Karnataka High Court
Mohan Naik vs The State Of Karnataka on 13 March, 2026
Crl.A.No.824 of 2023
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH 2026
PRESENT
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL No. 824 OF 2023
BETWEEN:
1. MOHAN NAIK
S/O GOVINDA NAIK,
NOW AGED ABOUT 23 YEARS,
R/O AMMANAPURA,
AVVERAHALLI POST,
KAILANCH HOBLI,
RAMANAGARA TALUK.
RAMANAGARA DISTRICT-562159
[Now in Judicial Custody]
2. APPU NAIK
S/O VINOD KUMAR,
NOW AGED ABOUT 23 YEARS,
R/O AMMANAPURA,
AVVERAHALLI POST,
KAILANCH HOBLI,
RAMANAGARA TALUK.
RAMANAGARA DISTRICT-562159
[Now in Judicial Custody]
...APPELLANTS
(BY SRI K.A. CHANDRASHEKARA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY RAMANAGARA WOMEN POLICE STATION
2 Crl.A. No.824 of 2023
RAMANAGARA-562159.
REPTD BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU-560001.
2. M/S. GOWRI BAI
W/O MANJU NAIK
R/O AMMANAPURA
AVVVERAHALLI POST
KAILANCH HOBLI,
RAMANAGARA TALUK.
RAMANAGARA DISTRICT-562159
AMENDED AS PER ORDER DATED 29.07.2025
...RESPONDENT
(BY SRI B. LAKSHMAN, HCGP FOR R1;
R2 SERVED, UNREPRESETED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 28-03-2023/31-03-2023 PASSED IN S.C. NO.26/2022 BY
THE III ADDL., DISTRICT AND SESSIONS JUDGE RAMANAGARA
CONVICTING THE APPELLANTS HEREIN FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 376-D IPC; AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 18.02.2026, COMING ON FOR 'PRONOUNCEMENT OF ORDERS,
THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
CAV JUDGMENT
1. The appellants prefer this appeal under Section 374(2) of
the Code of Criminal Procedure, aggrieved by the judgment of
conviction and order on sentence dated 28th/31st March, 2023,
3 Crl.A. No.824 of 2023
passed in SC No.26 of 2022 by the III Additional District and
Sessions Judge, Ramanagara convicting the appellants for the
offence under sections 376-D IPC and sentenced them to undergo
25 years rigorous imprisonment and to pay a fine of Rs.1,00,000/-
each in default of payment of fine, to undergo simple
imprisonment for one year.
2. In the present judgment, I would like to withhold the name
of the victim lady in view of the provisions of Section 228A IPC
and in pursuance of the observations of Hon’ble Supreme Court
in STATE OF HIMACHAL PRADESH v. SHREE KANTH SHEKARI (AIR
2004 SC 4404). The prosecutrix hereinafter referred to as “the
victim”.
3. The facts, as unfolded by the prosecution, in short
conspectus, is that on 16.06.2021 at about 5.30 p.m., the accused
Nos.1 and 2 are alleged to have visited the house of C.W.1, the
victim. It is the case of the prosecution that the accused were
under the influence of alcohol at the relevant point of time,
immediately upon entering the house, they are stated to have
bolted the main door from inside and closed the windows, thereby
4 Crl.A. No.824 of 2023
preventing any possibility of outside intervention. Both the
accused, having common intention, committed forcible sexual
intercourse upon the victim one after the other, thereby attracting
the offence punishable under Section 376D of the Indian Penal
Code. Further, the accused attempted to strangulate the victim,
thereby causing injuries and committing an act amounting to an
offence punishable under Section 307 of the Indian Penal Code.
4. During the course of investigation, the statement of the
victim was recorded under Section 164 of the Code of Criminal
Procedure before the jurisdictional Magistrate on 21.06.2021. The
accused were apprehended and remanded to judicial custody.
Upon completion of investigation, the Investigating Officer laid the
charge sheet before the Court of the Principal Senior Civil Judge
and Chief Judicial Magistrate, Ramanagara, which, after taking
cognizance of the offences, committed the matter to the Court of
Sessions by order dated 08.02.2022. Upon receipt of the
committal records, the Sessions Court secured the presence of the
accused and, after hearing both sides, framed charges against
accused Nos.1 and 2 for the offences punishable under Sections
5 Crl.A. No.824 of 2023
376D and 307 of the Indian Penal Code on 17.11.2022. The
accused pleaded not guilty and claimed to be tried.
5. In order to bring home the guilt of the accused, the
prosecution examined in all 20 witnesses as PWs1 to 20, marked
Exs.P1 to P30 and eight material objects as MOs.1 to 8. After
closure of the prosecution evidence, the statements of the
accused under Section 313 of the Code of Criminal Procedure were
recorded, wherein the incriminating circumstances appearing
against them in the evidence of the prosecution witnesses were
put to them. The accused denied all such circumstances as false.
Further the accused No.1 has stated that, £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è AiÀiÁgÀÆ
¨ÁrUÉUÉ E®è. £Á£ÀÄ Hj£À°èzÁÝUÀ ¥ÉÆðÃgÀÄ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV ºÉÆqÉzÀgÀÄ.
