Mohan Naik v. State of Karnataka - Section 376-D IPC Gang Rape Conviction Appeal

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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)](https://indiankanoon.org/doc/929532/) of
   

the Code of Criminal Procedure, aggrieved by 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 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.

1. 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".

1. 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

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.

1. 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

376D and 307 of the Indian Penal Code on 17.11.2022. The

accused pleaded not guilty and claimed to be tried.

1. 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.

1. 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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

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.

1. 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](https://indiankanoon.org/doc/9545/) 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.

1. 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

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.

1. 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.

1. 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.

1. 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

discharge that burden. Therefore, the appellants are entitled to

the benefit of doubt and consequent acquittal.

Submissions on behalf of the respondent-State:

1. 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.

1. 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.

1. 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

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.

1. 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.

1. 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.

1. 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-

1. 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.

1. 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.

1. With regard to the alleged prior complaint filed by accused

No.1, it is submitted that the same has no bearing on the present

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.

1. 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](https://indiankanoon.org/doc/9545/) 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.

1. 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.

1. Upon hearing the rival contentions urged by the learned

counsel for the appellants and the learned HCGP for the State, and

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

duty-bound to re-appreciate the evidence in its entirety and arrive

at an independent conclusion.

1. 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

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.

1. 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.

1. 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

any 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

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.

1. 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

public 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.

1. 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.

1. The prosecution has examined as many as twenty

witnesses. PWs3, 9, 10, 14 and 15, who were cited as

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.

1. 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.

1. 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

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.

1. 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.

1. On perusal of complaint-Ex.P3 dated 17.06.2021 registered

in Crime No.64/2021 of Ramanagara Women Police Station, it is

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.

1. 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.

1. The appellants were charged for the offences under [Sections

307](https://indiankanoon.org/doc/455468/) 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.

1. 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

when the victim herself disowns identification, the substratum of

the prosecution case becomes doubtful.

1. 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.

1. 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.

1. 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)

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.

1. 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.

1. 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

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.

1. The Hon'ble Supreme Court, in the case of [STATE OF

KARNATAKA BY NONAVINAKERE v. SHIVANNA @ TARKARI

SHIVANNA](https://indiankanoon.org/doc/2622362/) 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.

(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.

1. 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.

2. 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.

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.

1. 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.ೆ.)"
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

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.

1. 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 ೆ.)

2. 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.

1. 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,

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.

1. 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](https://indiankanoon.org/doc/302809/) 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

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.

1. 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

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.

1. 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.

1. 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.

1. 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;

(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

lnn