Gadeppa S/O Lingappa Neerloti vs The State Of Karnataka on 2 February, 2009

Karnataka High Court

Author: V.Jagannathan

IN THE HIGH COURT 012'   2 MA

CIRCUIT BENCH A'1fIii¥:§-=sI2i.ie¥;x1:>  -  

BATED THIS THE 2ND my (3§F_1:3=;'EiBi?I,?vP£;E"~3"§?":2A%30éf3é."' V

 %   %
THE HOWBLE uJ§gsff:§E['y;'}J,qQAr¢%biA*i'HAN
BETWEEN?'   

Gadeppé,   
Aged ab+:m:A33 yéars,  Agriculture,
R / £3: iiiirebc1"1a}§a}, "'.]Tah;Vk«: ___C+_1:{_1gavat}1i,

Dist: Kopya}. ' ' ' ..AppeI1ant

(By Sri  Mahabaleshwar Hasinai
 S1': _Mahan_t¢'sh C'.I{0ttL11*shettar, Advocatas}

..Respo1<1de::11:

7 (By 'S1:~i P;,}i.Ga:kI;indi, HCGP)

_     This criminal appeal is filed :_1nder_Se<:t:i<;)n 374(2)
 V' (3§r.P.C. against the judgment dated 21.12.2006 passed
  the P.O., F'i'C«-I, Koppel in S.C.N€).33/2005

" com:ic1:i;1g the appellant/ accused for the oﬂences

p/11/$3.376 and 506 of IPC and sentencing him 1:9
undergo RI. far 7 years and pay a fine of Rs.S,OO0/~ in
Ciefauit, he shall undergo S3. for 1 year. Apart from this



he shall pay compensation of Rs.'2(),{}OO/- 

PW.§ U/s. 357 of Cr.P.C. for the offence p.,f5_uf'S;f:}?'Z€$  

IPC anti further eentencing him to undergo Frljgi for' -2

years and pay a fine of Rs.1,{}(}C¥f;;f0r a1f;'eﬁ'e§iee"'pfu/ "'

506 of IPC in default of payment « oi';_fme,__" b_.e._ 
undergo S.I. for 3 months. ;"'I'hVe *._se;j1teIV1ee--, {if

imprisonment passed against the.accuse{1..';f0i"'bo¥:}3. 't'i1e'--..L

offences shall run eoneumentiyj.

This criminal appeal e_(iVifI:i11'g.._»on..fo1<:vif:eHa;i"*ir3g this
day, the Ceurt. c1eiive1'e<*i¢_ the feV_11:0ta:_i::;.g:--_

  -

;}’fhe_ in quesﬁon his conviction for
the oﬁ’eIi’ees* puf;ie¥;ebie”_1irider Sections 376 and 506 of

‘arid tk1e”$eif1te::1ee passed thereon by the learned

.th.e”i9’ast Track Court, Koppel.

TV prosecution case in Sheri: is” that, the

preseezﬁzix being a married Woman having three

and husband, had been to the land of {me

…_Hireha;r2umaWa on 14.10.2004 around 12 noon in murder

to collect fodder and the accused also had come tie the
very same land in order to eeilect fodder for his “cattle.

‘1

E %&£2:s:s$

The accused asked the preeecutrix to Iiﬁ the
when the preseeutzix tried to iiﬁ: the f0dde.If _byj ‘
the accused caught her and Igrlreerteraerlp AV

wouid destroy her (-‘5§@%~3;”u 95?} z§nd if go:

submit herself, he would ‘2Vi:}:1e ;accused
made her fall and her _1ange1 ‘and then
[meaning thereby case of the

rosecutien es }:.e:é fire ieem _41aiii:5’aVezrnents that the
. 1L , , . V

accused e§:’enj.5qffer§e§1 _– as she kept mum, the
aecusecf’eo131mitrf:.ée!:.’ act on her hoiding her both

In {uhe.:Vpreeees, «§’:.he bangles of her hands broke

. é:fe:i_1f It is the further case of the

Vpreeee:»}.fi9_i1 per the ccmpiaint version that the

prceecLriri>r.:é1iso had a similar incident happening to her

“2.1bQut .E3~<;")r 6 months earlier W§'l€I1 the accused had tried

e._'E§§e«veIy same act on her. But the prosecumx retorted

the accused kept quite and the prosecutrix did not

inform of this incident ts anyone.

3. It is fmthee caee of the proseeutien tiiagafter
the incident mat teak place on 14.10.2004,
heme weeping and teak bath and rinsed
there aftexwards when q116SﬁOI1§?.v:}”b}f K V’ ‘
prosecutrix again told him that 3
There aftezwalds, her hus}§a:3:iit:*._»teei{ §k__1e:%’E’10i:e1 ef ‘ ‘ L»
the accused. But tlf1e__zaec1,1se d:.”Lj.aré{3′ nef:ﬁ them} and the

brother ef the accusegi’ ‘r1;:r..§;Ij:V’e1jg? Iﬁﬁgemanurappa was

presem of the incident. and said
Yamaneeeppe he would call the eiders and

t§}e§?WQuld decide the future course of action. Hewever,

.’ 011 :the eeeurance gven by the said Yamanurappa, the

her husband came home and die not

iziigmg the eempiaiﬂt in the face ef the said

., ‘aeeferehce. But hewever, as on the following day, the

“A’1§eei’:her ef the aecuseé took a diﬁerent stand by stating

V’ “that he would not pmduce the accused. before the elders

and the proeecutrix can decide her course of actiorz. The

prosecutrix came to the Police Station and lodged the

3»

‘J

compiaint as per exhibit 13.1 and it w.

p.m. on 14.10.2004 anﬁ 3 Casi:

crime No.15!)/2004 of Gar;gavathi.__§’;1m1

offences punishable under SLe{:_xtions T.i)’5{)4 ;and 506
1’/W. 34 ofI.P.C.