7-8 ¥ÉÃ¥Àj£À°è ¸À» ºÁQ¹PÉÆAqÀgÀÄ. £Á£ÀÄ AiÀiÁgÀ ªÉÄÃ&ÉAiÀÄÆ PÀA¥ÉèAmï
PÉÆnÖ®è. The accused No.2 has stated that, £ÀªÀÄä ªÀÄ£ÉAiÀÄ°èzÁÝUÀ
¥ÉÆðøÀgÀÄ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV 2 ¢ªÀ¸À ºÉÆqÉzÀgÀÄ, SÁ° ¥ÉÃ¥Àgï ªÉÄÃ&É ¸À»
ºÁQ¹PÉÆAqÀgÀÄ. They did not choose to adduce any defence
evidence.
6 Crl.A. No.824 of 2023
6. The trial court, after hearing learned counsel for the parties
and after scrutinizing and assessing the evidence on record,
convicted and sentenced the appellants herein for the offence
punishable under Section 376-D IPC and sentenced them to
undergo 25 years rigorous imprisonment and to pay a fine of
Rs.1,00,000/- each, in default of payment of fine to undergo
simple imprisonment for one year and has acquitted for the
offence punishable under Section 307 IPC. Being aggrieved by
the impugned judgment of conviction and order on sentence, the
appellants have preferred this appeal.
Submissions of Counsel for the Accused/Appellants:
7. Sri Veeranna G. Tigadi, learned counsel appearing for the
appellants vehemently contended that the impugned judgment of
conviction and sentence passed by the learned Trial Court is
contrary to law, facts and probabilities of the case. It is submitted
that the Trial Court has failed to properly appreciate the evidence
on record in its proper perspective and has erroneously convicted
the appellants under Section 376-D IPC.
7 Crl.A. No.824 of 2023
8. It is further submitted that the conviction is primarily based
on the solitary testimony of PW4-victim, whose evidence,
according to the learned counsel, is riddled with material
contradictions and inconsistencies. Though it is a settled principle
that conviction can be based on the sole testimony of the
prosecutrix, the same must be of sterling quality and must inspire
confidence. In the present case, the evidence of PW-4 does not
meet that standard.
9. The learned counsel would draw the attention of this Court
to the material admissions elicited in the cross-examination of
PW-4, wherein victim has stated that victim does not know the
accused. Victim has further deposed that victim is aged about 50-
60 years, married, having three married sons and grandchildren.
More importantly, victim has admitted that victim had not seen
the faces of the persons who allegedly committed the offence and
has even stated that the persons present before the Court are not
the persons who committed rape on her. These admissions,
according to the learned counsel, strike at the root of the
prosecution case and demolish the identification of the accused.
8 Crl.A. No.824 of 2023
10. It is also contended that though PW-4 stated that her
statement was recorded in the police station, Ex.P-3 reflects that
written information was submitted; however, victim has not
affixed her LTM on the said document. This discrepancy creates
serious doubt about the very genesis of the complaint.
11. The learned counsel further submits that the prosecution
examined as many as 20 witnesses to prove its case. Out of them,
PWs3, 9, 10, 14 and 15 were cited as independent witnesses to
corroborate the testimony of PW-4. However, all these material
witnesses have not supported the prosecution case. In the
absence of corroboration from independent witnesses, the
conviction solely on the shaky testimony of PW-4 is unsustainable.
12. With regard to the medical evidence, it is contended that
PW-13, the Doctor, has deposed that the history given was of
“misbehavior by two persons with hands.” On examination, no
external injuries were found on the body of PW-4; there was no
disfigurement on her face and no signs indicative of forcible sexual
intercourse. The learned counsel would submit that the medical
evidence does not corroborate the allegation of gang rape. Even
9 Crl.A. No.824 of 2023
the FSL report does not support the prosecution case. There is
also inconsistency regarding who accompanied PW-4 to the
hospital, as the version of PW-13 is not in consonance with that of
PW-12.
13. It is further contended that the essential ingredients of
Section 375 IPC have not been established, and much less the
additional requirement under Section 376-D IPC of common
intention and participation of more than one accused in the
commission of gang rape. Mere use of the expression “rape” by
PW4, without proof of the foundational facts constituting the
offence, is not sufficient to sustain a conviction under Section 376-
D IPC. At the highest, the allegations, even if taken at face value,
may attract an offence under Section 354 IPC, but certainly not
the offence of gang rape.
14. The learned counsel would also place reliance on Exhibits P-
30 and P31 to contend that accused No.1 had earlier lodged a
complaint in Crime No.121/2021 before Ramanagara Rural Police
against PWs 14 and 15 for offences under Sections 324, 504 and
506 read with Section 34 IPC. It is submitted that due to prior
10 Crl.A. No.824 of 2023
enmity and ill-will, the appellants have been falsely implicated in
the present case, and this aspect has not been properly
appreciated by the learned Sessions Judge.
15. It is further argued that the Trial Court has acquitted the
appellants of the charge under Section 307 IPC, holding that the
prosecution failed to prove the said offence. Having disbelieved
the prosecution case in respect of one serious charge, the learned
Judge ought to have exercised similar caution while appreciating
the evidence for the charge under Section 376-D IPC.
16. The learned counsel submits that the entire prosecution case
is doubtful from its inception and appears to be an afterthought,
possibly the result of deliberation and previous animosity. The
learned Trial Judge, without extending the benefit of doubt to the
appellants, has proceeded on presumptions and has misapplied
the legal principles governing criminal jurisprudence.
