence, she did not inform the incident to
the police or her parents.
48. PW-2 also in her evidence has stated that due to
threat of accused, PW-2 did not inform her. The evidence of
PW-1 is corroborated by PW-2. In the cross-examination of
PW-2, said fact was not denied by accused. From the said
facts and circumstances of this case, it is proved that due
35 Crl.A.No.1064/2017 a/w
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to threat of accused, PW-1 did not inform the illegal acts of
accused either to police or to her mother. PW-1 had right to
lodge complaint to police regarding offence committed by
the accused. Due to his threat she was prevented from
exercising said right. Hence prosecution is able to prove
that accused has committed an offence punishable under
49. The learned Additional State Public
Prosecutor has relied on a judgment in the case of Phool
Singh Vs. State of Madhya Pradesh1 wherein the Hon’ble
Apex Court held that “there can be conviction on the sole
testimony of the victim/prosecutrix, when the deposition of
the prosecutrix is found to be trustworthy, unblemished,
credible and her evidence is of sterling quality as a general
rule, if credible, conviction of an accused can be based on
the sole testimony, without corroboration. Sole testimony
of the prosecutrix should not be doubted by the Court
necessarily on the basis of assumption and surmises.
1
2022 (2) SCC 74
36 Crl.A.No.1064/2017 a/w
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Testimony of the victim 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 the victim of sexual
assault alone, to convict the accused where her testimony
inspires confidence and is found to be reliable. Further,
seeking corroboration of her statement before relying upon
the same, as a rule, in such cases amounts to adding insult
to the injury.”
50. The law laid down in the above said case is
applicable to facts of the present case. In the present case,
though there is a sole witness of victim PW-1, in the
detailed cross-examination, nothing is brought out to
disbelieve or discard evidence of PW-1 and her evidence is
trustworthy. Therefore, her evidence is sufficient to prove
guilt of accused.
51. The learned advocate for respondent/accused
has relied on a judgment in the case of Naim Ahamed Vs.
37 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
State (NCT of Delhi)2. In the said case also, accused
promised to marry the victim lady who was already married
and accused enticed the said lady and made separate
house in different area and continued to have illicit
relationship with said lady. He assured to marry her,
however, he did not marry her. She lived with him for
some years and had illicit relationship with accused.
Thereafter, when he refused to marry her and she came to
know that accused was already married person having
children, she lodged the complaint alleging that he had
committed rape against her. The Hon’ble Supreme Court
considering the facts and circumstances of that case held
that it does not amount to rape, but at the most, it may
amount offence Punishable under section 417 of IPC.
In this case, facts are totally different. The accused
was distant relative of PW-2. He was frequently visiting
house of PWs-1 and 2. When PW-1 was alone at the house,
he persuaded her to marry him. Thereafter, against her
wish, he raped her on three to four occasion and he also
2
2023 SCC online SC 89
38 Crl.A.No.1064/2017 a/w
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assured to marry her. When she conceived , he refused to
marry her. Materials on record clearly indicates that there
was no consensual sex in the present case. It is more or
less with the forceful and deceitful. Therefore, the principle
of law laid down in the above said judgment is not
applicable to the facts of the present case.
52. The Trial Court convicted the accused for the
offence punishable under Section 417 of IPC. The evidence
of PW-1 proves that he had committed the said offence. He
induced and persuaded the innocent girl though he was
aged about 54 years that he would marry her and
thereafter, inspite of her refusal, forcefully had sex with her
three to four times. He committed the said acts under the
false promise of marriage and threatened her that she
should not inform said facts to anybody. Due to the threat,
PW-1 did not inform these facts even to her mother.
Accused is married person having children and out of them,
he arranged marriage of his daughter, few years prior to
the incident. PW-1 has stated that accused promised her
that he would marry her and had sex with her against her
39 Crl.A.No.1064/2017 a/w
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wish. Accused knew that he is married and he cannot
marry again during life time of his wife. Knowing fully well
he promised and made PW-1 to believe that he would
marry her and had sex with her with force. The conduct of
accused clearly shows that by forcefully and deceitfully he
had sex with victim with false promise of marrying the
victim. Considering these facts, the learned Sessions Judge
rightly convicted the accused of the offence punishable
under Section 417 of IPC.
