K.P.Thimmappa Gowda vs State Of Karnataka

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1499 OF 2004

K. P. Thimmappa Gowda .. Appellant

-versus-

State of Karnataka .. Respondent

J U D G M E N T

MARKANDEY KATJU, J.

1. This appeal has been filed against the impugned judgment dated

17.9.2004 passed by the High Court of Karnataka in Criminal Appeal No.

149 of 1999.

2. The facts of the case have been stated in the impugned judgment of

the High Court and the trial court and we are not repeating the same except

where necessary.

3. The trial court had acquitted the appellant in the criminal case, but the

High Court reversed the judgment and convicted the appellant under Section

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376 IPC and sentenced him to imprisonment of 7 years and a fine of Rs.

10,000/-, and also sentenced him to imprisonment of 1 year under Section

417 IPC and a fine of Rs. 10,000/-, both sentences to run concurrently.

4. The case of the prosecution is that on 4.1.1996 the appellant raped one

Rathnamma aged 18 years, but he assured her that he would marry her and

asked her to keep quiet. It is alleged that subsequently also the appellant had

sex with Rathnamma several times and assured her that he would marry her.

Rathnamma became pregnant, but the appellant refused to marry her. Hence

an FIR was registered in the police station on 4.1.1996 against the appellant

under Section 376 IPC.

5. In the trial court the appellant contended that Rathnamma was 20

years of age at the relevant time and she had admitted in her cross-

examination that she had sexual intercourse with the appellant nearly 100

times. It was submitted that this showed that she was a consenting party and

hence no case under Section 376 IPC is made out against the appellant.

Rathnamma's mother Gowramma PW-11 stated in her evidence that

Rathnamma was 18 years of age. Hence she was above 16 years of age and

there could be no rape since there was consent.

3 6. The trial court accordingly held that there was no rape as Rathnamma

was above 16 years of age and had consented to the act. Subsequently

Rathnamma gave birth to a female child on 25.1.1996.

7. The trial court held that the version of Rathnamma that the appellant

gagged her mouth and raped her is not believable. The fact that her child

was born on 25.1.1996 means that the conception was in the month of April,

1995. This was disclosed to her parents somewhere in the month of July or

August in 1995 and there was a Panchayat which failed.

8. The complaint was filed on 4.1.1996 i.e. just a few days before the

birth of the child and not when the sexual act had taken place. Thus there

was a delay of over 8 months in filing the complaint which has not been

properly explained.

9. For the reasons given above, the trial court disbelieved the

prosecution version and acquitted the appellant.

10. In the appeal filed by the State Government the High court reversed

the finding of the trial court and held that the appellant had raped

Rathnamma and had promised to marry her. It was observed that since the

accused had given the impression that he would honour his promise of

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marrying her, this fact was not disclosed by her to anybody, including her

mother.

11. Admittedly, the appellant has married another woman. We are of the

opinion that the appellant deserves the benefit of doubt because on careful

consideration of the evidence on record, it cannot be said that the

prosecution has been able to prove its case beyond reasonable doubt.

12. In criminal cases, the rule is that the accused is entitled to the benefit

of doubt. If the court is of the opinion that on the evidence two views are

reasonably possible, one that the appellant is guilty, and the other that he is

innocent, then the benefit of doubt goes in favour of the accused.

13. In the present case, the facts are that Rathnamma herself stated in her

evidence that she had sex with the appellant on several occasions. It is also

an admitted fact that the FIR against the appellant was lodged just a few

days before the birth of Rathnamma's child, which means there is delay of

over 8 months in lodging the FIR. The finding of the trial court, which has

not been disturbed by the High Court, is that Rathnamma was about 18 years

of age at the relevant time. On these facts a view is reasonably possible that

Rathnamma had sex with the appellant with her consent and hence there was

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no offence under Section 376 IPC because sex with a woman above 16 years

of age with her consent is not rape.

14. For the reasons given above, the appeal is allowed. The impugned

judgment and order of the High court is set aside

15. Apart from the above, the appellant has stated in an affidavit filed in

this Court that he has agreed to transfer two acres of land situated in

Palavanahalli due to breach of promise to marry Rathnamma and she has

given her consent to accept the same.

16. The appellant is directed to give/transfer two acres of land as stated in

the affidavit filed before Court to Rathnamma within three months from the

date of this judgment.

................................J.

(Markandey Katju)

................................J.

(Gyan Sudha Misra)

New Delhi:

April 04, 2011