CHANDRANAIK vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ND
DATED THIS THE 2 DAY OF NOVEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 630 OF 2016 (C)
BETWEEN:
1. CHANDRANAIK
S/O SUBBANAIKA,
AGE 32 YEARS,
OCC:LABOURER,
R/O HUCHHAROY COLONY,
VINOBHANAGAR, SHIMOGGA-577201
…APPELLANT
(BY SRI. B.S.PRASAD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY MAHILA POLICE STATION
SHIVAMOGGA-577 201.
…RESPONDENT
Digitally signed by
LAKSHMINARAYAN N
Location: High Court
of Karnataka
(BY SRI K.NAGESHWARAPPA., HCGP)
THIS CRL.A. IS FILED U/S 374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND SENTENCE DATED 24.03.2016
PASSED BY THE III ADDL. S.J., SHIVAMOGGA IN
S.C.NO.189/2014 - CONVICTING THE APPELLANT/ACCUSED
NO.1 FOR THE OFFENCE P/U/S 366(A) AND 376 OF IPC.
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THIS APPEAL, COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
Both the appellant and his counsel are present before
the Court.
2. The appellant, who is accused No.1 before the
trial Court has preferred this appeal against the judgment
of conviction and sentence passed by the III Additional
Sessions Judge, Shivamogga in S.C.No.189/2014.
3. For the sake of convenience, the parties herein
are referred to as per their status before the trial Court .
4. The brief facts leading to this appeal are that,
the Mahila Police Station of Shivamogga submitted a
charge-sheet against accused Nos.1 to 5 for the offence
punishable under Sections 366, 417, 498-A, 324, 506(2),
494 read with Section 34 IPC. It is alleged by the
prosecution that on 09.05.2012 in the night accused No.1
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kidnapped victim from her house situated at Kashipura
Gate, Hucchuraya Colony, Shivamogga on his bike forcibly
with an intent to marry her against her will, in order that
she may be forced or seduced to illicit intercourse, he
cheated the victim by deceiving her fraudulently marry her
by hiding the fact that he has already married. The
accused No.1 took the victim to his house situated at
Hucchuraya Colony, Vinobhanagara, Shivamogga, where
all the accused, in furtherance of their common intention,
intentionally insulted her by saying
ºÁzÀgÀVwÛ ¸ÀƼɪÀÄÄAqÉ
, intending that such provocation will cause her to
¨ÉÆøÀÄr
break the public peace. Further it is alleged that accused
No.1 being the husband of the victim, accused No.2 being
the mother, accused No.3 being the sister, accused No.4
being the first wife and accused No.5 being the brother of
accused No.1, with their common intention, subjected the
victim to cruelty both physically and mentally and accused
No.4 committed criminal intimidation by giving threat to
her, and accused No.4 voluntarily assaulted with a sickle
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on her left hand and caused grievous injuries and, accused
No.1 having been validly married, and that he married
again victim during the lifetime of his wife accused No.4
Laxmi Bai, and the said second marriage of accused No.1
with victim was duly performed and further it is alleged
that accused No.1 by kidnapping the victim on 9.5.2012
from her house situated at Kashipura Gate, Hucchuraya
Colony, Shivamogga on his bike and took her to different
places till 18.5.2012 and in that period he forcibly
committed rape on her, and thereby accused have
committed the above said offences.
5. After filing the charge-sheet, a case was
registered in C.C.No.1214/2012. Thereafter case was
committed to the Court of Sessions and registered in
S.C.No.189/2014. Accused were released on bail. Having
heard the arguments on both sides, the trial Court has
framed the charges against the accused for the offences
punishable under Sections 366, 366A, 376, 417, 498A,
504, 324, 506, 494 read with 34 of IPC. Same was read
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over and explained to the accused. Having understood the
same, accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, in all, 8
witnesses were examined as PWs.1 to 8. 12 documents
were marked as Exhibits P1 to P12. One material object
was marked as M.O.No.1. On closure of prosecution side
evidence, statement under Section 313 of Cr.P.C. was
recorded. Accused have totally denied the evidence of
prosecution witnesses. However, they did not choose to
lead any defence evidence on their behalf. Six documents
marked as per Exhibits D1 to D6.