53 . The learned Sessions Judge sentenced the
accused to undergo simple imprisonment for a period of
two months for the offence punishable under Section 417
of IPC and directed to pay compensation of `20,000/- to
the child of PW-1/victim, within two months, in default of
payment of compensation, he shall undergo simple
imprisonment for a period of two months. The sentence
imposed by the trial Court is inadequate.
54. The learned Sessions Judge in the impugned
judgment has stated that accused had promised PW-1 that
40 Crl.A.No.1064/2017 a/w
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he would marry her and had sexual intercourse on her.
Therefore, her evidence proves that the accused had
committed an offence punishable under Section 417 of IPC
and not under Section 376 of the IPC. The learned Sessions
Judge held that it was a consensual sex. Said finding is
erroneous. The evidence of PW-1 is discussed in detail in
the above paragraphs. She has repeatedly stated that
accused had sex with her three to four times against her
wish and consent. She has resisted the said act of the
accused. However, the accused forcefully had sex with her
and thereafter, promised her that he would marry her. The
learned Sessions Judge without considering the evidence of
PW-1 properly, held that it was consensual sex on the
deceitful promise of accused that he would marry her.
Therefore, the findings of the learned Sessions Judge is
perverse and interference by this Court is required.
55. The Appellate Court should be slow while
reversing a judgment of acquittal. However, after
reassessment of the evidence, if it is found that the
findings of the Trial Court is perverse, arbitrary and illegal
41 Crl.A.No.1064/2017 a/w
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and against the settled principles of law, then only the
Appellate Court has to reverse the said judgment. In the
present case, Trial Court did not appreciate the evidence of
PW-1 properly. Therefore, the said finding is perverse. The
learned Sessions Judge has not considered Section 90 of
Indian Penal Code and Section 114-A of the Indian
Evidence Act. PW-1 either in the examination-in-chief or in
the cross-examination has stated that she had consented
for sexual intercourse with the accused. When that
evidence is not available on record, the findings of the
learned Sessions Judge that it was a consensual sex is not
acceptable.
56. It is settled law that while reversing acquittal
judgment, the Appellate Court should think twice and be
cautious. The Appellate Court must keep in mind that there
is double presumption in favour of accused. One is general
principle that accused shall be presumed to be innocent ill
guilt is proved. And second presumption is that the Trial
Court after appreciating evidence, decided that guilt is not
proved and his innocence is approved by the Court. But
42 Crl.A.No.1064/2017 a/w
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that does not mean that the Appellate Court has no
jurisdiction or authority to reverse the judgment of
acquittal passed by the Trial Court.
57. In the following cases, the Hon’ble Apex
Court held that the Appellate Court has jurisdiction to
interfere in the findings of the Trial Court if the said
findings are arbitrary, perverse and illegal.
57A. In the recent judgments; in the case of Siju
Kurian Vs. State of Karnataka3, the Hon’ble Apex Court
relying on the previous judgments and also relying on the
land-mark judgment of the Privy Council in the case of
Sheo Swarup Vs. King Emperor4, held as under:
“19. This Court has time and again
reiterated the powers of the Appellate Court while
dealing with the appeal against an order of
acquittal”.
3
2023 SCC OnLine SC 429
4
AIR 1934 PC 227
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The Hon’ble Apex Court quoted the principle of law
laid down in the matter of Chandrappa Vs. State of
Karnataka5, where it is held as under:
“42. … (1) An appellate court has full power
to review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(3) Various expressions, such as, “substantial
and compelling reasons”, “good and sufficient
grounds”, “very strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc. are not
intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
“flourishes of language” to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
5
(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] ,
44 Crl.A.No.1064/2017 a/w
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(4) An appellate court, however, must bear
in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate court should not disturb the finding
of acquittal recorded by the trial court.’
58. In this case also, after re-appreciating the
evidence, this Court is of firm opinion that the accused has
committed an offence punishable under Section 376 of IPC.
The Trial Court has not properly appreciated the evidence
and it erred in disbelieving the evidence of PW-1 on flimsy
reasons. There are no two views possible in this case. Only
one view is available that the accused has committed rape
on PW-1. That was not considered by the Trial Court.
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Therefore, to that extent, the findings of the Trial Court
needs to be interfered.
