K. P. Thimmappa Gowda
Vs State of Karnataka
J U D G M E N T
MARKANDEY KATJU, J.
appeal has been filed against the impugned judgment dated 17.9.2004 passed by
the High Court of Karnataka in Criminal Appeal No. 149 of 1999.
facts of the case have been stated in the impugned judgment of the High Court
and the trial court and we are not repeating the same except where necessary.
trial court had acquitted the appellant in the criminal case, but the High
Court reversed the judgment and convicted the appellant under Section 2376 IPC and
sentenced him to imprisonment of 7 years and a fine of Rs. 10,000/-, and also
sentenced him to imprisonment of 1 year under Section 417 IPC and a fine of Rs.
10,000/-, both sentences to run concurrently.
case of the prosecution is that on 4.1.1996 the appellant raped one Rathnamma
aged 18 years, but he assured her that he would marry her and asked her to keep
quiet. It is alleged that subsequently also the appellant had sex with
Rathnamma several times and assured her that he would marry her. Rathnamma
became pregnant, but the appellant refused to marry her. Hence an FIR was
registered in the police station on 4.1.1996 against the appellant under
Section 376 IPC.
the trial court the appellant contended that Rathnamma was 20 years of age at the
relevant time and she had admitted in her cross-examination that she had sexual
intercourse with the appellant nearly 100 times. It was submitted that this
showed that she was a consenting party and hence no case under Section 376 IPC is
made out against the appellant. Rathnamma's mother Gowramma PW-11 stated in her
evidence that Rathnamma was 18 years of age. Hence she was above 16 years of
age and there could be no rape since there was consent.
trial court accordingly held that there was no rape as Rathnamma was above 16 years
of age and had consented to the act. Subsequently Rathnamma gave birth to a
female child on 25.1.1996.
trial court held that the version of Rathnamma that the appellant gagged her
mouth and raped her is not believable. The fact that her child was born on 25.1.1996
means that the conception was in the month of April, 1995. This was disclosed
to her parents somewhere in the month of July or August in 1995 and there was a
Panchayat which failed.
complaint was filed on 4.1.1996 i.e. just a few days before the birth of the
child and not when the sexual act had taken place. Thus there was a delay of over
months in filing the complaint which has not been properly explained.
the reasons given above, the trial court disbelieved the prosecution version
and acquitted the appellant.
the appeal filed by the State Government the High court reversed the finding of
the trial court and held that the appellant had raped Rathnamma and had
promised to marry her. It was observed that since the accused had given the impression
that he would honour his promise of marrying her, this fact was not disclosed
by her to anybody, including her mother.
the appellant has married another woman. We are of the opinion that the
appellant deserves the benefit of doubt because on careful consideration of the
evidence on record, it cannot be said that the prosecution has been able to
prove its case beyond reasonable doubt.
criminal cases, the rule is that the accused is entitled to the benefit of
doubt. If the court is of the opinion that on the evidence two views are reasonably
possible, one that the appellant is guilty, and the other that he is innocent,
then the benefit of doubt goes in favour of the accused.
the present case, the facts are that Rathnamma herself stated in her evidence
that she had sex with the appellant on several occasions. It is also an admitted
fact that the FIR against the appellant was lodged just a few days before the
birth of Rathnamma's child, which means there is delay of over 8 months in
lodging the FIR. The finding of the trial court, which has not been disturbed
by the High Court, is that Rathnamma was about 18 years of age at the relevant
time. On these facts a view is reasonably possible that Rathnamma had sex with
the appellant with her consent and hence there was 5no offence under Section
376 IPC because sex with a woman above 16 years of age with her consent is not
the reasons given above, the appeal is allowed. The impugned judgment and
order of the High court is set aside
from the above, the appellant has stated in an affidavit filed in this Court that
he has agreed to transfer two acres of land situated in Palavanahalli due to breach
of promise to marry Rathnamma and she has given her consent to accept the same.
appellant is directed to give/transfer two acres of land as stated in the
affidavit filed before Court to Rathnamma within three months from the date of
(Gyan Sudha Misra)
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