The court found insufficient evidence to sustain a conviction for rape, reversing the trial court's decision.

CORAM: HON'BLE MRS. JUSTICE M.G. UMA ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE M.G. UMA)

The accused in S.C. No.126/2022 on the file of the learned I Additional Sessions Judge, Kalaburagi, is impugning the judgment of conviction dated 18.11.2023 and order of sentence dated 21.11.2023, convicting him for the offence punishable under Section 376 of Indian Penal Code [for short ‘Trial Court’], sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.50,000/-, with default sentence.

2. The facts of the case in brief are that, the victim PW1 has lodged the first information as per Ex.P1 against the accused alleging commission of the offence punishable under Section 376 of IPC. It is her contention that, she along with her husband - PW3 and her sister - PW2 and her relative - PW8 along other relatives had been to Vaishnavi Daba on 20.03.2022, had the dinner and slept there. In the early hours of 21.03.2026 at 4.00 a.m., when the victim was sleeping along with her husband, sister and the relatives, the accused came and committed rape on her. When the victim screamed, her husband caught hold of the accused, all the other persons came there and they intimated the Police. The Police came to the spot and took the accused to the Police Station. Victim was subjected to medical examination. After investigation, the final report came to be filed. Thus, it is the contention of the prosecution that, the accused has committed the offence punishable under Section 376 of IPC.

3. Learned Magistrate took cognizance of the offence and committed the matter to the Sessions Court. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 16, got marked Exs.P1 to P23 and identified M.O. 1 to 11. The statement of the victim under Section 164 of Cr.P.C., was identified as Ex.C1. Accused denied all the incriminating materials available on record, but has not led any evidence in support of his defence. The Trial Court, taking into consideration all these materials on record, came to the conclusion that, the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and accordingly, passed the impugned judgment of conviction and order of sentence. Being aggrieved by the same, the accused is before this Court.

4. Heard Miss. Vaishnavi Mangane, learned counsel for the appellant/accused and Sri Gopalkrishna B. Yadav, learned High Court Government Pleader for the respondent - State. Perused the materials on record, including the Trial Court records.

5. In view of the rival contentions urged by learned counsels for the parties, the point that would arise for my consideration is:

"Whether the judgment of conviction and order of sentence passed by the Trial Court suffers from infirmities and calls for interference by this Court?"

My answer to the above point is in the ‘Affirmative’, for the following:

REASONS

6. It is the contention of the prosecution that, on

20.03.2022 the victim along with her husband, sister and the relatives was sleeping in Vaishnavi Daba after having dinner. On 21.03.2022 at 4.00 a.m., accused came and committed rape on the victim. Initially, she thought it was her husband, but on realizing that he is a stranger, she started screaming. Her husband caught hold of the person and realized that it was the accused - Basavaraj, who served food to them on the previous night. Immediately, they called the Police and handed over the accused. They have also gone to the Police Station and filed the first information as per Ex.P1.

7. The F.I.R. came to be registered as Ex.P13.

The victim was examined as PW1 before the Trial Court. She stated regarding the i