- 1 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.513 OF 2013 BETWEEN: MUNIVENKATAPPA S/O. VENKATAPPA @ BOBBARAYAPPA AGED ABOUT 41 YEARS OCC: AGRICULTURIST RESIDENT OF KAMASAMUDRAM HOBLI BANGARPET TALUKA KOLAR DISTRICT-583 129. …APPELLANT (BY SRI P.B. UMESH FOR SRI R.B. DESHPANDE, ADVOCATES) AND: THE STATE OF KARNATAKA BY KAMASAMUDRAM POLICE STATION CIRCLE INSPECTOR OF POLICE BANGARPET CIRCLE-583 129. …RESPONDENT (BY SRI VINAY MAHADEVAIAH, H.C.G.P.) * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 30-4-13/02-05-13 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, K.G.F., IN S.C.NO.39 OF 2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC AND ETC. THIS CRIMINAL APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VENKATESH NAIK T Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 ORAL JUDGMENT Heard learned counsel for the appellant and learned High Court Government Pleader for the respondent - State. 2. The appellant/accused has filed this appeal challenging the judgment of conviction dated 30.04.2013 and order on sentence dated 02.05.2013 passed by the Fast Track Judge, K.G.F in SC No. 39 of 2012, whereby, the trial Court convicted the appellant for the offence under Section 376 of Indian Penal Code, 1860 (for short, “IPC”) and sentenced the appellant for a period of 10 years and to pay a fine of Rs.50,000/-. In default, to pay a fine, he shall further undergo simple imprisonment for a period of one year. 3. For the sake of convenience the parties would be henceforth referred to as per their rankings before the Trial Court. The appellant is the accused and the respondent is complainant-State. - 3 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 4. The brief facts of the prosecution case are as under: On 04.01.2012 at about 01.00 p.m., in the house of accused at Mustrahalli Village, K.G.F Taluk, Kolar District, the accused committed rape on PW.16 (hereinafter referred to as "victim girl") without her consent and against her will, thereby committed an offence under Section 376 of IPC. Hence, on 05.01.2012, the father of the victim - CW1, lodged a complaint to the respondent police, which led to registration of FIR and investigation. 5. The prosecution, to prove its case, got examined in all 18 witnesses as per PWs.1 to 18 and got marked documents as per Exs.P1 to P22 and material objects marked as per MOs.1 to MO.10. For the defence DW.1 and DW.2 were examined and got marked document vide Ex.D1. At the conclusion of the trial, the trial Court convicted the appellant - accused for the offence under Section 376 of IPC and sentenced him to undergo rigorous - 4 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 imprisonment for a period of 10 years and to pay a fine of Rs.50,000/-. Being aggrieved by the judgment of conviction and sentence passed by the trial Court, the appellant - accused has preferred this appeal. 6. Sri P.B. Umesh, learned counsel for R.B. Deshpande, learned counsel for the appellant, vehemently contended that, PW.16 (victim) is a deaf and dumb girl, aged about 20 years at the time of incident and she was tutored by her mother and father and they are planted witnesses to this case. Though the victim and her mother have stated about the incident, same is not corroborated with the medical evidence and the FSL report do not constitute an offence under Section 376 of IPC. The incident took place in the village and it is crowded place. It is contended that, though PW.12 - Dr. Fayaz Khan examined the victim, he has stated that there were no blood stains on the cloth and he has not found any injuries on the private part of the person of the victim. Thus, he has not stated the nature of injuries. Further, PW.12 did - 5 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 not mention that victim was mentally unstable. It is contended that though incident occurred on 04.01.2012, at 01.00 p.m., but complaint was lodged on 05.01.2012 at 4.00 p.m., but delay is not explained by the prosecution. Further, the trial Court has failed to video graph the oral testimony of PW.16 (victim) during the trial, which is a mandate under Section 119 of the Indian Evidence Act, 1872. 7. It is further contended that the scribe of complaint Ex.P15 i.e., the father of victim, is not examined before the Court. Further, the statement of victim was not recorded under Section 164 of Cr.P.C. Therefore, the recording of evidence of PW.16 - the victim - is contrary to Section 119 of the Indian Evidence Act. Further, all material witnesses, i.e., PWs.1 to 4 and PWs.6 to 10 had turned hostile in the case of prosecution before the trial Court. Now, the evidence of PW. 5 - mother of victim, PWs.12 to PW.14 - doctors and PW.16 - victim is available. Their evidence do not inspire confidence and their - 6 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 evidence is full of omissions and contradictions. The oath of interpreter Sri. H.R.Srinivas was not administered. Thus, he prayed to allow the appeal. 