HARISH SUVARNA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned Counsel for the appellant and the learned Government Pleader.

(2.) The appellant was the accused before the Court below for offences under Sections 376, 511 and 506 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). The appellant having been convicted to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs. 1,000/- for the offence punishable under Section 376 read with section 511 of the IPC and to undergo simple imprisonment for a period of 1 year for the offence under Section 506 of the IPC, the present appeal is filed.

(3.) The learned counsel for the appellant while taking this court through the record would contend that the court below has ignored the first principles of Criminal Jurisprudence and has convicted the accused notwithstanding that there was no evidence in support of the charges. Firstly, it is pointed out that there was inordinate delay in lodging the complaint and registering the First Information Report and there are varying versions of the alleged incident, which itself would dislodge the case of the prosecution. It is pointed out that the charge sheet was filed only in respect of an attempt to commit rape and there was no allegation of rape. Therefore, the point that was framed for consideration as to whether the prosecution had proved that the accused had committed rape was beyond the jurisdiction of the court below. Therefore, the very approach of the prosecution and the manner in which the court below has addressed the matter is lopsided and especially, when there was no case, except in the evidence that the accused had forcibly committed sexual intercourse on Pw-2 which is contrary to the charge sheet. The court below had no occasion to proceed to hold that the evidence of Pw-2 indicates penetration and hence penetration is sufficient to attract the commission of rape. This again is contrary to the learned Judge's own finding. Therefore, it is alleged that the judgment suffers from patent errors and would run against the grain in having ignored first principles of Criminal Jurisprudence and having found the appellant guilty in the face of such lacunae, which has been conveniently ignored in arriving at conclusions, which are not supported by material on record nor even the charges that were framed. It is particularly demonstrated that even though Pw-2 has stated as to the manner in which the alleged rape was committed on her in the course of her cross-examination, she has in clear and unambiguous terms stated that when she heard a knock on the door, she opened the door and saw a man standing at the door and on seeing him, she had immediately shut the door. And when she screamed for help, the neighbourers and others in the vicinity had come there. Therefore, the question of accused having trespassed into the house of the victim and having committed rape on her was totally given a go bye in her cross-examination itself. The findings of the court below have resulted in a gross miscarriage of justice and results in the appellant being visited with a serious punishment of imprisonment for several years, which is hardly supported by the material on record.