IN THE COURT OF THE LIII ADDL, CITY CIVIL AND

SESSIONS JUDGE AT BANGALORE

Special Court (CCH-54)

DATED THIS THE 31st DAY OF MARCH, 2016

PRESENT:
Sri. G.B. Mudigouder., B.Sc.,LLB.,(Spl.)
LIII Addl. City Civil & Sessions Judge,
Bangalore.

S.C.No.1242/2015

Complainant : State of Karnataka by

Reptd by Investigating Officer,
CID, Bengaluru

(Spl Public Prosecutor)

-V/s -

Accused : Shreemad Jagadguru Shankara

charya Shree Shree Raghaveshwara
Bharathi Shri Swamiji
(Formerly known as Sri Harish)
Aged about 40 years,
Shree Samsthana –Gokarna,
Shree Ramachandrapura Math,
Haniya Post, Hosanagara Taluk,
Shivamoga District,

Now R/at the Administrative Office

Ramashrama, No.2A, J.P. Road,
Girinagar, Bengaluru 560 085.

(By Sri. Shankar P.Hegde &

Associates, Advs)
 2 S.C.No.1242/ 2015

ORDER ON PETITION UNDER SEC.227 OF CR.P.C.

FILED ON BEHALF OF THE ACCUSED SHREEMAD
JAGADGURU SHANKARACHARYA SHREE SHREE
RAGHAVESHWARA BHARATHI SHRI SWAMIJI

This petition came to be filed by the accused to

seeking discharge him from the charges of rape and
threatening leveled against him on the ground that there
are no materials or no grounds to frame the charge
against him, which reads as under:-

It is stated that Srhi Swamiji is seeking this court to

exercise the power endowed under Section 227 Cr.P.C
and to discharge him from the above said case on the
ground that there are no sufficient grounds to proceed
against him.
The background of the case should not be lost sight
off as it goes to the root of the case demonstrating
genesis of the case. It is submitted that the petitioner
Shree Shree Raghaveshwara Bharathi Shri Swamiji is
the Pontiff of Shree Samsthana Gokarna – Shree
Ramachandrapura Math, Hosanagra, Shimoga,
hereinafter referred to as “Shree Math”. His Holiness is
the 36th Pontiff in the unbroken lineage of Sri Adi
Shankara Paramapara and the Petitioner hereinafter
 3 S.C.No.1242/ 2015

referred to as “Shri Swamiji”. Shri math is a religious

math established by Adi Guru Shree Shankaracharya
and is engaged in the propagation of the spirit, values
and teachings of the Hinduism and Sanathana Dharma.
Shree Math was founded about a thousand three
hundred (1300) years ago at Gokarna, Kumta Taluk,
Uttara Kannada District, Karnataka having
headquarters situated at Ramachandrapura Village,
Hosanagara Taluk, Shimoga District. Shree Math also
has branches including Administrative Office situated at
the address mentioned above in the cause title.
It is further stated that during 8th Century A.D.
Shree Aadi Shankaracharya, the proponent of “Advaitha
Siddhanta” had visited the holy land of Gokarna and
established Shree Math by ordanining his disciple Shree
Vidyanandacharya as the Pontiff of Shree Math to look
after and manage the affairs of the same. Shree Shri
Swamiji herein is the present/incumbent Pontiff
(Peetadhipathi) of Shree Math and is the 36th Pontiff in
unbroken line of such Shishyas (Guruparampara) of
Shree Aadi Shankaracharya. Due to historical reasons,
the 12th Pontiff of Shree Math changed the venue of
Shree Math’s activities to the Ramachandrapura Village
 4 S.C.No.1242/ 2015

of Hosanagara Taluk, Shimoga District, on the banks of

the Holy River Sharavathi.
It is further stated that the Government of
Karnataka has denotified the Gokarna Mahabaleshwara
Temple after considering the materials placed before it.
Consequently, the administration of the said temple was
handed over to Shree Math headed by the Shri Swamiji
herein. Thereafter, certain disgruntled people with
vested interests, mainly the members of Gokarna
Hitarakshana Samiti started continuous zap on Sri
Math and the Shri Swamiji personally. Several writ
petitions were filed before the Hon’ble High Court of
Karnataka and many of them are pending for
consideration. Even some PILs (Public Interest
Litigations) were also filed making false personal
allegations against Shree Math and the Shri Swamiji.
It is further stated that a Criminal Case was
registered in Crime No.27/2010, against the accused
therein, for the offence of morphing and making fake CD
with the intention to tarnish and destroy the image of
Shree Math and the Shri Swamiji. The Gokarna Police
after detailed investigation filed charge sheet, against
the accused therein, for the offence punishable under
Section 120(b), 153(a), 295(a), 298, 500, 511 along with
 5 S.C.No.1242/ 2015

149 of the Indian Penal Code and Section 67 of

Information Technology Act, 2000 (“IT Act, 2000”), the
said matter is pending trial.
It is further stated that subsequently some false
cases were registered against the office bearers of Shree
Math making allegations of sexual harassment and the
same ended in filing of B-Report by the police after
thorough investigation. The same was accepted by the
Hon’ble Magistrate and investigation was dropped on
reaching finality. The same is in Crime No.401/2009
before the Court of Civil Judge, Junior Division and
JMFC, Hosanagara.
It is further submitted that number of PILs filed
against Shree Math and Shri Swamiji are pending before
Hon’ble High Court of Karnataka. An Association by
name Gokarna Hitharakshana Samithi and ASTRA, an
NGO, together being petitioner had filed one more writ
petition bearing WP No. 36998/2013 (GM-RES-PIL) on
frivolous and fictitious grounds. After filing of the said
PIL, the petitioners therein and several other persons
making threatening calls and adopted blackmail tactics
and demanded Rs.10 Crores for withdrawal of said PIL,
failing which, they would pursue the PIL and they would
also file more cases against the Shree Math and Shri
 6 S.C.No.1242/ 2015

Swamiji to tarnish the image of Shree Math. The said

blackmailers/extortionists were caught red-handed by
the Girinagar Police based on the complaint made by
the CEO of Shree Math dated 21.3.2014. The Girinagar
Police have registered the complaint in Crime
No.47/2014 and arrested the accused by laying charge
sheet for the offence punishable under Section 120(b),
420, 389, 170, 418, 465, 471 r/w 34 of the Indian Penal
Code. The said case is pending Trial before the Court.
It is further stated that Dharma Chakra Trust, a
trust attached to Shree Math and Shri Swamiji who
were made as Respondents in WP No.36998/2013,
represented through their advocate, filed affidavit before
the Hon’ble High Court and brought the illegal activities
and developments that took place throughout. Based on
the affidavit filed by the GPA Holder of the Petitioner
and others, the writ petition came to be dismissed by
the Hon’ble High Court by order dated 04.08.2014 and
an exemplary cost of Rs.1 lakh has been imposed on the
Petitioners therein for abusing the process of court and
filing frivolous cases. Further, the Hon’bel High Court
in the very same order restrained the Petitioners and the
Counsel representing the Petitioners in the said PIL
from filing PILs or representing any PILs permanently.
 7 S.C.No.1242/ 2015

It is further stated that during the course of

arguments in a bail petition filed before the Hon’ble
High Court in Criminal Petition No.3033/2014 by the
accused therein, the Advocate representing the accused
threatened the Advocates representing the defendant-
facto complainant and categorically warned that he will
not spare anybody and he would see to it that Shri
Swamiji shall remove his saffron robes and walk away.
It is further stated that during Chaturmasya
Vratha performed last year at the branch Math situated
in Kekkar of Honnavara Taluk from 12.7.2014 to
09.09.2014, threatening phone calls were received by
Dr. Gajanana Sharma, one of the Director of Ramakatha
Program and he immediately lodged a complaint before
the jurisdictional police on 16.7.2014 which is under
investigation. Similarly, Ms. Deepika, Mrs.
Shankarimurthy Bailila, both performers at Ramakatha
program, Mr. Raghavendra Madhyastha, Camp Manager
of the Petitioner also had received threatening calls from
unknown telephone numbers and they have also lodged
the complaint before the jurisdictional police stations.
It is further stated that the blackmailers have
further threatened Mr.B.R.Chadnrashekar who was a
coordinator of Ramakatha program and also Secretary
 8 S.C.No.1242/ 2015

of the Suraksha Wing over phone. The person who

called Mr.B.R. Chandrashekar identified himself as Mr.
Divakara Shastry and demanded dethronement of Shri
Swamiji from the Peetha along with ransom of rupees
three crores in lieu of not lodging a false complaint
against Shri Swamiji. He further threatened that his
wife Mrs. Premalatha Divakar and his brother Mr.
Narayana Shastry have even prepared a written
complaint to be filed against the Shri Swamiji by
alleging sexual harassment and other offences. Further,
he has also threatened that he will tarnish the image
and reputation of Shree Math/Shri Swami by foisting
false story before media and they will also lodged
complaint before the police and also before the women’s
commission. The said Mr.B.R. Chandrashekar lodged a
complaint before the Honnavara police and the same
was registered in Crime No.342/2014 on 17.08.2014,
for the offences punishable under Section 120(b), 153(a)
and (b), 384, 420, 504, 506, 511 and 34 of the Indian
Penal Code along with Section 66(a) on IT Act, 2000.
The Honnavara Police after holding preliminary
investigation and recording the statement of various
persons, arrested Mr. Divakar Shastry and Mrs.
 9 S.C.No.1242/ 2015

Premalatha Divakar and produced them before Hon’ble

JMFC, Honnavara.
It is further stated that when the matters stood thus
as an afterthought a counter blast complaint was lodged
by the daughter of Mr. Divakar Shastry and Mrs.
Premalatha Divakara (Prosecutrix) by name Ms.
Amshumatthy Shastry (complainant) on 26.08.2014
before the Banashankari Police got registered the false
complaint against the Shri Swamiji in Banashankari
Police Station Crime No.2119/2014 for the offences
punishable under Section 354(A) and 506 of Indian
Penal Code. Further, the Prosecutrix submitted the
written complaint before learned JMFC, Honnavara in a
case registered against her and Divakara Shastry.
It is further stated that Shri Swamiji is a law
abiding innocent citizen and false allegations are foisted
against him in order to tarnish the reputation, goodwill
and image of Shree Matha and Shri Swamiji.
It is further stated that the complaint is so absurd,
inherently improbable, preposterous that no prudent
man can ever reach a conclusion that there is any case
made out against Shri Swamiji, including alleged rape
case.
 10 S.C.No.1242/ 2015

It is further stated that the complaint is palpably

false and inherently improbable. The same is made out
of personal vendetta to harass and humiliate Shree
Swamiji in the eye of public and to undermine his image
in the minds of disciples.
It is further stated that the complaint of the
complainant is hit by enormous delay and latches. The
complainant has lodged the complaint after a lapse of 3
years from the date of the alleged first incident. The
complaint on the face of it is wholly unnatural, doctored
and concocted as the complainant gave statement before
the CID during investigation of Crime No.164/2014
without whispering anything about the allegation made
by her in the complaint dated 29.08.2015 tendered
before the JMFC, Honnavar.
It is further stated that the motive for lodging the
complaint is twofold; first one emanating from
humiliation suffered by Divakara Shastry and CMN
Shastry, who made Shri Swamiji honourary President of
Shree Uma Maheshwara Temple Hosagunda, Shimoga
District. The said CMN Shastry collected donations from
various people and failed to furnish accounts. On being
questioned by the CEO of Shree Math lost temper and
cautioned him to mind business of his own. Feeling the
 11 S.C.No.1242/ 2015

relentless pressure of people, which was unbearable,

CMN Shashtry presumed that Shri Swamiji is
instrumental in awakening the public. He opted to
criticize Shri Swamiji in public by having axe to grand
against him. SEcndly, Divakara Shastry and the
Prosecutrix Premalatha were also shunted out from
‘Shri Math’ by dissolving various committees presided
by Shastry couple, for which the couple had openly
expressed their displeasure, with this Divakara Shastry
had suffered business loss and was in acute need of
money. Hence, as confessed by him before the Panchas
on 27.06.2014 which was ended in recovery of the
materials in their i-phones, i-pads, computers, etc the
couple had planned for extortion of money from ‘Shri
Math”. Thus the confession of the husband about the
involvement of his wife Premalatha is proved, as
confession against Premalatha is admissible under
section 10 of Indian Evidence Act. The recovery of
material as narrated in the confession is also legally
valid in view of Section 27 of Indian Evidence Act, i.e.,
confession resulting in recovery. Thus the case of B.R.
Chandrashekar lodged as stated supra supported by
two 164 statements recorded before the Hon’ble JMFC,
 12 S.C.No.1242/ 2015

Honnavar under the Code of Criminal Procedure are

sufficient to demonstrate motive for lodging this case.
It is further stated that the panchanama prepared
by the Honnavar Polcie in the presence of Panchas
shows that instant complaint filed by the complainant
Amshumathi Shastry is an afterthought. Under such
circumstances from the documents produced by the
complainant herself, it is demonstrated that there is no
sufficient ground to proceed against Shri Swamiji.
It is further stated that the complaint lodged by
Amshumathi Shastry on 26.08.2014 is false and
frivolous, hence not a first information in the eye of law
as enshrined under Section 154 of Cr.P.C. This
complaint has no reference to the alleged incidents
narrated by Prosecutrix in her statements. The
submission of incomplete complaint dated 27.08.2014
produced by Premalatha before Hon’ble JMFC,
Honnavar contains several blank spaces, a meticulous
reading of the complaint shows that the complaint is
doctored/concocted and had undergone several
corrections by several people including the legally
trained person and an Astrologer. Hence, the alleged
complaint produced before the learned JMFC, Honnavar
by Prosecutrix ahs no legal sanctity.
 13 S.C.No.1242/ 2015

