{"id":232347,"date":"2010-11-18T00:00:00","date_gmt":"2010-11-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-karnataka-by-vs-jayanna-so-basappashetty-on-18-november-2010"},"modified":"2016-08-17T04:01:19","modified_gmt":"2016-08-16T22:31:19","slug":"the-state-of-karnataka-by-vs-jayanna-so-basappashetty-on-18-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-karnataka-by-vs-jayanna-so-basappashetty-on-18-november-2010","title":{"rendered":"The State Of Karnataka By … vs Jayanna S\/O Basappashetty on 18 November, 2010"},"content":{"rendered":"
Karnataka High Court<\/div>\n
The State Of Karnataka By … vs Jayanna S\/O Basappashetty on 18 November, 2010<\/div>\n
Author: K.Sreedhar Rao K.N.Keshavanarayana<\/div>\n
 \n\nIN THE HIGH COURT OF KARNATAKA AT BANGALORE\nDATED THIS THE 18?\" DAY 01:' NOVEMBER, 20\nPRESENT 3 0 ' 0\nTHE HON'BLE MR. JUS1'1CE_K..SREEDHAR:'fRA;O   \nAND . 4' . . V _ .\nTHE HON'BLE MR. JUS'I'1C:E'~E\u00a7.N.KESfiAVA?STA\u00a3\u00a7AYAN3A %\nCRL.A. No.21;3ib-2005' \u00ab-- . 0_  \nCRL.A;\u00a7]m\u00a7mg)B'v\u00ab zogg\n\nCRL.A. No.213o.oF 200:5  ' . 0 V 0\nBETWEEN:-- _         \nThe State of     V' 0\n\nBy Bas.a'var:aha11i P:)1\u00a7ce*.--.y \n\n _     _ _' Appellant\n\n(By Sri '9.1\\\/'I, N'ewaz;\u00bb.Add1;'ewsPP}\nAND:-- V V' V 0\n\nJ ayann af\n\n 0\u00b0-S\/\u00a35: Bei\u00e9appashetiy\ufb02; \"\" \n 'A,g'er1,25_year_s\u00a7* ..\n7.Au,t0 fltijiver\", ' '\n\n-- Chic'i:m'aga.I1'1r.\n\n0 V0 V ;{ByS_ri Rajaiah Rai Kallangala, Advocate}\n\nR-1 o'.--..wa;t'er~Ta1a1{ Road,\nGowri Che nnal,\n\nRespondent\n\n  \"This Crl.A. is filed U\/s.377 of Cr.P.C. by the State P.P.\n\n;  fdr the State praying that this Hoxfble Court may be pleased\n \"'t'0 enhance the sentence dated 22.06.2005 in S.C.N0.69\/03\n\n&\/\n\n\n\n \n\non the file of the P.O., FTC-I, Chikmagalur -- convicting the\nrespondent\/ accused for the offences punishable U\/Ss;366--A\nand 376 of IPC and sentencing him to undergo R.\"I..._'for'*_5\n\nyears and to pay a fine of Rs.5000\/- and in..~~<iefa.ultV.j' to,\nundergo R1. for one year for each of the offence :\u00abpunislfiabIve.g \nU\/Ss.366--A and 376 of IPC. Both two sente"n--ces.._lto run _y\nconcurrently. The Appellant--State_,.prays that" \u00bbt:h.e" above A'\n\nsentence may be enhanced suitably.\n\nCRL.A NO.1678 OF 2005:-\n\nJayanna,\n\nS \/ o. Bassappa Shetty.\n\nAged about 26 years, _\n\nAuto driver,  , _ ._  V\nR\/ at next to water tank road,   \nGowri canal,   '\nChikrnagalore. ,  I  \n\n, H   _. .6 3  _   Appellant\n(By Sri Rajesh T{a'l_1anga.1Va'*.V  A A '\n\nfor M \/ s. Subagsl.  Rajes\u00abh,"As.sts'.:, Adyocates)\n\nAND:- \n\nThe State' l3asavanaliallbiV_'P,jS';' \n . .'  A  Respondent\n[By Sri-RAM. Nawaz','Add1. SPF)\n\nA y 6'  C::l.A. ishfiledd U\/3374(2) Cr.P.C. by the Advocate\nfor the appellant against the judgment dated 22.6.05 passed\n\n the"=.._yP".O:\u00ab,_v Fast Track Court--I, Chikmagalur in\n\nS;C.'N0.69\/C3V'ga--V convicting the Appellant\/Accused for the\noffences \u00bb punishable U\/Ss.366-A and 376 of lPC and\nsentencing him to undergo R1. for 5 years each and to pay\n\n V'-\ufb01ne of"Rs3;5O0O\/-- each in default to undergo RI. for 1 year\nV'  xforithe offences punishable U\/Ss.366--A and 376 of IPC. Both\n_ "sentences to run concurrently. The Appe11ant\/ State prays\n.  that the above order may be set aside.\n\n\n\n \n\nThese appeals are coming for hearing on this.__day,\nKESHAVANARAYANA, J ., delivered the following: ' *\n\nJUDGMENT\n<\/pre>\n