4. Thai mvesilgaéidil’ﬁ§j¢:1f*e..§;;f§;e:I9xxz’:;§I9t:1s proceeded on
the expected””1ini§@$,’;’-_Vi:1 13111céh::«’;asVV§*;I1e statement of the
h11Sbar1d'”‘uf’§;’c1e other witnessets were
recordéd, “victi1″1*:§ accused were subjected

ta 1;3¢dic§é1~~ before PW.1(3 and PW.2

‘ _res,};:§é5ct§.3ze:ij,z.A ‘I’hé’sp’o’t panchanama was drawn and »()I1

<:exi1p1et%§§11..1::-f_t_i"z.e ixwestigation, charge sheet was laid.

5,v–..'T.hc"'V'accused cisrlied the charges lavelled against

and there afterwards the proseczztian was

upon to prove the case against the accused and

T ” ”pt;1rsua:1t to the same, the pmsacution led the evidence

U by examining 12 witnesses axgd produced 10

dacuments, apart from 4 material cxbjects. 011

$14

.//'”

‘P

fatal enough 1:0 discard the testimeny of ..

the trial Court also fauna tﬁat cie’f¢’r1é:é=.

accused that a faise case has be<éi':_ L.

also was not an acceptable heléing
that the eviderxce of to prove
the case againsﬁ convicted
the: accusgti 44 beghming ef the
judgggmi Q undergo 7 years
ﬁgorégxs to pay ﬁne of Rs.5,00{)/–, in
s:%€fau1t”tt”–:’e simple imprisorlment and in

adrﬁtiom ta (:o1:11pe:1sation of Rs.20,000/– to the

,A ﬁu§..c_1V;i111u: -rfespect of the oﬁenca under Section 357 of

z regards the 0ff€II1£’.3$ under Sectien 506 of

” .. is concerned, the accused was sentenced to 2

‘A rigorous ismprisoizment and pay {me of Rs.1,tZ)0O/~,

V “in defatﬁt ta undergo 3 moimths simple: imprisonment. It

is thiﬁﬁ judwent: of convictian and sentence that is

assailed in this appea} by thf: accused.

8. I have heard the arguments by V»

learned Counoei Sri M.B.Gu11};1aw-a?ié; e,soi.ste(i” Viby

Mahabaleshwar Hasinai

learned Government Advooa#}e” for the
State and carefu113*_fr3r1I’eec§»’A e:1f;re material on
record. 1 ‘ 2 V

9. 44 contention put
for the appellant Sri
‘E31 order to constitute the
offence o:fo Section 375 of I.P.C., it is

i11o1;i3ixi’bar;t oiir port of the prosecution to prove that

ti1tT;¥I”€§i1i.iI€;ﬂ}ﬁ§1t of explanation to Section 375 of i.P.C.,

“AV”f”§:t£~:I;%;e1iV.1″a1’.i<)I1 is sufficient to constitizte the

sexi:a1"'–i:1t'ei':;:ourse necessary to the offence of ragye", is

K satisﬁed and uniess and until the prosecution is

to place evidence to Show that there was'

" Vpenetration", it cannot be said that the ingrediem:s'of

F-Skxle.

the offence of rape is made out. E prefacing the

argument with the above definition of rape and

emphasis on the requirement of penetratien;jj£he»:}eeI12ed= .

Ceunsei referring to the evideikce T ef ‘the.. preeeeeiifix

submitted that, no where the’-ee’ursew’V:e:€§ her’ erztire,”

evidence, has the prosecutzdg’ peffietration.

e fees ‘
Therefore, mere use ef,”t1%1e._en::}r{i ” ” itself will

not be eufﬁeientv to draef there was
penetraﬁen. the evidence of
the ene for the sake of
arg11ri3,_en£,~ Z »>e’ie1ie’enee on the whole, does not
indicate “ﬂeet ixad cemmitted the eﬁence of

rapeies. Ciei”1I’Vie~:i¥,. iv 1f1″_$e{:ti0;’1 375 of I.F’.C. read with the

.e;:pIaJ1e.tie3ij*~–.to the said section. Therefore, it is

testimezzy of the preseeutrix dees not

V –V hefp ‘.t?1eA pfeseeutf3– in eetabiislﬂng the oﬁence of rape,

V’ ” H Sinee the essential iI}@’€di8l”i£S of the eaid effence

–‘ “penetration” has not been proved by placing

T ‘”p§roper and iega} evidence.

2′?

10. To suhstahtiafa the above conte11t:ici1′,_:”‘t,he

learned Counsel for the appellant

even the medical evidence placed- by hi

through WV. 10 who examined the t»i-mu

examined the accused,’ dees’ V7-.,iieip”‘ the”

prosecution case any furthezfhecatise ‘in’-‘thee medicei
evidence of the said If}ee’toi”s,.”i”:’:,t is net. fertheeming that

the victim wiae: ‘intercourse by the

aceueed ‘i:4.10.20G4. The absence of
injury’ ortthey of the victim as well as the

andV”tize___ei):sez1ce of injury on the hack of the

» $;fietim._._ gives rise to doubt the testimony of the

‘p1″.0eeci:tI9i}:.Vf’7I’herefore, when the medical: evidence does

Q not the case of the prosecution in its entirety

V’ V’ « ;;ﬁd.._when PW.1{TJ~B0ctor has opined that, no opinion as

Afﬁegeirds sexual intercourse can be given, the further

iolaservatien of the Doctor in the eertiﬁce.te–exhibit R8

that there were no sigxs of rape, therefore lends support

tn the defence argument that, the presecution has failed

3;.»

‘,9

to establish the act of the accused having _

sexual intercourse with the victim.

