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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.

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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  

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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  

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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  

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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  

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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  

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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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