It is further stated that the e-mails produced

shows that the complaint produced by Prosecutrix is a
corrected version and was seen by many people. The
copy was sent to various people on 3.8.2014 itself.
Several discussions were made as alleged by Prosecutrix
before several people about the alleged incidents.
Therefore, it is unique case, wherein there is no material
to show the ingredients required to constitute any of
offences including an offence of rape and sexual abuse.
The entire First Information Report and complaint even
if accepted at its face value, do not disclose all the
ingredients of alleged offence.
It is further stated that it is cardinal principle of
criminal jurisprudence that only the materials which
can be translated into legal evidence can be taken into
consideration at the state of hearing before charge.
Therefore the complaint and First Information Report
based on here say evidence cannot be considered as
legally valid material which can be translated into
evidence at the time of trial. Therefore, on this solitary
ground alone Sri Swamiji is liable to be discharged.
It is further stated that Prosecutrix and her
husband had discussed about alleged incidents
formulated in secrecy vide their emails dated
 14 S.C.No.1242/ 2015

25.06.2014 at 9.03 a.m., and 9.39 a.m., under the

caption tilivu. It clearly shows that couple had planned
to foist a false case even before the alleged incidents
dated 26.06.2014 and 27.06.2014. These emails
further show that defence theory of passing the
information on 30.06.2014 is false. It is further shows
that no incident as alleged by Prosecutrix had taken
place on 26 and 27th of June 2014.
It is further stated that the statement given by Smt.
Premalatha on 05.09.2014 before Girinagara police at
Karawara shows that the alleged incident of rape dated
26.06.2014 had happened between 3.15 p.m., to 3.30
p.m. The statement of Sri. Abhiram CW38 shows that
the Prosecutrix had gone out from Math by 3.00 p.m.
The Call Detail Register which is having evidentiary
value of unimpeachable quality also shows that the
Prosecutrix was not present in the alleged scene of
offence during the time stated by her. This clearly shows
that there is no material produced by the prosecution to
show her presence in the alleged scene of offence during
the alleged incident.
It is further stated that on 06.09.2014 the police
searched the house of Smt. Premalatha but no
incriminating material relating to the alleged rape was
 15 S.C.No.1242/ 2015

found. Hence nil panchanama was recorded. However,

she had claimed in her statement dated 05.09.2014 that
she had preserved two sarees, one petty coat and one
panty liner relating to the alleged incidents i.e., one
saree and one petty coat relating to the alleged incident
dated 26.06.2014 and one Saree one and one panty
liner relating to the alleged incident dated 27.6.2014.
On 17.09.2014 Divakara Shastry and the Prsecutrix
came back to their house with the CID police, even then
did not handover any incriminating material including
sarees and petty coat. Again on 18.09.2014 the
prosecutirx along with her husband visited CID office
and met sleuths therein. Later as a part of larger
conspiracy the CID police came to her house in the
evening at 8.00 p.m., and collected the so called
incriminating materials under panchanama. The
delayed collection of materials under panchanama
coupled with conspicuous presence of new item not
divulged earlier in the statement and number of hairs
found in the article No.6 while opening in the biology
section of Forensic Science Laboratory, conjunctively
shows that article no.6 in toto is a fabricated/doctored
material object.
 16 S.C.No.1242/ 2015

It is further stated that the complaint given by the

Prosecutrix and her daughter is nothing but a counter
blast to the complaint lodged by B.R.Chandrashekar
and others. The complaint of Prosecutrix is not only
incomplete but also a concocted story created to suit
their ulterior motive of extracting ransom which is
evident from the panchanama narrated supra drawn in
Honnavara Police Station Crime No.342/2014. Hence
the complaint is not a “first information” as understood
in law but a doctored version produced after
several/series of corrections made by legally trained
person, Advocate C.M.G. Shastry CW-24.
It is further stated that the statement of Prosecutrix
given on different dates before the police as well as
before the courts consists of conspicuous improvement,
omissions, contradictions, consistently made
admissions on oath, later resoling without any
reasoning amply shows that the statement of
Prosecutrix is not worthy of credence, in the absence of
corroborations in material particulars.
It is further stated that the Prosecutrix has gone to
an extent of alleging rape at Mangalore on oath
succinctly on day to day basis, on knowing that she was
not present during tntire programme, she later again on
 17 S.C.No.1242/ 2015

oath took U turn and resiled from the earlier statement.

This living and standing examples demonstrate that the
statement of Prsecutrix propelled by strong motive of
dethronement of Shri Swamiji from Peetha, as well as
demand of ransom, made Prosecutrix to go to an extent
of making an allegation of rape, even during the
programme in which she was absent. Prosecutrix gave
statement under section 164 of Cr.P.C., before the court
number of times and on different occasions namely
during her stay at judicial custody, before Girinagara
Police, before CID Police, before Hon’ble court at
Bengaluru. Therefore, her statement recorded after more
than 90 days from the date of alleged incident, cannot
be accepted without corroboration even at the stage of
hearing before charge.
It is further stated that the Forensic Science
Laboratory report dated 20.10.2014 contains several
articles which are not even referred in her statement
recorded u/s 161 Cr.P.C., as well as statement recorded
under Section 164 Cr.P.C. Under such circumstances,
there is no materials produced by the prosecution to
show the genesis of these articles. In short, there is no
explanation in the charge sheet as to, how? and from
where? from which source? the additional materials
 18 S.C.No.1242/ 2015

came to the Biological Section of Forensic Science

Laboratory.
It is further stated that the material objects
including article no.6 is said to have been collected 82
days after the alleged incident. No explanation is given
about ensuring safe custody of these materials for eighty
two days. Therefore, the article no.6 found and collected
from unprotected dustbin after eighty two days,
containing additional hairs/foreign materials show that
article no.6 is fabricated.
It is further stated that the test relating to semen
was conducted only once and the test conducted for
blood was also once. Thus in all two tests were
conducted. Forensic Science Laboratory report and
datas were also produced by the CID police in the
charge sheet. The said report along with Annexures
containing the data demonstrates that there is no
materials to proceed against Shri Swamiji.
It is further stated that the Forensic Science
Laboratory reports were submitted thrice on different
dates, each time the Forensic Science Laboratory report
was produced with improvement without conducting
any additional tests apparently to fill up the lacunae as
and when noticed in each report.
 19 S.C.No.1242/ 2015

It is further stated that according to Prosecutrix she

was alleged raped on 27.06.2014 between 8.30 p.., to
9.45 p.m. She further candidly says that, the alleged
rape took place after receiving the call of Praveen D Rao
shown as CW33. Mr. Praveen D Rao spoke to
Prosecutrix from 8.58 pm., to 9.07 p.m. Further Shri
Swamiji attended the rehearsal along with other artists
from 9.00 p.m., to 9.30 p.m. Thereafter, many inmates
of Math spoke to Prosecutrix between 9.30 p.m. to 9.45
p.m. Hence, there is no question of any incident taking
place as narrated by Prosecutrix. Further the Forensic
Science Laboratory report has clearly shown that no
such incident as alleged by Prosecutrix has taken place
as no incriminating material was found in the materials
given by Prosecutirx alleging the containment of Shri
Swamiji semen. The CDRs also demonstrate that she
was in Girinagra Math between 8.15 p.m. to 8.57 p.m.
and thereafter went off and never came to Math again
on that day. The above said documentary evidence
issued by Government of India clearly shows that the
statement of Prosecutrix is far from truth. In the light of
the above reasons, the prosecution has failed to produce
sufficient materials to proceed against Shri Swamiji.
 20 S.C.No.1242/ 2015

It is further stated that the incident narrated by her

commencing from 2011 to 24th June 2014 are false and
fabricated, as there are no corroborative materials
except self serving motivated statement of Prosecutrix.
The messages, emails and whatsapp materials produced
by the prosecution shows that the Prosecutrix and her
daughter have addressed Shri Swamiji as Gurudeva and
sought his blessings even up to 29.06.2014. The
daughter had even made the portrait of Shri Swamiji
and addressed him as God. Further the Prosecutrix in
her statement before the Police as well before the Court
has averred that she had offered a special fruit by name
RAMBUTAN grown in her arcade at her native place to
Shri Swamiji on 24.06.2014, that too by reaching Math
on her own volition along with her second daughter.
This clearly shows that entire story as hatched by
Prosecutrix in secrecy is unnatural, concocted and
devoid of merit.
It is further stated that the sole testimony of
Prosecutrix being improbable and opposed to common
sense of reasonable prudent man, cannot be accepted at
its face value as her conduct is unnatural and opposed
to human conduct. The story of the Prosecutrix is
unworthy of credence and not supported by legally
 21 S.C.No.1242/ 2015

admissible evidences. The discrepancies got o the root of

the matter and if properly noticed would lead any court
to discard the version of Prosecutrix, thereby entire
prosecution case. The investigation papers to be
conducted to please the media and women
organizations, as such final report is filed by not
producing relevant materials collected in the course of
investigation. The investigation appears to be
manifestly biased as even in absence of material
evidence to connect the Swamiji with the crime charge
sheet is filed without any basis. An overall assessment
of the so called incriminating material indicates that
story put forth by prosecution and improvements made
at every stage is patently false and not amenable to the
sense of reasonable prudent man as such no reasonable
prudent man can ever come to a conclusion of guilt
against Swamiji on this solitary ground alone. Accused
is liable to be discharged.
It is further stated that the prosecutrix being an
educated lady, having extensive traveling at her credit
as the popular singer exposed to modern dynamic
world, having blessed with two grown up children
submitting herself for sex as alleged by her under the
fear of Promise on God for 169 times is unbelievable,
 22 S.C.No.1242/ 2015

opposed to commonsense and apparently appears

unnatural.
It is further stated that the prosecutrix has
categorically stated that she has disassociated with the
activities relating to math for more than six months, as
such she should not have come back, if she had really
suffered sexual assault as alleged by her. This act of
Prosecutrix also appears to be unnatural and speaks
volumes about ulterior selfish motive and conspiracy
hatched in sinister design to malign Shri Swamiji.
It is further stated that innumerable, inconsistent
and contradictory statements couched with the half
truth and patient lie shows that evidence of Prosecutrix
is in the nature of accomplice and cannot be accepted
without corroboration in substantive
particulars/materials as enshrined under Section 114 of
Indian Evidence of Act.
It is further stated that the non examination of
material witnesses, non production of statement of some
material witnesses recorded in the course of
investigation, non production of material objects
collected in the course of investigation, production of
concocted material/doctored materials in the charge
sheet resulted in demonstrating unfair and biased
 23 S.C.No.1242/ 2015

investigation leading to violation of Article No.21 of the

Constitution.
It is further stated that the Forensic Science
Laboratory Department from whom the so called
Forensic Science Laboratory/DNA Report is taken is not
reliable as the person who has given the report do not
possess the required qualification to analyze the
materials relating to this case. There is no accreditation
given to Forensic Science Laboratory Unit by any
National or International body, which has issued
Forensic Science Laboratory report and there is no
sufficient data base in the lab to issue such Forensic
Science Laboratory reports, as such entire Forensic
Science Laboratory report is bad in law and cannot be
relied upon. Further, the CID Police have no
jurisdiction to investigate this case as entrustment of
investigation is illegal and the order bearing No.
229/PEF/73 dated 15.4.1974 passed by Govt. of
Karnataka stems from ultra virus exercise of power,
hence illegal and the same does not empower CID to
investigate the above said case.
It is further stated that the CID Police have no
jurisdiction to investigate matter relating to different
years alleged to have taken place in different places and
 24 S.C.No.1242/ 2015

at different time, thereby the investigation carried out

by CID Police is contrary to Cr.P.C.
It is further stated that the investigating agency
has not been fair and has not discharged its duties as
the guardian of personal liberty which has resulted in
harassment of innocent person at the hands of
investigating agency, apparently acting under pressure
or on collusion with persons having hostile animus
towards the Math and Swamiji. As a result the actions
of CID Police have to be viewed meticulously which
would reveal biased attitude of investigating agency,
which would certainly enable this court to view the
materials in proper prospective.
It is further stated that Shri Swamiji is liable to be
discharged only on the ground that the complaint has
been lodged after delay of more than three years from
the date of alleged first incident and the material objects
alleged to be relating to this case is produced from the
unprotected dustbin with foreign materials after eighty
two days. Therefore, the above named accused prays
that this Hon’ble Court be pleased to discharge him in
the ends of justice.
 25 S.C.No.1242/ 2015

2. The copy of the petition is furnished to the

learned Special Public Prosecutor, CID, Bengaluru, who
filed his detailed objections as under:-
The paragraphs 3 to 15 are self serving statements
and is irrelevant for the purpose of consideration of this
case as they are absurd and need no counter. The
materials produced by the prosecution in the form of a
report U/s. 173(2) of the Cr.P.C. is only to be considered
at this stage.
It is further stated that the statements at para 16
and 17 that the complaint is improbable and is only
made out of personal vendetta to harass the accused is
absolutely without any basis as the complaint and
further collection of evidence clearly establishes the case
of the prosecution to frame charge and hold the trial.
It is further stated that adverting to para 18, it is
now well settled that delay cannot be a ground to throw
the complaint of the above nature, at the outset as the
crime of the above nature is always within the four walls
and a decision to lodge a complaint in case of the above
nature is not instantaneous and therefore delay and
latches cannot be a ground to discharge the accused.
The Hon’ble Supreme Court in State of Himachal
 26 S.C.No.1242/ 2015

Pradesh Vs. Prem Singh, reported in (2009) 1 SCC 4320,

has in para 6 observed:
Quote:
“That delay in case of sexual assault, cannot be
equated with the case involving other offences.
There are several factors which weigh in the mind
of the prosecutrix and her family members before
coming the police station to lodge a complaint”

