(Prayer: This criminal appeal is filed under Section 378(1) and (3) of Cr.p.c praying to grant leave to appeal against the judgement and order dated 02.09.2024 passed by the liii additional city civil and sessions judge, Bengaluru, in cr.no.227/2013 and sc.no.732/2014, thereby acquitted the accused for the offences punishable under Sections 376 and 417 of IPC.)

Oral Judgment:

H.P. Sandesh. J.

1. Heard learned HCGP for the appellant-State and respondent though served remained unrepresented.

2. This appeal is filed by the State against acquittal of the accused for the offence punishable under Sections 376 and 417 of IPC.

3. The factual matrix of case of the prosecution is that accused has befriended the complainant and visited her house regularly and their friendship developed into love with the accused making the complainant believe he would marry her. In 2012, the accused went to complainant’s house and had forceful sexual intercourse against her consent. Hence, the prosecution invoked offence under Section 376 of IPC. It is also the case of the prosecution that accused deceived the complainant by dishonestly representing that he would marry her and had sexual intercourse and later on, refused to marry her. Hence, invoked the offence under Section 417 of IPC. The Police, having received the complaint, registered the case, investigated the matter and filed the charge sheet for the above offences. The accused was secured and he did not plead guilty and claimed for trial.

4. The prosecution examined 9 witnesses as P.Ws.1 to 9 and got marked the documents as Exs.P1 to P9(a). The accused was subjected to 313 statement and not led any defence evidence.

5. The Trial Court having considered both oral and documentary evidence available on record comes to a conclusion that there is no material before the Court with regard to forceful sexual act and the contents of Ex.P1 which are discussed clearly shows that nowhere the complainant stated anything with regard to complainant coming in contact with the accused on account of a loan transaction between Viji and the present accused. She has nowhere stated that said Viji, who was a Driver and friend of one Dhananjay, who was a driver at the place where the complainant was working, had asked financial assistance from the complainant. It is nowhere forthcoming in the complaint that Viji had asked the complainant to pay the money to the accused from whom he would receive the money. It is seen that there is contradiction in between the complaint Ex.P1 and evidence of P.W.1 with regard to the year when the complainant met the accused. The complaint is specific that she met the accused in the year 2011, while the evidence of the complainant shows that she met the accused in the year 2012 and on 29.05.2012 she was raped in her house by the accused.

6. The Trial Court also discussed in paragraph No.21 that the complaint is silent regarding the fact that the accused committed rape on her on 29.05.2012 in her house. Considering the evidence available on record, the Trial Court comes to the conclusion that the evidence of P.W.1 is contrary to oral evidence and also taken note of medical evidence, wherein she has stated that under the assurance of marriage, the accused developed physical relationship with her and when such statement was made and the same is also contrary to the statement given by her before the Medical Officer. The trial Court also in detail discussed in paragraph Nos.25 and 26 particularly, in paragraph No.26, the evidence of P.W.1 shows that she has received Rs.40,000/- from the accused towards settlement after filing of the Police case. P.Ws.5 and 6 have stated that P.W.1 is divorced, but have not stated as to when she got the divorce and comes to the conclusion that with regard to the divorce is also concerned, there is no material.

7. The Trial Court also discussed the evidence of the Doctor in paragraph No.27 that whether she had sexual intercourse with accused only or anybody else, no material and in paragraph No.28, the Trial Court comes to the conclusion that to attract the offence of rape, the prosecution has to prove forceful sexual intercourse that occurred without the consent of the complainant. Hence, comes to the conclusion that the term “Consent” means one free from any blemishes such as misrepresentation or a mistake of fact. Here the consent of the complainant being affected by misrepresentation is not proved by the prosecution through the medical evidence. The Trial Court also in paragraph No.29 taken note that the evidence of P.Ws.3, 4 and 7 to 9 are basically formal in nature. Having considered both oral and documentary evidence comes to the conclusion that prosecution failed to prove the case against the accused and acquitted the accused. Being aggrieved by the order of acquittal, the present appeal is filed before this Court.

8. Learned HCGP for the appellant-State would submit that Ex.P9-DNA report is positive. The main contention of learned HCGP for the appellant-State is that acquittal order passed by the Trial Court is erroneous when the DNA report is positive and the evidence available before the Court is consistent and minor discrepancies in the evidence of P.W.1 cannot be magnified by the Trial Court. The Trial Court committed an error in concluding that there was no deception on the part of the accused. She would submit that accused subjected her for sexual act resulting in pregnancy and the undeniable birth of a child confirmed by DNA report coupled with subsequent refusal of the accused to marry strongly indicates a dishonest inducement at the outset. These are the materials which were not considered by the Trial Court. She also vehemently contends that the Trial Court ought not to have extended the benefit of doubt in favour of the accused when DNA test report is available before the Court and the Trial Court wrongfully discarded the evidence of the prosecution witnesses considering the minor contradictions and discrepancies which do not affect the case of the prosecution, even though prosecution has proved the guilt of the accused. Hence, the matter requires admission.