These two appeals, one by the State    0 <\/p>\n
the accused are directed againstgthe _judgi:ne’nt<\/p>\n
dated 22.05.2005 passed  the’-.pFl’a,st  Coi;41rt+iIl.lf#p<\/p>\n
Chikaxnagalur in S.C.No.69\/2003:\n<\/p>\n
2. cr1.A.No.16\u00a7(8\/2o_os;_the gauged. while
\nCrl.A.No.2130\/2005 is  accused was
\ncharged for  under Sections<\/p>\n
366–A and ia76.f1pc ‘.\u00e9’1’1eg:i’r\u00a7g that.ion703.d04.2003, the accused<\/p>\n
k1’dnap’ped__  about 15 years from the
\nlawful  herlparenis in Chikamagalur with an<\/p>\n
inteniionpto foicelhelr to marry him and also to subject her to<\/p>\n
 iiiiervcourse,  her to Dharmasthala, where he tied<\/p>\n
A*f’i’iial.i'”aroundTher neck and had forcible sexual intercourse<\/p>\n
with..__he;f.-at_vflbharmasthala and other places till 07.04.2003.<\/p>\n
 ‘   hecommitted the aforesaid offences.<\/p>\n
“A3. The accused pleaded not guilty for the charges<\/p>\n
” “levelled against him. The prosecution in order to bring home<\/p>\n
the guilt of the accused for the charges levelled against him
\nexamined PW1- K.Umesh ~\u00bb–~ Principal of the Govt. Pre-<\/p>\n
University College, Basavanahalli, Chickamagalurllwho<\/p>\n
issued the birth certi\ufb01cate as per  <\/p>\n
Dr.Pankajakshi, who examined the Victim-girls   <\/p>\n
medical report. PW3 — Syed Moosa and<\/p>\n
witnesses to the mahazar regardingarrest of\u00bb’theVaccu;seCi; <\/p>\n
PW5–Ravi, a witness to the mah’aear_draavi1lAin’vthe\u00a5house of
\nthe accused; PW6~– Ie.aksih’I~:_1arr_Lma_   — Mo\u00e9ahnagowda
\nthe parents of the victimjgirl;   as PW–8 and<\/p>\n
Devendrappa–PSl}gthe 1.33. as  V.\n<\/p>\n
 ‘ “plahced reliance on Exs.P.1 to P7<\/p>\n
and M.Osl.xi–..ar1d  ‘l”he ‘defence of the accused was one of<\/p>\n
 A’ total igjeixiialpv and t1’1a.t____of false implication. After hearing both<\/p>\n
 sides’ ar_1d.pon””assessment of oral as well as documentary<\/p>\n
e’v1’d’ence,’  learned Sessions Judge by the judgment under<\/p>\n
‘V appeal heldxsthat the victim girl–PW8 was aged about 15<\/p>\n
 years as\ufb02on the date of the incident, as such she was a minor<\/p>\n
  “that the evidence on record establishes that the<\/p>\n
 “accused kidnapped the victim, aged less than 16 years from<\/p>\n
W<\/p>\n
the lawful guardianship of her parents and took  to<\/p>\n
Dharmasthala where he married her against <\/p>\n
subjected her to sexual intercourse in spite  V’
\ntherefore the prosecution has ‘Icha_rge”s.,& ll
\nlevelled against the accused.\n<\/p>\n
Sessions Judge convicted the””-accused forlv.Vth’e,l”offences ” V<\/p>\n
punishable under sections  “I’PC_, _.liowever,
\nafter hearing the accused.   sentence, the
\nlearned SessionsA’Jvudge-“s’entenc’ed=,the’.  to undergo
\nirnprisonrnenfr 3′-l”,or    fine of Rs.5000\/–
\non each__coun:t.l hy the judgment of
\nconviction ‘\u00abs_ent_ence. the accused has \ufb01led the
\nappeal.   the sentence ordered by the<\/p>\n
learned’ i_Session_s”lJudge, more particularly for offence<\/p>\n
  section 376 1190. the State has presented<\/p>\n
 section 377 Cr.P.C. seeking enhancement<\/p>\n
