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Not justified in converting the case to that of attempt to commit rape and recording order of conviction. We, therefore, set aside the judgment and order of conviction- CRIMINAL APPEAL NO.162 OF 2009 KRISHNA @ KRISHNAPPA …. Appellant Versus STATE OF KARNATAKA …. Respondent

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.162 OF 2009
KRISHNA @ KRISHNAPPA …. Appellant
Versus
STATE OF KARNATAKA …. Respondent
J U D G M E N T
Uday U. Lalit, J.
1. This appeal arises out of judgment and order dated 10.06.2008
passed by the High Court of Karnataka at Bangalore in Criminal
Appeal No.1360 of 2001 setting aside the judgment and order of
acquittal passed by the Ld. XXV Additional Sessions Judge, Bangalore
in Sessions Case NO.62 of 1994 and convicting the appellant herein for
the offences punishable under Sections 376 read with Section 511 IPC
and also under Section 341 IPC.
2. Crime No.48 of 1991 was registered with Devanahalli Police
Station pursuant to FIR (Ext.P-9) lodged by PW-1 victim alleging that
on 06.03.1991 at about 4.00 PM while she was returning from the bus
stop of their village after having sent her husband and son to sell
silk cocoons at Vijayapura, the present appellant wrongfully
restrained her near eucalyptus grove, gagged her mouth and despite her
protest had forcible sexual intercourse with her. It was alleged that
her screams attracted Muniyappa (PW-2) and Venkateshappa (PW-3) and on
seeing them the appellant had run away from the spot. Upon
registration of such crime PW-1 victim was sent for medical
examination by Dr. Manjunath (PW-4) who however, found no signs of any
sexual intercourse but found two abrasions on the forearms of PW-1
victim. The appellant was arrested and also medically examined.
3. After due investigation the charge-sheet was filed and the
appellant was tried for having committed the offences punishable under
Sections 376 and 341 IPC vide Sessions Case No.62 of 1994. PW-1
victim in her testimony admitted her age to be 60 years. She
reiterated that she was subjected to forcible intercourse by the
appellant. Muniyappa (PW-2) supported her version, but Venkateshappa
(PW-3) turned hostile. It was suggested to these witnesses in their
cross-examination that the appellant was related to PW-1 victim, that
there were civil and criminal cases pending between the parties in
support of which contention certified copies of the civil suit and
criminal cases Ext. D-1 and D-2 were also filed.
Dr. Manjunath (PW-4) who had medically examined PW-1 victim
specifically stated that nothing was found to show that the victim was
subjected to sexual intercourse. Dr. S.B. Patil (PW-5) who had
examined the appellant stated the age of the appellant to be 17-18
years.
4. The learned trial court found that though PW-1 victim had stated
that her sari was torn in the incident, said sari was not produced
before the court, that as per PW-2 there were no eucalyptus trees in
between the bus stop and the village, that though as per the version
of PW-1 victim the incident lasted for about half an hour during which
time she was trying to escape and had bitten the right hand of the
appellant, the medical evidence did not support such assertions and
that because of civil and criminal cases pending between the parties
the possibility of false implication could not be ruled out.
Considering the entire evidence on record learned trial court found
that the prosecution had failed to establish that the appellant was
guilty of the offences as alleged. The learned trial court,
therefore, by its judgment and order dated 06.08.2001 acquitted the
appellant of the charges leveled against him.
5. State of Karnataka carried the matter further by filing Criminal
Appeal No.1360 of 2001 in the High Court of Karnataka at Bangalore.
The High Court observed that in view of the evidence of Dr. Manjunath
(PW-4) it was clear that the prosecution had failed to prove that the
appellant had sexual intercourse with PW-1 victim. The High Court
thus affirmed the acquittal of the appellant under Section 376 IPC.
However after considering the evidence of PWs-1 and 2 it found that it
was proved beyond doubt that the appellant had attempted to commit
rape on the victim. The High Court thus convicted the appellant for
the offence of attempt to commit rape under Section 376 read with
Section 511 IPC and also under Section 341 IPC and sentenced him
suffer rigorous imprisonment for two years and to pay a fine of
Rs.1,000/-, in default whereof to undergo further imprisonment for one
year under the first count and to suffer simple imprisonment for one
month and payment of fine of Rs.3,000/-, in default whereof to suffer
further imprisonment for 15 days for the offence punishable under
Section 341 IPC.
6. The appellant being aggrieved preferred special leave to appeal
and this Court after grant of special leave to appeal also directed
vide order dated 13.04.2009 that the appellant be released on bail
pending this appeal.
7. Mr. T. Prakash, learned advocate appearing for the appellant
submitted that the view taken by the learned trial court in the
instant case was quite appropriate and justified. In any case, given
the reasons in support of the judgment of acquittal, such view was
definitely a possible view and in an appeal against acquittal the High
Court was not justified in setting aside such order of acquittal.
Furthermore, the conviction under Section 376 read with Section 511
IPC was also not justified.
In Muralidhar @ Gidda & Anr. Vs. State of Karnataka reported in
(2014) 5 SCC 730 after considering various authorities, it was
observed:
“……Suffice it to say that this Court has consistently held
that in dealing with appeals against acquittal, the
appellate court must bear in mind the following: (i) There
is presumption of innocence in favour of an accused person
and such presumption is strengthened by the order of
acquittal passed in his favour by the trial court, (ii) The
accused person is entitled to the benefit of reasonable
doubt when it deals with the merit of the appeal against
acquittal, (iii) Though, the power of the appellate court
in considering the appeals against acquittal are as
extensive as its powers in appeals against convictions but
the appellate court is generally loath in disturbing the
finding of fact recorded by the trial court. It is so
because the trial court had an advantage of seeing the
demeanor of the witnesses. If the trial court takes a
reasonable view of the facts of the case, interference by
the appellate court with the judgment of acquittal is not
justified. Unless, the conclusions reached by the trial
court are palpably wrong or based on erroneous view of the
law or if such conclusions are allowed to stand, they are
likely to result in grave injustice, the reluctance on the
part of the appellate court in interfering with such
conclusions is fully justified, and (iv) Merely because the
appellate court on re-appreciation and re-evaluation of the
evidence is inclined to take a different view, interference
with the judgment of acquittal is not justified if the view
taken by the trial court is a possible view. The evenly
balanced views of the evidence must not result in the
interference by the appellate court in the judgment of the
trial court.”
8. We have gone through the judgment of the trial court and the
High Court and carefully perused the evidence on record. It may be
mentioned that as found by both the courts below the offence under
Section 376 was not established at all. The reasons given by the
trial court while acquitting the appellant, in our view, are quite
sound and in any case, such view is definitely a possible view. The
conclusions reached by the trial court cannot be said to be palpably
wrong or based on erroneous view of the law, so as to call for
interference by the High Court. In our considered view the High Court
was not justified in converting the case to that of attempt to commit
rape and recording order of conviction. We, therefore, set aside the
judgment and order of conviction passed by the High Court and restore
that of the trial court acquitting the accused-appellant of the
offences with which he was charged. The appeal is allowed and the
appellant is discharged of his bail bonds.
………………………..J.
(Dipak Misra)
………………………..J.
(Uday Umesh Lalit)
New Delhi,
November 14, 2014

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