SRI DEEPU @ DEEPAN v. THE STATE OF KARNATAKA

rank before the Trial Court.

#3. The brief facts leading to this appeal are that the Inspector of Police, Srirampura Police Station, laid the charge sheet against the accused for the offences punishable under Sections 376 and 417 of the Indian Penal Code (for short 'IPC').

#4. It is alleged by the prosecution that the accused and the prosecutrix were residing at Ambedkar Nagar, - 3 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR Srirampura, Bangalore. One year prior to 01.08.2007, the accused got acquainted with the prosecutrix, as he was staying near her house and used to visit the house of prosecutrix often. The accused promised the prosecutrix that he is in love with her and he would marry her and that promise developed a physical relationship. While the prosecutrix was alone in her house, the accused forcibly committed sexual intercourse with the prosecutrix, as a result, the prosecutrix became pregnant. On knowing about her pregnancy, the accused absconded from the place. Thereby, the accused has cheated the prosecutrix and caused loss to her reputation. Thus, he has committed the alleged offences.

#5. After the filing of charge sheet, a case was registered in C.C. No.1135/2007. Thereafter, case was committed to the Court of Sessions, where it was registered in S.C. No.918/2007. Charges were framed against the accused for the alleged commission of the offences. The same were read over and explained to the - 4 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR accused. On understanding the charges, the accused pleaded not guilty and claimed to be tried.

#6. To prove the case of the prosecution, 15 witnesses were examined as PW-1 to PW-15 and 9 documents were marked as Ex.P-1 to Ex.P9 and two reports were marked as Ex.C1 and Ex.C1(a). On closure of prosecution evidence, the statement of the accused under Section 313 of Cr.P.C. has been recorded, in which the accused has totally denied the evidence against him. However, he has adduced the evidence of DW1, Dr.Vinod Janardana Lakhappan.

#7. The accused, in his written statement has stated that the Investigating Officer has falsely implicated him in this case. He further stated that he was not the father of the child. The blood samples were collected before the Court by the Doctors of K.C. General Hospital and thereafter, DNA test was conducted at the DNA Center, Madiwala. The Scientific Officer of the said Center - 5 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR has issued a report stating that the accused was not the biological father of the child-Vignesh, alleged to be the son of the prosecutrix.

#8. The Trial Court, after considering the evidence, convicted the accused for the offences punishable under Sections 376 and 417 of IPC and sentenced the accused to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/- for the offence under Section 376 IPC. Further, the accused was sentenced to undergo simple imprisonment for a period of one year for the offence under Section 417 IPC. Being aggrieved by the judgment of conviction and order on sentence, the appellant has preferred this appeal.

#9. The learned counsel for the appellant submitted that the judgment of conviction and order sentence passed by the learned Sessions Judge is not maintainable and the same is liable to be set aside. It is contended that the learned Sessions Judge has passed impugned - 6 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR judgment in a mechanical manner, without application of judicial mind and without properly analysing the evidence on record has blindly convicted the appellant for the offences punishable under Sections 376 and 417 IPC.

#10. The learned counsel further submitted that the learned Sessions Judge failed to give importance to the evidence of DW1, Dr.Vinod Janardana Lakhappan, who has deposed that the child born to PW-2 is not the child of the appellant. Even on this ground also, the learned Sessions Judge ought to have acquitted the accused.

#11. It further contended that, the learned Sessions Judge has not properly considered improvements in the evidence of PW-1 to PW-5. Even though the counsel for the appellant has elicited regarding improvements in the cross-examination by the defence. The learned Sessions Judge also failed to note that the victim (PW-2) was friendly with several persons, including one Mr. Raju, a bus conductor. The specific - 7 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR defence of the appellant is that he has not committed rape or any other offence, and that due to the involvement of another person, PW-2 might have given birth to a child.

#12. The learned counsel also pointed out that there was an inordinate delay of six months in lodging the complaint, which has not been properly explained. The learned Sessions Judge has blindly accepted improvements and contradictions in the evidence of PW-2, the prosecutrix and has mechanically mentioned in the judgment that both the prosecutrix and the appellant were involved in sexual activities for three years and that they admitted to having committed a mistake without marrying each other.

#13. PW-2 has given inconsistent versions of the incident. At one stage, she stated that the appellant had committed rape on her. At the second stage, she stated that the appellant induced her to have sexual intercourse on the promise of marriage and thereafter cheated her. At - 8 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR the third stage, she stated that she had committed a mistake by consenting to sexual intercourse. Thus, PW-2 is not sure about her own version of the case. She also stated that the child was born to the appellant, however, the DNA report is against her versions. The learned Sessions Judge has failed to properly consider the admissions made by PW-2 and the contradictions in her evidence. Therefore, it is contended that the learned Sessions Judge has not properly appreciated the evidence on record in accordance with law and facts. Hence, the appellant prays to allow the appeal and set aside the judgment of conviction and order of sentence passed by the Trial Court.