of se\u00abntenc’eJ A\n<\/p>\n
5.  Both appeals were heard together. We have<\/p>\n
 :fheai*:l  RM. Nawaz, learned Addl. S.P.P. and Sn’. Rajesh<\/p>\n
—  Kalllangala, learned counsel appearing for the accused. We<\/p>\n
\/3<\/p>\n
6<\/span><\/p>\n
have perused the records, carefully examined the oral and<\/p>\n
documentary evidence and also the judgment underu<\/p>\n
6. In the facts and circumstances of   H<\/p>\n
points that arise for consideration in this appealparei it  <\/p>\n
i} Whether the learned  <\/p>\n
holding that the app’elia_nt\/ accused iisvidgijigilty\ufb02of the <\/p>\n
charges levelled against u.him_ and ‘injco’nvic\u00a7ting him
\nfor the said offerices?;””” ” it it  V<\/p>\n
ii} Whether the  suffers from
\nperversity or  callif1_g_foririterference by this<\/p>\n
court’? V  ~ <\/p>\n
 u it  Rajesh, learned counsel for<\/p>\n
the ayccusedd\u00e9thatrthe  of the learned Sessions Judge<\/p>\n
 V.  .1L1’1$f;..”[‘2l’1IE5.._’\\,’.”lC4L\u00a71fI1 girl dvvasvaged about 15 years as on the date of<\/p>\n
 is perverse, illegal and without any<\/p>\n
  to him, the evidence placed by the<\/p>\n
“V..,prosec’utii:;n does not satisfactorily establish that PW8 was
\n,.:l_%iCSs’.”than 16 years of age as on the date of the alleged
\n  incident, as the prosecution has not placed any acceptable<\/p>\n
 evidence to prove the birth certificate marked at Ex.P.l nor<\/p>\n
M<\/p>\n
any medical evidence with regard to her age. Therefore, the
\nlearned Sessions Judge is not justified in holding that the<\/p>\n
victim was less than 16 years of age as on the datebofrathe<\/p>\n
alleged incident. it is his further submission <\/p>\n
absence of any acceptable evidence with regardjto  loft  b <\/p>\n
the victim and in View of the fact1;.that:A’she”\u00abwas” <\/p>\n
working as a receptionist in a Nursing”Home,..”.1t A’ has tobe <\/p>\n
inferred that she was aged more”l\u00bbi:han V1.8′ ‘ye.ars:7_ltWis his
\nfurther submission that the evidence ol'”t_he prosecutrix read
\nas a whole, would clearly   a consenting<\/p>\n
party to the act to have .bee’nA’cojm.niitjted by the accused,<\/p>\n
as such, :’attr’a,c’L-..o_1″fence punishable either Section
\n366–A or’.3i7’l6y IPC.  submits that the judgment<\/p>\n
of ccgnvictionl recordedllby the court below is perverse and<\/p>\n
llillegall,   the\ufb02mslaine is liable to be set aside and the<\/p>\n
I  to be acquitted.\n<\/p>\n
  ‘  the other hand, Sri P.M.Nawaz submits that<\/p>\n
 jndgrnent under appeal does not suffer from any<\/p>\n
it perversity or illegality, since the learned Sessions Judge on<\/p>\n
  …proper appreciation of the evidence on record has recorded<\/p>\n
\ufb01nding of guilt. It is his submission that the evidence of<\/p>\n
PWs1 and 2 coupled with the contents of EXP1 and\u00abja1s_’0.fth_C<\/p>\n
evidence of the parents of the victim clearly  *<\/p>\n
the victim was aged less than 16 ye_ars_as xtheu if if<\/p>\n
incident. therefore. the learned Sess’ions’J~udge.is j.{m’:a’ed<\/p>\n
holding that the victim was 1cs_s”—than’it-62years:vfofiageuuwas on <\/p>\n
the date of the incident. It  the
\nevidence of PW8~victirn  ‘4tog’v’inc’ii.cate that the act
\ncommitted by the.Vaccuse.d:va:s  and therefore,
\neven assum.in\u00a7:V   the prosecution
\nfalls  fvictim–girl as less than