7. Having heard the arguments on both sides. The
trial Court has acquitted accused No.1 for the offence
under Section 417, 504, 498A, 506, 494, read with 34 of
IPC. Accused Nos. 2, 3 and 5 are acquitted for the offence
punishable under Sections 504, 498-A, read with 34 of
IPC. Accused No.4 was convicted for the offence
punishable under Section 324 of IPC, accused No.1 for the
offence punishable under Section 366-A and 376 of IPC
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and passed sentence to undergo rigorous imprisonment
for a period of 7 years and to pay fine of Rs.20,000/- for
the offence punishable under Section 366A of IPC and also
sentenced to undergo rigorous imprisonment for a period
of 10 years and to pay fine of Rs.1,00,000/- for the
offence punishable under Section 376 of IPC. Being
aggrieved by this Judgment of conviction and order on
sentence accused No.1/appellant has preferred this
appeal.
8. The learned counsel for the appellant would
submit that the conviction and sentence are contrary to
law, evidence and probabilities of the case. The learned
Sessions Judge has committed a serious error in convicting
the appellant and the prosecution evidence which is highly
interested, contradictory, unreliable and artificial. That the
prosecution is guilty of the suppression of the material
evidence and has not come forward with a true version of
the incident. The learned Sessions Judge has committed a
serious error in holding that the prosecution has proved
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the case beyond all reasonable doubt. The learned
Sessions Judge ought to have acquitted the appellant on
the ground that there is a long and unexplained delay in
filing the complaint. The learned Sessions Judge has
committed a serious error in relying on interested
testimony of PWs1, 3 and 4 when their evidence is not
corroborated by independent evidence. The trial Court has
not properly appreciated the evidence of prosecution
witnesses in its proper perspective. Though there is no
evidence to constitute the offence under Sections 366A
and 376 of IPC, the trial Court has convicted the accused,
which is not sustainable under law and sought for allowing
this appeal.
9. Learned HCGP Sri K.Nageshwarappa, would
submit that the trial Court has properly appreciated the
evidence on record in accordance with law and facts and
there are no grounds to interfere with the impugned
judgment of conviction and order on sentence passed by
the trial Court and sought for dismissal of the appeal.
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10. Having heard the arguments on both sides,
perusal of materials, the following points would arise for
my consideration:
1. Whether the appellant/accused No.1 has
made out grounds to interfere with the impugned
judgment of conviction and order on sentence
passed against accused No.1/appellant?
2. What order?
11. My answer to the above points as under:
Point No.1: in the affirmative.
Point No.2: As per the final order.
Regarding Point No.1:
12. I have examined the materials placed before
this Court.
13. The IO has submitted the charge-sheet against
the accused for the offences punishable under Section
366, 417, 498A, 324, 506(2), 494 read with 34 of IPC. It
is alleged by the prosecution in the charge-sheet that on
09.05.2012, during the nighttime, when no other persons
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were present in the house, threatened witness No.1 and
focibly took her on his motorcycle against her will. It is
further alleged that accused No.1 kidnapped CW1, forcibly
tied a Thali (Mangalasutra) around her neck, and took her
to various places and other towns, where he had physical
relations with her. Thereafter, accused No.1 brought her
back on 18.05.2012. It is further alleged on the same day,
accused Nos.2 to 5 abused CW1 in filthy language by
calling her derogatory names, including a slut, and
subjected her to physical and mental harassment. They
allegedly caught hold of her and assaulted her with their
hands, and harassed her physically and mentally. Further,
it is alleged that accused No.4 threatened to kill CW1 by
pointing a sword at her and attempted to stab her with the
same. While attempting to ward off the attack, CW1
sustained a minor injury on the middle finger of her left
hand. It is also alleged that accused No.1 had already
contracted a marriage prior to the alleged marriage with
CW1. The marriage between accused No.1 and CW1 had
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been forcibly and intentionally solemnized. Thus, the
accused has committed the offence.