#14. The learned HCGP has submitted that the learned Sessions Judge has properly appreciated the evidence on record in accordance with law and that there are no grounds to interfere with the impugned judgment and he sought for dismissal of the appeal. - 9 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR

#15. Having heard the argument on both sides and perusal of the records, the following points arise for my consideration:

#1. Whether the appellant has made out a ground to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

#2. What Order?

#16. My answer to the above points are as under: Point No.1: In the Affirmative Point No.2: As per final order. Regarding Point No.1: I have examined the materials placed before this Court. Considering the complaint made by the victim, it is necessary to refer to the observations made in decision of the Hon'ble Apex Court in the case of UDAYA VS. STATE OF KARNATAKA, reported in (2003) 4 SCC 46, wherein at paragraph Nos.21 and 23, which reads as under: - 10 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR

#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 straitjacket formula for determining whether consent given by sexual the prosecutrix 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, 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. given under or was In instant case,

#23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. 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 - 11 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR them. She 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 freely exercised a choice between resistance and assent. She must have known 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 freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

#17. In the case on hand, the genesis of the case arises from Ex.P1-complaint filed by PW-2, , wherein it is stated as under: "¢£ÁAPÀ: 01/08/06 £Á£ÀÄ ªÉÄîÌAqÀ «¼Á¸ÀzÀ°è £À£Àß vÀAzÉ, vÁ¬ÄUÀ¼À eÉÆvÉ ªÁ¸ÀªÁVzÀÄÝPÉÆAqÀÄ ²æÃgÁªÀÄ¥ÀÄgÀzÀ gÁªÀÄZÀAzÀæ¥ÀÄgÀ, ¸ÀtÚ ¸ÀA¸ÉÞAiÀÄ°è PÀÆ° PÉ®¸À ªÀiÁrPÉÆArgÀÄvÉÛãÉ. £ÀªÀÄä ªÀÄ£É ¥ÀPÀÌzÀ°è ªÁ¸ÀªÁVgÀĪÀ ¢Ã¥ÀÄ, 27 ªÀµÀðzÀªÀ£ÀÄ ªÉÆzÀ°AzÀ®Æ £À£ÀUÉ ¥ÀjZÀAiÀÄ«zÀÄÝ, FUÉ MAzÀÄ £À£ÀUÉ ªÀµÀðUÀ½AzÀ ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÁV, D¸É DPÁAPÉë vÉÆÃj¹, ¥ÀĸÀ¯Á¬Ä¹, £ÀA©¹ D«ÄõÀ MrzÀÄÝ, £Á£ÀÄ FvÀ£À£ÀÄß £ÀA© ªÀÄzÀĪÉAiÀiÁUÀÄvÁÛ£ÉAzÀÄ FvÀ£À eÉÆvÉ ¸À®UɬÄAzÀ ¦æÃw¸ÀÄvÀÛ, £À£ÀߣÀÄß - 12 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR EzÀÝzÀjAzÀ FvÀ£ÀÄ £À£ÀUÉ £ÀªÀÄä ªÀÄ£ÉAiÀiÁzÀ £ÀA. 67gÀ°è 7wAUÀ¼À »AzÉ ¸ÀA¨ÉÆÃUÀ ªÀiÁr, 7 wAUÀ¼À UÀ©üðt ªÀiÁr, FUÀ ªÀÄzÀĪÉAiÀiÁUÀzÉ £À£ÀߣÀÄß PÉÊ©lÄÖ ¥ÀgÁjAiÀiÁVgÀÄvÁÛ£É. DzÀÝjAzÀ £À£ÀUÉ ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÁV £ÀA©¹ zÉÆæúÀ ªÀiÁr, UÀ©üðt ªÀiÁr Nr ºÉÆÃVgÀĪÀ D¸Á«ÄAiÀÄ£ÀÄß ¥ÀvÉÛ ºÀaÑ PÁ£ÀÆ£ÀÄ jÃw PÀæªÀÄ dgÀÄV¸À¨ÉÃPÉAzÀÄ PÉÆÃjPÉƼÀÄîvÉÛãÉ. £Á£ÀÄ FvÀ ªÀÄzÀĪÉAiÀiÁUÀÄvÉÛãÉAzÀÄ £ÀA©¹zÀÝjAzÀ EzÀĪÀgÉ«UÀÆ zÀÆgÀÄ PÉÆqÀzÉ EzÉÝ£ÀÄ."