\n16 years,   under Sections 366–A and
\n376 IPCA,”   Judge is justi\ufb01ed in<\/p>\n
convicting the’-.accused. It is his submission that having<\/p>\n
regard  theminimum sentence prescribed under section<\/p>\n
  Sessions Judge is not justified in<\/p>\n
sentencing .the accused to undergo imprisonment only for 5<\/p>\n
3u””.__fV”~years :the offence punishable under section 376 IPC in<\/p>\n
 i”fthe._.absence of any special and adequate reasons in that<\/p>\n
   _,jLfdgment for ordering lesser sentence. Therefore, he submits<\/p>\n
9<\/span><\/p>\n
that the order regarding the sentence passed by the court
\nbelow is liable to be modified and the accused is liable to be
\nsentenced atleast for the minimum period as provided under<\/p>\n
section 376 {PC<\/p>\n
9. We have bestowed our anxious considerations  ~<\/p>\n
the submission made on both sides.Mm To attract –:t_he”ofibn(:e <\/p>\n
punishable under section 366–A   essential.llilo’i=._th1e:<\/p>\n
rosecution to rove that the 0″ir1..__induc’e_d’was  leAciv1e_ss than -. L’<\/p>\n
18 years and such minor girl xyasiiinduced’  go from any
\nplace or to do any actwilth intent girl maybe. or<\/p>\n
knowing’*’tha.tgAl.it;is lii;:el.y that sl1.e”WiliV:be, forced or seduced to<\/p>\n
illicit intercourse  lano’ther__person.<\/p>\n
,10.p  ..per’iiSecV.’ 3:75 of IPC a man is said to have<\/p>\n
\u00b0(:ommitt3e’d rape, if he has sexual intercourse with a woman<\/p>\n
 against   without her consent, or with her consent,<\/p>\n
whenher.  is obtained by putting her or any person<\/p>\n
 –  V’-in whomvsiie is interested in fear of death or with or without<\/p>\n
V”-ljer’pc.o’i1sent when she is under 16 years of age. From this, it<\/p>\n
 is clear that if the victim is under 16 years of age, even if<\/p>\n
__f
\ni<\/p>\n
3;:\n<\/p>\n
ll}<\/p>\n
consent on her part, could be inferred from the attending<\/p>\n
circumstances, it will not be ‘consent’ within the mevan’in_g.of<\/p>\n
Sec. 375 IPC. Therefore, the act done <\/p>\n
circumstances would attract offences bunder”‘s’cc;’v3’75″_IPCl <\/p>\n
punishable under section 376 IPC.\n<\/p>\n
11. Therefore, to att1’act._goffeln-cell punishable_gu.nder <\/p>\n
section 376 IPC, the prosecution -havehtotprovevfieither of
\nthe two ingredients  less than 16
\nyears of age as on_ the or if the victim
\nis aged  l.th_e4lact’l.co111’rnitted was against<\/p>\n
her will or with’o_L1;ther co1is’ent”oi–  her consent but such<\/p>\n
consentywas oebtaiiiedl  her or any person in whom<\/p>\n
she is interestedllin death. In the instant case, the<\/p>\n
 prosecution inl’lor.der___to prove the age of the victim girl has<\/p>\n
 \u00bb’:3}:(‘8;TIV1i11.(il(l.,PVjV”l. and PW2 and has also placed reliance on<\/p>\n
lExl\u00a7’?.._l.VVTh’e\u00bb.pr’oslecution has also placed reliance on the oral<\/p>\n
evidenceV:of”the parents of the victim with regard to the age of<\/p>\n
 ,:tl1es.victirn girl. The learned Sessions Judge referring to the<\/p>\n
.l   and documentary evidence has opined that the evidence<\/p>\n
it  “placed on record would establish that PW8 was under 16<\/p>\n
years of age as on the date of the incident. Therefore, the
\nlearned Sessions Judge proceeded to hold that even’~i_f
\nthe evidence on record an inference of consent   .
