- 1 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE H.P.SANDESH AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.938 OF 2018 BETWEEN: 1. STATE BY POLICE INSPECTOR, UPPINANGADI POLICE, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560001. …APPELLANT (BY SMT. RASHMI JADHAV, ADDL. SPP) AND: 1. DAYANANDA, AGED ABOUT 35 YEARS, S/O LINGA HARIJANA, R/O NIRANA COLONY, SHIBAJE VILLAGE AND POST, BELTHANTADY TALUK, D.K. DISTRICT-574198. 2. SURESH, S/O KUNHI HARIJANA, AGED ABOUT 24 YEARS, R/O NIRANA COLONY, SHIBAJE VILLAGE AND POST BELTHANGADY TALUK, D.K. DISTRICT-574198. …RESPONDENTS (BY SRI. NISHIT KUMAR SHETTY, ADVOCATE FOR R1 AND R2) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 30.10.2017 IN S.C.NO.124/2015 PASSED BY THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANGALURU, THEREBY ACQUITTING THE RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448, 376(2)(n), 376(d), 506 R/W SECTION 34 OF IPC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE H.P.SANDESH) Heard the learned Additional SPP appearing for the appellant/State and the learned counsel for respondent Nos.1 and 2. 2. This appeal is filed against the judgment of acquittal passed by the Trial Court in S.C.No.124/2015 for the offences punishable under Sections 448, 376(2)(n), 376(d), 506 read with Section 34 of IPC. - 3 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 3. The factual matrix of the case of the prosecution is that the accused persons committed rape on the victim P.W.1 on 03.10.2013 at 12.45 p.m. The accused persons came to the house of P.W.1 and asked her water to drink and when she entered inside the kitchen, both of them restrained her even when she was crying, then lift her and put the hand on her mouth and took her to the god room where accused No.1 committed forcible sexual intercourse on her and at that time, accused No.2 had held her hand and then accused No.2 forcibly had sexual intercourse on her and at that time, accused No.1 had held her and threatened to kill her if she discloses the same to anybody. Further, within a month, twice they came to her house and had forcible sexual intercourse on her and as a result, she became pregnant and gave birth to a female child on 04.07.2014. The police registered the case, investigated the matter and filed the charge-sheet against the accused persons and the accused did not plead guilty and claims trial. 4. The prosecution relies upon the evidence of P.W.1 to P.W.15 and also documents at Exs.P.1 to 26(a) and M.O.1 to M.O.6. The accused were subjected to 313 statement and the - 4 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 accused have not led any defence evidence. The Trial Court having considered both oral and documentary evidence available on record, comes to the conclusion that the evidence of P.W.1 and so also the evidence of P.W.2 and P.W.4, who are the mother and sister of the victim, is not trustworthy. The Trial Court also taken note of the fact that when P.W.1 was examined by doctor P.W.5, not disclosed anything and though clothes were seized, there is no any FSL report against the accused, since the same was seized after long time. Only after she came to know that she was pregnant, the complaint was lodged and case was registered and the matter was investigated. All these factors were taken note of by the Trial Court and on scrutinizing the entire evidence, comes to the conclusion that the evidence of P.W.1 is not trustworthy. However, DNA test is against accused No.1. But in view of the evidence of P.W.1 was not trustworthy and major contradictions were there in the evidence of P.W.1, the Trial Court did not accept the case of the prosecution and acquitted the accused. - 5 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 5. Being aggrieved by the said judgment of acquittal, the State has filed the present appeal. 6. The learned Additional SPP, Smt. Rashmi Jadhav, appearing for the appellant/State would vehemently contend that the evidence of P.W.1 is sufficient to bring home the guilt of the accused as she has categorically stated about the heinous act committed by the accused persons. She has corroborated the same in her evidence to which nothing has been elicited in her cross-examination so as to being a complete go-by to the evidence regarding the sexual assault on her by the accused persons. The learned counsel also would submit that for the offence under Section 376 of IPC, in view of the DNA test report coupled with the evidence of the prosecution witnesses, there can be no manner of doubt as it is proved that the accused have committed the said offences. The said DNA report clinches the issue leaving no scope for any doubt for debate in the matter. When the evidence of P.W.1 and DNA report is coupled with the evidence of P.W.2 and P.W.4, the Trial Court ought to have convicted the accused persons. - 6 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 7. The learned counsel for respondent Nos.1 and 2/accused would submit that no doubt, there is a DNA test report against accused No.1, but the very case of the prosecution is that both accused Nos.1 and 2 at the same time committed forcible sexual act against the victim and DNA report is against only accused No.1 and not against accused No.2. It is the case of the prosecution that accused Nos.1 and 2 not only had sexual intercourse on the victim in a single point