It is further stated that adverting to para 19, the sum

and substance of the averments is that the complaint is
motivated and is a malafide action, on the score that the
complainant’s husband was aggrieved because the
accused was made Honorary President of some temple
cannot be a ground to discharge the accused as the
motive and malafadies would only surface in the trial
wherein the onus will be on the defense/accused to
bring out the same. The rest of the averments made in
para 19 need no counter as the same is a matter of trial
and similarly para 20 again needs no counter.
It is further stated that adverting to para 21, the
accused had canvassed such averments as in para 21
before the Hon’ble High Court of Karnataka while
challenging the First Information Report in the above
case and since much water has flowed since then,
whereas the Investigating officer in the above crime has
 27 S.C.No.1242/ 2015

collected evidence and filed charge sheet under Section

173(2) of Cr.P.C., pending final report under Section
173(8) of Cr.P.C as the Investigating Officer is further
investigating into the case and final report under
Section 173(8) is awaited.
It is further stated that adverting to paras 22, 23
and 24 the averments therein was also the subject
matter in the High Court wherein the accused while
challenging the First Information Report had canvassed
the same defense taken in para 22, 23 and 24 and
therefore as stated above since the Investigating Officer
has collected evidence and filed a report under section
173(2) this cannot be a defense to the accused to
challenge the report and seek discharge. The
prosecution reiterates that only the materials produced
by the prosecution in the form of a report U/s.173(2) of
the Cr.P.C. is to be considered at this stage.
It is further stated that adverting to para 26,
clinching evidence, during the course of investigation
collected, in the form of DNA test, bears testimony to the
guilt of the accused, as the seminal sample collected
from the clothes of the victim matches with that of
accused, apart from the statement of the victim
 28 S.C.No.1242/ 2015

recorded under Section 164 of the Code of Criminal

Procedure.
It is further stated that adverting to para 27,
whether the complaint is a counter blast to any other
complaint or otherwise is only a matter of evidence
which can be brought out in evidence and cannot be
looked into or taken into consideration at this stage
when the investigating officer has collected evidence, to
prima facie show that there is enough material to
sustain a prosecution.
It is further stated that adverting to para 28, that
the omission, contradiction or improvements could only
be gone into during trial and at this stage cannot be
ground to discharge the accused in a serious offence of
this nature.
It is further stated that adverting to para 29 that
the complainant statement is motivated is again a
matter of evidence could gone into only in trial. The
statement of victim is already translated into evidence
by virtue of her statement on oath being recorded under
Section 164 of the Code of Criminal Procedure, by a
competent Judicial Magistrate and unless the
complainant’s statement on oath is demolished
impeached by rebuttal evidence, before the court of law,
 29 S.C.No.1242/ 2015

in the trial, the accusation will stand proved and

therefore the evidence is clinching to bring home the
guilt of the accused at this stage itself.
It is further stated that apart from the above
section, section 114 of the Indian Evidence Act,
mandates a presumption to be drawn, based on the
victims statement, unless the same is demolished or
impeached by rebuttal evidence, which is a legal
presumption, for the Acts mentioned in clauses (a) to (d)
of section 375 of the Indian Penal Code. Section 114 of
the Indian Evidence Act was incorporated by way of
substitution in the year 2013. Therefore, the direct
evidence of the victim, in the form of complaint and the
statement on oath recorded under Section 164 of the
Code of Criminal Procedure is clinching.
It is further stated that adverting to para 30 and
31, the averments therein cannot be taken into
consideration as they are all matter of evidence and the
articles and the genesis of the same is as matter of
evidence. Lack of materials is one thing and the
absence of the same is another. In the present case
there are materials/articles which goes against the
accused and the worthiness of the same and to weigh
the evidence of the materials one way or the other
 30 S.C.No.1242/ 2015

cannot be considered at this stage and can be looked

into at the time of trial and the allegations that they are
fabricated is of no substance.
It is further stated that adverting to para 32, DNA
test demonstrates the guilt of the accused where the
seminal sample collected from the clothes of the victim
matches with that of the accused and therefore this
cannot be a ground now to dislodged the same.
It is further stated that adverting to para 33 that
there were 3 Forensic Science Laboratory Reports with
improvements is not true and the allegations that it is
only to fill up the lacunae cannot be considered now as
it is a subject matter of the evidence.
It is further stated that adverting to para 34 and 35
about certain facts about the presence of the accused
and the complaint at certain places being false as again
the matter of evidence and cannot be gone into at this
stage. This again was canvassed before the Hon’ble
High Court of Karnataka while the First Information
Report was under challenge.
It is further stated that adverting to para 36 to 39,
the statements are self serving statement of the accused
without referring to the material evidence collected by
the prosecution and a bald statement without basing
 31 S.C.No.1242/ 2015

the same on the charge sheet material need no counter

as the same is benefit of any merits.
It is further stated that adverting to para 40, the
only material witness in an evidence of the above nature
would be the victim ad her statement is recorded under
Section 164 of the Cr.P.C. and substantive material
evidence have been collected and therefore there is no
merit in such averments being made and calls for no
consideration.
It is further stated that adverting to para 41, the
same is again the subject matter of evidence and trial
and does not merit consideration.
It is further stated that adverting to para 42, the
statement that CID police lack jurisdiction is again a
bald statement cannot be gone into.
It is further stated that adverting to para 43, again
the fairness or otherwise cannot be a ground to
discharge as they are the subject matter of trial and
evidence.
It is further stated that adverting to para 44, the
averments have been explained in the paragraphs above
and the same may be kindly looked into.
The prosecution prays that this court may be
pleased to take into consideration the judgment passed
 32 S.C.No.1242/ 2015

by the Hon’ble High Court of Karnataka on 9.2.2015 in

Writ Appeal No.2843/2014 in support of the case of the
prosecution. Hence, prays to reject the bail application.

3. We have heard Sri SPH, advocate for accused

Mathadhipathi and Special Public Prosecutor for state
at length. We have reduced the argumental points
canvassed on both sides in writing said formal points
forms the part of this record and both parties are
entitled to may obtain certified copies of it.

4. The learned SPH counsel filed a bunch of

rulings with memo which are as under:-
1) (2001) 4 SCC 333 (Om Wati(Smt.) and
another Vs. State, Through Delhi Admn.
And others)
2) 200(6) SCC 338 (State of M.P. Vs. Mohanlal
Soni)
3) (1990) 4 SCC 76 (Niranjan Singh Karan
Singh Punjabi Vs. Jitendra Bhimraj Bijjayya
and others) connected with others appeals.
4) 2009 AIR SCW 5514 (State of M.P. Vs.
Sheethal Sahai & others)
5) (2014) 3 SCC 92 (Hardeep Singh Vs. State of
Panjab & Others) and Connected Appeals.
6) Cri.R.P. No.766/2011 (Shri N.Nanjundaiah
Vs. State of Karnataka)
7) (2009) AIR SCW 118 (Rukmini Narvekar Vs.
Vijaya Satardekar)
 33 S.C.No.1242/ 2015

8) 2011 AIR SCW 1199 (Harshendra Kumar D.

Vs. Rebatilata Koley)
9) LAWS (KAR) – 2015-8-159 (Tulasiram Vs.
The State)
10) LAWS (KER) 2013-8-19 (Jose Thettayil Vs.
Station House Officer)
11) 2012 (3) AIR Kar R 236 (Anil Kumar & Ors
Vs. The State of Karnataka)
12) MANU/SC/0229/2015 (Md.Ali Vs. State of
U.P.)
13) 2014 CRI.L.J. (NOC) 277 (RAJ) (Pandchu
Ram Vs. State of Rajasthan & another)
14) 2009 CRI.L.J. 2508 (Bikash Das Alias
Ranadhir Das Vs.State of Tripura & Ors)
15) LAWS (SC) 2013-1-53 (Prashanth Bharti Vs.
State of NCT of Delhi)
16) (1998) 7 SCC 337 (Suresh Budharmal
Kalani Alias Pappu Kalani vs. State of
Maharashtra)
17) Cr.R.No. 845/2014 (Hemant Chooubey Vs.
The State of Madhya Pradesh)
18) CDJ 2014 SC 786 (Munna Vs. State of M.P.)
19) LAWS (DOM) – 1995 -2-83 (Priya Sharan
Maharaj Alias Yadavendra Parashar
Vs.State of Maharashtra)
20) Criminal Appeal No.13/2016 DD on
January 6, 2016 (Tilak Raj Vs. State of
Himachal Pradesh)
21) 2007 CRI.L.J. 3622 (Arun Gulabi Gowli Vs.
State of Maharshtra)

5. The Special Public Prosecutor also filed a list of

rulings in support of his contentions advanced as under
with memo:-
 34 S.C.No.1242/ 2015

6. This court suo moto relied on a ruling reported

in AIR 1977 SC 349.

7. Having regard to the contentions and rival

contentions of respective parties have to be framed a
point as to

1. Whether accused has made out a ground for

discharge him from the charges leveled under
Sec. 376(2)(F) & (N) and 506 of Indian Penal
code against him by the prosecution?

2. What Order?

8. My findings to the above point is as under:

Point No.1: Make out the case to

discharge the accused
from the charges leveled
against him.

Point No.2: as per final order for the

following:
REASONS
9. Point No.1:- The burden of establishing the
point No.1 heavily thrown upon the petitioner/accused
Matadipathi as to why he shall be discharged from the
case by showing a materials in his favour exists on
record.
 35 S.C.No.1242/ 2015

10. On the contrary, it is for the prosecution to

show accused should not be discharged from the case in
other words to show sufficient materials on record to
proceed against him by framing charge.

11. The CID police, Bengaluru have laid down the

charge sheet against the accused under Section
376(2)(F) & (N) and 506 of Indian Penal Code by
conducting deepest investigation in right direction on
expert legal advice. Sri. SPH dubbed the investigation as
a sketchy one to fix the accused in this case.

12. The prosecution case in condensed form is

that, the Prosecutrix was having sexual affairs for over a
period of 4 years from 2011 to April 2014 with the
accused/Mathadipathi continuously and repeatedly
without any complaint or resistance during the Rama
Katha programmes held and attended with her daughter
in a team as a team mate as a Rama Katha devotional
singer comprising of another singer Smt. Deepika and
others totaling about 15 to 20 members and at the time
of the rehearsals held at Girinagar Math and other
branch Maths with the knowledge of her eldest daughter
Amshumathi, without the knowledge of her husband
 36 S.C.No.1242/ 2015

Sri. Divakara Shastry for over 169 (one hundred and

sixty nine) times on memory accounted by her and on
memory fails unaccounted many times, at different far
off places, viz., Calcutta etc., across the length and
breadth of the country, especially the isolated last two
acts of sex on 26.6.2014 and 27.6.2014 respectively at
Girinagara Math, before doing sex on persuasion in the
name of Sri Rama it is a prerana of Sri Rama to coitus
with him and after did sex on promising her not to
reveal or to disclose to others, the acts of sex he did with
her, if reveals, the disgrace of Sri Rama or curse of Sri
Rama would fall on her. On that Devine displeasure or
fearness she did not disclosed to anybody. The
prosecutrix further alleged that on the alleged date of
rape or acts of sex she worn out the inner wearing
apparels on her body, the emission of semen of accused
fell on her cloths and the said cloths has been preserved
by earmarking the area of the seminal stain with ink
and handed over to CID Police, Bengaluru, under seizer
mahazar dated 18.9.2014 at 8.00 p.m., during night
conducted at her house. This is the amount of
explanation tendered by her for not complaining up till
27.08.2014, seventy days after the incident before
Girinagara Police by her daughter Amshumathi by
 37 S.C.No.1242/ 2015

lodging hear-say complaint as well as filing a incomplete

complaint and one more complaint in the cover before
the JMFC Honnavara during judicial custody and
tendering her Sec.161 and Sec. 164 Criminal Procedure
code statements recorded by the Girinagara Police on
5.9.2014.

13. To frame the charge against the accused

charge sheet contains five successive each under Sec.
161 Cr.P.C and Sec. 164 Cr.P.C. statements of
prosecutrix respectively and the statements of the
witnesses and documents especially the DNA profile of
blood of accused taken independently to match the
seminal stain alleged belonged to accused annexed with
the other documents i.e., most relevant documents
namely, recovery panchanama dated 18.9.2014 and two
DNA profiles relating to disputed seminal stain on panty
liner and blood of the accused respectively, etc.

14. The whole prosecution case projected revolves

under substantial question “whether prosecution on
its materials successfully establishes or shows
particularly on two isolated dates viz., on 26.6.2014
in between 3.00 p.m., to 3.15 p.m., and on
 38 S.C.No.1242/ 2015

27.6.2014 in between 9.15 pm., to 9.45 p.m., at

Girinagar Math. Accused Mathadipathi had indulged
in sex with prosecutrix.

15. If prosecution fails to prove or shows the only

materials which can be translated into legal evidence in
the case, the court with no other option to discharge the
accused. If the accused Mathadipathi successfully
shows or proves no grounds to frame the charge this
court no other alternative has to discharge the accused
holding relation of the accused and aggrieved lady that
of ill-intimacy only.

16. Sri SPH, counsel for accused Sri Swamiji

canvassed that the Sec 227 and 228 of Cr.P.C. are in
just position, the order of discharge shall be passed is
under Sec. 228 of Cr.P.C, but, not under 227 of Cr.P.C.
He relied on the rulings quoted above. We agree with the
above legal position.

17. Sri. SPH, counsel further canvassed that

under the cardinal principle of jurisprudence while
passing order of discharge the court shall consider only
materials which can be translated into legal evidence
 39 S.C.No.1242/ 2015

can be taken only. Under Sec.228 of Cr.P.C., the court

is empowered to look into the documents of the defence
as enshrined in the Writ Order delivered by their
lordship Sri. Paneedhra of the Hon’ble High Court of
Karnataka.

18. We would proceed to discuss the relevant

portion of the statements of Prosecutrix, her witnesses
and DNA profiles of accused/Mathadipathi on consent
taken and the disputed seminal stain analysis report
i.e., the DNA profile produced by the Prosecution with
regard to being had to common course of natural events,
human conduct, public and private affairs in their
relation to the facts of the particular case, which is a
yardstick adopted by this court and norms prescribed
under law.

19. Firstly, we take up relevant point that involved

in this case that whether prosecution proves
successfully the accused had indulged in sex
particularly on 26.6.2014 and 27.6.2014 respectively at
Math in between 9.00 p.m., to 9.15 p.m., and 9.30 p.m.,
to 9.45 p.m., with prosecutrix respectively.
 40 S.C.No.1242/ 2015

20. To establish this aspect of the case, the

prosecution relied on five each statements recorded
under 164 Cr.P.C., by the COD Police, and statement of
witness under 161 Cr.P.C., and blood DNA profile of
accused and seminal analysis test profile of disputed
seminal mark alleged to be found and earmarked by the
prosecutrix. These are the mainly things on which
prosecution firmly believed that the accused appears to
have committed an offence and there is a strong and
grave suspicion of him in the involvement of crime of
rape alleged. Of course, the defence not only seriously
disputes, but the prosecution documents viz., the
statements of prosecution witnesses Cw-33 and Cw-38
and self contradictory statements of the prosecutrix
under Sec.161 and Sec.164 of Cr.P.C., improved from
stage to stage from material to material and electronic
gadgets which are produced by the prosecution itself
they themselves speaks against their own case and the
tests reports of biological and FSL are self contradictory
which absolved the accused from the charges of crime of
rape and their own documents, the rehearsals CD done
on 27.6.2014 seized from the custody of accused
Mathdipati and not produced before the court, inspite of
court direction which helps this court to hold absolutely
 41 S.C.No.1242/ 2015

no materials to frame charge against the accused and

drop him from the case and to acquit him by holding
that the trial of the accused is nothing but harassment
and embarrassment to him and relied on the bunch of
rulings as mentioned above.

