IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.402 OF 2019 BETWEEN:
MANJUNATHA NAIKA, S/O HERIYA NAIKA, AGED ABOUT 34 YEARS, R/O DESKARI, CHITTUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT – 576 201.
(NOW IN JUDICIAL CUSTODY) ...APPELLANT (BY SRI MUZAFFAR AHMED, ADVOCATE) AND:
THE STATE OF KARNATAKA, BY BYNDOOR POLICE STATION, BYNDOOR CIRCLE, UDUPI DISTRICT-576214. (REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU – 560 001). …RESPONDENT (BY SRI M DIVAKAR MADDUR, HCGP) **** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.10.2018 AND SENTENCE DATED 12.10.2018 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPURA) IN S.C. NO.40/2013 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376, 504, 506(2), 417 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal has been preferred by the appellant/accused challenging the judgment of conviction and order of sentence passed by the Additional District & Sessions Judge, Udupi, sitting at Kundapura, in S.C. No.40/2013 dated 06/12.10.2018.
2. I have heard the learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State.
3. The facts leading to the case are that the accused used to come to the house of the complainant and they used to love each other. The accused promised to marry her and on 10.03.2010 at about 10.00 a.m., when the victim was alone in the house, the accused came and he committed sexual intercourse with her, without her consent after threatening her with dire consequences. As a result of the same, she became pregnant. When the accused was asked to marry the victim, he abused her in filthy language and he threatened her and demanded huge dowry in order to get married. As such, a private complaint was registered. The private complaint was registered with the jurisdictional police and the said police after investigation, filed the charge-sheet.
4. The learned Magistrate committed the case to the Sessions Court. The Sessions Court took cognizance and secured the accused and after preparing the charge, the charge was read over to the accused and the accused pleaded not guilty and he claimed that he has not committed the offence and as such, the trial was fixed.
5. In order to prove the case of the prosecution, the prosecution got examined 8 witnesses and got marked 20 documents. After hearing the learned counsel appearing for the parties, the Court below convicted the accused for the offences punishable under Section 376, 504, 506 (2) and 417 of Indian Penal Code (hereinafter, in short it may be called as “IPC”).
6. Challenging the legality and correctness of the said judgment, the accused/appellant is before this Court. The main grounds urged by the learned counsel for the appellant is that the judgment of the trial Court is contrary to law, evidence and probabilities of the case. The learned Sessions Court has committed serious error in convicting the appellant. The evidence which has been produced has not been properly appreciated by the Court below. It is his further submission that, the alleged incident has taken place on 10.03.2010, but the private complaint was got registered only on 22.09.2010, in that light, there is a delay in filing the complaint. It is his further submission that, in the complaint itself, it has been mentioned that they have fallen in love with each other, but the trial Court without considering the case of the appellant, has come to a wrong conclusion and has wrongly convicted the appellant. It is his further submission that, there are so many contradictions and improvements in the evidence of the victim, who came to be examined before the Court below as PW4. Without looking into the said aspect, the Court below has wrongly convicted the appellant. It is his further submission that, the entire case of the prosecution, if it is looked into, the ingredients of the offence under Section 375 of the IPC have not been attracted. At the most, the said act of the appellant may attract the provisions of Section 417 of IPC. It is his further submission that, even in the complaint the victim has stated that the act of the appellant is a consensual sex and as the victim was aged about 22 years, she was also a consenting party. So in that light, the trial Court ought to have acquitted the appellant. It is his further submission that, the alleged incident has taken place in the year 2010 and the amendment has been brought to Section 376 of the IPC in the year 2013 and subsequently in the year 2018. As on the date of incident, what would have been the punishment for the offence, it should have been considered and imposed by the Court below; the trial Court wrongly convicted for 10 years. It is his further submission that, though the earlier Section mentions that the minimum sentence is for 7 years and as per the proviso, the Court is having discretion that if any adequate and special reasons are mentioned, then in such circumstances, impose a sentence of imprisonment for a term less than seven years. It is his further submission that, the appellant subsequently got married with another woman and only because of the reason that there was property dispute and the victim did not get married with the appellant, by taking into consideration the said facts and circumstances, the trial Court ought to have acquitted the accused. He submits that, a lenient view may be taken in the event if this Hon’ble Court comes to the conclusion that the appellant has committed an offence. On these grounds, he prays to allow the appeal and to set aside the impugned judgment of conviction and order of sentence and acquit the accused.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that the act of the accused clearly indicates the fact that the accused by making a false promise to the victim that he would marry her, had committed sexual assault on the victim and as a result of the same, the victim became pregnant and she has delivered a male baby and even the DNA test conducted in this behalf clearly goes to show that the accused is the biological father of the male child born to the victim. It is his further submission that, the victim was ready to marry the accused and at that time, he demanded a huge dowry of Rs.2,00,000/-, which itself clearly goes to show that the accused was having no intention to marry the victim. It is his further submission that, the evidence of PW4 clearly goes to show that the accused subsequently has got married with another woman and hence the accused had no intention to marry the victim and he only had the intention to satisfy his lust for sex. It is his further submission that, no case has been made out by the accused to show that it is a consensual sex. Under the said facts and circumstances, the trial Court has rightly come to a conclusion and has rightly convicted the accused. On these grounds, he prays to dismiss the appeal by confirming the judgment of the trial Court.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. On close reading of the records, it is seen that the prosecution in order to prove its case, has got examined 8 witnesses.