14. On hearing the charges that on 04.08.2015, the
trial Court has framed the charges against the accused for
the offence under Section 366, 417, 504 read with 34 of
IPC, 498A read with 34 of IPC, 506, 324, 494 of IPC. The
same was read over and explained to the accused. The
accused pleaded not guilty and claimed to be tried.
Thereafter, without assigning any reason for alteration of
charge, the trial Court has framed the charges against the
accused on 30.12.2015 for the offence punishable under
Section 366, 417, 504, 498A read with 34 of IPC, 506,
324, 494, 376 of IPC.
15. Though the trial Court has not framed the
charge against accused No.1 for the offence under Section
366A of IPC, the trial Court has convicted accused No.1 for
the said offences and also passed sentence to undergo
rigorous imprisonment for a period of 7 years and to pay
fine of Rs.20,000/-.
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16. It is submitted by learned HCGP that the State
has not preferred appeal against the judgment of acquittal
passed against accused No.1 for the offence punishable
under Sections 417, 504, 498A, 506, 494 read with 34 of
IPC and also against acquitted accused Nos. 2, 3 and 5. It
is submitted that accused No. 4 is released under Section
4 of Probation of Offenders Act, 1958. Accused No.4 has
not preferred any appeal.
17. On careful examination of the entire materials
placed on record, it is clear that the committal Court has
committed an error in taking cognizance against the
accused for the offence punishable under Section 494 of
IPC, on the basis of police report, which is barred under
Section 198 of Code of Criminal Procedure. The learned
Sessions Judge has also committed an error in framing
charges against the accused for the offence under Section
494 of IPC. The complainant has not lodged any complaint
under Section 2(d) of the Code of Criminal Procedure,
1973. The Investigating Officer has submitted the charge-
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sheet against the accused for the offence punishable under
Section 494 of IPC. Though there is a bar under Section
198 of Code of Criminal Procedure, 1973, the Committal
Court, as well as the learned Sessions Judge, has
committed an error in taking cognizance and also framing
charges against the accused for the offence punishable
under Section 494 of IPC. Fortunately, the learned
Sessions Judge has acquitted the accused for the offence
punishable under Section 494 of IPC.
18. With regard to the offence under Section 366A
of IPC is concerned. It is appropriate to mention here as to
the essential ingredients to establish the offence under
said Section. The same reads thus:
" Essential Ingredients:- This section requires two
things: (1) inducing a girl under eighteen years to go
from any place or to do an act, and (2) intention or
knowledge that such girl will be forced or seduced to illicit
intercourse with a person. The essence of offence under
Section 366A lies in taking away a minor girl with intent
that she may be forced or knowing that she would be
forced or seduced to illicit intercourse with any other
person and not with the taker himself. There are three
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principal ingredients of the offence contemplated by
Section 366-A:
(i) that a minor girl below the age of 18 years is
induced by the accused;
(ii) that she is induced to go from any place to do any
act, and
(iii) that she is so induced with intent that she may be
or knowing that it is likely that she will be forced or
seduced to illicit intercourse with another person. It may
so happen that a girl who had strayed from the path of
virtue when she was in the custody of her guardian and
had with a view to carry on her affair accompanied her
seducer or another person. Such a case may certainly fall
within the terms of Section 366 or Section 366-A
whichever applies."
19. In the case on hand, Exhibit P1 complaint itself
reveals that the age of the victim is 18 years. The victim
herself, has stated that her age as 18 years. Exhibit P9 is
the copy of School Certificate, which is signed by President
of Child Welfare Committee, Shivamogga, Exhibit P10 is
the Study Certificate and Ex.P11 is the School Certificate
issued by the Head Master of Government Higher Primary
School, Vinobhanagara, Shivamogga. These documents
reveal that the date of birth of the victim is 25.05.1997.