17. It is finally contended that in criminal law, the burden is
always on the prosecution to prove its case beyond all reasonable
doubt. In the present case, the prosecution has miserably failed to
11 Crl.A. No.824 of 2023
discharge that burden. Therefore, the appellants are entitled to
the benefit of doubt and consequent acquittal.
Submissions on behalf of the respondent-State:
18. Per contra, Sri B. Lakshman, learned High Court
Government Pleader appearing for the respondent-State, would
stoutly support the impugned judgment of conviction and order on
sentence and contend that the same is legal, proper and based on
sound appreciation of oral and documentary evidence on record.
19. It is submitted that the learned Sessions Judge has
meticulously examined the entire material placed before the Court
and has rightly come to the conclusion that the prosecution has
proved the guilt of the appellants beyond all reasonable doubt for
the offence punishable under Section 376-D IPC.
20. He would further contend that the evidence of PW-4, the
victim, is natural, cogent and trustworthy. It is a settled principle
of law that the testimony of the prosecutrix stands on par with
that of an injured witness and, if found reliable, can form the sole
basis for conviction without the necessity of corroboration. In the
12 Crl.A. No.824 of 2023
present case, PW-4 has clearly narrated the manner in which the
accused came to her house and committed the offence. Nothing
substantial has been elicited in her cross-examination to discredit
her core version regarding the commission of the offence.
21. It is further submitted that minor discrepancies or omissions
in the evidence of a rustic witness cannot be magnified to discard
the entire prosecution case. The learned Trial Judge has rightly
observed that trivial contradictions, which do not go to the root of
the matter, cannot be made a ground to extend benefit of doubt
to the accused.
22. With regard to the contention that certain independent
witnesses have not supported the prosecution, the learned High
Court Government Pleader would submit that merely because
some witnesses have turned hostile, the prosecution case does
not fail, particularly when the testimony of the victim is clear and
consistent. The evidence of a hostile witness need not be rejected
in toto and can be relied upon to the extent it supports the
prosecution case.
13 Crl.A. No.824 of 2023
23. As regards the medical evidence, it is submitted that
absence of external injuries is not fatal to the case of the
prosecution in an offence of rape, especially when the victim is a
grown-up woman. The medical evidence in the present case does
not rule out sexual assault. The history noted by the Doctor and
the findings on examination are consistent with the version of PW-
4. It is well settled that medical evidence is corroborative in
nature and when the ocular testimony of the victim is trustworthy,
minor inconsistencies in medical evidence do not discredit the
prosecution case.
24. It is further contended that the ingredients of Section 376-D
IPC are clearly made out from the evidence on record. The victim
has specifically deposed about the involvement of more than one
accused acting in furtherance of their common intention. The
learned Trial Judge, after proper analysis of the evidence, has
rightly recorded a finding that the offence of gang rape stands
proved.
25. With regard to the alleged prior complaint filed by accused
No.1, it is submitted that the same has no bearing on the present
14 Crl.A. No.824 of 2023
case. The defence theory of false implication on account of prior
enmity is a mere bald suggestion without any substantive
evidence. The learned Trial Court has rightly rejected the said
defence as an afterthought.
26. It is also contended that the acquittal of the appellants for
the offence under Section 307 IPC does not in any manner dilute
the prosecution case with regard to the offence under Section
376-D IPC. Each charge has to be independently assessed on the
basis of evidence available, and the learned Sessions Judge has
done so in accordance with law.
27. Finally, he submitted that the impugned judgment reflects
proper appreciation of evidence and correct application of legal
principles. The findings recorded by the Trial Court are neither
perverse nor contrary to the material on record so as to warrant
interference by this Court in an appeal against conviction.
Accordingly, sought for dismissal of the appeal.
28. Upon hearing the rival contentions urged by the learned
counsel for the appellants and the learned HCGP for the State, and
15 Crl.A. No.824 of 2023
upon perusal of the oral and documentary evidence available on
record, the following points arise for consideration in this appeal:
(i) Whether appellants/accused have made out a
case to interfere with the impugned judgment
conviction and order on sentence passed by
the trial Court?
(ii) What Order?
29. My answer to the above points is as under:
Point No.1: in affirmative
Point No.2: as per final order
Regarding Point No.1:
30. I have given my anxious consideration to the arguments
advanced by the learned counsel for the parties. I have carefully
perused the entire oral and documentary evidence on record,
including the original records secured from the Trial Court. Being
an appellate Court under Section 374(2) of the Cr.PC, this Court is
16 Crl.A. No.824 of 2023
duty-bound to re-appreciate the evidence in its entirety and arrive
at an independent conclusion.
31. In order to attract Section 376-D IPC, the prosecution must
establish not merely the commission of rape, but also the
participation of more than one person acting in furtherance of a
common intention. The statutory requirement is not satisfied by
proving the act of sexual assault alone; it must be demonstrated
through clear, cogent and convincing evidence that each accused
was present and actively involved in the commission of the
offence, sharing a common intention. The evidence on record
must, therefore, unequivocally establish both the presence and
participation of the accused in the alleged occurrence. Before
adverting to the appreciation of evidence in the present case, it is
necessary to revisit the settled principles laid down by the Hon’ble
Supreme Court regarding the evidentiary value to be attached to
the testimony of a prosecutrix in cases of sexual assault,
particularly where the prosecution case rests substantially, if not
entirely, on her evidence. It is well settled that the testimony of
the victim of a sexual offence stands on a higher pedestal and, if
17 Crl.A. No.824 of 2023
found to be trustworthy and credible, can form the sole basis for
conviction without the necessity of corroboration. At the same
time, such testimony must be evaluated with due care, caution
and sensitivity, keeping in view the overall circumstances of the
case.