21. We would take up the argumental points

canvassed by Sri. SHP counsel vividly that as per the
version of the prosecutrix, if accused and victim
copulates together semen emitted into vagina and mixed
up with ovum of the victim, if that mixture falls on cloth
of victim, the cloth should contain the said mixture, this
is a quite normal thing, but, in a seminal profile the
mixture shall be present and shall be detected. He
further canvassed during copulation the epithelial cell
(dead cell) of accused shall lose due to body friction and
fall on the body of the victim. He further canvassed that
the epithelial cell (dead cell) of man when walks shall
fall on the ground. Those epithelial cells of both victim
and accused shall be detected on the cloth which
contains the seminal stain. In the instant case the
mixture of semen and ovum and mixture of epithelial
cell of both victim and accused were not detected. The
epithelial cells detected to whom belonged to is not
 42 S.C.No.1242/ 2015

mentioned in the report. It is deliberately left out for

best known reasons. Under such circumstances and
facts of the case, the emission of semen constitutes
not a part of the crime of rape alleged either
positively or negatively. For lack of this essential
evidence, it is very difficult to hold that accused had
indulged in sex with the victim as alleged by her.
Further, this evidence not establishes the charges under
Section 376 (2)(F) & (N) of Indian Penal code. On this
sole ground the accused can be discharged from the
case straight away. Looking to the contents of seminal
profile under dispute, the above essential particulars
badly lacking in. On this ground, the presence of
semen itself is not sufficient to hold that the accused
indulged in sex with the victim. So, DNA profile of the
blood of the accused and seminal profile of the disputed
seminal stain is of no assistance to prosecution that
accused had committed a crime of rape on the victim. It
creates indeed in the mind of this court, the accused
indulged in sex with her. On this ground, the accused
is entitled to be discharged from the case. Hence, we
have accepts the argument of Sri. SPH counsel whole
heartedly.
 43 S.C.No.1242/ 2015

22. The DNA profile of the disputed seminal stain

lacks the essential particulars especially as to detection
of epithelial cell (dead cell) to whom belonged. On this
ground this DNA profile is doubtful in its nature.

23. The law of interpretation of a document or an

event shall be looked into thoroughly as a whole. It is
not permissible under law to pick and chose particular
sentence and interpret it. In the given case on hand,
“the whole period of acts of sex did over a period of
4 years and whole effect of consequence of law have
to be looked into and treated it as a single unit, but,
cannot be taken into consideration the said isolated
acts of sex did to hold that the accused committed a
rape”. It is impermissible in law to dissect the two
isolated acts of sex from whole period and to judge it
as a rape.

24. In view of this interpretation, the

documents of prosecution that seminal analysis test
of disputed stain and DNA profile of the blood of the
accused cannot be form basis for draw conclusion or
term the acts of sex as a rape. On this reasoning, the
above DNA profile of accused and disputed seminal
 44 S.C.No.1242/ 2015

analysis test are of little value to hold that the

accused had indulged in sex with the victim woman.

25. There may be semen without sperms or

spermatozoa in case of a old male and young boys. The
prosecutrix husband is a senior in age to her. The
marks of semen are difficult to find on women’s cloths
after 24 hours especially in the wet weather. In the given
case on hand, the seminal stain on the cloths of
prosecutrix preserved in unprotected dustbin for more
than 82 days, in such unprotected places the ants will
eaten up the white substance. In that circumstance, no
chance to remains the same, only marks or impression
will be found. It is not possible to detect the sperms on
the cloths by the FSL authority. This is a suspicion
existed in favour of the prosecution.

26. Except five successive oral statements under

Section 161 and Sec. 164 of Cr.P.C., of the prosecutrix,
no other materials on record to substantiate the acts of
sex over the period of four years. Even to prove the
charge of ill-intimacy, no any materials against the
accused Mathadipathi to hold he is a rapist. So, in our
view the prosecution allegations leveled against the
 45 S.C.No.1242/ 2015

accused Mathadipathi only to tarnish his name and to

de thrown him from patta only on preplanned and on a
due deliberation and discussion with one advocate as
per the records found in i-pad, i-phone and mobile of
the prosecutrix only. The prosecutrix on the date of
crime of rape committed went to Math accompanying
with her daughter, on permission of the Mathadipathi
through her mobile, contacted and obtained, at which
crime of rape committed on two dates. On that day, her
mobile phone number, her mobile phone tower locations
locates her house at Kallasandra as per the CDR at
particular points of time issued by the statutory
authority, those are the electronic gadgets and
admissible in evidence, they never speaks lie, but, men
may. Her prosecution witnesses Cw 33 and Cw 38
versions directly contradicts to her presence at
particular points of time and place on 26.6.2014 at
about 9.00 pm., to 9.15 pm., and on 27.6.2014 at about
9.15 pm., to 9.45 pm., at alleged spot of math. This
material speaks against the prosecutrix and in favour of
the Mathadipathi accused that he had indulged in sex
with prosecutrix on two days stated above is appears to
be highly doubtful.
 46 S.C.No.1242/ 2015

27. It is a specific assertion that she paid a visit to

accused with particulars of inner wearing apparels i.e.,
kinds of clothes, the times at which she had sex with
accused also stated. From the study of seizure
panchanama and other allied materials it clear that the
panty liner on which semenial stain found is not the
clothes she worn on that day. The epithelial cells (dead
cells) detected to whom belonged either accused or
prosecutrix not disclosed it. So, a mere detection of
semen on a disputed panty liner without detecting to
whom epithelial cells belonged the seminal profile came
to be issued. The mere detection of semen on disputed
inner wearing apparels without proof where and when
and at what point of time obtained and without test of
mixture of a fluid, i.e., semen and ovum of accused and
prosecutrix respectively matching with DNA profile of
blood of accused not forms concrete evidence to hold
accused mathadipathi appears to have committed a
crime of rape as alleged by the prosecutrix.

28. The detection of mere semen of the accused

mathadipathi on disputed panty liner inner wearing
apparels either by fraud or otherwise obtained not
assumes so much significance in the eye of law to hold
 47 S.C.No.1242/ 2015

that the accused had indulged in sex with prosecutrix

and presence of it not takes the place of proof that
accused had indulged in sex with the prosecutirx.
Secondly, as per the principle of construction or
interpretation whole effect of whole period of four years
169 times and its consequences considered, this is the
so much amount of semen found on any dates of crime
of rape alleged also not tantamount a crime of rape at
all. We say in other words that detection of mere
semen or emission of semen constitutes no part of the
crime of rape alleged either positively or negatively. The
roaring of prosecution that semen of accused detected is
of no avail to canvass that accused had indulged in sex
with prosecutrix on particular dates of 169 times at
different places.

29. From this combined study of five successive

Sec.161 and Sec. 164 Cr.P.C. statements of prosecutrix,
we found the improvement of prosecution case by some
amount of explanation foregoing the previous versions.
Though there is no bar under the above stated
provisions of law to record any number of statements
have to be recorded at a stretch without giving any
scope or doubt on promptness after the incident as to
 48 S.C.No.1242/ 2015

occurrence of the story. This is what insisted under law

from the side of prosecution. In the instant case,
successive statements were recorded at different dates.
The recording of statements of prosecutrix is against the
concept and the law propounded by the Hon’ble
Supreme Court of India in AIR 1977 SCC 349. The
ratio of the authority speaks that any statements
recorded by supplementing or adding or suppressing or
modifying after twenty four hours of registration of a
crime would amounts to fabrication or concoction. This
is the serious infirmity and illegality existed in this case.

30. In view of the disputed F S L reports i.e., DNA

profile of seminal stain on disputed panty liner and
blood sample of the accused the detection of semen even
matched not sufficient to hold that the accused indulged
in sex either positively or negatively. The detection of
semen on panty liner is a weakest material which
falsifies the participation of accused mathadipathi in sex
with prosecutrix.

31. In view of above materials this court insists

DNA profile of the seminal fluid which contains
mixture of semen and ovum of accused and
 49 S.C.No.1242/ 2015

prosecutrix, found in vaginal cavity or vaginal canal

or on the body of victim which has got presumptive
value than the DNA of semen on the disputed alleged
clothes of prosecutrix, this essential material
lacking into proceed against the accused.

32. From the joint study of the manner in

which investigation conducted and the manner in
which the biological section and FSL section
recorded findings to issue DNA profiles without
conducting a prescribed test supplement the things
appears that like that of CID, Bangalore, the FSL
authority which is under their full control filled a
gaps in DNA reports without conducting a proper
test and recorded a findings. So, this is a serious
infirmity found which vitiates the FSL reports. On
this ground the accused is entitles to be discharged
from this case.

33. The women who are trusted to their husbands,

or God fearing or chaste women and never astray from
the path of rectitude, the women of such character
never share the bed with other than their husbands.
The women are such character never carries away by
 50 S.C.No.1242/ 2015

their appreciation of person or lured by money. The

women with above such character always follow a
Dharma. The saying that goes ¸Àw zÀsªÀÄðzÀ ªÀÄÄAzÉ AiÀÄw zÀsªÀÄð

£ÀUÀtå (Sathi Dharmada munde Yathi Dharma naganya).

No scope for the place of literature in judiciary, but, the
circumstances in this case warrants or calls for to
mention it. If we accepts ¸Àw zÀsªÀÄðzÀ ªÀÄÄAzÉ AiÀÄw zÀsªÀÄð ±ÉæõÀÖ

the basic structure and foundation of the society on

which now stands fails and collapse, become a chaotic.
On this reasoning, the theory of devine displeasure
pleaded for longest term sexual affairs shows either it
must be false or concocted thing, but, it fits in partly as
to the accused mathadipathi is a worshiper of Sri Rama
and Rama Katha programmer as to character of above
category of women is not a acceptable and reasonable
explanation, hence rejected.

34. On perusal of the successive five statements

each of Sec. 161 and Sec. 164 of Cr.P.C. of prosecutrix,
it is crystal clear that in the first part of prosecution
story, the theory of devine displeasure pleaded as to how
under what circumstances and context, she subjected to
sex in the hands of accused at different places during
 51 S.C.No.1242/ 2015

Rama Katha programmes and Rama Katha rehearsals

held after did sex, how she was prevented from
disclosing the same to others. Accused to have a sex
with her he chanted Sri Rama manthra, it is Sri Rama’s
prerana. After sex did, dissuades her mind not to reveal
the acts of sex did with her to others, there also
chanted Sri Rama manthra. If, reveals to others curse or
disgrace of Sri Rama falls on her. On this account, not
disclosed from 2011 up till recording her above
statements and filing hear-say complaint on 27.8.2014
by her daughter Amshumathi, this is the earlier part of
prosecution story.

35. In the later part of the story, the prosecutrix

goes to accused mathadipati on permission on her
mobile in car with her daughter prays to apologize her
wrong doings and pleads and permit her to do a work of
math as earlier she did. On 27.6.2014, she goes to
Math with her second daughter for second time, in her
car with Rama buthana fruits, she grown up with her
own hand offered to feet of the accused, pray to bless
her daughter. After dharshana, both of them came to
their house. The theory of devine displeasure to explain
the delay caused given up before filing complaint
 52 S.C.No.1242/ 2015

through her daughter Amshumathi. So on these

contradictory stand, the theory of devine pleasure
falsifies.

36. In the second part, the theory of permission

pleaded to approach the accused. From these two
theories canvassed, it is clear that the prosecutrix has
not sticks up to her stand to condone the delay. These
two stands are quite contradictory to each other. On
this ground, theory of devine displeasure not
substantiated in the eye of law.

37. It is not the case of prosecutrix that havyak

Brahmin whole community treated the accused
mathadipathi as a incarnation of Sri Rama Avathara,
calling him so their society men. So, she feared of his
words and surrendered to him, there would have been
some force in the explanation, that is not the case at all.
If at all true, once or twice not more than that as we
discussed supra. It has become the order of Sri Rama
Katha programmes and rehearsals days and other days.
So, the theory of devine displeasure to explain the delay
not to blast about the acts of sex is not available to
prosecutrix to justify the shameless acts of sex alleged.
 53 S.C.No.1242/ 2015

38. The serious scrutiny of entire prosecution

case, the prosecutrix had selected acts of sex on
different days did for one hundred and sixty nine
times only accounted. Looking to different dates,
timings, months, years, places sex did. Under Sec.
211 of Cr.P.C. each acts of sex did would constitutes
a different causes of actions and separate and
distinct offences. It is not the case of prosecution
that the accused had detained the prosecutrix
illegally in his custody or captivity from the date of
first act of sex did up to 27.6.2014 raped her
continuously and repeatedly on a principle of devine
displeasure. To prosecute the accused under one
head of charge as now prosecution wishing to do is
permissible in a case of miss-appropriation for 3
counts only. According to our considered opinion,
the above 169 acts of sex did not covers under single
head of charge. Each acts of sex did do constitutes
or forms separate and different and distinct crimes
of rape. Under such circumstances and facts of the
case the prosecuting the accused for the whole
period of four years of 169 times under one head of
charge i.e., under Sec. 376(2) (F)& (N) and 506 of
Indian Penal code is highly illegal and wholly
 54 S.C.No.1242/ 2015

unsustainable, thus the prosecuting the accused in a

single trial for different crimes of rape is bad at law
and is hit by principle of miss-joinder of charges.
On this ground, if trial held by framing a charge, as
alleged by prosecution, the entire trial would be
vitiated. On this aspect the prosecution of the
accused matadipathi would be nothing, but trouble
and harassment and embarrassment to the accused.
This charge sheet is being filed under a bad legal
export advise. This is a serious legal lacuna and
infirmity exists in this case and not curifiable defect
goes to the root of prosecution case. It is not a mere
technicality, but of procedure go to the root of the
prosecution case. On this ground alone the accused
is entitled to be discharged from the case.