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The concerned officers, who issued these certificates have
not been examined before the Court. The Investigating
Officer has not explained anything as to non-examination
of these witnesses. Therefore, the prosecution has failed
to prove the contents of Exhibit P9 to P11. It is settled
principle of law that mere Exhibits the document amount
to proof. The prosecution has also produced the Exhibit
P12 certificate issued by Shivamogga Institute of Medical
Sciences, District Government McGann Hospital,
Shivamogga which reveals that the age of the victim 18
years. Final opinion of Dr.Vrinda J.Bhat, who is examined
as PW8, has given opinion upon physical, dental and
radiological examination of victim that the age of the
victim is between 18 - 21 years. She has clearly deposed
the same in her evidence.
20. Though the prosecution has not proved the
contents of Exhibit P9 to P11, the trial Court has come to
the conclusion that the school documents prevail over the
ossification certificate issued by the Medical Officer, which
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is not sustainable under law. The prosecution has not
placed any contrary, legally acceptable evidence before
the Court to come to the conclusion that the age of the
victim was below 16 years as on the date of commission of
offence. On the contrary, the contents of Exhibit P12 and
evidence of PW8 itself reveals that the age of the victim
was between 18 to 21 years as on the date of commission
of offence. Accordingly, the prosecution has failed to prove
that the victim was below 18 years as on the date of
alleged commission of offence.
21. With regard to other ingredients are concerned,
PW1 has not deposed in her evidence that the accused
induced the victim to go from one place to another and
this seducement was made with the intent or knowing it to
be likely that victim might be forced or seduced to illicit
sexual intercourse with the accused. Accordingly, the
prosecution has failed to prove the guilt of the accused for
the offence under Section 366A of IPC.
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22. With regard to the offence under Section 376 of
IPC is concerned, the complaint came to be filed by the
victim on 03.06.2012. It is appropriate to mention here as
to the provisions of Section 375 of IPC which reads as
under:
"S. 375. A man is said to commit "rape" if he -
(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person; or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her do so with him
or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person;
under the circumstances falling under any of the following
seven descriptions:
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
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Fourthly.-With her consent, when the man knows that he
is not her husband and that her consent is given because
she believes that he is another man to whom she is or
believes herself to be lawfully married.
Fifthly.-With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication
or the administration by him personally or through
another of any stupefying or unwholesome substance, she
is unable to understand the nature and consequences of
that to which she gives consent.
Sixthly.-With or without her consent, when she is under
eighteen years of age.
Seventhly.-When she is unable to communicate consent."
23. As per the complaint averments, statement of
PW1 which is marked as Ex.D1, she has stated as under:
30.05.2012
"£Á£ÀÄ F »AzÉ ªÉÄð£À «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVzÀÄÝ ¢£ÁAPÀ jAzÀ
¸ÀÄgÀ©ü D±ÀæAiÀÄ zsÁªÀÄzÀ°è EzÉÝãÉ. £Á£ÀÄ FUÉÎ MAzÀÄ wAUÀ¼À »AzÉ £ÀªÀÄä ªÀÄ£ÉAiÀÄ
ºÀwÛgÀzÀ ªÁ¹ ZÉ°è ªÉÄùÛç PÉ®¸À ªÀiÁqÀÄwÛzÀÝ ZÀAzÀæ£ÁAiÀÄÌ JA§ÄªÀ£À£ÀÄß ¦æÃw¹zÀÄÝ CªÀ£À£ÀÄß
ªÀÄzÀĪÉAiÀiÁUÀ¨ÉÃPÉAzÀÄ EµÀÖ¥ÀmÉÖ£ÀÄ. DzÀgÉ ZÀAzÀæ£ÁAiÀÄ̤UÉ ªÉÆzÀ®Ä MAzÀÄ
3
ªÀÄzÀĪÉAiÀiÁVzÀÄÝ d£À ªÀÄPÀ̽zÁÝgÉ. F «ZÁgÀ UÉÆwÛzÀÝjAzÀ £ÀªÀÄä vÀAzÉ-vÁ¬Ä F §UÉÎ
£ÀªÀÄä ªÀÄzÀÄªÉ ªÀiÁrPÉÆqÀ®Ä EµÀÖ«gÀĪÀÅ¢®è."