11. The other inﬁrmities ii1_t11e. presec’ut_io:t”1~:_’ca$e~.u

according te the learned Cefiﬁsel arell

that, the incident is to;i’:2i\re:’ie$aI1:_ take1*1″pi”ace in the
land of Hirehanumavva-i.’ai1;i7’ii .x_’ee:i3e in the spot

panchanaxng. the plants had

growI;”aii’ide. eround 1 feet from one
row toV”‘et§1erVan§i=efp_a:1*t; that, there were some small

azildiiiiy a31(i”v_tliei”efore, if the incident as alleged

by’-i:c.£he.A’-eﬁresecuefix'”had taker} place and further if the

for over about 10 to 15 minutes and

shouted, all this would have led to some

in_iu1’iee_l* having been caused on the body of the

‘meeeutrix and more particularly, on the back ef the

gﬁrosecutrix. But however, the medical evidence

indicates that there were no i3″1j”t.1I’i€S on the back of the

2:.

u–”

groseeutrix and this also gives rise

testimony of the pmseeutrix.

12. Another eonteniicjii-… vputA”f(:;w«z*zax1i»*1,_ ieeieriiiig ¥:ugh the
prosecutrix has stated :e:;’42:2t:iV3ii:i:’);e2:ion–iI1-ciﬂef that
the accused langa, yet the
prosecutxjlx’ about the clothes
of the accused removed his
cietheej o1″::ﬁ§:ticu1ar1}’, she dees not even

say in }ViVer_ evit¥:’e:1ce” to, what was the act of the

V. ace'{zse<_i. _¥;_1 otf1erv.saz.e:*ds, except stating that the accused

' the prosecutrix has not speciﬁcally

stetged act done by the accused. Therefore, in
thetuabeeince of the evidence of the grosecutrix revealing

"accused having had forcible sexes} intereeuree with

' her by izxserting his penis into her vagina, it is not

'4 eoesibie to draw the inference from the evidence of the

the accused did had forcible

23.?

prosecutrix that

intercourse with the prosecutrix. It is in ~~.e’ot1text

that the learned Counsel had referred to

ef rape and the necessity of _the__proseeiitiéi£1V’.’p1e.eii2g”

evidenee showing penetration {so * ‘te ii’eei:s’titi1tfe~..ftiie

offence of rape. As such, ~.sub1:iIissieniV”jthat,”~ ‘

the omission on the .part_ef _”t.'”-1e”-~.;_;}rosee:1tio1:{ to have
elicited from the ni1e_11t1i__ presecutrix this

important aseeet is it at serio;1sV’ :iiiI’1rmity in the

proseeutienxiVieaee:”‘tand:”‘e,s* such, the offence of rape
cannot’ said to»- been estabiiehed by the

proeeeution begzend ed} reasonable doubt.

‘_’Fi1§e—_ieamed Counsel for the appellant aieo

i”efeIi’eei.te’j__t;l.€e éefenee theory that, a faise case has been

foisitedt ‘;agei.nst the accused) as the husband of the

gfeeeeutrix was not in good terms with the brother of I

the accused who was riinning a hate}. To buttress this

argument, the teamed Counsel else refereed to the Very

conduct of the preseeutrix. It is eentended that the

proseeutrix has deposed in her evidence thei,

the alleged incident, she went Ifmme. V ‘

rinsed her eiethes and as such,”1:he’..¢e_i}d1iet:0n

of the victim is rather surﬁﬂeing ‘heee1.i:~3e«”‘:,a”V persoza V

subjected to an act vef..”;1et d’eet1*oyV4t11e very
evidence of rape by er soon. after the
meident, ‘m11_:, reﬁger géfeeefve for §he purpose
of medical) V

l The. pointed out that the

other defeet in the Ap-reeeeutslen case is that, the bangle

piee§::~s recovered from the spot and

e the Court as per M0,}, could not be

as of the bangie were by the proeeeutrix

‘*._beca1.1’ee_A Tee evidence is piaeed to Show that the broken

= pieces of bangle were of the very semeAW(:r§1 by the

V’ vpfesecutrix and further, time of conducting the spot.

pamchanama and reeevery ef bangle pieces dees not

taﬂy with the time’ at which the preeeeufrix was taken te

the Doctor for examination and as both” xe*.?e12is_ V’

have been stated ta have been piece»:

p.111., it is not possible _ to 1:§e.lie’2ze } )1″eSec.titieﬁ

evidence with regard 1′:ee.”e$:.he of spot

panelmnama at A_ : i2a.ngle Vvfiieees being
recovered from the.” ;§.Ii~Si3I1C(?t of the

_ «.:¢0ntefifiei1 put forward is that,
assume-Im’g– for «sake that the accused had

sexgrial her, yet the conduct of the

‘ ‘ -. pt~e§.ee’i;:tr§:§ in ne£”it*ying to resist the accused and in the

Of’ :=ee.i$ts1nee, not getting any injuries on her

further evidence ei’ the prosecutrix that

}:he efztfre irlcident took piaee fer a period of about 10 to

–.. 15 .’,v::t1i13.u¥ies, ali taken together, W113 iead ‘$0 the possible

V» inference that the prosecutrix was rather a censenting

party” I
.%

16. In the light of the foregoing

forward, the learned Counselj£ii’gue¢;¥,’–4éf1I:e§ATV’o§’_

prosecution has failed to proﬁe ‘the offence ”

having been committed ecc_£1ser_i/ a1l

reasonaioie doubt beee,use”‘o:”‘ Vt1f;eV’V”a1)se11ee”A of evidence
satisfying the requiremeﬁt :”£’1ie_-~e:i${1eI;_2n§éé;ti<}n to Section
375 of I.P.C,~ that the evidence

of the Vaeeepted as reliable,

yet aijthe'zeoveqtgfthee,e:as§e=e1ay fali under Sectieﬂ 354 of
I.P.C. néinelgz 'é:i':3se.1_ﬁ~.':.: o'r criminal force 1:0 woman with

in_te:;1£: __i:o uou1er"age…_11er modesty'. Therefore, even if the

' evidelacee 'efthe prosecution and mainly that of the

pre'3ecut:§§; ifs accepted, no offence of rape would have

eteied to have been maée out. At the most, the

V' offence of SCCUGI} 354 of I.P.C3. could be said to have

been committed.