32. The law is equally well settled that oral testimony may
broadly be classified into three categories, namely: (i) wholly
reliable; (ii) wholly unreliable; and (iii) neither wholly reliable nor
wholly unreliable. In cases falling under the first category, the
Court may safely base a conviction on the testimony of a single
witness without corroboration. In cases falling under the second
category, the testimony is to be rejected outright. However, it is in
the third category–where the witness is neither wholly reliable
nor wholly unreliable–that the Court must exercise greater
circumspection. In such cases, as a rule of prudence, the Court
looks for corroboration in material particulars, either through
direct or circumstantial evidence, before recording a finding of
guilt.
18 Crl.A. No.824 of 2023
33. In RAI SANDEEP v. STATE (NCT OF DELHI) reported in
(2012) 8 SCC 21, the Court found totally conflicting versions of
the prosecutrix, from what was stated in the complaint and what
was deposed before Court, resulting in material inconsistencies.
Reversing the conviction and holding that the prosecutrix cannot
be held to be a ‘sterling witness’, the Courtm at paragraph 22 of
the judgment, has opined thus:
“22. In our considered opinion, the ‘sterling
witness’ should be of a very high quality and calibre
whose version should, therefore, be unassailable. The
court considering the version of such witness should be in
a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what would
be relevant is the truthfulness of the statement made by
such a witness. What would be more relevant would be
the consistency of the statement right from the starting
point till the end, namely, at the time when the witness
makes the initial statement and ultimately before the
court. It should be natural and consistent with the case of
the prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it
may be and under no circumstance should give room for
19 Crl.A. No.824 of 2023any doubt as to the factum of the occurrence, the persons
involved, as well as the sequence of it. Such a version
should have co-relation with each and every one of other
supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said
version should consistently match with the version of
every other witness. It can even be stated that it should
be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all other
such similar tests to be applied, can it be held that such a
witness can be called as a ‘sterling witness’ whose version
can be accepted by the court without any corroboration
and based on which the guilty can be punished. To be
more precise, the version of the said witness on the core
spectrum of the crime should remain intact while all other
attendant materials, namely, oral, documentary and
material objects should match the said version in material
particulars in order to enable the court trying the offence
to rely on the core version to sieve the other supporting
materials for holding the offender guilt of the charge
alleged.”
34. In KRISHAN KUMAR MALIK v. STATE OF HARYANA reported
in (2011)7 SCC 130, the Hon’ble Supreme Court laid down that
20 Crl.A. No.824 of 2023
although the victim’s solitary evidence in matters related to sexual
offences is generally deemed sufficient to hold an accused guilty,
the conviction cannot be sustained if the prosecutrix’s testimony is
found unreliable and insufficient due to identified flaws and
lacunae. It was held thus:
“31. No doubt, it is true that to hold an accused
guilty for commission of an offence of rape, the solitary
evidence of the prosecutrix is sufficient provided the
same inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling
quality. But, in the case in hand, the evidence of the
prosecutrix, showing several lacunae, which have already
been projected hereinabove, would go to show that her
evidence does not fall in that category and cannot be
relied upon to hold the appellant guilty of the said
offences.
32. Indeed there are several significant variations
in material facts in her Section 164 statement, Section
161 statement (CrPC), FIR and deposition in court. Thus,
it was necessary to get her evidence corroborated
independently, which they could have done either by
examination of Ritu, her sister or Bimla Devi, who were
present in the house at the time of her alleged abduction.
The record shows that Bimla Devi though cited as a
witness was not examined and later given up by the
21 Crl.A. No.824 of 2023public prosecutor on the ground that victim been won
over by the appellant.”
35. The entire oral and documentary evidence on record has
been re-appreciated, as is required in an appeal against
conviction. The principal contention of the learned counsel for the
appellants is that the conviction is based solely on the testimony
of PW-4, the victim, and that her evidence is not of such quality as
to inspire confidence. It is urged that material contradictions and
admissions elicited in her cross-examination go to the root of the
prosecution case, particularly with regard to identification of the
accused. It is well settled that the testimony of a prosecutrix, if
found credible and trustworthy, can form the sole basis of
conviction and does not require corroboration as a matter of rule.
The evidence of the victim stands on par with that of an injured
witness. However, where the testimony suffers from inherent
improbabilities, material inconsistencies or serious doubts
regarding identification of the accused, the Court is duty-bound to
scrutinize the same with greater circumspection.
22 Crl.A. No.824 of 2023
36. In the present case, PW-4 has narrated in her examination-
in-chief that accused Nos.1 and 2 entered her house, bolted the
doors and windows, gagged her and committed forcible sexual
intercourse one after the other. Victim has also spoken about an
attempt to strangulate her. Her statement under Section 164
Cr.PC. marked as Ex.P-27, is stated to be consistent with her
version before the Court. However, in the cross-examination,
certain significant admissions have been elicited. Victim has stated
that victim did not know the accused earlier. More importantly, it
is brought on record that victim has deposed that victim had not
seen the faces of the persons who allegedly committed the offence
and that the persons present before the Court were not the
persons who committed rape on her. Such an admission, if read in
its plain terms, strikes at the very foundation of identification.