8. Sri. Vinay Mahadevaiah, learned High Court Government Pleader appearing for the State, vehemently contended that the accused committed rape on the victim. PW.5 - the mother of victim and PW.16 - victim, have categorically stated that the accused committed rape on the victim. The oral evidence of PW.5 and PW.16 is corroborated with material evidence. He contended that though the Medical Officer – PW.12 has stated that there is no blood stain and no injuries are found on the person of victim, the oral evidence of victim and interpreter, as well as the mother of victim, has to be taken into consideration. Hence, the trial Court, considering the oral and documentary evidence on record, has rightly convicted the accused. Thus, no interference is called for in that regard. Thus, he prayed for dismissal of the appeal. - 7 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 9. After hearing the learned counsels from both sides, the points that would arise for making the core consideration in this appeal is: 1. Whether the prosecution has proved beyond reasonable doubt that on 04.01.2012 at 01.00 p.m., the accused took the victim, who is a deaf and dumb girl, to his hut when she was walking in front of his house, and thereby he committed rape on her against her will and consent and thereby committed an offence punishable under Section 376 of the IPC? 2. Whether the judgment of conviction and sentence passed by the trial Court warrants any interference at the hands of this Court? 10. Before proceeding further in analyzing the evidence read in the prosecution, it is to be borne in mind that the trial Court convicted the appellant for the offence under Section 376 of IPC, considering the oral evidence of PW.5, PW.16 and the medical officers – PWs.12 to PW.14. - 8 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 11. The prosecution, in order to prove the alleged guilt against the accused, has examined in all 18 witnesses as per PW.1 to PW.18. 12. PW.1 and PW.3 were witnesses to the spot Panchanama – Ex.P1, but they turned hostile to the case of prosecution. PW.2 and PW.4 are witnesses to seizure panchanama – Ex.P2, even they also turned hostile to the case of prosecution. Hence, oral testimony of PWs.1 to 4 does not come to the aid of prosecution. 13. PW.6 – Sri. Jayappa, a chance witness, PW.7 – Shanthamma, a hearsay and chance witness, and PWs.8, 9 and 10 - the chance witnesses have also turned hostile to the case of prosecution. Hence, their oral evidence is not available to the case of the prosecution. 14. Now, the evidence of PW.5 - Sonnamma, mother of victim and eyewitness to the incident is available. She has stated that on the day of incident, she and her husband had been to their land and victim was alone in - 9 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 the house. They returned at 12 noon. At that time victim was not in the house. Hence, she searched for the victim and at that time, she entered the hut of the accused and found accused committing rape on victim. 15. PW.16 – the victim is dumb and crippled and both her lower limbs are paralyzed. She deposed with the assistance of an Interpreter, Sri H.R. Srinivas, the Superintendent of Government Deaf and Dumb School, Mysore. The victim, in her evidence on oath, has stated that, on the day of incident, after seeing television, when she was returning back by crawling, accused picked her up to his house by assuring her that he would provide her something to eat. He laid her on the ground, dragged her cloth up, and removed his lungi and innerwear and had sexual intercourse with her and at that time he had gagged her mouth and at that time, her mother came there and by seeing the incident, she assaulted the accused with an iron pipe and thereby the accused fled away from the house. Her further evidence is that - 10 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 thereafter she was taken by police to hospital, where she underwent a medical examination. She has identified a iron pipe and her clothes. 16. In the cross-examination, victim has stated that she has seen the television in 3 houses and the house of accused is at some distance from those houses and when the accused was taking her to his house, none of the public was present. She did not raise any hue and cry when the accused picked her up to his house. She has stated that when the accused laid her on the ground for a while removing his cloth, he had gagged her mouth with his right hand. However, she did not suffer any injuries on her private part or any part of body and she did not bleed, no semen had fell on the ground nor on her cloth. But she has stated that there were some small blood stains on her cloth. 