1?. As far as the sentence imposeé by the tria}
Court is ccneemed, the learned Counsel referred to

Sectien 357′ of Cr.P.C. to contend that the trial Ceurt

3?:

1′?

could have awarded the compensation ﬁgs:

ﬁne ameunt, but awarded compezmation aridifié-n ~ V’

ﬁne, is not contemplated underf§£:eéﬁo;1’«35:7

18. It is than subfnitged {fiat 1:1_1é’..Va<:{_':'us€c§ is

married man having two cI1il:&r¢r:_. "Gui, qfi two, one
was born duxing the .. case and the

accused has ai1"€=,-;1dy:'Li1i(§<=§§'g;o"I2g§:.§:uStQ( ¥:§z far over 2 years

and operation mcentiy and
havxzagregard to -ins "-rsige,' may cons1der the 1611163118}-" of
% ' ; A

s€z:1..t;eng:a, €'i.:'e;1'if"t13i"s Caurt were to accept the argumsnt

. V. iaffbxgce Sectian 354 cf LRC. can be made

Gz;2?:;. 9'

19', support of the above arguments, the

1e;a11";:';6€i:.Counsel for the appellant places reliance cm the

Vfbiiawing decisions;

2008 SAR (CI’imiI:a1)89:

2000 sec: (cm 1331
2002 Sac {Cri) 1149
200*? SAR(Crimi11a1) 579

.fi<-«~

, J

AIR 2003 SC 818
197′? see (Cri) 447
2907 SAR(Crin’1iI1al) 8ee;me«.. M
2007 SA}? {Criminal} 873 l

20. On the other heme, the ‘I’earner_§?.l,

Advocate for the respolidei1tm_Staie-. :’sLfp1:le§I”ted the
jutigement of the Vé3£1;,1..vVVlAt::)I1tenelAe<lV that, the
testimeny ef the upon and no

cerxevboraetieirieV';1ee<ie€1__eI:d moreover the proeeeutrix
has given' in her evideiaeewlthe details of the incident and

evegiiﬁite defexjeel hes; been able :0 elicit from the eross«–

'e}§ia:nllietlG:1Vtl1at the incident took place for about 10 to

very expression " 'g @«Q iﬁﬁd" itself is

sii'§ficiei1tv"iﬁe ciraw the infererzee that the accused had

3 'efereibfe sexual intercourse with the preseeutrix and

ll"-ﬁiefefore no defect can be feued in her testjxneny.

V' " 'Moreover the evidence ef the prosecutrix has been

supported by evidence of her husband~PW.8 and 'both of

them ge to the aceused's brother and ii; is only when the

,/I

22. As far as the consent is eeneeti:iegi;».f}11e “J€i*}{

evidence of the prosecutrix reveals jj.1:}1e’i ._i:i1e”aeee,seé§

threatened her and hel<:i;«'h_er* haeds L.

these circumstances, the 2 Csf 1e.:*oseeut:riX
giving her eonsem "the bangle
pieces recovered 'of is concerned,
it is it evidence of the
prose§\\\\1§'i$,],:C;iie.:; pieces were of the

bangles hf; the" 'p§*ovs_eeutrix.

_ _ 23}Theref(;re;._it*~is contended that the question of

' _ tiii.e*eﬁ7enee 0:? havirig not been established Wiil 110%:

Aiglierefore the argument of the appellants

'Cei11isei' lesser offence under Section 354 of LPG.

is macie out, cannot be aeeepteé. As far as the act of the

'eeeilsed is eoncemed, the very evidence ef the

V_j:)r0seeut1'i:< that the accused lifted her seree and ienga

itself is suﬁicient indication of the accused having

Committed the oﬁenﬁef rape and having had forcible

sexual intercourse with the proseeutrix. the

trial Court was justified in accepting the lee

PW}, 13351.8 and PW.5.

24. It is then submitted p1.1i§;i_elj1ner1lt*::’u§*.}:e’§1 u

in the accused by the trial “require V

any interference as .ﬂi€ 1n§1ii§x:i:t:1 pugliehﬁient has been
given and there is zit.) __’_’Ie reduce the

sentence eiiti-VViieiefhi-SV:l1=evgard, he placed reliance on the

Supreme 131.

_ ” ‘the light of the contentions put folward by

Counsel for the appellant, in particular,

Whﬁflflef can it be said that the proeeuctien has preved

“ii .}::feyjond all reasonable doubt the commission of the

l Vlee-ffenee of rape by the accused in the light of the

evidence en reeerd?.

E—~

26. Befere I proceed ta analyse –

record, it is necessary to keepfifih xéievsr the’ deiinitidn of

rape as deﬁned under Sectien SA A.I.P’

Section reads as thus;

” 375. Raj)eL}A «to commit “rape”

who, except ir;. .t.%1e_ ease’ excepted, has
sexi1a§j’ = woman under

~ Viincier any of the six

, ‘ . .

F’irs_;i:.# – V ‘W111.

Sei:e1}1d3y.V’- Witiaeiit her consent.

V ffhirdly.-“V her consent, when her consent
V’ ‘ has been obtained by putting her or
any? person in Wham she is interested

in fear of death as of hurt.

f§’0urth1y.~With her consent, when the man knows
that he is not her husband, and that
her consent is given because she
beiieves that he is another man to
whom she is or believes herself 1:0 be

lawfully Inaxried.

Féﬁhly. –

With. her consent, when, at the :3 of

giving such consent, by Q1″

unseundness of mind or 91*

the: acinﬁnistratjgn by ~ V. ‘ E’

or through ar1(}t§1(%:1ff Gf

unwholesjome s5″t1bi+:tj_2:nce}. ;3}%1e~. is; V’

to undérﬁéhaad the 1 and ‘

c0ns@quen_(;és..V_i1 .s.;e11’£, when she

‘ 11’r1_€ieIj sixteen years of age.

~ EV;xpZg;r::€i£$idn.j’LQPenetratisI1 is suiﬁciazit to

:(§01″;;stit1i1;c«t11¢.vsexua1 i1T1t€I’C()1}I’S€ necessary to the

_ €}fff3;1:1i(:'{:’, of rape.