39. To accept the prosecutrix story and to condone

the delay, there is a colossal delay of more than three
years from the date of first act of sex did and seventy
days from the date of last act of sex did. In this case, to
condone the delay exceptional grounds must be shown
and it is mandate of law. The theory of devine
displeasure pleaded to accept it, the prosecutrix must
be hen peacock or weak minded or timid or not exposed
 55 S.C.No.1242/ 2015

to external world, no such qualities being shown in her

to accept it. So, the complaint hits at large. Secondly,
no exceptional circumstances (there is a eminent danger
from the hands of accused and his men to herself and
her family members) are being shown to condone it. So,
the theory of devine displeasure holds no substance in
it. Women having a character of devine displeasure
always afraid of doing wrongs and conscious about
doing, if anything happens or goes wrong on the very
next moment rectifies and correct it and mend her
manners. If anybody tries to misbehave with her, react
sharply in no time and get irritate, such women never
enterprises to have sex with over 169 times accounted
and unaccounted many times. Under such
circumstances, the theory of devine displeasure not
stands and not in conformity with the qualities of
ordinary prudent man acts of sex did are shameless act.
The women doing shameless acts are always courageous
and dare devil and never hesitate to do anything wrong
even to the extent that they are ready to expose in
necked condition in public. So the theory of devine
displeasure is not available to the prosecutrix to say
under Sri Rama manthra she surrenders to the
accused. Woman of above such characteristics ever
 56 S.C.No.1242/ 2015

ready to do anything shameless. This is what did 169

times a sex in this way, the theory of devine displeasure
adopted to explain the delay as to why she surrendered
to the accused and is a invented reason by the legal
brain suited to her convenience only, so it is not
acceptable. The repetition of 169 times without
hesitation shows daring nature or shameless nature not
a God fearing nature. She maintained the secrecy
without informing to her husband, which shows the
crocked ness on her part. If, young girl entangle in such
a situation, it is difficult to come out of the vicious circle
because of her teenage nature and love bondage and
circles, what we found in the study of cases.
Prosecutrix is a married woman having a rich marital
experience, this is what differentiate in characters in
married woman and new young girls, on this concept of
mind and nature, the theory of devine displeasure is not
acceptable.

40. The prosecutrix states in her statements she

was away from the Sri Math and its activities for a
period of six months completely. During this absent
period nobody including accused Swamiji contacted her
either on phone or through his men. This being a
 57 S.C.No.1242/ 2015

factual situation, in the month of first week of January

2014, she voluntarily went to Girinagar math to just to
see the accused. She expressed her mind that she
intended to come back to math and to participates in all
activities of math. This conduct on the part of the
prosecutrix, that she is sexually harassed more than
hundred times definitely avoids it, this conduct is quite
contrary to prudent woman conduct and God fearing
nature. This conduct on the part of her makes
abundantly clear that if really she was subjected to sex
repeatedly till then as she narrated she would not have
gone back to the accused on her own and expressed her
desire of mind to participate in all activities of the math.
From this material, it establishes that the allegation of
rape by the accused, putting her under fear of devine
displeasure is totally amounts to false hood and fiction,
on the legal advise. No women of God fearing or
prudent women whom was subjected to rape earlier
even return back to the rapist, this is a un natural
conduct on the part of the prosecutrix and speaks
against her.

41. The prosecutrix being a professional singer,

sang for Kannada film and serials traveled over a
 58 S.C.No.1242/ 2015

country participated in national and international

musical concerts would not submit herself repeatedly
for sex, this is unnatural conduct on her part.

42. The learned Special Public Prosecutor submits

that no legal bar to recording any number of statements
under Sec.161 and Sec. 164 Cr.P.C. of prosecutrix
provided explained. Per contra, Sri.SPH, advocate
canvases that the purpose behind it not to fill up the
gaps in the prosecution successfully. Five times each
Sec 161 and Sec. 164 Cr.P.C. statements were recorded
successively and it has become a routine in this case. It
is a recorded only to fill up the gaps.

43. The Special Public Prosecutor submits that the

statements under Sec 164 Cr.P.C is a substantial
material in the absence of examination of its author
during the trial. Their value at this stage have to be
accepted prima facie admissible and this material is
sufficient to frame the charges against the accused.

44. Sri SPH, advocate submits that she gives up

some places at which accused had sex with her which
stated in confusion and failure of memory, on this
 59 S.C.No.1242/ 2015

material arguments canvassed the prosecution

improved its version from time to time, stage to stage to
substantiate its allegations but, her innumerable,
inconsistency rendered her allegations incredible, fur
from the truth, to my mind in order to find out self-
contradiction and inconsistencies in the stand of
prosecutrix, no trial is required. The statement of
prosecutrix is wholly untrustworthy, improbable and
makes the allegations of rape as false. The prosecutirx
stated in her statement under Sec. 161 Cr.P.C. the
accused did acts of sex over 169 times accounted on
memory.

45. Sri SPH, advocate for accused submitted that

she went to the accused wherever he was, in no
instance, had accused gone to her did a sex with her, in
no instance accused called her on his mobile phone or
sent his men to call her and committed a rape on her. It
is the most unnatural to accept the case of the
prosecution that the woman who is a victim of rape
intermittently, extremely, voluntarily goes to hunter or
rapist. This say is quite contrary to human notions,
conduct and improbable and impossible to accept it.
 60 S.C.No.1242/ 2015

She is not a woman of unthinkable nature of what

others saying to her.

46. The prosecutrix in her statement under

Sec.161 of Cr.P.C says that she has participated in
Ramakatha programmes at Nantur, Mangalore there
also she was subjected to rape by accused by
repeatedly. She prevaricates/recoils from statements
when her statements under section 164 Cr.P.C.
recorded on 11.11.2014 stating that she has not
participated in Rama Katha programmes, Mangalore.
Thus, she contradicts her own statements, this itself
one of the ground is sufficient to hold to discharge the
accused.

47. It is a case of rape of holly married woman, the

story of the prosecutrix appeared to be all make believe,
motive to implicate the accused was disclosed from the
fact that incriminating materials pertaining to false
implication of accused with a case of rape where were
recovered during investigation in Crime No. 342/2014 of
Honnavara Police Station as can be seen from the
records in the file, no corroboration of the statement of
statements of prosecutrix. The prosecutrix is an
 61 S.C.No.1242/ 2015

educated daring lady, self reliant lady. That being so,

her allegations of repeated rape by the accused is
appeared to be wholly unusual. Prosecutrix has failed
to give an explanation of any compelling reason for
going to him or meeting the accused repeatedly, after
alleged first incident of rape. The prosecutrix is mentally
matured (not born idiot), unthinkable nature about
others say and its nature. Habituated to sex being a
married, so theory of devine displeasure to explain delay
is not available.

48. Charge sheet materials reveals to us that

prosecutrix has sent several e-mails and whatsapp
message to the accused with great respect and
reverence pleading for his blessings to come out of some
family problems. In our view blessing has got different
meanings, it may be a money or it may be a protection
or it may be a shelter as requirement of the person. In
the instant case, the blessing is for money only, nothing
more. If really, accused is repeated rape offender,
prosecutrix would not have addressed such e-mails, and
whatsapp messages to accused Mathadipathi. This
material shows that improbability of occurrence of
incident. The prosecution of the accused would be
 62 S.C.No.1242/ 2015

nothing but giving of trouble harassment,

embarrassment to him on failure to satisfy her demand.

49. It is come to our notice that an incomplete

complaint dated 27.8.2014 produced by none other
than the prosecutrix before JMFC Honnavar contain
several blank spaces, which shows that the entire story
of rape by accused is fabricated one, out of spite and ill-
motive to grab the money only.

50. It come to our notice further that the charge

sheet records, i.e., e-mail dated 25.6.2014 at 9.00 a.m.,
and 9.39 a.m., under heading “Tilivu” The prosecutrix
and her husband appeared to have hatched a plot to
foist rape case against the accused. The said e-mail
establishes that well in advance both prosecutrix and
her husband have prepared a plot to implicate the
accused. These e-mail falsifies the statements of the
prosecutrix successively recorded how Special Public
Prosecutor argue that 164 Criminal Procedure code
statements of prosecutrix, even in the absence of
examination, its author, forms substantive material.
Further establishes e-mail falsify the statement of the
 63 S.C.No.1242/ 2015

prosecutrix that has informed the husband about the

incident only on 20.6.2014 for the first time.

51. We have noticed further from charge sheet

materials restatement of prosecutirx recorded on
5.9.2014 at Karwar before Girinagar police shows that
the alleged incident of rape on 26.6.2014 had happened
between 3.15 p.m, to 3.30 p.m., whereas the statement
of the prosecution witness Cw-38 Sri Abhiram shows
that prosecutrix had gone from Sri Math at 3.00 p.m.,
No explanation from the side of Cw 38 at what point of
time prosecutrix return to Sri Math is silent. Further it
is noticed by us that call detail register (CDR) of mobile
of Prosecutrix clearly shows that the prosecutrix is not
present in that particular point of time i.e., 3.15 p.m., to
3.30 p.m. This material is above board, unimpeachable
which establishes that the case of prosecutrix is not
reliable one. Further establishes that the accused had
not indulged in sex with prosecutrix at particular point
of time and place.

52. From the contents of panchanama dated

6.9.2014, police searched the house of prosecutrix, but
no incriminating materials pertaining to alleged rape
 64 S.C.No.1242/ 2015

was found by the Police. Hence, Nil panchanama was

drawn, however, prosecutrix had claimed in her
statement recorded on 5.9.2014 that she had preserved
two sarees one petty coat and one panty liner related to
the alleged incident i.e,. one saree, and one petty coat,
relating to incident dated 26.6.2014 and one saree and
one petty coat relating to the alleged incident dated
27.6.2014. It is relevant to mention that on 17.9.2014
the prosecutrix and her husband i.e., M.C. Divakara
Shastry came to her house with CID Police after being
released on bail. Even that they did not hand over the
incriminating materials including sarees petty coats and
on 18.9.2014, prosecutorix and her husband visited the
CID Office and met the slueths officials therein. In
pursuance thereof, the CID police have stated to have to
come to the house of prosecutirx in the evening at 8
p.m., and collected the so called incriminating materials
under panchanama. The inordinately delayed collection
of so called materials under panchanama coupled with
conspicuous presence of new items not divulged earlier,
which the statement of prosecutirix and the number of
hair found in article No.6 while opening by biological
section Forensic Science Laboratory, clinchingly shows
that the article No. 6 is fabricated material object. There
 65 S.C.No.1242/ 2015

is no explanation in charge sheet as to how from where,

from which source the additional materials sent to the
Biological section of FSL.

53. It come to our notice that the material objects

including article No.6 are said to have been collected
after 82 days from the alleged incident. There is no
explanation forthcoming about the safe and
contaminated custody of these materials for 82 days.
Therefore, the article No.6 allegedly found and collected
from unprotected dustbin after 82 days containing
additional hairs appears to have been planted and
fabricated.

54. It is seen that prosecutrix statement recorded

on 5.9.2014 for the first time after inordinate delay of 70
days from the last date of alleged incident. She has not
offered proper and acceptable explanation for the same.

55. As per statements of prosecutirx she was

allegedly raped on 27.6.2014 between 8.30 p.m., to 9.45
p.m. According to prosecutrix, alleged tape took place
after receiving the call of Praveen D Rao, shown as a Cw
33. Praveen D.Rao spoke to prosecutrix from 8.58 p.m.,
 66 S.C.No.1242/ 2015

to 9.07 p.m. Further the accused Mathadipathi

attended the rehearsals along with other artists from
9.00 pm., to 9.30 p.m., (the CD of the rehearsals
collected by the IO even if Memo moved before the
court not produced for refer the same, to give
finding under Sec 228 of Cr.P.C). Thereafter, many
inmates of Math spokes to prosecutrix between 9.30
p.m., to 9.45 p.m., hence there is no question of
incident taking place as narrated by prosecutrix.
Further, the FSL report has clearly shown that no such
incident has taken place as no incriminating material
was found in the materials given by the prosecutirix
alleging the contaminant of accused persons semen.
The CDR of mobile of the prosecutirx also
demonstrating that she was in Girinagar math between
8.15 p.m, to 8.57 p.m. and thereafter went off and never
came to Math again on that day. The above said
documentary evidence issued by Government of India
clearly shows that the statement of prosecutirix is far
from the truth. In the light of above reasons, we are of
the view that the prosecutirix is failed to bring the guilt
of the accused.
 67 S.C.No.1242/ 2015

56. This court has given curious and serious

attentions to FSL reports on the submission of Sri. SPH
counsel, who submitted that, only twice the tests were
conducted by FSL with reference to the material objects
sent by the Investigating agency. According to SPH
advocate the first test was conducted pertaining to the
Material objects collected from prosecutorix and second
test was conducted pertaining to the blood sample
collected from the accused. In the first FSL report, there
is no mentioned above epithelial cell/biological cells of
female or prosecutrix in any clothes, i.e., in item No.1 ,
2 and 8 and panty liner (item no. 6), but only seminal
stain of human being origin and belongs to one male
individual reported to be found.

57. The reports further mentions that two DNA

profiles are detected in item No.6 (panty liner) one DNA
profile and ‘Y’ chromosome DNA profile of seminal stains
and another DNA profile and ‘Y’ chromosome DNA
profile of hair and both are different from each other
and belonging to two different male individuals. On
these submissions of counsel the court had very close
look into the report and found that the submission of
SPH is appropriate and correct. If that is the case how
 68 S.C.No.1242/ 2015

rape could be attributed to the accused by the

prosecution? How two male men been at one point of
time committed a rape or had a sexual intercourse
simultaneously on the prosecutrix is remains as a
question is not answered by the prosecution. In my
mind, it appears that while concocting material object in
support of the prosecution case, the prosecutrix
committed a mess out of it and caught red-handed.