Identification of the accused is a foundational fact in a criminal
trial, and where the same is rendered doubtful, the entire
prosecution case stands on a fragile footing.
37. The prosecution has examined as many as twenty
witnesses. PWs3, 9, 10, 14 and 15, who were cited as
23 Crl.A. No.824 of 2023
independent witnesses, have not supported the prosecution case.
Though it is true that the evidence of hostile witnesses need not
be rejected in toto, in the present case, their evidence does not
lend any meaningful corroboration to the testimony of PW-4.
38. The medical evidence also requires careful consideration.
PW-13, the Doctor, has deposed that the history furnished was
one of “misbehavior by two persons with hands.” On examination,
no external injuries were found on the body; there was no
disfigurement and no definite signs suggestive of forcible sexual
intercourse. While it is trite that absence of injuries is not by itself
fatal to a prosecution for rape, especially in the case of a grown-
up woman, the medical evidence must at least not contradict the
ocular testimony. In the present case, the medical evidence does
not positively corroborate the allegation of gang rape. The FSL
report also does not provide any conclusive support to the
prosecution version.
39. Another aspect that merits attention is the discrepancy
relating to the lodging of the complaint. Though PW-4 has stated
that her statement was recorded at the police station, Ex.P-3 is
24 Crl.A. No.824 of 2023
shown as written information, and it is contended that victim has
not affixed her LTM on the said document. The genesis of the
complaint, therefore, assumes significance in the backdrop of the
defence plea of false implication due to prior enmity.
40. The defence has also placed reliance upon Exs.P-30 and P-
31 to demonstrate that accused No.1 had earlier lodged a
complaint in Crime No.121/2021 against certain prosecution
witnesses. Though prior enmity by itself cannot be a ground to
discard the prosecution case, it assumes relevance where the
prosecution evidence is otherwise shaky and doubtful. The
learned Trial Judge has acquitted the appellants of the offence
under Section 307 IPC on the ground that the prosecution failed to
establish the same beyond reasonable doubt. While it is true that
each charge must be independently assessed, the overall
appreciation of evidence must be consistent and guided by the
cardinal principle that the prosecution must prove its case beyond
reasonable doubt.
41. On perusal of complaint-Ex.P3 dated 17.06.2021 registered
in Crime No.64/2021 of Ramanagara Women Police Station, it is
25 Crl.A. No.824 of 2023
seen that the complaint was lodged at about 11.45 am on
17.06.2021. Exhibit P21 is the First Information Report. In
Exhibit P3, victim-PW4, has narrated that at about 5.30 p.m. on
16.06.2021, the accused came to her house, asked for food and,
treating them like her children, victim served food. Thereafter,
under the influence of alcohol, they allegedly molested her by
touching her breasts and committed sexual assault. Victim has
further stated that when she screamed, they attempted to
strangulate her and at that time, one Jayasimha Naik (her uncle’s
son), rushed and rescued her, and subsequently Ramaswamy and
Kumar assaulted the accused and saved her. Victim was taken to
the hospital at midnight. She has also alleged that the accused
were involved in illegal activities and sale of liquor and sought
protection.
42. Ex.P5 is the statement recorded under Section 164 Cr.PC on
21.06.2021 before the learned Additional Civil Judge (Sr. Dn.) &
JMFC, Ramanagara. Exhibit P14 indicates that FSL report was
pending at the relevant time. Exhibit P20 is the FSL
acknowledgment spoken to by PW17.
26 Crl.A. No.824 of 2023
43. The appellants were charged for the offences under Sections
307 and 376-D IPC. Section 307 IPC contemplates an act done
with such intention or knowledge and under such circumstances
that, if death had been caused, the act would amount to murder.
Section 376-D IPC requires proof that a woman was raped by one
or more persons constituting a group or acting in furtherance of
common intention.
44. The principal contention of the learned counsel for the
appellants is that the very identity of the accused is doubtful. In
paragraph No.15 of her cross-examination she has stated that
gÉÃ¥ï ªÀiÁqÀ®Ä §AzÀªÀgÀ ªÀÄÄRªÀ£ÀÄß D ¢£ÀªÀÇ £ÉÆÃr®è, EªÀvÀÆÛ £ÉÆÃr®è.
CªÀgÀ£ÀÄß F ¢£À £ÁåAiÀiÁ®AiÀÄ°è £ÉÆÃrgÀÄwÛÃgÉÆà JAzÀgÉ CªÀgÀÄ EªÀgÀ®è
J£ÀÄßvÁÛgÉ. PW-4 has clearly stated that victim has not identified the
accused either on the date of incident or before the Court. In
paragraph No.17, victim has stated ¥ÉÆð¸ÀgÀÄ K£ÀÄ §gÉzÀÄPÉÆAqÀgÉÆÃ
CzÀPÉÌ £Á£ÀÄ ¸À» ªÀiÁrzÉÝ JAzÀgÉ ¸Àj. The victim does not know the
contents of Ex.P1-complaint. These admissions are material in
nature. Identification of the accused is a foundational fact and
27 Crl.A. No.824 of 2023
when the victim herself disowns identification, the substratum of
the prosecution case becomes doubtful.