.Ex::te*ptior1.- Saxual intercourse by a man with

V 13′ wife, the wife not being “under ﬁfteen years

.. (3%: age, is :10: rape”.

2?. Therefore, it is clear from the above defmition

Vfthat, what is required to be proved by the prosecution is

that the person accused had sexual intercourse with the

woman under the circumstances mentiongd above and

I’.

further the oxplarlation makes it clear that, to

constitute “sexual ‘111tercourss, ponstmiioré _ is . _

Therefore, the pi'<)S€C11'(i0I1 wili' ﬁavs ﬂtoé pro1}f€;'.E3oV3?oi1dn'*'a11»f'. A'

reasonable doubt that there Wa 8.S po1.1i1o

oven slight penetratiozl is;.:s.'2_1fﬁc:io:at;Q
considered these itﬁpoﬁajii' oftho oﬁonco of
rape in the case of Preﬁiiyfél' Vs. State of

Rajasthan;~'('2'€2y§§8 sue {:.(,'ri12;j§iiié3l,_s8f}i?1') and observed at

paraikitiisilss; n
1 A " '_ V ofraps occurs in Chapter
X\ {J an oﬂence aﬁbcting the
L. in that Chaptor, there is a

=seTparato §1ééidiI1g for 'Sexual offence', which

. ::'fo'1:¥jo:ﬁ'passos Section 375, 376, 3'?6-A, 376-

V's%; s3?6~o, and 375-3. 'Rape' is deﬁneci in
"—V:'So<§'tion 375. Section 375 and 376 have been

a substantially changed by Criminal Law
{Amendment} Act, 1983, and several now
sections were introduced by the new Act, is.
376-A, 376~B, 3'?'6–C and 3764?). Tho fact
that swospirig changos were introduced
roﬂects the legislative misﬁt to curb with

iron hand, the offence of rape which aﬁoots

<47'

851$ diguity of woman. The oﬁemce of raga.

its siznpiest terzn is ‘the ravis1ru11e13fé””<;–f.'_' :_. é

Woman, without her consent, by_.f_(3:'er3;,'f€ar

er fraud', or as 'the caIj:3é1"knpiy1e§3g¢"'uf 3-:3

woman by force against:"he13 :\vi'11'§i"'R'a1§e'é

'Raptus' is whery' a.___V hatIJ
knowieége of .9. u*o:mé§.f1 f0r{:Vé~21:';Vi€iV':ag::£§.i;1s't
her will ({)o.Liti.~1_23-.b)";" ' "e;;preéé;éd "ﬁaxvzw:
fully, rape is 1%f§b$v}eége of any
woman, .abov§ A -1–,i*1:.: " years,

.Vvagai1j£3S: 1"ié;,é*= .w'i11;"–.0z* 'a;"won1az1 child, under

}:1r2z?it agéﬁ, her W111' (Hale PC

1:1 rapa, 'carrlal kaowledge'

:11e.a 1*'1§_ the..'– pénéffatiozl to any tht: slightest

{_1 :eg;_'€:€ ' 'E:h=-I3' orgaﬂ alleged to have been

..Qf:i?f'I}a H}§__ imewn by the male organ of

[Stepheﬁs "Crinlinai Law" 931

Ed M62). In 'Encyciopoedia of ilrirne and

'~ Justice' (veiume 4, page 1356) it is statéd
AA "…..eve:1 slight penetration is sufficiem: and

emission is unnecessary". in Halsbury's

Siiatutes cf England and Walas (Fourth
Edition) Voiume 12, it is stated that evczn the
siightest d€?}$'('.:3 cf penetration is suiﬁcient to

pmve sexual} imerceursa".

Q’?

28. Therefore, it is clear from the above aiizﬁysis of

the deﬁnition of rape that, for conviction fe1§”~’.:1<ic%;.:;§:ii';s:;_r_i<;e

of rape, penetratien must be establisheeij Se;:%»1 1a§_

mtemourse is deemed COl3%.1}:)1QT:,#{"§";::. ief '

penetratien only. It is with=ti1e above pos:i:tie:;,i;1 1aj;xz,"we"e.

have to examine the evidence=e§:1 re<:c:rd–. e_ ' "

29. The proseciif:ti:;’e-iii’ ;he;*ee’-eviéegice before the

«Vﬁﬁe e;ec’ueeé called her to 11:1: the
f0c1ée:i*_’aa’:1″d’ te do so by bending, the

accused thre’ate:;1ee–._’h.ef and then while she was about

t{:’:e_j1§ift;»§’f}1eV._fss;ii§1e evidence
that she has deposedVV_§:o’ the accused had
sexual on that there was
penevt:rat§on;i’i’v.” _ V 1′ é _

in the Course of her

eﬁifﬂéiicﬁ has that, when she examixied the

she did not find any signs of foreibie

has deposed to the fact that the

ciieneeé in_i’L1ry being caused to the private parts of

‘the vietim will be very remote if the victim is put under

[threat and the reason fer absence of injuries could

2 ” three nameiy (i) no resietanee by her; (ii) if she is very

weak and (iii) depends upon her mental state. She has

also stated in her evidence that, if after the intercourse,

the clothes are Washed with snag), then the

seminal stains remaining on the clothes &vi1’1:’a1sef’§e’*~tze:?y

less. –

31. Exhibit R8 is the zneziamjjt%ce%r:;if1cgtte%_:ssi’gezittby

the Doctor-PW.1{} and V

the {meter has

“Or: _ i’§x’a1;1iné{tioi1′;’ there was

110 }?a;:e’~”hésA:” Iﬁieetﬁfound. On

eheiiiiésﬂ..__exa:zﬁi1§;1téo1’2 only presence of

xsemiria} Vet;?ij11:S”*§§ere~*’fem1d positive on item

Nc§’.+-3 iv.eV.1,-._Lai1’gé§ and item 140.5(1) Le.
tKaCha§%

Ht the basis of chemical report, the

‘ found only on clothes. O11

examirxation there was no signs of

2 Z Vi*3.1:$Ve’ ha$ been found so opinion on

‘intercourse cant be given”.