59. The learned Sessions Judge mainly relied on the
absence of word ‘rape’ in Ex.P1 to hold that it was the
consensual sex. The learned Sessions Judge totally ignored
oral evidence given by her before the Court on oath. Even
under Ex.P3, she had stated before the learned JMFC that
accused had sex with her, with a false promise of marriage,
against her wish. Therefore, the said finding of the learned
Sessions Judge is perverse. The learned Sessions Judge, on
the basis of conduct of PW-1, held that she had consented
for sexual intercourse, due to false promise of marrying her
said finding is contrary to evidence of PW-1.
60. The learned Sessions Judge disbelieved the
evidence of PW-1 regarding the fact of rape, on the ground
that she knew that the accused was married and having
children. Infact, PW-1 unequivocally, in her evidence, has
stated that she never met the wife and children of the
accused and his wife and children never attended family
function of PW-1. There were no reasons to disbelieve her
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evidence. As already stated, there was communication gap
between PWs-1 and 2. Merely, PW-2 knew about invitation
of marriage of daughter of accused cannot be a ground to
hold that PW-1 had also knowledge of marriage of daughter
of accused. There is no such presumption under law.
Therefore, discarding of evidence of PW-1 on this ground,
by the Sessions Court, is erroneous.
61. In view of the said law laid down in the above
said judgment, it is proper and fit case to interfere in the
findings of the learned Trial Judge.
62. The learned Sessions Judge BY appreciating
the evidence, held that accused by giving a false promise
had sexual intercourse with PW-1 and on the basis of
materials available on record, convicted the accused for
the offence punishable under Section 417 of IPC. That is
not challenged by accused. Even on re-appreciation of
evidence of PW-1 as discussed in the above paras, we also
find that there are sufficient evidence to accept the case of
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the prosecution that accused has committed offence under
63. Therefore, the learned Trial Judge rightly
convicted the accused for the offence punishable under
Section 417 of IPC and there is no need to interfere in the
said findings.
64. The contention of the learned additional state
public prosecutor that sentence imposed against the
accused for the offence punishable under Section 417 of
IPC is very disproportionate and inadequate. The said
offence is punishable with imprisonment which may extend
to one year or with fine or with both. In this case, the
learned Sessions Judge imposed the sentence of
imprisonment for a period of two months. However, no fine
was imposed. Therefore, the punishment imposed against
the accused is highly disproportionate and inadequate.
The said submission is acceptable. The learned
Sessions Judge has not assigned reasons regarding
punishment imposed against the accused. Victim is aged
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20 years at the time of incident. Her future life has been
spoiled by accused who is aged about 54 years. She gave
birth to a child, it also has to suffer by social stigma.
Considering all these facts, the punishment imposed by the
learned trial Judge needs enhancement. Therefore, there is
need to interfere in the findings of the Trial Court regarding
the imposition of the sentence against accused for the
offence punishable under Section 417 of IPC.
65. For above said discussions, we answer points
No.1 to 4 in the affirmative.
66. For the above said reasons, we pass the
following:
ORDER
i) Appeal in 1064 of 2017 and 1066 of 2017 are
allowed.
ii) Impugned judgment passed in Sessions Case
No.50/2016 dated 28.09.2016 by the learned VI
Additional District and Sessions Judge, Dakshina
Kannada, Mangaluru, acquitting accused of the
offence punishable under Section 376 and 506
of IPC is set aside. And convicting the accused of
49 Crl.A.No.1064/2017 a/w
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is confirmed.
iii) Accused, namely, Thaniyappa Purusha, Son
of late Annappa Purusha, Aged about 53 years,
Coolie by work, Residing at Thirthara Kadu Site
Mane, Mudipu, Kairangala Village and Post,
Bantwal Taluk – 574 211, is found guilty for the
offences punishable under section 376 and
Section 506 of the IPC.
iv) The sentence imposed against accused for
the offence punishable under Section 417 of IPC
shall be modified.
To hear on Sentence.
Sd/-
JUDGE
Sd/-
JUDGE
DH
50 Crl.A.No.1064/2017 a/w
Crl.A.No.1066/2017
Dr.HBPSJ UMBAJ: Crl.A.No.1064/2017 a/w
22.02.2024 Crl.A.No.1066/2017
Hearing on Sentence
Heard the learned Additional State Public Prosecutor
for the Appellant/State and the learned advocate for
respondent/accused on sentence.