24. In Ex.D2, the Investigating Officer has recorded
the statement of PW3-Murthi Naika, father of the victim,
wherein he has given his statement as under:
"£À£Àß »jAiÀÄ ªÀÄUÀ¼ÀÄ DUÁUÀ CªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃV §gÀÄvÁÛ EzÀݼÀÄ. «ZÁgÀ FUÉÎ
MAzÀÄ wAUÀ¼À »AzÉ £ÁªÀÅUÀ¼ÀÄ w½zÁUÀ £À£Àß ªÀÄUÀ¼ÀÄ ZÀAzÀæ£ÁAiÀÄÌ£À eÉÆvÉUÉ ¸À°UɬÄAzÀ
EgÀÄwÛzÀÄÝ, ZÀAzÀæ£ÁAiÀÄÌ£À£ÀÄß EµÀÖ¥ÀqÀÄwÛzÀÝó¼ÀÄ."
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25. PW7-Investigating Officer, Sannaswamy has
clearly deposed in his evidence that he has recorded the
statement of PW3-Murthi Naika on 04.06.2012.
26. PW5-Babu Naika has has given his statement
before the police as per Ex.D3 as under:
"eÉÆåÃw¨Á¬ÄAiÀÄ vÀAzÉ ªÀÄÆwð£ÁAiÀÄÌ ºÁUÀÆ CªÀ¼À vÁ¬Ä ¸ÀIJî¨Á¬Ä eÉ°è PÉ®¸ÀPÉÌ
¨ÉÃgÉ ¨ÉÃgÉ HjUÉ ºÉÆÃUÀÄwÛgÀÄvÁÛgÉ. ªÀÄ£ÉAiÀÄ°è 2 d£À ºÉtÄÚ ªÀÄPÀ̼ÀÄ ªÀiÁvÀæ EgÀÄvÁÛgÉ.
ZÀAzÀæ£ÁAiÀÄÌ£À ªÀÄ£ÉAiÀÄÄ PÀÆqÀ EªÀgÀ ªÀÄ£ÉAiÀÄ ºÀwÛgÀ£Éà EzÀÄÝ, CªÀ¤UÉ ®Qëöä¨Á¬Ä
eÉÆvÉAiÀÄ°è FUÁUÀ¯Éà ªÀÄzÀĪÉAiÀiÁVzÀÄÝ CªÀ¤UÉ 3 d£À ªÀÄPÀ̽gÀÄvÁÛgÉ. eÉÆåÃw¨Á¬Ä
DUÁUÀ ZÀAzÀæ£ÁAiÀÄÌ£À ªÀÄ£ÉUÉ ºÉÆÃV §gÀÄvÁÛ EzÀݼÀÄ. eÉÆåÃw¨Á¬Ä EªÀ¼ÀÄ
ZÀAzÀæ£ÁAiÀÄÌ£À£ÀÄß EµÀÖ¥ÀqÀÄwÛzÀݼÀÄ J£ÀÄߪÀ «ZÁgÀ UÉÆvÁÛV FUÉÎ MAzÀÄ wAUÀ¼À »AzÉ
£ÁªÀÅUÀ¼ÀÄ ZÀAzÀæ£ÁAiÀÄ̤UÀÆ ªÀÄvÀÄÛ eÉÆåÃw¨Á¬Ä EªÀgÀÄUÀ½UÉ §Ä¢ÝªÁzÀ ºÉý E£ÀÆß
ªÀÄÄAzÉ CªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃUÀ¨ÁgÀzÀÄ CAvÀ E§âjUÀÆ ºÉýzÉݪÀÅ".