……}F’urther in the same certiﬁcate exhibit R8 at para 29, it

‘ is opined by the Decter thus;

)4-

‘C

“Opinion:

On physical and genital exaiuirxaticﬁ» ”
Smt.Saroja1mn.a bearing the ”

mentioned identiﬁcaﬁon.m~:3;r1§s,
opinion that :10 sigls ‘Qf sraﬁe ilés’ V”béef1%.___ :3 AA

found.

Final r6I){)I’ti:’€:1’1€1iI},§#£i§”v,_I3tZ)}f of
Forensic _o§)in.1}_-o1i’;.. _ _’ » ‘ ” « . % ‘

stains on the clothes of
the afﬁiciiseéi 2;a;1Vé(;1’v f(L11éi’«}T%fG$€3CUtFiX are cancemed, the very

€Vi(}(§1’1C€ »i:;f ‘;pf(;s_séci1trix is that, after the izlcidant,

V’ -. \»;?<3;r1t'~– tack bath and Washed her ciothes.

"_i.:,e possibility of any seminal stains

'($11 the clothes of the prosecuirix has also

A 'nee:1.,:f?$x1€d}out by the above conduct; of the prosecutrix,

33. As far as the accused is concerned, he was

” examined by ?W.2–Dr.S.A.Katti and he has deposéd in

his evidence that, after examining the accused. on

18.10.2604 at 3.20 13,111., he noticed semen enly on the

‘i~

unéergarment ef the accused aria issued a..Vm.edicaI

report as per exhibit 13.2. in the said

Doctor has epined thus “O11 the__ba$_is of ” .

the stains were found only of;

intercourse wouid not be

34. It is not 119 be lestVV:sigh1;L’of that._the, incident

according to the preSecuti.3:i.Vgéaidefurihave occurred on

14. eeeused was examined by
PW.2″e1;1 after 4 days and taking

mtg -veensideratien that the accused is also 9. married

” .pe’rs03fi; if is net pessible to infer from the mere presence

‘V en his undergarment that the said

st;a.ins__’ connected to the incident that took place

ex; 1″4;~I0.20e4.

35, As far as the izajury on the of the

‘ ” – *pr0ee(:ut:rix is eeneerned, the meaiieai evidence of the

{)e<:te:3~PW. 10 does not revea} that the victim had

injuries on her back. Exhibit R8-certiﬁcate at para 2'?

?J*:/

"fotmdling", took the View that __{:Q1}_Vietieii'ef:1;}1e"aeeuse€I » _

under Section 3'?6 ef I.P.C. ?ge.épite

the prosecution centendég/"tljxat the the

presecutrix on the 'hie "pancfianla" and
lifted her "gage" her.

37 . I13″ pf of Rajasthan,
the tee Vuigaﬁxeictien of the accused
for Section 376 of ¥.P.C. as
there%%ur§s ﬁe ” on the private parts of her

boriy~ and .’ne3}t’r;.er her clothes were term 1102″ there was

the accused on the private parts of

I and taking in¥:o- account that the giri

was fgagieﬁtiated to sexual intercourse, the Apex Ceurt

..ga_.ve “tee accused the benefit ef deubt. In another

1_Vdt:eiésien in the case ef Radhu Vs. State of Madhya

” ‘–‘Pradesh (2607 SAR (Criminal) 873, the Apex Court did

not ﬁnd the evidence ef the proseeutrix trustworthy and

as far as the injuries are concerned, taking mote of the

medical evidence of the Doctor that

abrasion on the left elbow and-‘a”b1’e.sio*§1 Q.n ¥1v€:r é;:i1<:1 ' AV

contrusion on her leg, the héigfthat
injuries themselves are sufﬁciient ééaféﬁliﬁh tkié

offence of rape.

38. In a§1othe3~-<'i§:{:isi<,~:1<_j1:"'{1~g§l_g;é.se of Santhosh

Madavan4"a;:ia3;::jA:;nI1jth;2.* Circle Insspecter

'of pgiiee,Ei:1ai§§1;ag;a.¥%%jandAAxiomer (2003 <::r;.:…J. 4246),

the Kefala while dealing with the bail

pefit_jox1 ref?3r'f€:d "If§) the position in iaw as regards

V, _ A Gﬁenrga o1" :*;éijjév is concerned and having aI1a}ysed

* of rape as contained in Section 375 of

Eéerala High Cuurt has observeé at para 18

V x i;Ir113.é;, 1

"In 2004 the Supreme Court heid, aftsr
considering the matter in detail that only
penile penetration wiil constitute rape, but
no other forrns of penétration W231 attract the
offeﬂce under Se-sticsn 3?5 EPC. It is seer:
fmm the judgment in Sakshfs case (2004

9»

Cr1.L.J. 2881) (supra) that the __E’s:a.1ﬁi{eV;.1%ie–:A ~
Court referred the mattef on to

the Law Commission of .

whether all forms of penetgﬁtaion
Withill the ambit -..Seotio11__ woijr
whether any change _et.g§tuto33f T_ fgrogfisioxz

need to be .._inIw.?1at respect”.

and after zjeiergifing {to Age): Court in

1), Went on to observe

Saksliiﬁ

at para 21 Vt1f1¥.«’.1§’5′,’:»

A ” ‘fizz of the above interpretation
gijrexg to’V”Seetien 375 IPC, it is clear that

A offeI:ze:e*-.11nder Section 375 IPC wiﬂ not be

unless there is eviéenee of peniie
_ peeeiteﬁon. It is 21330 we11~sett1ed that partial
~~;:;e1.”1i1e penetration will be sufﬁciem: to

AA eonstimte rape. Any injury caused by
V’ penetration other than penile penetration wiil

not suﬁiee to attract offence under Section
376 XPC. In this ease the medical certiﬁcate
shows that “vagina admits one fmger”. The
vitzizim has 139?. speciﬁcally staied that there

was any penile penetration or an attempt of

£3?

such peaetratiee, There no

the side of the investigating Vite’

question. the child towlﬁtld ozityiihat ecéiatgtljf

happened. After mceitfiﬁg. the :ie1edieal Vlifetéert
which shows only of one lfmgeii into
the vagina, ought to
have been questleneé whether
there or an
the chilcl nor the

doctor iguestierieci this angle”.