45. PW-13, the Doctor, examined the victim at 2.58 a.m. on
17.06.2021. He has deposed that the history given was of
“misbehaviour by two of her relatives” and that no external
injuries were found. PW-4 herself has stated that victim has not
sustained any injuries. The absence of injuries, though not always
fatal, assumes significance in the present case in view of the
allegation of forcible gang rape and attempted strangulation.
46. PW19-Dr. Geetha, has not examined the victim. Victim has
merely identified the handwriting and signature of Dr. Mamatha,
who allegedly examined the victim. Dr. Mamatha has not been
examined. Thus, the medical evidence is not proved in accordance
with law through the author of the document. This omission
affects the evidentiary value of the medical records.
47. The final FSL opinion-Exhibit P19 indicates that seminal
stains were detected on Item No.3 and that possibility of recent
sexual intercourse could be concluded. However, the prosecution
has not established that MOs1 to 8 (including undergarments)
28 Crl.A. No.824 of 2023
belonged to the victim. PW-12 has deposed that victim procured
eight objects from the victim and sealed them, but during the
evidence of PW-4 and PW-12, M.O. Nos.1 to 8 were not shown.
They were marked for the first time during the evidence of PW-18.
This creates serious doubt about the proper identification and
proof of material objects.
48. PW6-Dr. Syed Nadeem, examined accused No.1 and issued
wound certificate Ex.P7. Though police records indicate arrest on
17.06.2021, Ex.P7 shows that accused No.1 was examined on
22.06.2021 and the injuries were noted as five days old. Column
No.9 of Ex.P7 (history of injuries) is left blank. PW-6 has admitted
that he has not mentioned the history of assault. This
inconsistency in arrest and medical examination dates casts doubt
on the prosecution version regarding arrest and alleged assault by
public.
49. The order sheet of the committal Court reveals that accused
No.2 was produced on 17.06.2021 and accused No.1 on
22.06.2021. However, PW-7 has deposed that he arrested both
accused on 17.06.2021 and produced them before higher
29 Crl.A. No.824 of 2023
authorities. The alleged arrest report is not produced. The
Investigating Officer (PW-18) has not explained these
discrepancies. Such inconsistencies in arrest and production
before Court go to the root of the investigation. Another
significant aspect is the discrepancy regarding the time of incident
In Ex.P3 and Ex.P5 (Section 164 statement), the time of incident
is stated as 5.30 p.m. However, certain witnesses and police
records indicate the time as between 10.00 p.m. to 11.00 p.m.
Such material contradiction regarding the time of occurrence
affects the credibility of the prosecution case. As the Ex.P5 is the
statement recorded under Section 164 Cr.P.C. on 21.06.2021
before the learned Additional Civil Judge (Sr. Dn.) & JMFC,
Ramanagara, it is significant to notice that the alleged incident has
happened on 16.06.2021 at about 5.30 p.m., by the accused
Nos.1 and 2 , however the 164 statement was recorded on
21.06.2021,there is a delay in recording the statement of victim
which is not explained by the prosecution.
50. The Hon’ble Supreme Court, in the case of STATE OF
KARNATAKA BY NONAVINAKERE v. SHIVANNA @ TARKARI
30 Crl.A. No.824 of 2023
SHIVANNA reported in AIR ONLINE 2014 SC 233, has issued
guidelines, which are as follows:
“9. On considering the same, we have accepted the
suggestion offered by the learned counsel who appeared
before us and hence exercising powers under Article
142 of the Constitution, we are pleased to issue interim
directions in the form of mandamus to all the police
station in charge in the entire country to follow the
direction of this Court which are as follows:
(i) Upon receipt of information relating to the
commission of offence of rape, the Investigating
Officer shall make immediate steps to take the
victim to any Metropolitan/preferably Judicial
Magistrate for the purpose of recording her
statement under Section 164 Cr.P.C. A copy of
the statement under Section 164 Cr.P.C. should
be handed over to the Investigating Officer
immediately with a specific direction that the
contents of such statement under Section 164
Cr.P.C. should not be disclosed to any person till
charge sheet/report under Section 173 Cr.P.C. is
filed.
(ii) The Investigating Officer shall, as far as possible,
take the victim to the nearest Lady
Metropolitan/preferably Lady Judicial Magistrate.
(iii) The Investigating Officer shall record specifically
the date and the time at which he learnt about
the commission of the offence of rape and the
date and time at which he took the victim to the
Metropolitan/preferably Lady Judicial Magistrate
as aforesaid.
31 Crl.A. No.824 of 2023
(iv) If there is any delay exceeding 24 hours in taking
the victim to the Magistrate, the Investigating
Officer should record the reasons for the same in
the case diary and hand over a copy of the same
to the Magistrate.
(v) Medical Examination of the victim: Section 164 A
Cr.P.C. (inserted by Act 25 of 2005 in Cr.PC.
imposes an obligation on the part of Investigating
Officer to get the victim of the rape immediately
medically examined.) A copy of the report of
such medical examination should be immediately
handed over to the Magistrate who records the
statement of the victim under Section 164 Cr.P.C.
10. A copy of this order thus be circulated to all the
Director Generals of Police of all the States/Commissioner
of Police in Metropolitan cities / Commissioner of Police of
Union Territories who are then directed to send a copy of
this order to all the police stations in charge in their
States/Union Territories for its compliance in cases which
are registered on or after the receipt of a copy of these
directions. Necessary instructions by the DGPs/
Commissioners of Police be also issued to all the police
station incharge by the DGPs/Commissioner of Police
incorporating the directions issued by us and recorded
hereinbefore.