27. The police have also recorded the statement of
the victim as per Exhibit D5, in which, she has stated as
under:
15
"£Á£ÀÄ F ªÉÄð£À «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVzÀÄÝ FUÉÎ ¢ªÀ¸ÀUÀ¼À »AzÉ £Á£ÀÄ ZÀAzÀæ£ÁAiÀÄÌ
EªÀgÀ£ÀÄß ¦æÃw¸ÀÄwÛzÀÄÝ CªÀjUÉ FUÁUÀ¯Éà ªÀÄzÀĪÉAiÀiÁVzÀÄÝ, DzÀgÀÆ £Á£ÀÄ CªÀgÀ£ÀÄß
¦æÃw¸ÀÄwÛzÀÝjAzÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è F «ZÁgÀ UÉÆvÁÛV oÁuÉUÉ zÀÆgÀÄ PÉÆnÖzÀÄÝ oÁuÉAiÀÄ°è
£Á«§âgÀÆ ªÀÄzÀĪÉAiÀiÁUÀ®Æ M¦àzÀÄÝ, EzÀPÉÌ £À£Àß CPÀÌ£ÀªÀgÀÄ ¸ÀºÀ M¦àzÀÝjAzÀ ²ªÀªÉÆUÀÎzÀ
ªÉÄUÁΣï D¸ÀàvÉæ DªÀgÀtzÀ°ègÀĪÀ zÉêÀ¸ÁÜ£ÀzÀ°è ªÀÄzÀĪÉAiÀiÁVgÀÄvÉÛêÉ. £ÀAvÀgÀ £Á£ÀÄ £À£Àß
UÀAqÀ£À ªÀÄ£ÉAiÀÄ°èAiÉÄà EzÉÝ DzÀgÉ £À£ÀUÉ CªÀgÉÆA¢UÉ fêÀ£À ªÀiÁqÀ®Ä EµÀÖªÁUÀÄwÛ®è
ºÁUÀÄ £À£Àß vÀAzÉ vÁ¬Ä ªÀÄ£ÉUÉ ºÉÆÃUÉÆÃt JAzÀgÉ CªÀgÀÄ ¸ÀºÀ £À£ÀUÉ ¸ÉÃj¹PÉƼÀÄîwÛ®è.
DzÀÝjAzÀ £Á£ÀÄ £À£Àß UÀAqÀ ªÀÄvÀÄÛ CPÀÌ£ÀªÀgÀ §½ £À£ÀߣÀÄß ¸ÉÖõÀ£ÉÎ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV
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£Á£ÀÄ C°è §gÉzÀÄPÉÆlÄÖ J°èAiÀiÁzÀgÀÄ ºÉÆÃUÀÄvÉÛãÉAzÀÄ oÁuÉUÉ PÀgÉzÀÄPÉÆAqÀÄ
§A¢gÀÄvÁÛgÉ. FUÀ £À£ÀUÉ £À£Àß UÀAqÀ£ÉÆA¢UÉ EgÀ®Ä EµÀÖ«®è. DzÀÝjAzÀ £À£ÀUÉ
¸ÀÄgÀQëvÀªÁzÀ ¸ÀܼÀPÉÌ £À£ÀߣÀÄß ©qÀ®Ä vÀªÀÄä°è PÉýPÉƼÀÄîvÉÛÃ£É ºÁUÀÄ EzÀPÉÌ AiÀiÁgÀ
§®ªÀAvÀªÀÇ EgÀĪÀÅ¢®è."
