K. P. THIMMAPPA GOWDAversusSTATE OF KARNATAKA

                        [2011] 4 S.C.R. 200

A                   K. P. THIMMAPPA GOWDA
                                  v.
                      STATE OF KARNATAKA
                (Criminal Appeal No. 1499 of 2004}
                          APRIL 04, 2011
B
    [MARKANDEY KATJU AND GYAN SUDHA MISRA JJ.]

        PENAL CODE, 1860:
c       s. 376 - Sexual intercourse with a girl of about 18 years
  of age on the false promise to marry her - Prosecutrix giving
  birth to a child after few days of the FIR - Acquittal by trial
  court - Conviction by High Court - Held : In criminal cases
  the rule is that the accused is entitled to benefit of doubt - If
D the court is of opinion that on the evidence adduced two views
  are possible, benefit of doubt goes to accused - In the instant
  matter, prosecution has not been able to prove its case
  beyond reasonable doubt - Accused deserves benefit of
  doubt - Judgment of High Court set aside - Criminal Law -
  Benefit of doubt.
E
       The appellant was prosecuted on the basis of an FIR
  dated 4.1.1996 for committing an offence punishable u/
  s. 376 IPC. The prosecution case was that the appellant
  had sex with the prosecutrlx several times on the false
F promise to marry her. The prosecutrlx gave birth to a
  child on 25.1.1996. The trlal court acquitted the accused,
  but the High Court convicted him u/s. 376 IPC and
  sentenced him to imprisonment for 7 years and to pay a
  fine of Rs.10,000/-. Aggrieved, the appellant filed the
G appeal.
        Allowing the appeal, .the Court
      HELD: 1.1. In criminal cases, the rule is that the
  accused is entitled to the benefit of doubt If the court Is
H                            200
       K. P. THIMMAPPA GOWDA v. STATE OF                 201
                 . · KARNATAKA
  of the opinion that on the evidence two views are             A
  reasonably possible, one that t"e appellant is guilty, and
  the other that he is innocent, then the benefit of doubt
  goes in favour of the accused. In the instant case, the
  appellant deserves the benefit of doubt because on
. careful consideration of the evidence on record, it cannot    B
  be said that the prosecution has been able to prove its
  case beyond reasonable doubt. [para 11.-12] [204-H; 205-
  A; 204-G]
      1.2. The facts are that the prosecutrix herself stated
 in her evidence that she had sex with the appellant on C
 several occasions. It is also an admitted fact that the FIR
 against the appellant was lodged just a few days before
 the birth of the child of the prosecutrix, which means
 there is delay of over 8 months in lodging the FIR. The ·
 finding of the trial court, which has not been disturbed D
 by the High Court, is that the prosecutrix was about 18
 years of age at the relevant time. On these facts a view is
 reasonably possible that the prosecutrix had sex with the
 appellant with her consent and hence there was no
 offence punishable u/s. 376 IPC because sex with a E
 woman above 16 years of age with her consent is not
 rape. Impugned judgment and order of High Court is set
 aside. [para 13•14] [204-B-D]
      1.3. Besides, the appellant has stated in an affidavit
 filed in this Court that he has agreed to transfer two acres   F
 of land due to breach of promise to marry th~ prosecutrlx
 and she has given her consent to accept the same. The
 appellant is directed to give/transfer the said land to the
 prosecutrix. [para 15-16) [204-E-F]
                                                                G
     CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
 No. 1499 of 2004.
     From the Judgment Order dated 17.9.2004 of the High
Court of Karnataka at Bangalore in Criminal Appeal No. 149
of 1999.                                                        H
    202       SUPREME COURT REPORTS                [2011] 4 S.C.R.

A        Shanth Kr. V. Mahale, H?rish S.R. and Rajesh Mahale for
    the Appellant.

          Sanjay R. Hegde for the Respondent.

      MARKANDEY KATJU, J. 1. This appeal has been filed
B 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
c   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 376 IPC and sentenced him to
  imprisonment of 7 years and a fine of Rs. 10,000/-, and also
D 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
E 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
F · 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
G 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
H
      K. P. THIMMAPPA GOWDA v. STATE OF                        203
       KARNATAKA [MARKANDEY KATJU, J.]
her evidence that Rathnamma was 18 Y;9<rs of age. Hence she           A
was above 16 years of age and there could be no rape since
there was consent.

     6. The trial court accordingly held that there was no rape
as Rathnamma was above 16 years of age and had consented              B
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          C
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      0
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.                  E

     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             F
impression that he would honour his promise of 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         G
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   H
    204      SUPREME COURT REPORTS                 [2011) 4 S.C.R.

A 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
8
  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
C 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 no offence under Section 376 IPC because sex with a
D 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

E        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.
F        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.
    R.P.                                           Appeal allowed.