11. The matter be posted again after four weeks to
ensure compliance of this order by the DGS &
Commissioners of Police in the country before the
appropriate Bench and also for such other further order or
orders which may be considered necessary.
32 Crl.A. No.824 of 2023
The IO has not followed the mandatory guidelines and has
handled the case in a very negligent manner by not explaining the
delay in producing the victim before the Magistrate to record the
statement under Section 164(5) of Cr.PC.
51. The demeanor of the victim, as recorded by the Trial Court,
also assumes relevance. It is noted that victim was murmuring to
herself, was earning livelihood by begging, used to scream and
was not properly dressed. Though demeanor alone cannot
discredit testimony, when read along with the inconsistencies and
admissions, it raises doubt regarding reliability. It is further
observed that during cross-examination, the learned Trial Judge
recorded certain observations, which are as under:
“28. ಘಟ ೆ ಾ ಾಗ ನ ೆ ತು ಎಂದು ಖರ ಾ ೇಳಲು
ಬರುವ ಲ ಎಂದ ೆ ಸ . ನನ! “ೖ”ೕ$ೆ ಒಂದು &ೆ ೆಯಷು) ಕೂಡ &ಾಯ
ಆ ಲ ಎಂದ ೆ ಸ . ಾವ .ೇ ಅ0ಾ12ಾರ 3ಾ4ಲ ಮತು6 ಸುಳ78
ೇಳ796.ೆ:ೕ ೆ ಎಂದ ೆ ಸ ಯಲ . ಾನು ಈಗ 3ಾತ ಾ4ರುವ ದನು! ಇನು! 5
=ಷದ> ಮ ೆಯು0ೆ6ೕ ೆ ಎಂದ ೆ ಸ ಯಲ . (?ಾ@.ಾರಳ7 ತಮAಷ)BೆC
0ಾ ೇ ಏ ೇ ೋ &ೊಣ Bೊಳ780ಾ6 ಇರು0ಾ6 ೆ ಎನು!ವ ದನು! ಈ
ಾ1 ಾಲಯ ಗಮ F.ೆ.)”
33 Crl.A. No.824 of 2023
55. Section 165 of the Indian Evidence Act, 1872 confers very
wide powers upon a trial Judge to put questions to any witness, in
any form, at any stage of the proceedings, in order to discover or
obtain proper proof of relevant facts. The provision expressly
authorises the Judge to ask questions “in any form,” which
includes leading questions. Therefore, as a matter of law, a Judge
can put leading questions even to a rape-victim during trial. This
power operates notwithstanding the restrictions contained in
Sections 141 to 143 of the Evidence Act relating to leading
questions. However, though the power is extensive, it is not
arbitrary or unregulated; it must be exercised judiciously,
cautiously, and in furtherance of justice. In trials for offences
under Section 376 of the Indian Penal Code, the recording of the
victim’s evidence carries additional sensitivity. Statutory
safeguards such as the proviso to Section 146 of the Evidence Act,
Section 53A of the Evidence Act, and Section 327(2) of the Code
of Criminal Procedure mandate protection of the dignity and
privacy of the prosecutrix. The Court is required to ensure that
victim is not subjected to humiliating or irrelevant questioning and
that the atmosphere of the courtroom does not become
34 Crl.A. No.824 of 2023
intimidating. In this context, the Judge is not expected to remain
a silent spectator; rather, the Judge may intervene to clarify
ambiguities, to ensure that the testimony is properly understood,
or to prevent confusion created during cross-examination.
3. ಅವ ಬGರೂ ೇI 3ಾಡಲು ಬಂದರು. ಮುಖ1 K2ಾರLೆ .ಾಖಲು 3ಾಡು96ರುವ ಸಮಯದ>
ಆ ೋMತರ ವNೕಲರು ಪ.ೇ ಪ.ೇ ಮಧ1 ಪQ ೇRಸು96ದು:, ಆದ: ಂದ ಾ ೇ ಸSತಃ ?ಾ@.ಾರ &ೆ
ಆ ೋMತರು ಮA “ೕ$ೆ ೇI 3ಾ4.ಾ: ಾ ಎಂದು BೇU.ಾಗ ಆBೆ ಸVಷ) ಾ ೇI 3ಾ4.ಾ: ೆ
ಎಂದು ೇUರು0ಾ6 ೆ.)
4. ಪ ನಃ ಆ ೋMತರ ವNೕಲರ Bೋ Bೆಯ “ೕ ೆ&ೆ ಪ ನಃ ಪQR!F.ಾಗ ೇI 3ಾಡಲು ಪQಯತ! ಪಟ)ರು
ಎನು!0ಾ6 ೆ.”
In the case on hand the trial court has interfered in the recording
of evidence. The role of the judge while recording the evidence is
to facilitate all the stake holders of the case, that too in the
matters of offences against women. The adversial system of
criminal jurisprudence expects the same.