28. Ex.D6 the statement of the victim reveals as
under:
"£Á£ÀÄ FUÉÎ MAzÀÄ ªÀµÀð¢AzÀ ZÀAzÀæ£ÁAiÀÄÌ£À£ÀÄß ¦æÃw¸ÀÄwÛzÀÄÝ FUÀ £À£ÀߣÀÄß
ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÁV CªÀgÀÄ PÀÆqÀ M¦àgÀÄvÁÛgÉ. CªÀgÀ ºÉAqÀw ®Qëöä¨Á¬ÄAiÀĪÀgÀÄ F
ªÀÄzÀĪÉUÉ M¦àUÉ ¤ÃrgÀÄvÁÛgÉ. FUÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ PÀqɬÄAzÀ ªÀÄvÀÄÛ ZÀAzÀæ£ÁAiÀÄÌgÀªÀgÀ
PÀqɬÄAzÀ £À£Àß ªÉÄÃ¯É CªÀgÀÄUÀ¼ÀÄ vÉÆAzÀgÉ ªÀiÁqÀĪÀ §UÉÎ £À£ÀUÉ ºÉzÀjPÉAiÀiÁVzÀÄÝ,
zÀAiÀĪÀiÁr CªÀgÀÄUÀ¼À£ÀÄß PÀgɹ £À£ÀUÉ AiÀiÁªÀÅzÉà jÃwAiÀÄ vÉÆAzÀgÉAiÀiÁUÀzÀAvÉ ¸ÀÆPÀÛ
jÃwAiÀÄ gÀPÀëuÉ ¤ÃqÀ¨ÉÃPÁV PÉüÀÄvÉÛãÉ. £Á£ÀÄ CªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃV §gÀĪÀ «ZÁgÀ JgÀqÀÄ
3
ªÀÄ£ÉAiÀĪÀjUÉ UÉÆvÀÄÛ. ZÀAzÀæ£ÁAiÀÄÌgÀªÀjUÉ ºÉAqÀw ºÁUÀÄ d£À ªÀÄPÀ̽zÀÄÝ CªÀgÀÄ
¸ÀA¥ÀÆtð M¦àUÉ ¤ÃrgÀÄvÁÛgÉ. zÀAiÀĪÀiÁr CªÀgÀÄUÀ¼À£ÀÄß PÀgɹ ¸ÀÆPÀÛ gÀPÀëuÉ
MzÀV¸À¨ÉÃPÁV PÉýPÉƼÀÄîvÉÛãÉ.
29. Ex.P12-the Medical Certificate issued by
PW8-Dr. Vrinda J.Bhat, Shivamogga Institute of Medical
Science, District Government McGann, Hospital,
Shivamogga, does not reveal as to the rape alleged to
have been committed by the accused. Even the offence
under Section 376 of IPC is also not mentioned in Exhibit
P12. The Investigating Officer have not submitted the
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charge-sheet against the accused for the offence under
Section 376 of IPC. PW8 has not whispered anything as to
the alleged sexual intercourse with the victim by this
accused.
30. Viewed from any angle, absolutely there is no
legal evidence to prove the offence under Section 376 of
IPC. Though the Investigating Officer has not filed the
charge-sheet against the accused for the offence under
Section 376 of IPC, the trial Court has framed the charges
against the accused for the offence under the said section
without assigning any reasons. Viewed from any angle, I
do not find any evidence to convict the accused for the
offence under Section 376 of IPC. However, the trial Court,
without proper appreciation of the evidence on record,
convicted the accused for the offence under Section 376 of
IPC, which is not sustainable under law. Hence, I answer
Point No.1 in the Affirmative .
Regarding Point No.2:
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31. For the aforestated reasons and discussions, I
proceed to pass the following:
ORDER
i. Appeal is allowed .
ii. The judgment of conviction and order on
sentence passed by the III Addl. Sessions Judge,
Shivamogga in SC No.189/2014 dated
24.03.2016, is set aside.
iii. The appellant/accused No.1 is acquitted of
the offence under Section 366A and 376 of IPC.
iv. The trial Court is directed to refund the fine
amount, if any, deposited by the accused.
v. The bail bond of the accused shall stand
cancelled.
Registry is directed to send the copy of this judgment
along with TCR to the trial Court.
Sd/-
(G BASAVARAJA)
JUDGE
PGG,KBM
List No.: 1 Sl No.: 10