#18. On the basis of the said complaint, the police registered a case in Crime No. 290/2006 for the offences punishable under Sections 376 and 417 of the IPC and submitted the FIR to the Court. After completion of investigation, the Investigating Officer submitted the charge sheet against the accused for the alleged offences. The prosecution has alleged that the accused developed a physical relationship with the victim, and as a result of such sexual intercourse, the victim became pregnant. The Investigating Officer, however, did not take any steps to obtain a DNA report from the Competent Authority. Subsequently, the learned counsel for the accused filed an application before the Trial Court under Section 45 of the - 13 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR Indian Evidence Act, seeking a DNA test of the accused to bring the truth into light regarding the alleged relationship between the accused and the child born to CW-1. This application was resisted by the prosecution, and on hearing the arguments, the Trial Court, by its order dated

14.03.2011, rejected the said application.

#19. Thereafter, an application was filed by the prosecution praying for sending the blood samples for DNA examination. The accused also expressed his willingness to undergo the DNA test. Considering the submissions made by the prosecutrix and the accused, and as the victim had filed an affidavit consenting to the DNA test, the Trial Court, thereafter, passed the following order: "ORDERS ON APPLICATION UNDER SECTION 45, 50 AND 112 OF EVIDENCE ACT This is an application filed by the prosecution praying for sending blood sample for DNA test. Before filing this application, the accused has also filed the same application before the court. In regarding of future career of the child, the court had rejected the application filed by the accused. Now - 14 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR prosecutrix herself has application for DNA test. The accused is also ready to DNA test. He is also ready to pay the expenses of the DNA test. After consent of both the parties, the victim has filed an affidavit and consented for DNA test. In that regard, I conclusion prosecutrix/victim herself has filed this application and ready to undergo DNA test, she may be permitted for DNA test. Hence, I proceed to pass the following: ORDER The application prosecution under Section 45, 50 and 112 of the Evidenct Act, is allowed." filed by

#20. DW1, Dr.Vinod Janardana Lakhappan, Scientific Officer, has clearly deposed in his evidence that the blood samples were collected for DNA profile examination at the DNA Centre. The methods, observations and reasons have been mentioned in his report. Thereafter, the DNA report was obtained from concerned Authority, which is marked as Ex.C1. The conclusion of the DNA report, reads as under: "CONCLUSION: From the DNA profile results of the Item Nos. 1, 2 and 3, it is found that: - 15 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR

#1. Mr. Deepu s/o Sri. Subramani, sample blood sent in Item No.1 is excluded from being biological father of child Vignesh s/o Smt. Manju, sample blood sent in Item No.3. I have therefore, considered possibility of Mr. Deepu s/o Sri. Subramani, sample blood sent in Item No.1 is being excluded from the paternity of the child Vignesh s/o Smt. Manju, sample blood sent in Item No.3 and is not the source of DNA and not the biological father of the child Vignesh s/o Smt. Manju, sample blood sent in Item No.3."

#21. Accordingly, they have submitted a report as per Ex-C1. The evidence of DW-1 and the report marked as Ex-C1, issued by the concerned DNA Authorities have not been challenged by the prosecution. Therefore, it is evident that the prosecution has clearly admitted the DNA report submitted by the concerned Authority. Though the DNA report was not in favour of the prosecution, the Trial Court has convicted the accused without assigning proper and cogent reasons.

#22. Viewed from any angle and keeping in mind the decision of Hon'ble Apex Court, I am of the considered - 16 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR opinion that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. The trial Court has failed to properly appreciate the evidence on record in accordance with law and facts. Hence, I answer Point No.1 in the affirmative. Regarding Point No.2: For the aforesaid reasons and discussions, I proceed to pass the following: ORDER

#1. The appeal is allowed.

#2. The Judgment of Conviction and Order of Sentence passed by the XLV Additional City Civil and Sessions Judge, Bengaluru City (CCH-46) in S.C. No.918/2007 dated 11.07.2013, hereby set aside.

#3. The accused/appellant is acquitted for the offences punishable under Sections 376 and 417 of IPC.

#4. The Trial Court is directed to refund the fine amount to the accused, if any - 17 - NC: 2025:KHC:44147 CRL.A No. 759 of 2013 HC-KAR deposited by the accused, in accordance with law.

#5. The Registry is directed to send a copy of this judgment along with the Trial Court records to the Trial Court for taking necessary action. Sd/- (G BASAVARAJA) JUDGE SMC List No.: 1 Sl No.: 61