17. In order to corroborate the oral testimony of PW.16 - victim, the mother of victim i.e., PW.5 has stated - 11 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 that on the day of incident, she had left the victim at home and she had been to her land with her husband and returned back at around 12.30 p.m. As the victim was not found at home, she went in search of her, she searched her in neighboring houses, but she was not found and on her way, she met one Narayanamma, the wife of accused, who told her that the victim is near her house. Hence, she came to the house of accused, pushed the doors and went inside the house, she heard the victim murmuring “aam” “oom” and the accused was found lying on the victim with his lungi. She dragged upwards and he was found committing rape on victim. She further stated that on seeing to it, PW.5 had questioned the accused with regard of raping a dumb girl, and picked up iron pipe and assaulted him on his left hand. However, the accused fled away from his house. She further stated that she had chased the accused by holding an iron pipe in her hand and informed the incident to the woman wearing Om Shakti Mala, who had gathered in a temple and to the - 12 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 family members of the accused, and they went in search of the accused. 18. She further stated that the elderly persons of the village had told her that a panchayath would be convened in the evening, but nothing was done. She further stated that since she was wearing 'Om Shakti Mala', hence for 3 days she could not remain in the house, she had been to temple on pilgrimage and her husband lodged complaint against the accused. PW.5 has undergone intensive cross- examination by the counsel for accused. She had admitted that the accused belongs to 'palliga' caste and she belongs to 'Vokalliga' caste and the rest of the suggestions were denied by her. It shows that PW.5 and PW.16 have consistently stated about the incident and deposed that the accused committed rape on the victim. 19. PW.12 and PW.14 are the Medical Officers, who had examined the victim on 05.01.2012. Both have stated on oath before the trial Court that when victim was - 13 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 produced by the police with history of rape, they examined her. However, the victim had not sustained any injuries on her private part or over any part of her body and as per FSL Report, there were no seminal stains on her clothes and as such, they couldn't conclusively determine whether she was raped or not and it is also alleged that there were no symptoms of rape. 20. Further, PW.14 - Dr. Bharath Bhushan stated on oath and deposed that he examined the victim on 05.01.2012, who was brought by police with history of rape, she was physically challenged, she was dumb, not responding to talk and not oriented. Her hymen was not intact. There were no injuries found on any part of her body, including her private part. As per FSL report, no semen was detected in Item No. 4, as collected by the Investigation Officer and therefore he cannot definitely state whether she was raped or not. It shows that, in the present case, the medical evidence being negative as to penetrative assault on the victim, having not noticed any - 14 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 injury over the private part and there being no penetration, the evidence of PW5 and PW16 to the effect that the accused committed rape on the victim cannot be accepted. 21. Further, the victim though stated on oath that the accused committed rape on her, but the interpreter has not stated on oath that the accused committed rape on the victim and the fact that the oath was not administered to the interpreter, Sri. H.R.Srinivas. Therefore, the oral testimony of PW.5 and PW.16 is not corroborated by the medical evidence. The evidence of PW.16 - victim shows that she is deaf and dumb and gave evidence in her own signs. Her evidence clearly discloses as to how the accused committed rape on her. PW.5 - mother of the victim has not stated on oath before the trial Court as to how the victim was subject to rape by the accused. Further, the author of complaint, i.e., father of victim has not been examined by the prosecution before the trial Court. Further, the statement of victim was not - 15 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 recorded under Section 164 of Cr.P.C by the magistrate. From the perusal of oral testimony of PW.16 – the victim, the trial Court has not recorded evidence in terms of Section 119 of the Indian Evidence Act. Section 119 of Evidence Act, 1872, reads as under: "119. Witness unable to communicate verbally. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence: Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.] [Substituted by Criminal Law (Amendment) Act, 2013]" 22. The incident occurred on 04.01.2012. The evidence of victim was recorded on 04.04.2013. The amendment to Section 119 of the Indian Evidence Act, 1872, was made by Act 13 of 2013 (the Criminal Law (Amendment) Act, 2013) with effect from 03.02.2013. Therefore, the trial Court ought to have recorded the evidence of victim by video graphy, but the trial Court has not done so. In the instant case, the evidence of victim is - 16 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 not corroborated with the evidence of medical officers. Therefore, the evidence of victim has to be looked into. 23. It appears that she has given a vivid account of incident. In her evidence, she has clearly shown through signs as to how the accused committed rape on her. There are minor discrepancies in the statement made by the victim and the evidence of PW.5. The crux of her evidence shows that the accused committed sexual assault on the victim. In such circumstances, the evidence of victim under the medical evidence would establish the charge of 'outraging modesty' and not the ingredient of Section 376 of IPC, since there were no external injuries all over the body. There was no evidence of the sexual intercourse on the victim. No spermatozoon was found on the articles sent to Forensic Laboratory. In the light of absence of medical evidence, the prosecution failed to prove the ingredient of Section 376 of IPC. Hence the question which would however arise for the consideration of this Court is as to whether the charges framed against - 17 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 the accused under Section 376 of IPC would be justified and as to whether the case would qualify to be one of outraging modesty of women. 24. On this suspect, the evidence of PW.5 and PW.16 and the Medical Officer would be available. From perusal of the evidence of PW.5 and PW.16, the ingredients of Section 354 of IPC would be made available, and the evidence of PW.5 and PW.16 is doubtful with regard to establishment of the ingredient of Section 376 of IPC. If the Court finds the oral testimony of PW.16 unreliable, as her testimony is tutored by her mother with regard to constitution of Section 376 of IPC. More importantly, on the day of incident, according to PW.16, she was an eye witness to the incident. But, soon after the incident, she went to temple for 3 days instead of lodging complaint. It shows that, she is least bothered about her physically challenged daughter, PW.16-victim. It appears that, father and mother of victim are planted witness. - 18 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 25. Further, in rape cases, the corroboration of medical evidence with a victim's testimony is crucial for prosecution providing a legal bridge between the survivor's account and forensic findings. Thus, the very fact that, the conclusion reached by the trial Court that the allegation of rape has been established by the prosecution against the accused is not in accordance with law. 26. In that circumstances, the charge of rape as contemplated under Section 376 of IPC has not been established with convincing evidence. However, having already noticed that the incident of outraging modesty has been established, it would be a case to convict the accused under Section 354 of IPC. Hence, the Court proposed to pass the following: ORDER 1. The Criminal Appeal is allowed in part. 2. The judgment of conviction dated 30.04.2013 and order of sentence dated 02.05.2013 passed in SC No. - 19 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 39/2012, passed by the Court of Fast Track Judge, K.G.F, convicting the accused for the offence under Section 376 of IPC, stands set aside and modified as under: i. The accused is convicted for the offence punishable under Section 354 of IPC, and he is sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.50,000/-. ii. In case of default of payment of fine, to undergo simple imprisonment for a further period of six months for the aforesaid offence. iii. The accused shall surrender before the trial Court within a period of one month from today and shall serve the remaining period of sentence as ordered. iv. The appellant - accused is entitled for setoff under Section 428 of - 20 - HC-KAR NC: 2025:KHC:34321 CRL.A No. 513 of 2013 Cr.P.C, for the period of judicial custody already undergone by him. v. Out of the fine amount paid by the accused, a sum of Rs.45,000/- is to be paid to the victim (PW.16) as compensation under Section 357A of Code of Criminal Procedure, 1973, as per victim compensation scheme. vi. The remaining sum of Rs.5,000/- to be paid to the State. vii. Registry is directed to transmit a copy of the judgment along with trial Court records to the trial Court immediately, for doing needful in the matter. Sd/- (VENKATESH NAIK T) JUDGE AM List No.: 1 Sl No.: 31