“39.*’I1’h’:J:Vs_.,”ezteaeeful examination of the testimony

of j.tt1eA in parﬁctﬂar and the medical
éVétz;tieﬁee”‘ ..Ql’ “” llttve Doctors-PW.10 and PWJ-3 ané
produced as per exhibit 13.8 and 13.2,
said that the prosecution has established

AA all reasonable doubt the commission of rape by
accused because the most crucial ingredient of the

.—lioffence namely “penile penetration” has not been

established beyond all reasonable doubt.

4-0. The prosecution has not been able {te~,[e1icit

from the prosecutrix as to the fact of peni}e«..pe:1,et1*.ation

and mere statement of the pmsecu&ix_theit..

lifted her Saree and ianga 12 is

will net lead. to the coI}cltisioIi’~At391at ‘°i”;s;ds

forcible intercourse with ‘a§.ndV’;that there

was penile penetregtieii. TTt1eI:efi):%e,._t11is lapse on the part ”

ef the prosecution is._aeerio1;§s lgétpseCa:1d in the instant

casegtlie fatsl”one. The prosecutrix while
mentiotirisrlg -dagcccused lifted her Saree arid langa,

ha.s.,noti4stated. Word what the accused did and

it – «Vtherefore put forward by the 1eari1ed Counsel

.foi*’ “} also cannot be brushed aside as

witheut_véiaiy sigiiﬁcance/.because ix} order to constitute

_ thelleﬁlence of rape, the prosecution has to establish that

A’ the accused did had forcible intercourse with the

proseeuwix and the said sexual intercourse can be said

to have been established only when there is penetration.

Therefore, the requirement of the expianation to Section

}

375 of I.f~’.C.. has not been 9»

prosecution beyend ail reasonaible ‘ ” t

41. Though the leatfned (§i<t:fsr€::%';'1111eIit–v_Aedvee'-iétetyibxj

the State argued that the have
to be construed as~..V_t11eaziii1g'; the V'"a'c'euseti had
forcible sexual intemoufeeivitti th.e";5:'~£$S_ecutriX, no such

iI1terferenee« be gram on the basis of

co:"1jeetur7es~t.e';+1I;c¥'?.4sumizises and in the absence of the
medical' " evid.ei1e§e -siipgéorﬁng the ease of the

pz"esmutid1:x.,, it w1as"ali:m0re necessary on the part of the

" to Htteve elicited from the mouth of the

I speciﬁc act committed by the accused in

t)fder,.__’te the ease within the ambit of defmitien ef

.. rape ‘teed with expiarzatien thereto.

42’ It is well settled law that, there is a long

“‘:distaI1ce between ‘may be true’ and ‘must be true’ and

the presmutien will have to travei the entire distance. In

the instant case, it is not possible’ to infez’ from the very

./_-“I”

memiioning of the word ” ~§?-cE35 -5 Z550″, ti*ie~.eieeused’

did had forcible intercourse sgiéithiithe”‘.presee’L1:r§X.’ VOéie

other aspect which also will haw; is be i;a.}{e:’1 ho’€.e.”0fVisi

that, nothing prevented fii:e:”e»proseC!~:ti*i.*.i-I stating
befere the com j is/t;1at.ee”ii£;1¢Mc A accused me forcible
intercourse with heif.V_v’i’1\4iVVis’e_Vsr:)’ the cempiaint-

exhibit P. ?E’,’ :3-memioﬁed ‘—Vhtheti the accused had

fO§’C3;’L)”iEfi’1I1IVZi%;?I’C0tjg1″S¢3’Wit}f} Eh6″‘p¥’OSCCi1tI’iX. Therefere, was

varieIf;ce_i:1’} paﬁgiculars between the complaint
version sifeiteienent made before the Ceurt by

gifeseeutrix. This-aiso is an aspect which points t.ewa:rds

V of the testimony of the presecutrix in so

asv_¥}1’e3«_oﬁ’ence of rape is concerned.

The rest of the evidemce placed by the

Z”-Zjjresecution do not and cannot in my View alter the fate

H of the presecutien case insofar as the commission of the

offence of rape by the accused is concerned. Theugh

PWK8 who is the husband ef the prosecutrix has

..?2»

deposed in his evidence about he being hifermeﬁ his

wife about the incident, yet he aise cities’ iii

evidence before the Court that! Eiife i~

accused had forcible inte;>;i:’1g1’4§%A’.{:’t::,:§ ?:e3:1deci that a false case has been

.t;_§1e.accu$ed in conneetien with the rift

‘ ‘3£Wf:{§I3 husband of the pmseeutrix and the brother

” of’Vet11e&aie{:LiSed who was nmning a hotei.