58. Sri SPH, advocate has drawn the attention of

this court that the second time FSL report submits in
the second FSL report without test being conducted FSL
goes to the extent of creating false report to the effect
that biological stains and cells are detected on a panty
liner sent as a item No.6 as DNA 307/14. What is not
found in item No.6 in the first report is falsely reported
to have been found in the second report on examination
by us carefully found that FSL has made baseless
improvements at the behest of the prosecutrix. How the
FSL could mention about the findings of biological
stains and cells in the second report. Without any tests,
when it has not mentioned in its first report about the
same. The second report is excluding meant for DNA
profile of accused from his blood samples. But, in the
 69 S.C.No.1242/ 2015

said report FSL has stealthily included its opinion about

the aspects of a female.

59. From the above materials the expert opinion

not helps the prosecution candidly accused had a sex
with prosecutrix.

60. If, really intercourse has taken place and

human fluid discharged, the panty liner allegedly worn
by the prosecutrix ought to have contained the mixture
of fluid of male and female. When panty liner does not
contain the mixture of fluids how come the seminal
stain alone of the male individual and is allegedly of the
accused could be found in the panty liner of item No.6.
The seminal stain in item No.6 does not belonged to
accused and therefore, the prosecution has sought for
cancellation of bail granted to him to enable himself to
take the accused into his custody and to extract forcibly
the semen of the accused to fix into alleged crime. Sri
SPH counsel further canvassed that the facts that
prosecution has been relentless to get semen of the
accused under the guise of seminal analysis tests. He
further canvassed that if really the prosecution intends
to do seminal analysis test of the accused it would have
 70 S.C.No.1242/ 2015

done with seminal stains available in item No.6 panty

liner. But, the prosecution is bent upon to get bail of the
accused cancelled by alleging that the accused has not
cooperated with three medical tests, i.e, Penile Doppler
test, external genital test and seminal analysis test.
Though the said tests are not required under given set
of facts that accused had fully admitted that he is a fully
potent and complete man. The above submission of
accused appears to be logical and acceptable. The FSL
has no business to add or subtract one thing to or from
its report without conducting Doppler tests, but, the
case on hand, the FSL has gone beyond its limit to help
the prosecution. In an unethical manner the
prosecution appears to have feared even before filing
final report that the case against the accused will not
stand in the court of law without making a artificial
improvements in the FSL to got any unfounded report
as it desired only to fix the accused into the alleged
crime.

61. Sri SPH counsel for accused submits further

that as per the first report the presence of seminal stain
was not detected in item No.1 and 2 (sarees) and item
No.8 (petty coat). Those items were not submitted to
 71 S.C.No.1242/ 2015

biological tests. As per the version of the prosecutrix she

worn same petty coat and panty liner when she has
suffered sexual assault from the hands of the accused
on 26th and 27th June 2014. She also stated that in her
statements that she has specifically marked the seminal
stain of the accused in her petty coat. If, really she
worn those material objects on those two days the FSL
would have found the seminal stains on the Petty coat
and epithelial cells of male and female on both material
objects. Because, if intercourse has really taken place
the male biological cells would have fall on the body of
the female and vice versa. Due to frictional contact of
two bodies and exchange of mixture of cells thereby and
in turn that would have been found on the clothes of
prosecutrix, but, such biological cells of male and
female are not detected in any one of the clothes. The
above material helps to hold the accused had not
indulged in sex with prosecutrix on any dates of 169
times over the period of four years.

62. Sri. SPH counsel further submits before this

court that the other third report dated 22.12.2015 of
FSL and submitted that was at another procurement by
the prosecution from the FSL to substantiate its earlier
 72 S.C.No.1242/ 2015

two reports, which are found to be anomalous by itself

in the entire third FSL again reiterates the DNA profiles
of stains and cell of female gender detected on panty
liner sent in item No.5 and 6 of DNA 307/2014 is
identical and matching with DNA profile of stains and
cells detected on vaginal swabs sent in item No.10
cervical smear sent in item No.11 seminal smear sent in
item No.2 nail clippings sent in item No.13 in DNA
307/14. The said submission of the learned counsel
appears to be sustainable in view of the fact that the
FSL is concentrating in supplying extra things to item
No.6 at behest of prosecution to suit their requirements
without given doing any biological tests on item No.6
which said to be containing only seminal stain of
human origin and hair of male human being. It is
crystal clear that prosecution and FSL joined its hands
to create some sort of evidence against the accused is
appears to be correct.

63. During the course of arguments, Sri SPH,

advocate hammered the reports only submitting that
certificate of examination of biologist of biology section
of FSL, Madiwala, Bengaluru have certified in hairs in
item No.14 as a pubic hair in their index pertaining to
 73 S.C.No.1242/ 2015

material examined. However, in the second page of first

report, in item No.2 the biologist says item No.9, 10, 11,
12, 13 and 14 not opened and not examined in
biological section and same has been transferred to DNA
Section on 14.10.2014, for DNA examination. When
those items have not opened in biological section, how
could they say and mentioned that those items are
respectively cervical swab sample, vaginal swab sample,
cervical smear sample, vaginal semen sample, nail
clipping sample and public hair sample said submission
is also found to be acceptable on close scrutiny of page
no. 1 and 2 of first FSL report dated 20.10.2014.

64. Sri.SPH, advocate for accused canvasses that

FSL, Bengaluru is not accredited and it is not an
independent and autonomous body, but it is headed by
a Director belongs to Police Department. The Deputy
Director is not an expert in genetic science and scientific
officer is only biologist. Therefore, the scientist who
counter signed the report is not qualified person as well
any how, the court is inclined to buy the said argument
of Sri. SPH.
 74 S.C.No.1242/ 2015

65. Sri. SPH, advocate for accused hammered the

CID police investigation by saying selected witnesses
those supported their case. The witnesses who are
favourable to accused their 161 Criminal Procedure
code statements not produced, so, investigation is not
fair. He dubbed it as a sketchy one. There is a little bit
truth in the above submission, but, cannot be accepted
as narrated by the counsel. It is the discretion of the IO
to record statements of the witnesses of their choice who
supports the prosecution case, the IO has got right to
keep un-favourable documents as not a part of charge
sheet, but under Sec. 228 of Cr.P.C. I.O is bound to
produce the documents of the defence collected during
investigation before the court, otherwise adverse
inference will be drawn.

66. On looking at the statements of several

witnesses the court find supports to the case of defence
considering the various facts discussed above along with
the statement of witnesses, this court is of the view that
prosecution failed to make out a case for trail. We have
studied the case laws quoted by both sides, we applied
the ratio wherever useful only.
 75 S.C.No.1242/ 2015

67. Admittedly, the Prosecutrix was on the wrong

side of 51 years on the date of complaint, hi-tech
woman wearing a jeans pant and shirt and roamed over
in and around the abroad and country as a melodious
devotional singer in T.V serials and public stages and
released her Devotional CDs and famous Ramakatha
singer, having a two marriageable daughters of aged at
about 22 and 19 years respectively. She is living in
company of husband and two daughters in comppolitan
city Bengaluru. Her husband was a business man. The
accused/Matadipathi is a well versed in Sanskrit, well
studied traditions and customs of Hinduism and
represented Sri Ramachandrapura Math and branches
math all over the Karnataka including Gokarna
established by Adi Sri Shankaracharya Swamiji. The
said Math meant for protection of cows and their
maintenance and propagating Hinduism and Sanathana
Dharma. On the date of alleged crime, he was on the
wrong side of 38 years. Comparing to age of Prosecutrix
and Accused Mathadipathi, there is a gap of 14 years
between Prosecutrix and accused Matadipathi. The
Prosecutrix is having a rich marital life experience over a
period of more than 30 years. The accused
Matadhipathi is a Bramhachari and too observe celibacy
 76 S.C.No.1242/ 2015

(state of being unmarried) as per the old tradition of Sri

Math.

68. At the cost repetition once again it is stated

that the accused/Matadipathi moved an application
under Section 227 of Cr.P.C to seeking discharge him
from the case (the charges leveled against him) on the
ground absolutely no any iota of materials against him
to frame the charge under Section 376 (2)(F) & (N) and
Sec. 506 of Indian Penal Code and to prosecute him.
Further contended that it is a cocked up and concocted
case and out come of some bad elements joining a
hands with the Prosecutrix and her husband Sri
Divakara Shastry and C. Narayana Shastry and 5 other
her relatives by hatching a pre plan by them on the legal
advise and astrologer advise and choosing a particular
point of time as recovered in the i-pad, i-phone and
computer of the prosecutorix as a counter blast to the
Honnavara Police station Crime No. 342/2014 to
tarnish the name of the Swamiji and his image in public
and also to thrown out from Mathadipathi or Peeta of
the Raghavendra Swamiji math, etc.
 77 S.C.No.1242/ 2015

69. On plain reading of Section 375 of Indian Penal

Code and prosecution case, it is not a case of
Prosecutrix that accused/Matadipathi on any occasion
of 169 times he did acts of sex with her not invited her
to come to him or his place for doing sex with him. It is
the Prosecutrix who went to accused/Matadipathi for
doing sex with him without any resistance. According to
her she is a Ramakatha Singer. According to defence,
the Prosecutrix and one more Smt. Deepika, including
herself and other team mates, thus more than 20
members gave Rama Katha programmes organized by
the sponsors. The sponsors have paid their
remuneration. The accused Mathadipathi is no way
concern in making payments of the remuneration of the
Rama Katha team.

70. According to prosecution, the acts of sex did

during a team work and in Math at the time of
rehearsal. In no on any occasion the Prosecutrix did an
act of sex with Accused/Mathadhipathi in any hotel,
picnic spots or abroad together.

71. At the cost of repetition the Prosecutrix boasted

herself in her statements under Sec.161 of Cr.P.C. and
 78 S.C.No.1242/ 2015

Sec. 164 of Cr.P.C. that she is a woman of fidelity to her

husband, God fearing and chaste woman. The
Prosecutrix is not a simpleton or of dullard woman and
no knowledge of external world to cheat her easily by
anyone including Mathadipathi.

72. The allegation that the 169 times acts of sex

did against the Prosecutrix for over a period of 4 years,
at the time of Rama Katha programmes and at
rehearsals. What would be the actual and real offence
made out in the eye of law? Upon these allegations, the
prosecution projected it as a case of rape.

73. When we go through the definition of rape

under Section 375of Indian Penal Code, it is the
Prosecutrix who went to the accused wherever the
accused Mathadapathi was though 169 times she did an
act of sex with him, she never resisted at any point of
time and place. He did act of sex with her without illegal
detention by him or his captivity. After having did a sex
with the accused Mathadipathi, she returned home and
led not only worldly life with her family members, but
led a marital life with her husband without any
complaint. She has not stated except the divine
 79 S.C.No.1242/ 2015

displeasure showed on her what was the exceptional

and extraordinary circumstance to prevent her from
lodging the complaint immediately on a first, or second
or third occasion like imminent danger to herself and
her family members from the hands of men of accused
Mathadipathi to accept her say. The man may cheat
once, twice or thrice but, not always continuously in the
guise of divine displeasure. As told above, she is a
woman of God fearing and faithful to her husband. The
woman of such character never surrenders to any man
even including Mathadipathi, definitely offers resistance
and stops pay visiting the accused Math and attending
the Rama Katha programmes. In case of any untold
incident occurs even after her resistance offers, she
could not tolerate for any reason on the guise of divine
displeasure would rather die of excessive sexual
harassment or revolt against the accused or bring it to
the knowledge of her husband immediately to get rid of
his clutches. According to her she tolerated this sexual
harassment continuously for a year, what it indicates
that she must be woman of lusty character or for
money. The sex did for money would amounts to ill-
intimacy. This conduct on the part of the prosecutrix
not in conformity with the conduct of the God fearing
 80 S.C.No.1242/ 2015

woman or chaste woman and it speaks in volume. More

than 169 times surrenders before the accused
establishes that for what reason she did so, best known
to her i.e., for money. So, the acts of sex did amounts to
ill-intimacy. In view of fact that couple of years
continuously sexual affairs in between accused
Mathadipati and prosecutrix went on repeatedly by
going to the accused, the essential ingredients of
Sec. 375 completely loses their importance and
effect in the eye of law. The sex takes different
colour and name, the sexual affairs in the given case
on hand between them would take shape and colour
of the ill-intimacy.

74. At the cost of repetition once again stated that

it is further an admitted fact that the accused
Mathadipathi is a worshiper of Sri Ramadevaru. It is
further admitted fact that she attended Rama katha
programmes and its rehearsals on many occasions in a
team with his team mates. As blasted by Sri SPH
counsel in his argument, on what reason this alleged
rape case foisted as a counter blast to Honnavara Crime
number showing the accused i-pad, i-phone, her mobile
numbers and recovered by the Honnavara Police. This
 81 S.C.No.1242/ 2015

rape case built up on the legal advise of advocate and

astrologer’s advise. The reasons for surrender invented
suiting to the status of accused only without
complaining up immediately as a prudent woman. To
accept the explanation for delay for lodging complaint,
the prosecutrix is not a simpleton lady without the
worldly knowledge. There is an enormous delay of 4
years, the circumstances of the case requires
exceptional explanation. No such acceptable and
exceptional and reliable explanation is offered. So, this
establishes a conspiracy on the part of prosecutrix and
her husband Sri. Divakara Shastry and disgruntled
other five relatives. The explanation which gave in this
case is only invented out of spite and conspiracy and on
legal advice. The explanation offered is not stands to
reasons and law of logic and common sense, but, this
delay exist not come in the way of disposing this
discharge application.

75. It is not the case of Prosecutrix that the

accused not promised to marry her or to build a house
for her as she was a married woman. No exceptional
circumstances pleaded to tolerate the sexual
harassment from the hands of the accused or his men
 82 S.C.No.1242/ 2015

for over a period of 4 years. We do not know for what

reasons she did a sex with the accused either for money
or for satisfying the lust. To find out what the actual
crime had being did. So, we quote the legal maxim the
circumstance alter the cases and every case will have to
be decided on its own facts and circumstances. When
the charge sheet submitted by the CID police, they
quote on the facts of the case the sections. In their
opinion some probable Section may applicable to it. It
is not the section that determines the nature of the
offence, but, it is the sum and substance of the
allegation that will determine the nature of the
offence being committed. It is the bounden duty of
the Judge or Magistrate to find out the alleged offence
actually accused committed on the material allegations
leveled against him.

