SRI R SURESH vs STATE BY MAHADEVAPURA POLICE

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU


TH
DATED THIS THE 17 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE G BASAVARAJA

CRIMINAL APPEAL NO.728 OF 2017 (C)

BETWEEN:

1. SRI R SURESH
S/O RAMAIAH,
AGED ABOUT 27 YEARS,
R/AT. NO.280/118 SHEKAR NILAYA,
PATALAMMA LAYOUT,
BEHIND RAILWAY STATION,
KADUGUDI, BANGALORE-560067.
…APPELLANT







(BY SMT. PADMAVATHI N., ADVOCATE)

AND:

1. STATE BY MAHADEVAPURA POLICE
BANGALORE-560048.
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
…RESPONDENT




Digitally signed by
LAKSHMINARAYAN N
Location: High Court
of Karnataka

(BY SRI. K. NAGESHWARAPPA, HCGP)
CRL.A. FILED U/S.374(2) CR.P.C BY THE ADVOCATE FOR
THE APPELLANT/ACCUSED PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 11.04.2017 PASSED BY
THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN S.C.NO.494/2014 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376 AND 417
OF IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

ORAL JUDGMENT

Appellant/accused has preferred this appeal against
the judgment of conviction and order on sentence dated
11.04.2017 passed in SC No.494 of 2014 by the LIII
Additional City Civil and Sessions Judge, Bangalore (for
short, the “trial Court”).
2. For the sake of convenience, parties, herein or
referred to as per their status and rank before the trial
Court.
3. Brief facts leading to this appeal are that
Mahadevapura Police, Bangalore City, have submitted
charge-sheet against the accused for offence punishable
under Sections 376 and 417 of Indian Penal Code. It is
alleged by the prosecution that CW1-prosecutrix was aged
19 years in the year 2013. When she, along with her
friends, had been to Mekedatu for picnic, she came in

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contact with accused. Subsequently, they were in contact
over phone and the same had developed into friendship.
Thereafter, it turned to a love affair. Accused assured the
victim that he will marry her and on that assurance, he
had sexual intercourse with her on 20.10.2013 in the
house of CW2, who is his friend. Subsequently, he refused
to marry her. Hence, CW1 had lodged complaint on
07.12.2013. She gave further statement on 08.12.2013.
The investigating officer registered the case and drew
necessary mahazars. He had also recorded the statement
of the prosecution witnesses and arrested the accused.
CW1 and the accused were sent to hospital for medical
examination. After completion of investigation,
investigating officer submitted charge-sheet against the
accused for the aforesaid offences.
4. After filing charge-sheet, case was registered in
CC No.51451 of 2014. Thereafter, case was committed to
the Court of sessions and was registered as SC No.494 of
2014. Accused appeared before the Court and was

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enlarged on bail. Upon hearing on charges, the trial court
framed charges against the accused for the alleged
commission of offence. The same was read over and
explained to the accused. Having understood the same,
accused pleaded not guilty and claim to be tried. To prove
the guilt of the accused, the prosecution has examined 9
witnesses as PWs1 to 9 and got marked 9 documents as
Exhibits P1 to P9. On closure of prosecution side
evidence, statement of accused under Section 313 of
Cr.PC was recorded. Accused has denied the incriminating
evidence appearing against him. However, he did not
choose to lead any defence evidence on his behalf. Having
heard the arguments on both sides, the trial court
convicted the accused for offence under Section 376(1) of
IPC and sentenced to undergo rigorous imprisonment for
Rs.
seven years and to pay fine of 1,00,000/-. In default to
pay fine the accused to undergo simple imprisonment for 1
year 6 months. The trial Court also convicted the accused
for the offence punishable under Section 417 of IPC and

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sentenced to rigorous imprisonment for one year. Being
aggrieved by the judgment of conviction and sentence
passed by the trial court, the appellant has preferred this
appeal.
5. Smt. Padmavathi N., learned counsel appearing
for the Appellant would submit that the learned Sessions
Judge has erred in convicting and sentencing the
appellant. The prosecution has failed to prove the
essential ingredients under Sections 417 and 376 of IPC.
The alleged incident took place on 20.10.2013 and the
complaint was lodged on 07.12.2013 after a lapse of 2½
months. The abnormal delay in filing the complaint is not
explained by the prosecution. Medical evidence also does
not support the case of the prosecution. The trial Court
has failed to appreciate the materials on record in
accordance with law and on all these grounds, it is sought
to allow the appeal.

