Reportable   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1499 OF 2004

K. P. Thimmappa Gowda    ..          Appellant

-versus-

State of Karnataka ..      Respondent

J U D G M E N T

MARKANDEY KATJU, J.

1.  This  appeal  has  been  filed  against  the  impugned  judgment  dated  

17.9.2004 passed by the High Court of Karnataka in Criminal Appeal No.  

149 of 1999.

2. The facts of the case have been stated in the impugned judgment of  

the High Court and the trial court and we are not repeating the same except  

where necessary.

3. The trial court had acquitted the appellant in the criminal case, but the  

High Court reversed the judgment and convicted the appellant under Section  

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376 IPC and sentenced him to imprisonment of 7 years and a fine of Rs.  

10,000/-, and also sentenced him to imprisonment of 1 year under Section  

417 IPC and a fine of Rs. 10,000/-, both sentences to run concurrently.

4. The case of the prosecution is that on 4.1.1996 the appellant raped one  

Rathnamma aged 18 years, but he assured her that he would marry her and  

asked her to keep quiet.  It is alleged that subsequently also the appellant had  

sex with Rathnamma several times and assured her that he would marry her.  

Rathnamma became pregnant, but the appellant refused to marry her.  Hence  

an FIR was registered in the police station on 4.1.1996 against the appellant  

under Section 376 IPC.

5. In  the  trial  court  the  appellant  contended  that  Rathnamma  was  20  

years  of  age  at  the  relevant  time  and  she  had  admitted  in  her  cross-

examination that she had sexual intercourse with the appellant nearly 100  

times.  It was submitted that this showed that she was a consenting party and  

hence no case under  Section 376 IPC is  made out  against  the  appellant.  

Rathnamma’s  mother  Gowramma  PW-11  stated  in  her  evidence  that  

Rathnamma was 18 years of age.  Hence she was above 16 years of age and  

there could be no rape since there was consent.

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6. The trial court accordingly held that there was no rape as Rathnamma  

was above 16 years  of  age  and had consented to  the  act.   Subsequently  

Rathnamma gave birth to a female child  on 25.1.1996.

7. The trial court held that the version of Rathnamma that the appellant  

gagged her mouth and raped her is not believable.  The fact that her child  

was born on 25.1.1996 means that the conception was in the month of April,  

1995.  This was disclosed to her parents somewhere in the month of July or  

August in 1995 and there was a Panchayat which failed.   

8. The complaint was filed on 4.1.1996 i.e. just a few days before the  

birth of the child and not when the sexual act had taken place.  Thus there  

was a delay of over 8 months in filing the complaint which has not been  

properly explained.

9. For  the  reasons  given  above,  the  trial  court  disbelieved  the  

prosecution version and acquitted the appellant.

10. In the appeal filed by the State Government the High court reversed  

the  finding  of  the  trial  court  and  held  that  the  appellant  had  raped  

Rathnamma and had promised to marry her.  It was observed that since the  

accused  had  given  the  impression  that  he  would  honour  his  promise  of  

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marrying her, this fact was not disclosed by her to anybody, including her  

mother.

11. Admittedly, the appellant has married another woman. We are of the  

opinion that the appellant deserves the benefit of doubt because on careful  

consideration  of  the  evidence  on  record,  it  cannot  be  said  that  the  

prosecution has been able to prove its case beyond reasonable doubt.

12. In criminal cases, the rule is that the accused is entitled to the benefit  

of doubt. If the court is of the opinion that on the evidence two views are  

reasonably possible, one that the appellant is guilty, and the other that he is  

innocent, then the benefit of doubt goes in favour of the accused.

13. In the present case, the facts are that Rathnamma herself stated in her  

evidence that she had sex with the appellant  on several occasions.  It is also  

an admitted fact that the FIR against the appellant was lodged just a few  

days before the birth of Rathnamma’s child, which means there is delay of  

over 8 months in lodging the FIR.  The finding of the trial court, which has  

not been disturbed by the High Court, is that Rathnamma was about 18 years  

of age at the relevant time.  On these facts a view is reasonably possible that  

Rathnamma had sex with the appellant with her consent and hence there was  

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no offence under Section 376 IPC because sex with a woman above 16 years  

of age with her consent is not rape.     

14. For the reasons given above, the appeal is allowed.  The impugned  

judgment and order of the High court is set aside

15. Apart from the above, the appellant has stated in an affidavit filed in  

this  Court  that  he  has  agreed  to  transfer  two  acres  of  land  situated  in  

Palavanahalli  due to breach of promise to marry Rathnamma and she has  

given her consent to accept the same.

16. The appellant is directed to give/transfer two acres of land as stated in  

the affidavit filed before Court to Rathnamma within three months from the  

date of this judgment.

     …….…………………….J.           (Markandey Katju)

                    …….…………………….J.           (Gyan Sudha Misra)

New Delhi: April 04, 2011

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