Shivashankar Amarannavar, J
1. This appeal is filed by the sole accused praying to set aside the judgment of conviction and order on sentence dated 29.06.2017 passed in S.C.No.762/2014 by the LIII Additional City Civil and Sessions Judge, Bengaluru, whereunder the appellant –accused has been convicted for offences punishable under Sections 376 and 417 of Indian Penal Code (hereinafter referred to as “IPC” for brevity) and sentenced to undergo rigorous imprisonment for a period of 07 years and pay fine of Rs.1,00,000/- for offence punishable under Section 376 of IPC and sentenced to undergo rigorous imprisonment for a period of 01 years offence punishable under Section 417 of IPC.
2. The factual matrix of the case is that P.W.1 and accused are students in engineer collage, known to each other for some time. The appellant –accused had been meeting her, in an attempt to develop intimate relations with her, induced her to go with him to a park and cinema theater stating that he is in love with her and made her to believe that, he is going to marry her and had forcible sexual intercourse with her. Further during February -2014, the appellant –accused went to the house of P.W.1, when nobody at home had forcible sexual intercourse with her. Even though the appellant –accused promised P.W.1 that he is going to marry her, later refused to marry her and committed offences punishable under Section 376 and 417 of IPC. The complaint lodged by P.W.1 came to be registered in Crime No.152/2014 of Bharathinagar Police Station for offences punishable under Sections 417, 420 and 376 of IPC. The Police after investigation filed charge sheet against the appellant –accused for offences punishable under Sections 376 and 417 of IPC. The learned Magistrate has committed the case to the Sessions Court. The Sessions Court has framed charges against the appellant –accused for offences punishable under Sections 376 and 417 of IPC.
3. In order to prove charges, the prosecution has examined 09 witnesses as P.W.1 to P.W.9, got marked documents as EX.P1 to Ex.P8 and two documents has marked on defence side as EX.D1 and Ex.D.2 in the cross examination of P.W.1. The statement of the accused came to be recorded under Section 313 of Cr.P.C. The learned Sessions Judge after hearing arguments has formulated points for consideration and passed the impugned judgment convicting the appellant –accused for offences punishable under Sections 376 and 417 of IPC. The said judgment of conviction and order on sentence has been challenged in this appeal.
4. Heard learned counsel for the appellant –accused and learned High Court Government Pleader for the respondent –State.
5. Learned counsel for the appellant –accused would contend that there are material contradictions in the evidence of P.W.1 and there are improvements in her evidence. The victim girl –P.W.1 has not stated the incident taken place at her home in her complaint –Ex.P1. Even though there is no allegation of offence at her home P.W.8 – Investigating Officer has drawn mahazar –Ex.P4 in the house of P.W.1. In the complaint, P.W.1 has alleged that incident has taken place in the park and cinema theater and in her evidence she has deposed that incident has taken place in her house. The victim girl said to have taken treatment with Dr. Sumitra but the said doctor has not been examined. The history given by the victim girl before the doctor i.e., P.W.4 is that under the promise of marriage the appellant –accused had sexual intercourse but in her evidence she has deposed that the appellant –accused had forcible sexual intercourse on her in her house. Considering the material contradictions and improvements in the testimony of prosecutrix her testimony is not in sterling quality and no conviction can be based on her testimony. On that point he placed reliances on the decision of the Hon’ble Apex Court in the cases of Alamelu and Another Vs State (2011) 2 SCC 385 and Rai Sandeep alias Deepu Vs State of NCT of Delhi AIR 2012 SC 3157. He further contended that there is delay in filing FIR and it has not been explained properly which creates doubt in the case of prosecutrix. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of Vijayan Vs State of Kerala (2008) 14 SCC 763. On these grounds, he prayed for setting aside the judgment of conviction and order on sentence by allowing the appeal.
6. Learned High Court Government Pleader for the respondent –State has supported the reasons assigned by the trial Court. He contends that evidence of P.W.1 - prosecutrix is sufficient to convict the appellant –accused for offences charged against him. The evidence of Prosecutrix is supported by medical evidence. The evidence of P.W.5 indicates that there is an affair between P.W.1 -prosecutrix and appellant –accused. He submits that there are no grounds for setting aside the judgment of conviction and order on sentence and prays for dismissal of the appeal.
7. Having heard learned counsels, this Court has perused the impugned judgment and the trial Court records.
8. Considering the said aspect, the following point arises for my consideration;
Whether the trial Court erred in convicting the appellant –accused for offences punishable under Sections 376 and 417 of IPC?
My answer to above point is in the affirmative for following reasons
It is not in dispute that P.W.1 –prosecutrix and the appellant –accused were studying engineering in the same collage. The evidence of P.W.1 indicates that P.W.1 - prosecutrix and the appellant –accused are friends since the year 2012. The evidence of P.W.5 indicates that the appellant –accused and victim girl were roaming together. The photo –EX.P5 also indicate that there is close intimacy between the appellant –accused and P.W.1-prosecutrix.