PW1 is the Doctor who has examined the victim and the accused. The victim has also produced the scanning centre report dated 20.09.2010 and the said report indicated that the victim was a pregnant of 26-27 weeks. The Doctor has given an opinion that the victim is pregnant. She has further deposed that, there were no injuries found over the body of the victim and there are no signs of sexual assault at the time of examination. She has further deposed that, she has also examined the accused on 25.01.2011 with the history of sexual assault. She has opined that the accused is competent to have sexual intercourse with a woman and no other grounds have been found that he is incompetent to have sexual intercourse. During the course of cross-examination, nothing has been elicited so as to discard her evidence.
PW2 is the Head Constable who received the complaint sent by Kundapura Court and on the basis of the said intimation, he registered a case in Crime No.239/2010 and thereafter, he issued FIR as per Exhibit- P5.
PW3 is the neighbour who was acquainted with the accused and the victim. He has deposed that the accused used to visit the house of the victim and they were very close and used to love each other and he has further deposed that the complainant-victim had become pregnant and the accused with a promise to marry her, had sexual intercourse with the victim. Thereafter, the accused has refused to marry her. He has further deposed that thereafter, the police visited the place of incident and a spot mahazar was drawn as per Exhibit-P6. This witness has been treated particularly as hostile and nothing has been elicited during the course of cross-examination, to discard his evidence.
PW4 is the victim and the complainant. She has deposed that the signature contained in Exhibit-P4 is her signature and the accused was known to her since more than ten years and that on 10.03.2010 at about 10.00 a.m., when she was alone in the house, the accused who was present before the Court, came inside and called her and when she came, he took her to the second room and pulled her saree and when she made a cry and resisted, he put a cloth in her mouth and told that he would marry her and till then, not to inform the said act to anybody and thereafter, he went to his house. Later, when the mother of the victim has doubted and at that time, the victim disclosed the act of the accused to her mother and thereafter, she went to Manish Hospital in Kundapura and the Doctor informed that she is pregnant. When the accused was approached, he refused to marry the victim, but, however insisted that if he is paid a sum of Rs.2,00,000/- as dowry, he would marry the victim. Thereafter, when the victim and her parents pleaded their inability, the accused abused the victim and her parents with filthy language. Later, the victim filed a private complaint. During the course of cross-examination, it has been elicited that since more than ten years, they used to love each other and that there was exchange of love letters and the said love letters have also been got marked and during the cross-examination, she has stated that she has not written any love letters to the accused.
PW5 is the Investigating Officer who investigated the case and filed the charge-sheet against the accused.
PW6 is the mother of the victim. She has also reiterated the evidence of PW4. During the course of cross-examination, nothing has been elicited so as to discard her evidence.
PW7 is the father of the victim. He has also reiterated the evidence of PW6.
PW8 is the person who has conducted the scientific test. She has conducted the scientific test of the blood samples and she has given her report as per Exhibit-P13 and in her opinion, she has deposed that the accused is the biological father of the male child born to the victim. During the course of cross-examination, nothing has been elicited so as to discard her evidence.
10. On close reading of the evidence and material placed on record, it indicates that the accused and the victim-PW4 had physical contact and as a result of the same, the victim become pregnant and she has delivered a male baby and even the DNA test report which has been produced as per Exhibit-P13, clearly goes to show that the accused is the biological father of the said male child. During the course of arguments, the learned counsel for the appellant vehemently argued and contended that since beginning the accused and the victim used to love each other and they have agreed for sexual intercourse on account of her love and passion for the accused and not on account of misrepresentation made to her by the appellant. In order to substantiate his contention, he has relied upon the decision in the case of Deepak Gulati vs. State of Haryana, reported in 2013 AIR SCW 2987. At para Nos.18 and 21, it has been observed as under:
“18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
xxx 21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance.” Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”
11. It is the further submission of the learned counsel for the appellant that, the materials produced clearly goes to show that, it is only because of the parents of the victim, that the accused did not get married with the victim. But, in the said decision quoted by the learned counsel for the appellant, it has been observed that whether an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, then under such circumstances, the case has to be treated differently. But, no such materials have been brought on record to come to a different conclusion to hold the fact that the accused only on account of the circumstances which was beyond his control that he could not marry the victim. Even during the course of cross- examination of PW1, it has been brought on record that the accused has already got married with another woman and he has not made any efforts to marry the victim. If the accused made a promise to the victim to marry and if he did not have any intention to marry and if the victim gave the consent for consensual intercourse, on such assurance by the accused he would marry her, such a consent can be said to have a consent obtained by misconception of fact, as per Section 90 of the IPC. As such, the consent would not excuse the accused and such an act of the accused can be said to have been considered as the rape, as defined under Section 375 of the IPC and can be convicted for the alleged offence. This proposition of law has also been laid down by the Hon’ble Apex Court in the case of Anurag Soni vs State of Chattisgarh reported in 2019 SCC Online SC 509. At para Nos.32 and 37, it has been observed as under:
32. Even in the case of Dr. Dhruvaram Murlidhar Sonar (supra), upon which reliance has been placed by the learned counsel appearing on behalf of the accused, in paragraph 23, this Court has observed that there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception, this Court observed and held as under:
“23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.”
