IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 2r DAY OF AUGUST. 2011 BEFORE THE HON’BLE MR.JUSTICE B.V.PINTO CRIMINAL APPEAL NO. 9fQQ6 BETWEEN: Shivaravappa, S/o. Neelappa Ningadahalli Aged about 25 years, 0cc: gricu1turist R/o. Bharadi Village, Tq. & Dist. Haven APPELLANT (By Sri, N. D. Gunde, Adv.) AND: State of Karnataka by Guttal Police Haven, Rep. by the State Public Prosecutor High Court Building Bangalore 560 001 RESPONDENT (By Sri. Anand K. Navaigimath, HCGP) This criminal appeal is filed under Section 374 Cr P.C against the judgment clt.9. 12.2005 passeo by the S.d.. Haven in S.C.No.41 /2002, convicting the appelianhaccuseci for the offence p/u/s. 376 and 417 IPC and sentencing him to undergo R.I. for 7 year.s ft:r offen.ce u/s. 376 JPC and to pay fin.e of Rs.5,000/ i.D. to undergo R.I. for 6 months and also to undergo SI. for ci fn1 rue Mt nec o s 4 7 IPC both the s sh all run concurrently. This criminal appeal coming on for final hearing this day, the Court delivered the following: JUDGMENT This appeal is filed challenging the judinent dated 09.12.2005 passed by the Sessions Judge. Haven in S.C,No.41/2002 convicting the appellant for the offences punishable under Sections 376 and 417 IPC and sentencing him undergo P.1. for 7 years for offence under Section 376 IPC and to pay fine of Rs5,000/ in default, to undergo Ri, for 6 months and also to undergo Si. for 1 year for the offence under Section 417 IPC. 2. it is the case of the prosecution that on 10.03.2001 at about 12 noon at Bharadi village, the accused committed rape an the victim Cinijawwa by entering into her kitchen and thereafter threatened her and promised to marry her. Thereby he is alleged to have contmil ted offence under Section 3’76 of I PC It is furthe.r allege. d that after corn rn.ission of rape by en.teni.ng. “44 .4 -3- into the kitéhen of the victim, though the appellant promised to marry her and she became pregnant by the said forcible intercourse, he dishonestly cheated her, thereby he is alleged to have committed an offence under Section 417 IPC. 3. The prosecution in order to prove the case has examined in all 15 witnesses and got marked Exs. P1 to P11. The defence of the accused was one of total denial. However, in view of the fact that the prosecutrix PW2 had begotten a child, the learned Sessions Judge was pleased to convict the appellant and sentenced him as aforesaid. The convicted accused has filed this appeal. 4. Heard Sri. N. D. Gunde, learned Counsel for the appellant and Sri. Anand Kumar Navalgimath, learned High Court.Government Pleader for the State. 5. The learned Counsel for the appellant submitted that the victim and the appellant have married each other subsequent to the date of offence 7 C HI HI CO HI CC cJQ HI HI HI CO C) (C (C HI r -a C) C) HI + HI o i ct HI HI - Cl) CO — HI HI • ‘) C) co CD HI i HI HI — HI .- C) Cl • C) r g - HI HI C- HI HI H C) < -“ C- HI HI HI HI HI HI HI C)- HI r C) C- - HI D) )) HI • (C C C- C- C- ((C H(j C) C- C Hd C- CL HI C- HI ) (C HI Cl ) C HI ( HI C- Z - C) C) CO C- - C- HI HI HI C-. CO C () HI HI C- C- HI HI HI HI CD CO HI HI C- HI j HI HI C) • C- HI CD C- . C- CO HI •. HI HI HI HI CO HI HI CO *, — C) HI C- HI )C HI HI -‘ C)- C- * C- CO C- CO CO d HI rt HI -a— C) HI - rt ) C- - C- C- C) HI HI C) ‘ HI HI C- ((C. (. HI HI HI C- HI HI HI (C ((C HI (1 (C C- CO C- HI HI HI HI- HI C- C- HI C) ((C C- C (C CD HI — HI C) C) < C) Hi C- 9 (C HI ••• Hi Hi ( - C) CO HI HI C) C- HI ((C C) HI C) C) - HI HI C) HI (1 C) C- HI HI C- C) HI HI.• CD HI (C C) HI C- HI ((C C- C), —. HI (1 HI HI HI HI HI CO 0- CO CO 0- 4 -;)- consent on behalf of the victim at the time when the offence is alleged to have been committed. The incident came to light only after other members of her house came to know that she is pregnant and thereafter, the complaint was filed. The complaint came to be filed on 04.08.200 1 whereas the child is delivered on 04.06.2001. Hence, there is absolutely no element of force and it is only the element of cheating which is made out from the prosecution case. 7. Under the circumstances, I am of the opinion that the order of conviction for the offence under Section 376 is erroneous in law. The appellant is entitled for an order of acquittal for the said offence. 8. Perused the application for compounding. The offence under Section 417 IPC is compoundable at the instance of the person who has been cheated. The victim is present before the Court today and submits that the averments made in the affidavit filed by her are 4 -6- true. It is mentioned in the affidavit that the appellant is the only bread earner of the family and both of them together are required to look after the child born out of their marriage. 9. Under the circumstances, permission is granted to compound the offence under Section 417 of IPC for which the appellant stood charged and convicted. In view of the composition of the offence, the accused is acquitted of the offence leveled against him. The appeal is allowed. The bail bond executed by the appellant is discharged. The fine amount, if deposited shall be refunded to him. Sd! 3IJDGE gab