of time, but subsequently also both of them had sexual act together and hence, the very case of the prosecution is doubtful. The learned counsel would submit that P.W.1 categorically says in her evidence that prior to the said incident, she was not aware of the accused persons. But P.W.2 mother says that she used to visit the house of accused No.1 and accused No.1 is married and accused No.2 was not married and subsequent to the alleged incident, accused No.2 married. The evidence of P.W.1 is very clear that her sister P.W.4 was doing tailoring work and she used to do the tailoring work whole day. The evidence of P.W.2 and P.W.4 not inspires the confidence of the Court. The learned counsel also brought to the notice of this Court the evidence of P.W.5 doctor, who - 7 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 conducted medical examination of P.W.1. The doctor has not stated anything about the act of these two accused persons and only she has examined the victim and found that she was pregnant and she gave the certificate. The same also creates the doubt in the mind of the Court and hence, the Trial Court rightly appreciated both oral and documentary evidence available on record and acquitted the accused persons. 8. Having heard the learned Additional SPP appearing for the appellant/State and the learned counsel for respondent Nos.1 and 2/accused and considering the material available on record, the points that would arise for the consideration of this Court are: (i) Whether the Trial Court committed an error in acquitting the accused persons for the offences invoked against them and whether the prosecution proved the case against the accused persons beyond reasonable doubt and whether it requires interference of this court? (ii) What order? - 8 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 Point No.(i): 9. The learned Additional SPP for the appellant/State in her argument would vehemently contend that when the evidence of P.W.1 is consistent and also when the material available on record, particularly DNA test report goes against accused No.1, the Trial Court ought not to have acquitted the accused. But the fact is that the complainant in her complaint in terms of Ex.P.1 states that both the accused persons have committed sexual act against her will on 03.10.2013. It is the case of the complainant that both of them caused life threat to her if anything is disclosed to anybody. But she did not disclose anything in the evidence with regard to the said fact is concerned. P.W.2 mother says that P.W.1 disclosed that there was a life threat. It has to be noted that the complaint was given when P.W.1 came to know that she became pregnant in view of the alleged act. It is also important to note that P.W.2 in her evidence categorically deposes that P.W.1 was visiting the house of accused No.1 i.e., Dayananda. But P.W.1 in her cross-examination says that before this alleged incident, she was not aware of the accused persons. It is also her evidence that in view of the said forcible sexual act, she had sustained - 9 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 the injuries on the date of the incident and the same is not noticed by the mother. With regard to the nature of injuries are concerned, if it is an forceful act, there is no any material before the Court. 10. It is also important to note that P.W.1 in her evidence says that on account of forceful act of accused No.1, the things which were there in the spot were broken and the same was noticed by the mother and family members and at that time itself she has disclosed the same but not stated as both subjected her for sexual act together. Hence, the very case of the prosecution that after she became pregnant, this act has happened is also contrary to the case of the prosecution. It is the case of the prosecution that because of life threat, P.W.1 did not disclose the same. The evidence of P.W.1 is not consistent. In one breath she says that she was not having any acquaintance with accused Nos.1 and 2 prior to the incident, but in the cross-examination not only one time she stated that she was not having any acquaintance with accused prior to the incident and twice it is reiterated and no stray admission. She says that even after lodging of the - 10 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 complaint also accused persons were visiting her house. Once again she says that prior to lodging of the complaint, accused persons have not visited her house and after lodging of the complaint, twice they came. But the incident was taken place even prior to the lodging of the complaint. She says that she got written the complaint through the relative, but she is not aware of the person, who wrote the complaint. It is also her evidence that when the accused were coming, she noticed the same and tried to lock the house, but she could not lock the house and also says that her nighty was also torn and she did not scratch the accused person and also says that accused persons were there in the house for a period 2 hours, but they did not allow her to go out and hence, she cannot call the neighbors. Thereafter, accused persons left the house after having the water and while leaving the same, they left the house by saying that they will come back. When the accused persons came to the house second time, it was 11 ‘O’ clock and in the complaint it is stated that the accused persons came after one month of the first incident, but this evidence also goes against the case of the prosecution. The evidence of P.W.1 and contents of the complaint are contrary to each other. All - 11 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 these admissions on the part of P.W.1 shows not trustworthy and the same was also taken note of by the Trial Court. 