- 1 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO.757 OF 2013 (C) BETWEEN: 1. SRINIVASA T R S/O THIMMAPPA, AGED ABOUT 24 YEARS, OCC:COOLIE, SHETTIHALLI VILLAGE, TALUKA AND DISTRICT SHIMOGA-577201. …APPELLANT (BY SRI UMESH.P.B FOR SRI RAVINDRA B DESHPANDE, ADVOCATES) AND: 1. THE STATE OF KARNATAKA BY KOTE POLICE STATION, SHIMOGA-577 201. …RESPONDENT (BY SRI RAHUL RAI.K, HCGP) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE CONVICTION AND SENTENCE DATED 18/19.07.2013 PASSED BY THE ADDITIONAL SESSIONS JUDGE AND SPECIAL JUDGE, SHIVAMOGGA IN SPL.A.CASE NO.55/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 375 R/W SEC.376 OF IPC. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 ORAL JUDGMENT Heard Sri Umesh P.B., appearing on behalf of Sri Ravindra B. Deshpande, counsel for the appellant and Sri Rahul Rai K., learned High Court Government Pleader for the respondent. 2. Accused who suffered an order of conviction in Spl.A.Case No.55/2012, on the file of Additional Sessions Judge and Special Judge, Shivamogga for the offence punishable under Section 375 r/w Section 376 IPC and sentenced to undergo simple imprisonment for seven years and to pay fine of Rs.5,000/- and in default, simple imprisonment for three months, is the appellant. 3. Facts in nutshell for disposal of the appeal are as under: A charge sheet came to be filed by Dy.S.P., Kote Police, Shivamogga for the offences punishable under Section 366(A), 376, 506 IPC and Section 3 (2) (v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act. 4. Facts leading to filing of charge sheet are as under: - 3 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 5. Victim being the daughter of One Jayaram belonged to Lambani community and appellant belonged to Vokkaliga community. When the victim was studying in First year Pre University College, she was going to college along with her friends Kumari Kavya and Reshma in a bus from her native place to Holebenavalli. 6. Accused being the pigmy collector of finance shop belonged to Nagakiran Shetty, developed a love affair with the victim girl and was following her and used to visit Mylareshwara temple bus stop, Shivamogga everyday. 7. Friends of victim girl initially questioned the attitude of the victim girl in having free talk with the stranger and latter on the love affair continued by exchange of telephone numbers and accused used to have conversation with the victim on a daily basis. 8. When the matter stood thus, on 23.09.2012, the victim girl attended the computer examination and thereafter she met the accused at Shivappa Naika Circle at Shivamogga and intimated the accused that her parents are contemplating to shift to Shikaripura from Shivamogga for further pursuing her studies. She also made a request to the accused that she - 4 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 is not willing to go with her parents and she should be taken some other place by the accused. 9. Pursuant to the love affair between the parties, that on 24.09.2012, after the college hours at about 2.30 p.m., victim called accused and from there accused eloped the victim to some other place. A missing complaint was lodged by the father of the victim girl. Later on, both accused and victim girl were traced by the Investigating Agency and statement of the victim girl was recorded and accused was arrested. 10. Based on the materials collected by the Investigating Agency, charge sheet came to be filed by the police for the aforesaid offences. Accused was in custody for the period of one year during the period of investigation and trial. Since the accused pleaded not guilty, prosecution examined 24 witnesses and placed on record 48 documents. Fifteen material objects were also placed on record. 11. After due trial, accused was acquitted for the offence punishable under Section 366 (A), 506 IPC and Section 3 (2) (v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act and was convicted for the offence punishable - 5 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 under Section 375 r/w Section 376 IPC and sentenced to undergo simple imprisonment for seven years and to pay fine. 12. Being aggrieved by the same, accused is before this Court with this appeal. 13. Sri Umesh, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that on account of non agreement of the marriage of appellant with the victim girl, father of the victim girl filed a false complaint, resulting in conviction of the appellant and which is not only against the principles of law, but also factual aspects and sought for allowing the appeal. 14. He would further contend that the appellant has married the victim girl and they are now having two children and therefore, the question of forcible sexual intercourse which is a sign qua non for the offence punishable under Section 376 IPC being absent in the case on hand, appeal needs to be allowed by setting aside the order of conviction. 