\nthe Victim girl could be drawn s_uAcVh_
\nconstrued as consent in the eye of
\ncommitted by the accused c%on–s_ titutes lloffencel’
\nunder section 366–A and 376  — K _ ‘V\n<\/p>\n
12. Ex.P.1 is   b3t rwi with<\/p>\n
regard to the date of  ioi;I\u00a7V’Wl has issued<\/p>\n
Ex.Pl in the  Government Girl’s Pre–\n<\/p>\n
University\u00bb.  vBasavana.hai.ii,*\u00a7 Chickmagalur District.
\nAccording to  victim–girl was admitted<\/p>\n
to the  2001-2002 and while admitting
\n her.\u00bb said her date of birth is entered as
\n   date of birth of the victim as mentioned in
\n  as true and correct there will be no
\ndis\ufb01ute Victim Was under 16 years of age as on the
\nof alleged incident. PWI in his evidence has stated that
\n.0   been working as Principal of the said institution from<\/p>\n
 ‘”‘1’0.01.2001. According to him, during 20012002, PW8 was<\/p>\n
admitted to the said institution to 8″? standard and on the<\/p>\n
request of the Basavanahalli Police, he issued <\/p>\n
according to EXP} her date of birth was <\/p>\n
further states that he has issued  on_–‘the”..the_ <\/p>\n
records maintained in the institution.  the ex_amiriatit5n\u00a2iii–_’<\/p>\n
chief of PW} is considered,V’tdit_irth of the victim was entered in the admission register of<\/p>\n
 ~<\/p>\n
the institution on the basis of the transfer certificate<\/p>\n
produced at the time of the admission. The _.vt.1fan_sfer<\/p>\n
certificate said to have been produced by the  .<\/p>\n
parents at the time of her admissionmto the inst’itu_tioi1. isnot <\/p>\n
produced before the Court. It is  <\/p>\n
gave the date of birth of the victimegirl to ‘i’he}:in_StitLiition <\/p>\n
where she was admitted first uof  study. It is
\nalso not forthcoming V  she “Was first
\nadmitted to the 15\u00a2 VA  the transfer
\ncertificate   ori\u00a7iii’al~——Veadmission register
\nmaintainedifiyn   iiirhere she was initially
\nadmitted Whenvfshe was admitted to 8″‘
\nstandard before the Court to verify the<\/p>\n
credence of”‘t1;’iei..c’ontents of Ex.P1: Therefore, the oral<\/p>\n
 of the contents of Ex.P1 does not<\/p>\n
 r__satifs’fac:to.rj”ilyVd’establish the date of birth of the victim as<\/p>\n
20.94. 19.88;:\n<\/p>\n
 Ex.P2 is the certificate issued by PW2 — Dr.<\/p>\n
A f”Pankajakshi. In Ex.P2 age of the victim is not mentioned.<\/p>\n
‘  PKJVZ in her exan1ination–in–chief does not say anything<\/p>\n
1959\/<\/p>\n
about the age of Victim–gir1 whom she examined on<\/p>\n
08.04.2003. However, in cross–eXamination she hasgstated<\/p>\n
that at the time of examination of victim, she was .<\/p>\n
15 years and for the purpose of determining .11’e’r’ag_e,  <\/p>\n
referred to Radiologist, but the re:p4ort_”fro’m’eathel <\/p>\n
was not received. However, accordingyto the :’vlv”1tpi1e_\u00a7s since <\/p>\n
there was a school certi\ufb01cate, llfecllit ‘necessary to
\nget the report from radio1:ogist;l_\ufb01lIt  from the
\nevidence of PW2 as to  had shown
\nher the school3__.:vCelI:jI’ificate  Principal at any point
\nof time.  referred the victim to
\nradiologist\u00bb her age, radiologists
\nreport  to  before court and it is<\/p>\n
only based o’n_:lsucl’i  the age of victim girl could be<\/p>\n
.0 it  –ass’essed.: The age asmsltated by PW2 that victim was 15 years<\/p>\n
._.ast_l*:e  of examination is only an assumption and<\/p>\n
lby her. Non–produCtion of radiologist’s report<\/p>\n
l*.,w1’th regard to age of victim girl, entitles drawing of an<\/p>\n
“lladi\/elrise inference drawn against the prosecution. in the<\/p>\n
  absence of radio1ogist’s report, oral evidence of PW2 which is<\/p>\n
y<\/p>\n
based on surmises and conjectures can not be a basis to<\/p>\n