” As far as the evidence of ?W.5 is concerned, he

” speaks te the fact of the husband of the

prosecutrix in quarrelling with the brother of the

accused and the promise made by the brother Of the

accused to keep present the accuseé for enqtﬁxy and

32»

was informing the prosecutrixgnd 1161*’I”2.ii§*.t§éﬁ1{;i.,Vt0vjVg£}»

home. His evidence also cioes’-,no%:”iazeip’»the_ pré:§e{:{itiQn

insofar as proving the”Toi”f(;I1ce rapé: beeii

{mmmitted by the a§;cused,____ :’ ‘

45. Thus, the abdzzg evidence of the
Inaterial wit:ie3$’ses:3.§1ez1é’:§ fa .V.ﬁjeVv.fo$i1oWiI1g conclusions
being dri3wnQ’_,» ‘

TEiéT’ the vi.ctin1 1.53., the prosecutrix
du:t:’111gVVh-gr t1f1a.3…g1s ‘-at’«var1ance with the F’.I.R. wt}
“‘m:4~ml=’-‘-r*«. ‘

material V’ ‘ vv1z.,- tfrie prosecutrix dues not say in her

. ” ‘¢vi€ie5:ice”%’t¥:;at thvé’éccz_1sed had forcible intercourse with

hé§ij;’ has been expressed by the Doctor after

examixzation about the offence of rape

xihbeen committed on the victim. No injury was

A’ fomid on the back of the victim despite the incident

= — 1asti;t1g for 10 to 15 minutes, that too in the: land Wh€I’€

tordal plants had been gown. The victim dares not say

if}. her eviéence that she pm: up any resistance.

-«a

Considering the fact that she is a V:-2$;_€>1z15a’;*:1

having three children, the vietjpf;

bath and washes her elothee; tléiefebgfgﬁieiieezéij’-eegf;;;i1y

seminal stains 031 the eiothes preseﬂtere

rendered too remete. The «-ﬂees i]:i5″1€)t say in
her evidence before A(:;;{)2J2If'{.vV’.S13{§§(3.iA;'[7iC;3.i1y abeut the act

of the accused does “exien say that the

acctgieeé hiSf_Cloti}.es and feﬁ on her and had
forcibie imtercgiirse ﬂex’. The most glaring emission

and .. serieiiss i1*:firn§ityT is, lack of evidence as regards

‘ V. ﬁeﬁetfayticﬁ. Neiiiier the Victim says about penetration

1 3:101?’ fa:x.ediea1 evidence indicates the penile

penetratiewii. in the face :31” the said eviderice on recerd

.AVi*:sivi11g regard to the decisions referred to by me

‘ =. ‘e:§iier and aiscz taking inte ceﬂsideration the defmitien

.-Tef rape arid essential ingedieme which will have to be

Q..,…….;t
pruved by the prosecution, it mag; 39% be said that in the

instant case, the prosecution has succeeded in

~42

establishing the commission of the

the accuseci.

46. The next question is, v;hi:£:h&’n1ﬁhé1J dffe.§1C:+::_’is .

made 011: against the ap};’ x:3]xant.” ‘-Siifxca \:i:1é:A~..j§:=.*.zri_:.dV<-:1::1(:eA

record as analysed: shown
that there was indicating sexua}
ii1tf1'1"COL'tI'S€ there being
absoiutegs pgézifjiﬁ iijézfietxaﬁon, taking the
evidimce 'jiI1t<) colzsidcration, {ha act 0f
rs:mev§.1ig t;h:: .. Vlanga by the accused, may at

attracii "'E11¢____gff311ce punishable under Section 3:34

' w1.PA_.vC, regard, I draw support from the Apex

" '- 1:116 case 0f Premiya @ Pram Prakash Vs.

sf;a:¢'7a£ Rgasthan (2008 SAR ({3I'iI11i11a1) 891} referred ta

" » by«..:«neNear}.ier and therefore accepting the evidence of the

}pz*<}secu'£:1*i.x, it is g offence punishabie unéer 8631:1011

L…

354 of me. that it can said {:0 23 esta ﬁshed by the

prasecution beyond ail reasonabie doubt. For this, para

48. Having regard ta {ha above submissiéiiﬁi’-xfiade

by the Ieazrned Counsel for the parﬁcff’ as

sentence is Concerned, in vieW,’ fQr T’£l1eV(3i”f€i*:c€’j’

punishable under Sectian 354 21cc13’si<§(i.V xn;r'i11
have to be sentenced to in1.;§ii$on1i1ent 'foi: of
years and for the oﬁﬁpce piiilivzf-:,}'3:;iE31._e u1:{d€:r- Séction. 506

of I.P.C., the accus:=.<i is}~ii§ib1<;LT"~iir;;. i;e $en.i:enc:ed to

in1pfi.so::i3ae1{ﬁi "of 1 year and both sentence
shall hziv-5: to xfinji Cr}i1ct.:i;*x*e;1t}y.

_ the accused-appellant has been in

.' cii!§tac.1Ay'.V'§3fo§i3 the date ofjudment of the trial Court; i.e.,

2i.;2T«.-; 2006 1:11 date, it is obvious he has been in

" _<:§1};'s3tociy for over 2 years and as such the sentence new

%:;3Jevard€d win have to be set-off against the pe:rie{i_

aiready undergcrne in custody.

,3»?

5:6

50. In the ].”‘€S°L11′{, I pass 131%: fallowing-; :”

The appeal is a110\2;?e;:_¢4iL:;V:””{‘heA.§;.1r:ig::«i1V§1$$;i’:’}§f’ we t,:’iéd
Court convicting Q22 f:ﬁ>i’ “‘*t1’1 ¢§: affence
punishable under sevaside, ‘but:

instead      for the offtances
  aﬁd 506 of I.P.C.

 is'  «to 2 years imprisonment in

rejspect punishable under Section 354 of

. ” _ ‘_ 1 respect of offence }I)¥.}IIiShE:lb1€ under

1 ‘V I.P.C. and both the substantive sentence?

22:3 rim’ 3{ii”1C1}1″I*6I1tly.

Sings: the accused~a§pe1}a31t has aiready bean in

custody far over 2 years, the substantive sentence

ixnposed shall stand set-off agajrzst their peried already

undergene ix; custody.

/,,/I’

The appeﬂant therefore S1131} be _A

unless he is requirad in c0z1I1€:;t:t.i<}I1T 0'i:he%;' f£.T§3§"}€. "

His bail bond shali staxw-:1~i,scha:-gee, A
A copy of the j13dgIn$u:ii't :s}1a}1 fésnhwith 1:9
the trial Court anti for immediate

Compliance. _ V

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Gadeppa S/O Lingappa Neerloti vs The State Of Karnataka on 2 February, 2009

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