76. In a case of rape, in a case of adultery, in a

case of ill intimacy, in a case of trafficking offences and
in a case of prostitution the common ingredients exists
is a sex involved. This factor sex varies with the age of
male or female, their relationship, their characters and
circumstances under which the acts of sex did. The
existence of sex calls in different names and in varied
 83 S.C.No.1242/ 2015

circumstances under law. To find out what would be the

actual offence being committed. So, we illustrate the role
of sex in different context. Namely,

77. Firstly, if a man and woman basically

unmarried lives or lived together under a common roof
more than 30 years and co-habituated together as a
husband and wife and society treated them so. Under
such circumstances, the law presumes and gives legal
status that they are the husband and wife in the eye of
law.

78. Secondly, if unmarried boy and a girl come up

of age without marriage lives together for a considerable
period under a common roof and co-habituating each
other. Under such circumstances, the law presumes
that and recognizes their relationship between them as
that of living in relation as a husband and wife.

79. Thirdly, if a married woman deserting her

husband and lived with another man of married or
unmarried for a year or over a years continuously under
his control and custody under common roof and he
maintains her continuously over the said period. Under
 84 S.C.No.1242/ 2015

such circumstances, the law presumes and recognizes

that their relationship continuously living in adultery.

80. Fourthly, if a married woman without deserting

her husband having sex with another man (married or
unmarried) oftenly for money or even otherwise lust or
for issue, for over a period of one year, more than one
year either she going to him or he coming to her with or
without the knowledge and consent of her husband.
Under such circumstances, the law presumes that their
relationship between them either acceptable or
unacceptable ill-intimacy.

81. Fifthly, if a girl does a sex with a man for

money under the custody of brothel keeper. Under such
circumstances, the law presumes that she is a
prostitute practicing prostitution.

82. The element of sex differentiates and takes

different names relating to circumstances, place, etc. In
the given case on hand, having regard to the existence
of facts and circumstances of the case, the acts of sex
did accountable of 169 times, unaccountable and
unmemorable at many times and the sex existed for
 85 S.C.No.1242/ 2015

over a period of 4 years continuously. The Prosecutrix

on sex with accused/Mathadipathi by going to him
wherever he was and she never complained up and no
invitation from the side of accused to have a sex with
him on his phone call or calling through his men. It was
not within the knowledge of her husband who is her
legal guardian and protector. So, the acts of sex she
did with accused/Mathadipathi tantamount to
unacceptable intimacy. Viewing from any angle, the
acts of sex did not amounts to rape at all, but, ill-
intimacy.

83. We would proceed to discuss about the

character and conduct as passing remarks once again.
The Prosecutrix married woman of 51 years old having
beloved husband, two sweetest daughters. She was on
the wrong side of 51 years on the date of acts of sex did
with accused/Mathadipathi. As per the medical
jurisprudence, the married woman after crossing 43
years, woman will lost child bearing capacity. When they
lost child bearing capacity, some of the woman become
disinterested in sex, this means to say that disinclined
to have a sex with their husband. In the given case on
hand the Prosecutrix has not stated for what reason she
 86 S.C.No.1242/ 2015

went to accused/Mathadipathi to have a sex with him.

Her case not covered any of the essential ingredients of
Sec. 375 of Indian Penal Code. In one of her statements
she stated accused was doing a sex with her by
smearing ‘g’ point with his left hand finger i.e., its
anatomical name clitoris to exotic and to excite to
cooperate with him in enjoying the sex. As per the
medical report the accused is having a high rate of
potentiality of sex. Looking to their age it is not a
natural sex, the way in which she becoming exotic and
would show she artificially sensitized to having sex with
him. This shows that either she must be licenticious
woman or woman of sexually abnormal character. In
our opinion, looking to the age of both Prosecutrix and
accused/Mathadipathi, the relationship exists and
appears that of mother and son. The sex is a mental
attitude or thing to become exotic and excited on seeing
women or girl of his choice. On this reasoning it is
nothing but acceptable intimacy or it must be a false
story with ulterior motive to blackmail the
accused/Mathadipathi.

84. She stated earlier to lodging complaint, she

informed to her eldest daughter Kum: Amshumathi
 87 S.C.No.1242/ 2015

about the sexual assault committed by the accused

against her, but not to her husband. The eldest
daughter being an educated girl not stops her mother
Prosecutrix attending the Rama Katha programmes and
visiting the accused/Math. So, we termed it as
acceptable intimacy.

85. We know in a case of an old woman sex will be

done in society for lust or money. In the absence of
these two, it must be a false story. This thing will
occurred in a case of young woman her husband dies in
an early age and husband lives without sufficient means
to maintain her and weak in sex. In the given case on
hand, comparing to the age of both
accused/Mathadipathi is a sexually vigorant. The old
woman prefers young boy. In the absence of
consideration, for sex this may be a true.

86. If alleged act of sex did during his custody and

after sex she free bird and return to home and led
marital life, worldly life with her entire family members
without disclosing to her husband.
 88 S.C.No.1242/ 2015

87. The factor that of ages of man and woman, boy

and girl, in their life, sex plays important role to decide
the acts of sex and its nature as a love affair or sexual
affair or rape or adultery or ill-intimacy. In a case of
human beings the sex is of natural instinct quality and
exists over a days of 365 days in a year and every
seconds. The human being is exception to this. The
period of 4 years of sex denotes that the aggrieved lady
had sex with accused/Mathadipathi is nothing, but, ill-
intimacy not tantamount to rape at all. Repeatedly
occurs not defined in Sec. 375 of Indian Penal Code. The
reasonable construction may be put on twice or thrice,
but, not more than hundred times, it not amounts to
rape at all, but it is acceptable intimacy.

88. After sex the Prosecutrix never been in the

custody of accused/Mathadipathi, he never had control
over her to do a sex with her in continuity to presume or
to hold the acts of sex adultery. The accused who not
having a control and custody over her and maintains
her under his umbrella, so, the acts of sex not covers
the definition of adultery.
 89 S.C.No.1242/ 2015

89. Acts of sex, over a period of 4 years connotes

and denotes no resistance. On the other hand, it
presumes with consent and willingness to do sex. The
eldest daughter lodges hear-say complaint. The Hon’ble
Supreme Court of India rules is not admissible at this
stage i.e., at the stage of discharge the accused. No bar
to lodge such kind of complaint, however, have to be
substantiated during the trial only not at this stage.

90. We have seriously noticed that from the

statements of Prosecutrix both under Sec. 161 of
Cr.P.C. and Sec. 164 of Cr.P.C. statements, the acts of
sex did during Rama Katha programmes held and
rehearsals held only, not went as a disciple or devotee of
Math to hold it as a custodial sex and not attracts
clause (2) (F) and (N) of Indian Penal code. So she had
sex with accused in Math, the Prosecutrix visited the
accused/Math as a Rama Katha Singer for rehearsals.
On this ground also not amounts to rape at all.

91. Whether from the written report of daughter,

the Prosecutrix 5 times in statements under Sec. 161 of
Cr.P.C. and 5 times in statements under Sec. 164 of
Cr.P.C. and medical reports were make out any offence
 90 S.C.No.1242/ 2015

of rape under Section 375 of Indian Penal Code or Sec.

498 A of Indian Penal Code or ill intimacy or a case of
prostitution.

92. It is abundantly clear from the above referred

documents, if we manifestly or unilaterally, blindly,
prima facie accepted the prosecution story to be true
and correct or if it were believed to be hundred percent
correct or it were presumed to be true and correct or if it
were prosecution story taken up hundred percent
correct what is the actual and real offence would be
make out. It is not a case where aggrieved lady kept
under illegal detention or captivity while doing sex. In
such illegal detention the sex not did repeatedly to
consider it as a rape.

93. At the cost of repetition, it is once again stated

in a case of rape, living in relationship, adultery,
prostitution, ill-intimacy, the element of sex is common.
The element of sex plays different roles and names as to
the nature of relationship of the parties, inter-see, ages,
circumstances under which committed.
 91 S.C.No.1242/ 2015

94. We would reproduce Sec. 375 of Indian Penal

Code and Sec. 227 of Cr.P.C. as below:
Sec 375 of Indian Penal Code speaks as under:-
“A man is said to commit “rape” who, except
in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances
falling under any of the six following descriptions:-

First – against her will.

Secondly – without her consent.

Thirdly – with her consent, when her consent

has been obtained by putting her or any person in
whom she is interested in fear or death or of hurt.

Fourthly – With her consent, when the man

knows that he is not her husband, and that her
consent is given because she believes that he is
another man to whom she is or believes herself to
be lawfully married.

Fifthly – With her consent, when at the time of

giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him
personally or through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of that to
which she gives consent.

Sixthly – With or without her consent, when

she is under sixteen years of age”.
 92 S.C.No.1242/ 2015

Sec. 227 of Cr.P.C. speaks as under:-

Discharge – If, upon consideration of the
record of the case and the documents submitted
therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the
judge considers that there is not sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his reasons for
so doing”.

95. Specifically the prosecution case is that acts of

sex did by the accused with aggrieved woman, when she
went to him wherever he was and while so doing a sex
with him there discharged or ejaculated semen which
fell on her wearing inner apparels including her saree
and petty coats. She preserved them in dustbin,
exposed to dust and debris. She has not at all stated for
what special reason she preserved it. The portion of the
semen is earmarked with ink. The Hon’ble Supreme
Court of India, in one of the authority ruled that from
these specific averments, if it is for the Investigation
Officer to recover the said apparels of the aggrieved lady
with semenial stain, at the time of seizure of articles
under panchanama and sent them to Forensic Science
Laboratory under PF to determine the DNA profile of
said seminal stain including the collection of blood of
the accused and to request to conduct DNA profile of
 93 S.C.No.1242/ 2015

seminal stain and blood of the accused to match them,

on matching he has to laid the charge sheet as a prima
facie materials, otherwise No.

96. So far this case is concerned, during course of

argument, Sri SPH advocate for accused Mathadipathi
vehemently contended and disputed that the no
seminal stain found in the earmarked portion of the
panty liner cloth which recovered under the seizure
panchanama. This incriminating circumstance itself is
a doubtful to say the involvement of the accused in
alleged crime of rape is highly doubtful. On this ground
alone, the court ought to have straight away discharge
the accused without making any detail discussion.

87. In the given case on hand, the recovery

panchanama of the inner wearing apparels of the
prosecutrix conducted and seized on 18.9.2014.

88. This recovery made 82 days after the so called

inner apparels reserved alleged and recovered coupled
with the plan hatched to foist the case against the
accused to ill-repute him and de-thrown from the patta,
the materials found and detected in the i-pad and i-
 94 S.C.No.1242/ 2015

phone and computer of the prosecutrix and e-mail

message sent to her husband through her mobile
number by Honnavara Police coupled with fact that no
seminal stain found on the alleged cloth at the time of
examination. What is the standard of medical
evidence expected by this court is that the seminal
fluid or the semen found in the vaginal cavity or
vaginal canal or on the body of the victim found has
got presumptive value than found on the alleged
disputed clothes. Why this court expected such a
seminal stain and fluid from the side of prosecution that
the defence seriously with all and hard bitterness
disputed the cloth on which the seminal stain
earmarked not contains anything, in other words no
semen is found. Secondly, there is a variation in
between the statements recorded under Section 164
Cr.P.C. and Sec 161 of Cr.P.C. of the prosecutrix and
the recovery of the inner wearing apparels of the
prosecutrix. The semen is found on the article which
was not stated by the prosecutrix in her 161 and 164
Cr.P.C. statements. In such circumstances, the
emission of semen constitutes no part of the crime
of rape alleged either positively or negatively. The
learned SPH, counsel ironically retorted the alleged
 95 S.C.No.1242/ 2015

semen may be the third person not of the accused. Even

inspite of specific direction of the IO to note on the
articles whether the saliva and epithelial cell any fluid
detected, the epithelial cell found on article No.6 not
mentioned either of the male or female. Sri SPH counsel
disputes the authenticity and correctness of the DNA
profiles of blood of the accused and disputed seminal
stain found on the article other than stated in the
statements of the prosecutrix. Under these facts and
circumstances, the seminal stain or seminal fluid found
in the vaginal cavity or canal or on the body of the
victim found would be the best and safest material to
decide and hold that the accused involvement in this
crime. This expected evidence is lacking in this case. On
this ground alone, the accused is entitled to be
discharged from the case.

89. The acts of sex did for over a period of 4 years

including acts of sex on 26.6.2014 and 27.6.2014. So,
the whole period of 4 years of acts of sex coupled with
whole effect and its ultimate result is to be determined
to consider and to judge the nature of the acts
committed in the eye of law not too lost. Segregate the
acts of sex alleged on 26.6.2014 and 27.6.2014
 96 S.C.No.1242/ 2015

respectively. So, filing of charge sheet on this material

under Section 376 of Indian Penal Code is an illegal
infirmity and illegality. On this ground alone, the
accused is entitled to be discharged from the case.

90. Under Section 227 of Cr.P.C., this court to

discharge the accused from the case has to follow
the principles that broad probabilities of the case,
the total effect of the evidence and the documents
produced before the court any basic information
appearing in the case and so on. The material
extracted from the above test the court is bound to look
into, is there any gravest suspicion of the involvement of
the accused in the crime, if so, has to proceed to frame
the charge.

91. Sri. SPH, advocate for Sri Math

demonstrated that they whole heartedly accepted
the prosecution case for this limited purpose of
arguing on the discharge application as hundred
percent true.

92. The investigation agency, was conducted the

seminal analysis test of the alleged accused semen
 97 S.C.No.1242/ 2015

ejaculated which fell on her clothes. The test discloses

that no sperms or spermatozoa is found. There only
found plasma i.e., watery type of substance and
epithelial cells. In the absence of semen or spermatozoa
no DNA profile test conducted by the laboratory, it has
not been diagnosed whether the epithelial cell found on
article No.5 is a male or female cells. Further, it has not
been diagnosed to whom it is belonged. The counsel Sri.
SPH during the course of his argument canvasses that
the semen may die or waste, such cells normally falls.