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6. As against this, Sri K Nageshwarappa, learned
HCGP appearing for the respondent-State, would support
the impugned judgment of conviction and order on
sentence and submit that the trial court has properly
appreciated the evidence on record in accordance with law
and facts and has convicted the accused which does not
call for interference in this appeal and hence, sought for
dismissal of the appeal.
7. This case arise out of the complaint filed by PW1
as per Exhibit P1 in which it stated as under:
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PÉýPÉƼÀÄîvÉÛãÉ
8. PW1-victim has deposed as to the contents of
Exhibit P1. PW2-mother of the victim, has deposed in her
evidence that PW1 is her daughter and she was working in
Vodafone Company. That on 20.10.2013 PW1 went out of
the house in the morning at 10 o'clock and came back at

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1.00 pm. At that time, she noticed it that PW1 was scared
and hesitated to talk to her and it appeared that she was
suppressing something. On suspicion when she enquired,
then she revealed as to the sexual intercourse by the
accused with her. She consoled her and called Suresh
over phone. He has admitted the alleged intercourse and
promised to marry the victim. Thereafter, they used to
talk to the accused over phone often. Thereafter, the
accused has informed that the members of the family did
not agree for the marriage. Hence, PW1 has lodged the
complaint.
9. PW3-Dr. B.M. Nagaraj has deposed as to the
examination of victim on 10.11.2013 and issuance of
certificate Exhibit P3. He has deposed that the seminal
stains were not detected and spermatozoa was also not
detected.

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10. PW4-Karthik, PW5-Murugan who are said to be
the attesters to Spot Mahazar-Exhibit P5, have not
supported the case of the prosecution.
11. PW6-Muthukumar has not deposed anything
against the accused and has turned hostile.
12. PW7-Shahnaz Fatima, Scientific Officer, FSL
Bengaluru has deposed as to issuance of report Exhibit P7.
13. PW8-Suresh G, Police Sub-Inspector and PW9-
Gautam, Police Inspector have deposed as to their
respective investigation.
14. On careful examination of the entire material on
record, it is crystal clear that the alleged incident took
place on 20.10.2013 and the complaint came to be filed on
07.12.2013 after lapse of 47 days. Prosecution has not
explained anything as to abnormal delay in filing the
complaint. Medical Certificate-Exhibit P3 reveals that the
Doctor has examined the victim on 08.12.2013. Doctor
has opined that on local genital examination, the recent

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sexual intercourse is absent. Medical officer has not
mentioned any history for examination of victim.
Accordingly medical officer has failed to comply with the
mandatory provision of Section 164A of CRPC. The delay
in examination of victim by the medical officer also not
been explained by the prosecution. If really the alleged act
had taken place as alleged by PW1, PW1 would have
visited the hospital for examination. PW2-mother of the
victim, also has not informed the concerned Police as to
same and she has not explained anything as to why she
has not taken the victim to the hospital. The conduct of
PWs1 and 2 will create substantial and reasonable doubt
as to the alleged incident. The sole interested testimonies
of PWs1 and 2 have not been substantiated by the medical
evidence or other evidence. Accordingly, the prosecution
has failed to place cogent, convincing, corroborative or
legal evidence to prove the guilt of the accused. Even if it
is presumed that the accused has intercourse with PW1,
assuring to marry her, then also the provisions of Sections

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417 and 376 of IPC will not be applicable. In this regard, I
rely on the decision of Hon’ble Supreme Court in the case
of UDAY v. STATE OF KARNATAKA reported in (2003)4
SCC 46, wherein it is observed that, “ the consensus of
judicial opinion is in favour of the view that the consent given
by the prosecutrix to sexual intercourse with a person with
whom the prosecutrix is deeply in love on a promise that he
would marry her on a later date, cannot be said to be given
under a misconception of fact. A false promise is not a fact
within the meaning of the Code. ” It is further observed that,
“ It usually happens in such cases, when two young persons are
madly in love, that they promise to each other several times
that come what may, they will get married. As stated by the
prosecutrix the appellant also made such a promise on more
than one occasion. In such circumstances the promise loses all
significance, particularly when they are over come with
emotions and passion and find themselves in situations and
circumstances where they, in a weak moment, succumb to the
temptation of having sexual relationship. ”

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15. Considering the facts and circumstances of the
case and keeping in mind, the decision of Hon’ble
Supreme Court in the decision stated supra, viewed from
any angle, I do not find any material to convict the
accused. The trial court has not properly appreciated the
evidence on record in accordance with law and facts.
Resultantly, I proceed to pass the following.:
O R D E R
1. Appeal is allowed;
2. Judgment of conviction and sentence dated
11.04.2017 passed in SC No.494 of 2014
by the LIII Additional City Civil and
Sessions Judge, Bangalore, is set aside;
3. Accused is acquitted of the offence and
Sections 376 and 417 of Indian Penal Code;
4. Bail bond of the accused shall stand
cancelled;

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5. The trial Court is directed to refund the fine
amount if any, deposited by the Appellant.
Registry is directed to transmit the trial court records
along with the copy of this judgment to the concerned
Court.

Sd/-
(G BASAVARAJA)
JUDGE





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