9. Inspite of accused-respondent being served, he did not choose to appear before the Court or engage the counsel.

10. Having heard learned HCGP for the appellant-State and also considering the material available on record, particularly, the evidence available on record, the evidence of P.W.1 is very clear that she is a married woman and no material is placed before the Court that she was divorced from earlier marriage. It is also important to note that accused is also a married person and in order to come to a conclusion that there was a forceful sexual act, nothing is disclosed in the complaint and particular date is also not given. Though it is stated that subjected to sexual act, but the evidence given by P.W.1 is contrary. In one breath, she says that she met the accused in the year 2011. But, in the evidence, she says that she met the accused in the year 2012 and she was raped on 29.05.2012, the same is taken note of in paragraph No.20 by the Trial Court. In paragraph No.21 also, the Trial Court has taken note that complainant fell in love with the accused and both wanted to marry each other, but the complaint is silent regarding the fact that accused committed rape on her on 29.05.2012 in her house which is an improvement. The complaint clearly shows that sexual relation was consensual and not forceful. The evidence in chief of P.W.1 is contradictory to the same. It is seen that complainant has tried to improve her case by stating that she was raped in her house and that the accused tied ‘Thali’ to her on 31.05.2012 and assured her that he would marry her. The entire evidence in chief is contradiction with the complaint given by the complainant. Similarly, it is contradictory to the statement given by her before the Medical Officer on 23.12.2013, wherein she has stated that under the assurance of marriage, the accused developed physical relationship with her. She has not mentioned anything about forceful sexual intercourse by the accused with her on 29.05.2012 in her house when the statement was made before the Doctor and also not found in the complaint.

11. The Trial Court also observed that, even considering the evidence of P.W.1, it is clear that she was earlier married and she has a son from her first marriage. She has also admitted that when she developed sexual relationship with the accused, her marriage was not legally dissolved and till date, the same is in existence. The aforesaid evidence of the complainant clearly negates the fact that under the misconception of a marriage on a future date, the accused had sexual intercourse with her. The complainant being a married woman with a child clearly had the knowledge that she was married to another man and the said marriage was not dissolved. Hence, she could not legally enter into a marriage with the accused. This being the case, the question of she being deceived by the accused or her consent not being a free consent does not arise.

12. The Trial Court having considered the material available on record as well as the ingredients of offence under Section 375 of IPC and also the offence under Section 417 of IPC, in detail discussed the same and also taken note of evidence of P.W.1 as well as evidence of P.Ws.5 and 6 and their evidence is very clear that accused was regularly coming to their house to meet their married daughter. These witnesses took no action against him to question as to why he was coming to their house or whether he was really unmarried as contented by him. But, P.Ws.5 and 6 made an attempt to falsify their evidence that P.W.1 is divorced, however have not stated as to when she got divorced. But, P.W.1 herself has admitted that she was not divorced and still the marriage is in existence. Having taken note of the evidence of P.Ws.1, 5 and 6 which are contradictory to each other and apart from that there was an admission on the part of P.W.1 that she had received an amount of Rs.40,000/- from the accused towards settlement of filing of the case and even medical evidence is also taken note of in paragraph No.27 and the Trial Court also in paragraph No.28 taken note with regard to forceful sexual act and considering the evidence of P.Ws.1, 3, 4 and 7 to 9, comes to the conclusion that their evidence will not come to the aid of the prosecution to prove the ingredients of offence under Sections 376 and 417 of IPC and material on record was considered by the Trial Court while acquitting the accused.

13. Having taken note of the evidentiary value of P.W.1 and also the other material available on record, the complainant has not stated the date of committing forceful sexual act on 29.05.2012 in the complaint and the evidence of P.W.1 during the course of evidence is an improvement. All these factors were taken note of by the Trial Court while considering the case of the prosecution and rightly comes to the conclusion that offences under Sections 376 and 417 of IPC have not been proved, since the ingredients of those offences are not attracted in the case on hand considering the evidence, particularly the evidence of P.W.1.

14. In view of the discussion made above, we pass the following:

ORDER

The criminal appeal is dismissed.