xxx 37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.”
12. Even as could be seen from the records and the evidence of the victim, it indicates that the victim and the accused used to meet with each other since long and they had sexual intercourse and as a result of the same, the victim became pregnant. The complainant has lodged a complaint on the failure of the accused to marry her and when the fact of pregnancy was noticed by her. For determining whether the consent given by victim was voluntary or under a misconception of fact, there is no strait jacket formula and each case has to be decided considering the evidence and the surrounding circumstances of that case. Whether the evidence conclusively establishes the fact that the accused never intended to marry the victim, then in such circumstances, the accused can be convicted for the offence punishable under Section 376 of IPC. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Uday vs. State of Karnataka, reported in AIR 2003 SC 1639. At para Nos.21, 23 and 25, it has been observed as under:
“21. It therefore appears 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 she 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. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
xxx 23. Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.
xxx 25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 I.P.C. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. 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. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.”
13. By keeping in view the ratio laid down in the above decision of the Hon’ble Apex Court and the defense taken by the accused if it is taken into consideration, the accused has taken a defense of total denial, no where it has been suggested that it is consensual sex with an intention to marry. But the fact remains that the accused is the biological father of the said male child born to the victim. In that light, the contentions which have been taken by the learned counsel for the appellant will not come to the benefit of the accused. The accused is liable to be convicted for the offence punishable under Section 375 of IPC. In so far as other offences are concerned, when the accused was asked to marry, he abused and threatened; in that light, there is material to convict the accused. There is no error in the judgment of the trail Court, the same deserves to be confirmed.
14. During the course of arguments, the learned counsel for the appellant contended that there are so many contradictions and improvements in the case of the complainant. But, unfortunately, the said improvements and contradictions have not been brought on record, as contemplated under Section 145 of the Evidence Act. Under such circumstances, the benefit of the same cannot be extended to the appellant.
15. The next argument which has been advanced by the learned counsel for the appellant is that the incident has taken place during March 2010 and the trial Court has not considered the fact of punishment and sentence as on the date of commission of the offence, as the same has been amended. For the purpose of brevity, Section 376 of the IPC existing prior to the amendment, reads as under:
376. Punishment for rape- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
(2) Whoever,— (a) being a police officer commits rape— (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2 - “Woman’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or by any other name, which is established and maintained for the reception and care of woman or children.
Explanation 3 - “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.”
16. On close reading of the said Section, it indicates that where the accused has been convicted, then in such circumstances, he is liable to be punished with imprisonment of either description for a term which shall not be less than seven years, but which may be extended to 10 years and shall also be liable to pay fine and the proviso to the said Section has given some discretion to the Court that if adequate and special reasons are recorded, the Judge may impose a sentence of imprisonment for a term of less than seven years.
17. I have carefully and cautiously perused the judgment of the trial Court. Though the said arguments were advanced, but the trial Court has not taken into consideration the said provision of law. It is well settled proposition of the criminal law that whenever subsequent amendments have been made and if the punishment has been enhanced, then in such circumstances, the accused is entitled for the benefit of law which existed as on the date of the commission of the offence and the accused must be convicted to the said offence which existed at the time of commission of the offence. In that light if the matter is considered with reference to the circumstances under which the alleged offence has taken place, I am of the considered opinion that the trial Court has committed an error and convicted the accused for a period of ten years and in that light, I feel that the matter requires to be interfered with the said judgment. Further, since 20 years, the accused and the complainant have loved each other and the accused was frequently visiting the house of the victim and it was also within the knowledge of the family members and neighbours and there was exchange of love letters between them. Keeping in view the above said facts and circumstances and by exercising the discretion as contemplated under the proviso, the accused is convicted for the offence punishable under Section 375 of IPC and he is sentenced to simple imprisonment for a period of five years and in so far as the fine is concerned, it is not disturbed. In so far as conviction and sentence imposed for the other offences are concerned, the said conviction and sentence is confirmed.
The appeal is allowed in part and the conviction is confirmed. The sentence is modified as indicated above.
Sd/- JUDGE SJ