52. The Supreme Court in STATE OF RAJASTHAN v. ANI,
(1997)6 SCC 162, cautioned that judicial intervention must not
appear to fill up lacunae in the prosecution case. These principles
apply with equal force in rape trials. Thus, although a Judge may
legally ask leading questions to a rape victim under Section 165,
35 Crl.A. No.824 of 2023
such power must be exercised only for clarification and to obtain
proper proof of relevant facts. The Judge cannot suggest answers,
introduce material facts not already spoken to by the witness, or
supply essential ingredients of the offence–such as penetration–
if the witness herself has not deposed to them. Nor can the Judge
neutralize contradictions brought out in cross-examination or
repair weaknesses in the prosecution case. Any such intervention
may give rise to an apprehension of bias and may affect the
fairness of the trial, which is an integral component of Article 21 of
the Constitution.
53. In essence, the role of the trial Judge in recording the
evidence of a rape victim is to strike a careful balance between
sensitivity and neutrality. The Court must protect the dignity of
the victim and ensure that her testimony is clearly and properly
recorded, but it must not abandon its impartial position or assume
the mantle of the prosecuting agency. The power under Section
165 of Indian Evidence Act is meant to advance the cause of
justice and discovery of truth, not to tilt the balance in favour of
either party. In the present case the Trial court has put leading
36 Crl.A. No.824 of 2023
question as to the directly commission of alleged offences by the
accused persons which has prompted the victim to say
affirmatively, however when the same question was putforth the
victim has answered that the accused have attempted to commit
rape, which is against to the jurisprudence of role of judges during
trial of sexual assault cases.
54. No doubt, it is a settled principle of law that conviction for
the offence of rape can be based on the sole testimony of the
prosecutrix, provided her evidence inspires confidence and is
found to be wholly reliable and trustworthy. It is equally settled
that no rule of law requires corroboration in every case. However,
this principle applies only when the testimony of the prosecutrix is
clear, consistent and free from material contradictions. In the
present case, on careful scrutiny of the evidence, it is seen that
the testimony of the prosecutrix suffers from several material
inconsistencies and omissions, as already discussed above. These
infirmities are not minor discrepancies but go to the root of the
prosecution case. Therefore, victim’s evidence cannot be said to
be of such sterling quality so as to form the sole basis for
37 Crl.A. No.824 of 2023
conviction without corroboration. A comparison of victim’s
statement under Section 164 CrPC, the contents of the FIR and
victim’s deposition before the Court reveals substantial variations
on material particulars. These contradictions relate to important
aspects of the alleged incident and affect the credibility of victim’s
version. In such circumstances, it would not be safe to rely solely
upon victim’s testimony. As a matter of prudence, independent
corroboration on material particulars was necessary before
recording a finding of guilt against the appellant.
55. In the present case, in view of the serious doubt regarding
identification and the absence of convincing corroboration from
medical and independent evidence, this Court is of the considered
opinion that the prosecution has not succeeded in establishing the
guilt of the appellants beyond all reasonable doubt for the offence
punishable under Section 376-D IPC. Criminal jurisprudence
mandates that suspicion, however strong, cannot take the place of
proof. Where two views are possible on the evidence on record,
the view favourable to the accused must be adopted. The benefit
of doubt must necessarily enure to the accused.
38 Crl.A. No.824 of 2023
56. Upon a comprehensive re-appreciation of the entire
evidence on record, this Court finds that the prosecution has failed
to establish its case beyond reasonable doubt. The evidence does
not disclose clear and consistent identification of the accused by
PW-4; the medical evidence does not cogently prove forcible
sexual intercourse; the seizure, custody and proof of material
objects suffer from serious infirmities; the arrest and production of
the accused are clouded by discrepancies; and the independent
witnesses have not furnished unimpeachable corroboration. The
cumulative effect of the non-identification by the victim,
contradictions regarding the time of incident, absence of injuries,
defective proof of medical evidence, inconsistencies in the arrest
procedure, improper marking of material objects, and lack of
reliable corroboration, creates a substantial and reasonable doubt
as to the guilt of the appellants under Section 376-D IPC. It is a
cardinal principle of criminal jurisprudence that the burden lies
entirely on the prosecution to prove its case beyond reasonable
doubt, and suspicion, however strong, cannot take the place of
proof. In the present case, the benefit of such doubt must
necessarily enure to the appellants.
39 Crl.A. No.824 of 2023
57. Accordingly, this Court is of the considered opinion that the
prosecution has failed to prove the guilt of the appellants beyond
all reasonable doubt. The appellants are therefore entitled to
acquittal by extending the benefit of doubt. Accordingly, I answer
Point No.1 in the affirmative, holding that the appellants have
made out a case for interference with the impugned judgment of
conviction and order on sentence.
Regarding point No.2:
For the reasons aforestated, I proceed to pass the following:
ORDER
(i) The appeal is allowed;
(ii) The judgment of conviction and order on
sentence dated 28th/31st March, 2023 passed
in SC No.26 of 2022 by the III Additional
District and Sessions Judge, Ramanagara,
convicting the appellants for the offence
punishable under Section 376-D IPC, is hereby
set aside;
40 Crl.A. No.824 of 2023
(iii) The appellants are acquitted of the offence
punishable under Section 376-D IPC;
(iv) The Registrar (Judicial) shall communicate this
order forthwith to the concerned jail authority
through e-mail and the appellants shall be set
at liberty, if they are not required in any other
case;
Registry to send the copy of the judgment along with trial
Court records to the concerned Court.
Sd/-
(G. BASAVARAJA)
JUDGE
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