11. The Trial Court also taken note of the evidence of P.W.2-mother and P.W.2 deposes that she came to know about the act of the accused persons through the P.W.1, but P.W.2 says that there are 10 houses surrounding her house and there are dogs and vehicles are moving infront of their house, but P.W.1 says that when the family members noticed about the damages caused to the articles in the house, she revealed the same on the very same day. But, P.W.2 says that she came to know about when she became 5 months pregnant and also she says that the P.W.1 was visiting the house of Dayananda i.e., accused No.1 and she was having the habit of going to their house and she also admits that he was married but, other one i.e., accused No.2 was not married and P.W.2 also admits that when she was in the house, accused persons were visiting her house and all these evidence creates the doubt with regard to the case of the prosecution is concerned. 12. The other witness is P.W.4, who is the sister of the P.W.1 and her evidence is also that she came to know about - 12 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 the same subsequently and the accused persons are responsible for the pregnancy of her sister. In the cross- examination she stated that while giving the statement before the Police, she has stated that her sister revealed that she was subjected to sexual act on 03.10.2013, but she says that when P.W.1 was not feeling well, herself and her mother used to take her to the Hospital, but not accompanied. But, P.W.2 says that she only sent the P.W.1 to the Hospital. The P.W.2 also says that she has accompanied P.W.1 to Hospital in the cross- examination. The P.W.4 categorically says that she does the tailoring work in her house and she is having customers. Having considered all these evidence, no consistency in the evidence of P.W.1, P.W.2 and P.W.4 and apart from that when the P.W.1 went to the Hospital and subjected to medical examination and Doctor who conducted the medical examination on 29.03.2014 at 03.30 to 03.35 p.m., says that P.W.1 came to the Hospital and she examined her and found 22 weeks of pregnancy and found that she is not having sufficient blood and hence, gave the two bottles of blood and she was subjected to sonography and confirms 25 weeks of pregnancy and she was discharged on 11.04.2014 and hence, it is clear - 13 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 that she was in the Hospital for about more than 14 days and she has given the certificate in terms of Ex.P.10 and nothing is disclosed with the Doctor also who is responsible for the act of her pregnancy. All these factors were also taken note of by the Trial Court while appreciating the evidence and no doubt other witnesses are official witnesses and mahazar witnesses and mahazar conducted after a long time and cloths were seized but, nothing was found since the cloths were not seized immediately after the incident of alleged rape and having taken note of all these factors into consideration when the evidence of P.W.1 is not trustworthy and also the evidence of P.W.2 and P.W.4 is contrary to each other with regard to the act is concerned and also taking note of the admission on the part of P.W.2 that accused was also visiting the house of P.W.1 when she was present and also inturn the P.W.1 was also visiting the house of accused No.1 and all these material does not inspire the confidence of the Court to come to a conclusion. No doubt DNA report is against the accused No.1 and only based on the DNA report in view of inconsistency in the evidence of P.W.1 and other material available on record and the same cannot be a sole basis for convicting the accused and hence, we do not - 14 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 find any force in the arguments of Additional SPP that Trial Court committed an error in not appreciating the DNA evidence as well as the evidence of P.W.1 and unless evidence of P.W.1 is trustworthy and inspires the confidence of the Court, question of convicting the accused does not arise. 13. It is also important to note that P.W.1 is aged about 25 years at the time of the alleged incident and she did not bring it to the notice of either the parents and only after she became pregnant, that too not disclosed before the Doctor and only disclosed the same with the family members subsequently and even the admissions on the part of the P.W.1 goes against her own evidence and the same is not creditworthy and hence, we have not accepted the case of P.W.1 and hence, benefit of doubt goes in favour of the accused persons and the same is exercised by the Trial Court. Hence, we answer the point as negative. 14. In view of the discussions made above, we pass the following: - 15 - HC-KAR NC: 2026:KHC:3734-DB CRL.A No. 938 of 2018 ORDER The Criminal Appeal is dismissed. The bond executed if any is cancelled. Sd/- (H.P.SANDESH) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MD,RHS List No.: 1 Sl No.: 15