15. He would further point out that victim girl herself did not support the case of the prosecution in establishing the necessary ingredients for the offence punishable under Section - 6 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 376 IPC and taking note of the same, the appeal needs to be allowed. 16. Alternatively, learned counsel for the appellant would contend that in the event of this Court upholding the order of conviction, at the most, from the material evidence on record, the act attributed to the appellant is only to the extent of offence under Section 354 IPC. Therefore, custody period already undergone by the appellant may be treated as period of imprisonment by allowing the appeal in part. 17. Per contra, Sri Rahul Rai K., learned High Court Government Pleader supports the impugned judgment. He would further contend that in the case on hand, admittedly as on the date of kidnapping of the victim girl by the appellant, the victim was a minor. 18. He further pointed out that consent, if any, that is to be canvassed on behalf of the appellant cannot be treated as consent in the eye of law as victim was minor and therefore, material on record would be sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 376 IPC and sought for dismissal of the appeal. - 7 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 19. He would further contend that admittedly, victim girl and the appellant were traced in Thirupathi and from there victim girl was rescued by the Investigating Agency. The fact victim girl is minor and both appellant and victim girl were found in a room when the Investigating Officer had been there, subsequently, the victim girl turning hostile to the case of the prosecution not establishing all the ingredients to attract the offence under Section 376 IPC cannot be lost sight by this Court and thus sought for dismissal of the appeal. 20. Insofar as alternative submission is concerned, learned High Court Government Pleader opposes the said submission by contenting that since the consent, if any, of the victim girl is not a consent in the eye of law, the conviction of the appellant for the offence punishable under Section 376 IPC needs to be maintained and sought for dismissal of the appeal in toto. 21. Having heard the parties in detail, this Court perused the material on record. 22. On such perusal of the material on record, the following points would arise for consideration: 1) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the - 8 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 appellant for the offence punishable under Section 375 r/w Section 376 IPC? 2) Whether the impugned judgment suffers from legal infirmity and perversity and thus calls for interference? 3) Whether sentence needs modification? 4) What order? 23. Regarding Point Nos.1 and 2: In the case on hand, admittedly the victim girl was the minor at the time of incident i.e., 25.09.2012. Victim girl and accused were traced in Thirupathi. Therefore, the appellant eloping away the victim girl from the legal custody of parents of victim girl stands established. 24. However, material on record would go to show that it was not forcible taking away of the victim girl by the appellant. In this regard, following the dictum of the Hon’ble Apex Court in the case of S. Varadarajan vs. State of Madras, reported in 1964 SCC OnLine SC 36, learned Trial Judge himself did not choose to convict the accused for the offence under Section 366 IPC. 25. Since the victim girl has not supported the case of the prosecution with regard to forcible sexual intercourse by - 9 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 the appellant on her and the sine qua non element of forcible sexual intercourse being absent, the other material on record would not be sufficient enough to maintain the conviction under Section 376 IPC. 26. Further, the action attributed to the appellant is to the extent of outraging modesty of a women which is punishable under Section 354 IPC and not the offence punishable under Section 376 IPC. Accordingly, point NOs.1 and 2 are answered partly in the affirmative. 27. Regarding point No.3: In view of the foregoing discussion, since the offence punishable under Section 376 IPC is scaled down to the offence punishable under Section 354 IPC, if the custody period already undergone by the appellant is treated as period of imprisonment, ends of justice would be met. Mere so, having regard to the fact that victim girl has now married the appellant and having two children. Accordingly, point No.3 is answered partly in the Affirmative. 28. Regarding point No.4: In view of findings of this Court on point Nos.1 to 3, following order is passed: - 10 - NC: 2025:KHC:6326 CRL.A No. 757 of 2013 ORDER (i) Appeal is allowed. (ii) Impugned order is modified as under: (a) Appellant is convicted for the offence punishable under Section 354 IPC instead of offence punishable under Section 376 IPC. (b) The custody period undergone by the appellant is treated as period of imprisonment. (iii) Office is directed to return the trial Court records with copy of this order forthwith. Sd/- (V SRISHANANDA) JUDGE MR