2. The learned advocate for accused submits
that accused is aged about 60 years having wife and
children. They are depending upon earnings of the accused.
He has social and family responsibilities. If he is punished
with maximum imprisonment as provided under the law,
then he and members of his family would be put to
irreparable loss and hardship. Therefore, prayed to take
lenient view while imposing the sentence.
3. The learned Additional State Public
Prosecutor would submit that accused at the age of 55
years having wife and children has committed heinous
crime of rape on innocent victim, who was resident of a
village and spoiled her name, fame and career. Due to the
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illegal act of the accused, she became pregnant and
delivered a baby boy. Even the accused is not looking after
the said baby. On the contrary, he denied entire allegations
against him and he contends that he was not father of the
said baby of the victim. Therefore, maximum permissible
sentence shall be imposed against him.
4. Looking to the facts and circumstances, we
are not inclined to extend benefit of Probation of Offenders
Act to the accused.
5. The accused is found guilty of the offences
punishable under Section 376, 506 and 417 of IPC. The
accused has committed repeated sexual acts with victim
girl three to four times on different dates.
6. There are no criminal antecedents against the
accused. Admittedly, accused is married and having wife
and children. He appears to be aged, around 60 years as
per materials on record. Considering his social, educational
and economical backwardness as well as his age and social
responsibility, lenient view needs to be taken while
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imposing the sentence. However, leniency does not mean
of imposing inadequate or meagre sentence. It shall be
proper justifiable and adequate to the offence committed
by the accused. To strike the balance between them both,
adequate and proportionate/sentence to be imposed.
7. Accordingly, we sentence the accused as
under:
ORDER
i) The accused, namely, Thaniyappa Purusha,
Son of late Annappa Purusha, Aged about 53
years, Coolie by work, Residing at Thirthara Kadu
Site Mane, Mudipu, Kairangala Village and Post,
Bantwal Taluk – 574 211, is sentenced to undergo
rigorous imprisonment for a period of ten (10)
years and shall pay fine of `50,000 (Rupees Fifty
Thousand only), in default of payment of fine, he
shall further undergo rigorous imprisonment for a
period of one (1) year, for the offence punishable
under Section 376 of IPC.
53 Crl.A.No.1064/2017 a/w
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ii) The accused is sentenced to undergo
rigorous imprisonment for a period of one (1) year
and shall pay fine of `5,000 (Rupees Five
Thousand only), in default of payment of fine, he
shall undergo imprisonment for a period of two (2)
months for the offence punishable under Section
506 of the IPC.
iii) The accused is sentenced to undergo
imprisonment for a period of six (6) months and
shall pay fine of `5,000 (Rupees Five Thousand
only), in default of payment of fine, he shall
undergo imprisonment for a period of two (2)
months for the offence punishable under Section
417 of IPC. Accordingly, the sentence passed by
the Sessions Court under Section 417 of IPC
stands modified.
iv) The substantive sentence of
imprisonment shall run concurrently.
v) Accused is entitled for set-off as provided
under Section 428 of CR.P.C.
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Crl.A.No.1066/2017
vi) On deposit of the fine of `60,000 (Rupees
Sixty Thousand only) by the accused `50,000/- is
ordered to be paid to the PW-1 victim lady as
compensation under Section 357 of Cr.P.C.
vii) The Member Secretary, Legal Service
Authority of the concerned District is directed to
consider awarding the compensation to the victim
under the Victim Compensation Scheme as
provided under Section 357-A of Cr.P.C., and the
Registry is directed to send copy of this judgment
to District Legal Services Authority of the
concerned District, for considering payment of
compensation within period of three (3) months
from the date of receipt of copy of this order.
viii) Since sentence imposed against accused
under Section 417 of IPC is modified, the order of
the Trial Court awarding compensation to the
victim does not survive.
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ix) Accused shall surrender before the
concerned Court within a period of forty five (45)
days from the date of this order to undergo
sentence.
x) The Registry is directed to send back Trial
Court records along with a copy of this judgment.
xi) Free copy of the judgment shall be
furnished to the accused.
Sd/-
JUDGE
Sd/-
JUDGE
DH