hold that victim was aged 15 years or less than 16 <\/p>\n
14. It is also pertinent to note that PW8 *<\/p>\n
girl in her evidence states that as on the \u00e9dat:-ehof  it ”<\/p>\n
she was working as a receptiori.ist1’_”in’: Nischita&tC:linici_.:<\/p>\n
Chickmagalur. From this, it”li’S\u00ab.._qQ1earA”that fhad <\/p>\n
already been employed by a   \u00ab _c:1tn3’gLA;v;?\/nursing
\nhome. Therefore, it cann’o.t’bf:   had employed
\na minor or a childaged  8 in her cross-\n<\/p>\n
  not know her date of<\/p>\n
birth. This appears to_be”‘a1iyeyasgive answer given by the<\/p>\n
victim Viayersselfi  she had studied up to 8th<\/p>\n
standard. VS-he  nto’tt.stat.ed as to whether she studied, if so<\/p>\n
 in which~institu’t–ion. It is not the say of PW8 that she was<\/p>\n
\u00bbadm_ittedx_to”‘~-Government Girl’s Pre–University College,<\/p>\n
 further studies. Therefore, the very<\/p>\n
certificate ‘Eic.Pi becomes suspicious in the light of the<\/p>\n
it it   ‘   e~.r:d\u20acI1\u00a2\u00e9’ of PW8. &~.\u00ab<\/p>\n
16<\/span><\/p>\n
15. PW8 is not an illiterate girl. Even accordipg to<\/p>\n
her, she has studied up to 8″‘ standard and <\/p>\n
employed in a clinic\/Nursing Home. Thereforeliwlitl’<\/p>\n
difficult to believe that she does notmrbemembe1″—-lherlldate  <\/p>\n
birth. Therefore, it is reasonable*._ <\/p>\n
deliberately not disclosed her: date of-,bi1’th whle.rr.sh\u00a2_ll3wals <\/p>\n
asked in the cross–eXamination  date  <\/p>\n
16. PW6 – the..v:m\u00abother  the victim.\n<\/p>\n
She in her chieffexamiriatiorly  her daughter
\nhad completed  of   15 years of age<\/p>\n
as on the date .(_3l’.incider1_t’;iAl.’1r1the cr~os’s~examination she has<\/p>\n
stated llthat:  in which year she
\nmarried arid_4ash.Ve any document to show that<\/p>\n
_ A the was the year 1988.\n<\/p>\n
    — Moganna Gowda, father of the victim in
\n has not stated anything about the
\n ageflof zhvivsldaughter. In the cross–eXamination, he has stated
\nifll’itlitithat-t_lf1evvils not in a position to state the date of birth of his<\/p>\n
—  d:aughter. Thus the parents of PW8, who are competent to<\/p>\n
a<\/p>\n
state the date of birth of their daughter have not disclosed<\/p>\n
the same. Thus, there is no convincing or aceept_ab.1e<\/p>\n
evidence on record placed by the prosecution to _<\/p>\n
establish the correct date of birth ofMV1’ctim'”or” establish’ <\/p>\n
that Victim was under 16 years of ‘age:_’or.,undefr-.l’8 ‘rzifi<\/p>\n
age as on the date of the inci::len_t. Therefore, in’o_fur.,,QPinion <\/p>\n
learned Sessions Judge is not in  that victim
\nwas aged 15 years as  “aliegedffincident. In
\nthis View of the__1natter.,.  the learned
\nSessions    basis, as such
\nsaid finding therefore, it cannot be
\nsustainfedfv _  above, the important
\ningredients to  under Sections 366–A and
\n376 iPC   establishedffby the prosecution.<\/p>\n
  coursefto attract offence punishable under<\/p>\n
  W age is not the only criteria, as even a<\/p>\n
woinan  rnore than 18 years can complain of offence<\/p>\n
f””\u00ab.__f”*\u00bbunder” Section 376 {P0, if it is estabiished that the act<\/p>\n
V.”x_comp.\u00a3ained had been done against her will or without her<\/p>\n
if   consent. The question as to whether victim was a consenting<\/p>\n
\u00bb@<\/p>\n
party to the act committed by the accused will have to be<\/p>\n
gathered from various circumstances brought out o_n.r_e~cor_d.<\/p>\n
In the instant case, according to the pros.ecutio.f1′;–. .<\/p>\n
03.04.2003 while PW8 was in Nischita Clinic,’  canzet  <\/p>\n
there in an auto, called the victim toeeegiecompariy “hi-r._I__1 <\/p>\n