9. P.W.1-prosecutrix has filed typed complaint on 08.05.2014. In Ex.P1 –complaint it is alleged that when the appellant –accused and P.W.1 -prosecutrix had been to a park at that that time he hugged her and forced her for sexual intercourse and at that time she did not agree, he promised to marry her and had sexual intercourse with her. She further stated that in Ex.P1, that for several days the appellant –accused took the prosecutrix to park and cinema theater and had forcible sexual intercourse upon her. It is also further stated that after 02 months he did not talked with her properly and when she asked, he told her that her family members are not good and therefore, he does not want to continue relationship with her and he was also telling with his friends that her character is not good. In Ex.P1 –complaint there is no allegation of any forcible sexual intercourse upon the prosecutrix in her house. In Ex.P1 -complaint the prosecutrix has stated that the appellant –accused in park and cinema theater had sexual intercourse upon her but in her evidence she has stated that in park the appellant –accused without her consent tried to touch her private parts and she did not agree for the same. The appellant –accused promising her that he will marry after two years, brain washed her and thereafter, touched her private parts. P.W.1 -prosecutrix has not stated that the appellant –accused had forcible sexual intercourse upon her in park and cinema theater in her evidence.
10. P.W.8 is Police Sub-Inspector who has received complaint and registered case and drawn spot mahazars. In Ex.P1 –complaint which has been received by P.W.8 there is no allegation of forcible sexual intercourse in the house of prosecutrix. Even though there is no allegation in prosecution papers alleging forcible sexual intercourse on the prosecutrix by this appellant –accused in her house but P.W.8 –PSI has drawn mahazar in the house of the prosecutrix stating that the appellant –accused had forcible sexual intercourse in her house and it is orally stated by the prosecutrix. The said mahazar -Ex.P4 has been drawn in the house of prosecutrix and it is drawn on 10.05.2014. On that date only there was written complaint by P.W.1 and in the said written complaint there is no allegation of the incident in the house of the prosecutrix. P.W.8 –PSI has also not recorded any further statement as on 10.05.2014 regarding the incident which taken place in the house of the victim. Therefore, mahazar dawn as per EX.P4 in respect of spot in the house of the victim is without any basis.
11. P.W.1 for the first time has stated before the Court that the appellant –accused had forcible sexual intercourse on her in her house after giving some cold drinks when she was semi conscious state. The said aspect has not been stated by P.W.1 earlier either in her complaint or in her statement recorded before P.W.8 –PSI. Therefore, the said evidence of P.W.1 is an improvement.
12. P.W.1 has stated that after alleged incident in her house when she was got a stomach pain, she intimated the same to her mother and her mother took her to clinic of Dr. Sumitra wherein the doctor examined her and told her that she under went sexual intercourse. The said aspect has not been stated by P.W.3 –mother of the prosecutrix in her evidence. Even the prosecution has not summoned Dr. Sumitra who stated to have been examined the prosecutrix after alleged incident in her house and opined that the prosecutrix has undergone sexual intercourse. Even the said alleged incident as per the prosecutrix has taken place during the month February -2014 but she has not been filed any complaint against this appellant –accused till 08.05.2014. The complaint is filed on 08.05.2014 and there is delay and it has not been properly explained. The date and time of the said incident in the house or in the park have not been stated by P.W.1 either in complaint or in her evidence.
13. The appellant –accused alleged to have promised the prosecutrix to marry her and thereafter he refused and cheated her. Considering the evidence of P.W.1-prosecutix and P.W.5 the collage mate of the appellant –accused and prosecutrix there was close intimacy between the appellant –accused and the prosecutrix. It appears that the appellant –accused had sexual intercourse with the victim under promise of marriage. Learned counsel for the appellant has produced the copy of certificate of registration of Hindu marriage dated 24.07.2017. As per the said certificate the marriage of the appellant –accused with the prosecutrix has been solemnized on 16.07.2017 and it is registered on 24.07.2017. In view of the marriage of the appellant – accused and prosecutrix, it cannot be said that the appellant –accused had made false promise of marriage with the prosecutrix. If the promise to marry is false at inception and under guise of promise of marriage sexual intercourse had taken place may amount to offence punishable under Section 376 of IPC. In view of the marriage of the appellant –accused with prosecutrix the said promise of marriage cannot be stated to be false promise at the inception. When alleged sexual intercourse by this appellant –accused with the prosecutrix appears to be consensual. As appellant – accused initially refused to marry her, the prosecutrix has filed complaint against this appellant –accused so as to force him to marry her.
14. Considering the material contradictions and improvements in the evidence of P.W.1, conviction cannot be based on her sole testimony as her evidence is not in sterling quality. Without, considering all these aspects, learned Sessions Judge erred in convicting the appellant – accused for offences punishable under Sections 376 and 417 of IPC. The appellant –accused has made out grounds for setting aside the impugned judgment of conviction and order on sentence.
15. In the result, the following
ORDER
i) The appeal is allowed.
ii) The impugned judgment of conviction and order on sentence dated 29.06.2017 passed in S.C.No.762/2014 by the LIII Additional City Civil and Sessions Judge, Bengaluru is set aside. The appellant –accused has been acquitted for offences punishable under Sections 376 and 417 of IPC.
iii) The fine if any paid by the appellant –accused is ordered to be refund to him.