Dharmasthala, and accordingly-,.___ she went.  and in _ <\/p>\n
Dharmasthala, he tied a threaddyvityh  to\ufb01her neck
\nand then subjected  intercourse. PW8 in
\nher oral evidence has EA’-i.<'i.'\u20ac:0.\u20ac\u00a7d_  at about
\n4.00 p.m.  in htitite  'accused came there in
\nan auto,  him to Dharmasthala.\n<\/p>\n
 shewshould inform her mother
\nbefore that accused told her it is not
\nnecessary to her mother, therefore, she accompanied
\n Dhannasthalta. It is her further say that in
\n  they stayed in a room, where accused tied a
\n  beads to her neck. It is her further say
\n”._that  going to Dharmasthala, accused told her that they
\n many in Dharrnasthala to which she told him that<\/p>\n
0  since he is already married, she does not want to marry him.<\/p>\n
It is her further say that inside the room accused subjected<\/p>\n
her to forcible intercourse and from Dharmasthala tl1ey:”we’nt<\/p>\n
to Hassan where they stayed in a hotel and ~<\/p>\n
accused committed intercourse. From Hassanltitey Went to <\/p>\n
Belur, where they stayed in a h:ote1;”ancdl’there”alIso._,_the:<\/p>\n
accused had forcible intercourse with her. “U’l.tA\u00a74:I11.E1V,tV\u20ac”l},-‘l on<\/p>\n
07.04.2003, they came to Chiclgrnagaitir fro”rn~Be.lurL?<\/p>\n
19. If the evidence   a whole, it is
\nreasonable to  party to the
\nalleged act  really she was not a
\nCO1’lS\u20ac1’llZlI’lg”  no”voc;dasion for this girl to go
\nwith accused’  straight away from the<\/p>\n
Nursing home at Chiclgniagalur where she was Working even<\/p>\n
 i’r1fonntn’g.he_r,parents. As could be seen from the<\/p>\n
 answersv ‘e1i’ci_ted_ in the cross–examination of PW8 on the<\/p>\n
alleged vdat\u00e9gidoctlor was not present in the clinic and she was<\/p>\n
-V alone giritthefclinic. Soon after the accused called her, she<\/p>\n
00 Llociied the clinic and went with accused by keeping the key<\/p>\n
.   only. It is not her say that she was forced to go with<\/p>\n
  nor it was her say that she was induced to go with<\/p>\n
M<\/p>\n
20<\/span><\/p>\n
accused. It is in her evidence that accused was known to her
\nfor about 2 months prior to the incident. If accused-javas<\/p>\n
known to her only from 2 months prior to the  \u00ab’-tisf’ _<\/p>\n
highly difficult to believe that PW8 would have   <\/p>\n
the accused on his mere asking.\n<\/p>\n
does not indicate that she was ei__therio_rced    ;
\nwith accused from the clinic. the  oflif?W8, it is
\nfurther clear that accuised_ and   room in
\nDharmasthala and there with black
\nbeads aroundjiherfnneele;piti “say5that she protested
\nfor the saicihaclt   thread with black
\nbeads has stated that while
\nthey were!slelepin\u00e9liiiilltiie”rlo’om in Dharmasthala, accused
\nhad jforcibleu”intercourseliirith her, it is not her say that she
\n” ‘~..l.,p1fo:teste’d  If really, the act committed by the
\n  her will or without her consent, it was
\n PW8 to disclose the same to police or any
\n other “person in Dharmasthala. Dharmasthala is a religious
\nl”:ll_AAp.il\u00e91jfimage place where thousands of people including the<\/p>\n
  policemen would be moving around. It is not her say that<\/p>\n
&\/<\/p>\n
21<\/span><\/p>\n
she was confined to a room and that she was not allowed to<\/p>\n
go out nor it is her say that she was put under threat .o”r\u00ab,fear<\/p>\n
by the accused. Therefore, PW8 had all the  .<\/p>\n
disclose to anyone in Dharmasthala about the ‘acticommitted <\/p>\n
by accused, if it was against her will .. and vIiti1out’es..__h’e:r_*<\/p>\n
consent. She had not raised\ufb01any  in Diiarm.asthala. <\/p>\n
Subsequently when they went “}rlassan also  Belur.
\nthey have stayed in a  and  the accused said
\nto have had intercourse  appears to
\nhave not   any one. From
\nthese, it is    fact committed by the
\n  consent of PW8 or
\nagainst   circumstances brought<\/p>\n
out from the evidence. 51” PW8, it is reasonable to infer<\/p>\n
 V’ “consent on her partvforfthe act committed by the accused. In<\/p>\n
   any acceptable evidence to establish that<\/p>\n
 was than 16 years of age, offence under Section<\/p>\n
 “.376 lPC_is not made out. The learned Sessions Judge has<\/p>\n
“tf1otVi;’5’roperly appreciated the circumstances brought out in<\/p>\n
  the evidence of PW8 which is sufficient to draw inference of<\/p>\n
K”)<\/p>\n
Zg\/<\/p>\n
l\\J
\nl\\J<\/p>\n
consent on the part of the victim. Therefore, judgment tinder
\nappeal convicting the accused for the offences under<\/p>\n
366–A and 376 11\u00b0C is perverse and illegal.<\/p>\n
20. Having regard to the abeve’ discuslsioljns “in_l_’ou’r_V it<\/p>\n
opinion, the offence under Section :3&76-.’:_lPC <\/p>\n
since the evidence on record doesnot satisfactovrilglzgl’establish = ‘<\/p>\n
that the act committed by theV_acct1_sedx was  the will
\nor consent of PW8.  has utterly failed
\nto prove the charges  accused. The
\njudgment of  is perverse and<\/p>\n
illegal as such.   aside.\n<\/p>\n
211. S’    \ufb01nding, the appeal filed by<\/p>\n
the State lforulenha1<1ce'mlent' of sentence does not survive for<\/p>\n
 p_ con_si'deration. ln'vievv.of the above, the appeal \ufb01led by the<\/p>\n
 *a:clcu..sed,_'in".(\u00a7rl,A.No.1678\/2005 is allowed. The judgment<\/p>\n
lanpelqjrderit-Eiatedl22.06.2005 passed by the learned Sessions<\/p>\n
'V Judge zaS..V(3.No.69\/2003 convicting the appellant\/ accused<\/p>\n
 ':"'.,f(AA)1"'V'l'1:lC offence punishable under Sections 366–A and 376<\/p>\n
IPC is hereby set aside. The accused is acquitted of the<\/p>\n
charges levelled against him.\n<\/p>\n
The appeal filed by the State in   ”\n<\/p>\n
hereby dismissed.   \u00bb<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court The State Of Karnataka By … vs Jayanna S\/O Basappashetty on 18 November, 2010 Author: K.Sreedhar Rao K.N.Keshavanarayana IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 18?” DAY 01:’ NOVEMBER, 20 PRESENT 3 0 ‘ 0 THE HON’BLE MR. JUS1’1CE_K..SREEDHAR:’fRA;O AND . 4’ . . V _ . THE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-232347","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nThe State Of Karnataka By ... vs Jayanna S\/O Basappashetty on 18 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-karnataka-by-vs-jayanna-so-basappashetty-on-18-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Karnataka By ... vs Jayanna S\/O Basappashetty on 18 November, 2010 - 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