93. The said DNA profile test conducted negativity

to the entire prosecution case. This court proceeds
further and discuss and debate for a sake of arguments.
The semen of the accused was found on the wearing
inner apparels of the Prosecutrix. Under such
circumstances and facts of the case there raises a one
more question that “whether tonnes of tonnes of
semen of the accused found or detected on the
wearing apparels of Prosecutrix helps the
prosecution to hold the accused appears to have
committed a crime of rape”. We taking into
consideration of whole prosecution story and its entire
effect hold that the acts of a sex would false within the
 98 S.C.No.1242/ 2015

definition of acceptable illegal intimacy by the family

members of the Prosecutrix. So, the presence of semen
of the accused found on the wearing apperals of the
prosecutrix, no way helps to this court to come to
conclusion the accused committed alleged crime of rape.
On this ground, the accused is entitled to be discharged
from the case.

94. The last acts of sex stated to have been

committed by the accused with the Prosecutrix on
26.6.2014 and 27.6.2014 not come to the aid and
assistance of the prosecution to hold that it is sufficient
material to proceed against him.

95. In this case, there is no DNA profile of disputed

semen said to have been collected and preserved by the
prosecution. The question of comparing the DNA profile
of the accused with the disputed semen analysis test
conducted by the laboratory.

96. The defence elaborately explained the ill-

motive for foisting this false case against the Math
and Swamiji, that is the background of the case.
 99 S.C.No.1242/ 2015

97. According to Sri SPH counsel, is in two folds,

the accused Mathadipathi nominated Divakar Shastry
and C.M. Narayana Shastry as a Honorary President of
Uma Maheshwra Temple, Hosagunda, Shimoga District.
The said C.M. Shastry collected donations from various
people and failed to furnish accounts, on being
questioned by C.E.O., B.R.Chandrashekar, who was a
local coordinator of the Ramakatha programmes at
Kekkur and also Secretary of security wing of Sri Math.
He lost temper and warned him for mind business of his
own. Feeling relentless pressure of people which was
unbearable, C.M. Narayana Shastry presumed that the
accused is a instrumental in awaking the public. He
burning with anger and out of animosity opted criticized
the accused in public by having acts to grind against
him. Secondly, Sri Divakara Shastry and the
Prosecutrix (Premalatha) were also shunted out from Sri
Math (all doors of the Math have been closed for the
couple for having committed irregularities) by
dissolving from various committees presided by Shastry
couple, for which Shastry couple had openly expression
their displeasure with this Divakara Shastry had
suffered business loss and was in acute need of money.
Openly challenged the accused Swamiji in public.
 100 S.C.No.1242/ 2015

Hence, as confessed by him before the Panchas on

27.6.2014, which was evidenced in recovery of the
materials in their i-phones, i-pads, computers etc. The
couple had planned for extraction of money from Sri.
Math, thus, the confession of the husband about the
involvement of his wife Premalatha is proved as a
confession against Premalatha admissible under Sec. 10
of Indian Evidence Act. The recovery of materials to the
confession is also legally valid in view of Sec. 27 of the
Indian Evidence Act, i.e., confession resulting in
recovery. Mr.Divakara Shastry (husband of Premalatha)
demanded, abdication of thrown of Sri Math by the
accused and for ransom of Rs.3 crores or else, his wife
the Prosecutrix herein Smt. Premalatha will file a sexual
harassment complaint against the accused. He went on
to say his and brother Mr. Narayana Shastry already
kept ready a written complaint against the accused. Mr.
Divakara Shastry alleged to have threatened that he will
tarnish the image and reputation of Sri Math and
accused by foisting false story before media besides
lodging the complaint before the police and before the
Women Commission. So B.R.Chandrashekar complaint
before Honnavar Police Station and the same was
registered in Crime No. 342/14 on 17.8.2014 for the
 101 S.C.No.1242/ 2015

offences punishable under Sections 120 (b), 153 (a) &

(b), 384, 420, 504, 506, 511 r/w Sec. 34 of Indian Penal
code also with Sec. 66 (c) and I.T. Act 2000. The
Honnavara Police have conducted a Preliminary
investigation and recording the statements of various
persons, arrested Mr. Divakara Shastry and his wife
Mrs. Premalatha (prosecutrix ) and produced before the
court of JMFC, Honnavara. After arrest of said Shastry
couple i.e., on 26.8.2014, the daughter Ms.
Amshumathi Shastry filed a Sexual harassment
complaint before Banashankari Police Station, which
was registered in their crime No.219/14 against the
accused for offence punishable under Sec. 354 (A) and
506 of Indian Penal code. It is alleged in complaint that
her mother Mrs. Premalatha was telling her that
accused was harassing her mother sexually and that
her mother and father both were arrested by the police
and she and her younger sister were alone at home and
they were intimidated by men of accused and they need
a security cover of the police. The said case was
transferred to Girinagara Police station on the point of
local jurisdiction and renumbered in Crime No. 164/14
of the said Police Station.
 102 S.C.No.1242/ 2015

98. On production of Shastry couple before JMFC

Court Honnavara, she filed a incomplete written
complaint (computerized) to learned Magistrate, the
alleging sexual harassment by the accused and on
subsequent days, she handed over one more complaint
in a sealed cover. The I O of Girinagara had recorded
the statement of prosecutrix on 5.9.2014 at Karwar
office where she was in judicial custody of court of
JMFC, Honnavara and altered the First Information
Report by inclusion of Sec.376 of Indian Penal code later
on case transferred to CID, Bengaluru for investigation
along with other cases.

99. Thus, the case of B.R.Chandrashekar lodged as

stated supra supported by two statements under
Sec.164 of Cr.P.C. recorded before JMFC, Honnavara
are sufficient to demonstrate motive for lodging this
case. The panchanama prepared by Honnavara Police in
the presence of panchas shows that instant complaint
filed by the complainant Amshumathi Shastry is an
afterthought under such circumstances, from the
documents produced by the complainant herself it is
demonstrated that there is a no sufficient ground to
 103 S.C.No.1242/ 2015

proceed against the accused Sri Swamiji. We concurred

with the argument of Sri. SPH advocate.

100. The complaint by Amshumathi is a hear-say

has no reference to the alleged incidents narrated by
Prosecutrix in her statements. So, complaint of
Amshumathi is in admissible in the eye of law at this
stage of hearing before charge and quoted ruling we
agree with the legal position canvassed by the defence
counsel.

101. In incomplete complaint dated 27.8.2014,

produced by prosecutrix before JMFC, Honnavara
contains several blank spaces. On plain reading of it
shows that complaint is engineered or concocted had
undergone several corrections by several people
including legally trained persons and astrologer. Hence,
said complaint has no sanctity in the eye of law.

102. The e-mail produced shows that the

complaint produced by prosecutrix is corrected version
and was seen by many people copy was sent to various
people on 5.8.2014 itself. Several discussions went
made as alleged by Prosecutrix amongst several people
 104 S.C.No.1242/ 2015

about alleged incident. Therefore, it is unique case

whether there is material to show the ingredients
requires to constitutes any offences including offence of
rape and sexual abuse. The entire First Information
Report and complaint even if accepted at their face
cannot be translated into evidence at the time of
hearing. Therefore on this ground accepted at their face
value do not discloses the ingredients of the offence.

103. It is submitted that prosecutrix and her

husband had discussed about alleged incidents
formulated in secrecy vide their e-mails dated 25.8.2014
at 9.03 a.m., and 9.39 a.m., under the caption “Thilivu”
it clearly shows that the couple had planned to foist a
false case before the alleged incidents dated 26.6.2014
and 27.6.2014. These e-mails further shows that
defence theory of passing information 30.6.2014 is false.
It is further shows that no incident as alleged by
prosecutrix had taken place 26th and 27th of June 2014.

104. It is further submitted that the statement

given by Prosecutrix on 5.9.2014, before Girinagra
police at Karwar shows that the alleged incident of rape
dated 26.6.2014 had happened between 3.15 p.m., to
 105 S.C.No.1242/ 2015

3.30 p.m. The statement of Abhiram Cw-38 shows that

the prosecutrix had gone out from Math by 3.00 p.m.,
the call detail register (CDR), which is having evidentiary
value of unimpeachable quality also shows that the
prosecutrix also not present in the alleged seen of
offence during the time stated by her. This clearly shows
that there is no material produced by the prosecution to
show her presence in alleged seen of occurrence during
the alleged incident. Sri. SPH advocate, adds that
person can lie but, not the electronic gadgets.

105. It was pointed out that on 5.9.2014, the

police searched the house of Smt. Premalatha, but no
incriminating material relating to the alleged rape was
found. Hence, Nil panchanama was recorded or drawn .
However, she had claimed that in her statement dated
5.9.2014, that she had preserved one petty coat and one
panty liner relating to the alleged incidents i.e., one
saree and one petty coat relating to the alleged incident
dated 26.6.2014 and one saree and one and one panty
liner relating to the alleged incident dated 27.6.2014.
On 17.9.2014 Dhivakara Shastry and prosecutrix came
to their house with CID police, even then did not hand
over any incriminating materials including sarees and
 106 S.C.No.1242/ 2015

petty coat again on 18.9.2014 the prosecutrix with her

husband visited CID office and met sleuths therein.
Later as a part of larger conspiracy, CID police came to
her house in the evening at 8.00 p.m., and collected a so
called incriminating materials under panchanama. The
delayed collection of materials under panchanama
coupled with conspicuous presence of new item No.1
indulged under earlier statement and number of hairs
found in the article No.5 opening in the biological
section of FSL conjunctively shows that article no.6 in
toto is fabricated/concocted material objects.

106. The complaint given by the prosecutrix

and her daughter is nothing but counter blast to the
complaint lodged by B.R.Chandrashekar and others.
The complaint of prosecutrix is not only incomplete, but
also fabricated shows created to suit their ulterior
motive of extracting ransom which is evident from the
panchanama narrated supra drawn in Honnavara Police
Station Crime No. 342/14. Hence, the complaint is not
a first information as understood in law, but, engineered
version produced after several/series of corrections
made by legally trained person, advocate, C.M.C.
Shastry, CW 24.
 107 S.C.No.1242/ 2015

107. Statements of prosecutrix given on different

dates before the police as well as before courts consists
of conspicuous improvements, omissions,
contradictions, consistently made admissions on oath
made later recoiling without any reasoning amply shows
that the statements of prosecutrix is not worthy
credence in the absence of corroboration in material
particulars.

108. The prosecutrix has gone to an extent of

alleging rape at Mangalore on oath succinctly on day to
day basis. On knowing that she was not present during
entire programme, she later again on oath took ‘U’ turn
and resiled from the earlier statement. It is living and
standing examples demonstrated that the statement of
the prosecutrix propelled by the strong motive of
dethrownment of the accused from Peetha as well as
demand of ransom made. Prosecutrix to both an extent
of making an allegation of rape even during programme
the incident she was about prosecutrix gave a statement
under Sec. 164 Cr.P.C. before the court number of times
and on different occasions viz., during her stay at
judicial custody before Girinagara police, before CID
 108 S.C.No.1242/ 2015

police, before court at Bengaluru, before her statement

recorded after more than 90 days from the date of
alleged incident cannot be accepted without
corroboration even at the stage of hearing before charge.

109. The FSL dated 20.10.2014, contains several

articles which are not even referred to in her statement
recorded under Sec.161 of Cr.P.C. as well as statement
recorded under Sec.164 of Cr.P.C. Under such
circumstances there are no materials produced to show
the genesis of those articles in short, there is no
explanation in the charge sheet as to how? And from
whom? Where of? From which shows the additional
materials came to biological section of FSL.

110. The material objects including article No.6, is

said to have been collected 82 days after the alleged
incident. No explanation is given about ensuring safe
custody of those materials for 82 days. Therefore, the
article No.6 found and collected from unprotected
dustbin after 82 days containing additional
hairs/foreign materials shows that article No.6 is
fabricated.
 109 S.C.No.1242/ 2015

111. Test relating to semen was conducted only

once and the tests conducted for blood was also once,
thus, in all two tests were conducted. The FSL report
and data were also produced by the CID police in the
charge sheet. The said report along with annexure
containing the data demonstrates that there are no
materials to proceed against the accused. The FSL
reports were submitted thrice on different dates and
time. The FSL report was produced with improvement or
producing any additional tests apparently to fill up the
lacuna as and when noticed in each reports. It is further
submitted that according to prosecutrix she was
allegedly raped on 27.6.2014 between 8.30 p.m., to 9.45
p.m. She further, candidly says that the alleged rape
took place after receiving the call of Praveen D.Rao,
shown as a CW-33. Mr. Praveen D.Rao spoke to
Prosecutrix from 8.58 p.m., to 9.07 p.m. Further
accused attended the rehearsals along with other artists
from 9.30 pm., to 9.50 p.m, Therefore, many inmates of
the Math spokes to prosecutrix between 9.30 p.m., to
9.45 p.m. Hence, there is no question of any incident
taking place as narrated by prosecutrix. Further, the
FSL report has clearly shown that on such incident as
alleged by prosecutrix has taken place has no
 110 S.C.No.1242/ 2015

incriminating material was found in materials given by

prosecutrix alleging the containment of accused semen.
The CDR’s also demonstrates that she was in Girinagra
Math between 8.15 p.m., to 8.57 p.m., and thereafter
went off and never came to Math again on that day. So,
the above said documentary evidence issued by
Government of India clearly shows that the statement of
the prosecutrix is far from the truth. In the light of
above reasons the prosecutrix has failed to produce
sufficient materials to proceed against the accused. We
agree with the view of the learned defence counsel. On
this ground, the accused is entitled to be discharged
from the case.

112. It is further submitted that the incident

narrated by her commenced from 2011 to 27th June
2014 are false and fabricated as there are no
corroboration and the materials except self serving
mentioned statements of prosecutrix. The messages
from e-mail, whatsapp materials produced by the
prosecutrix shown that the prosecutrix and her
daughter have addressed the accused as a Gurudeva
and sought the blessings even up to 27.6.2014, the
daughter had even made portrait of accused and
 111 S.C.No.1242/ 2015

addressed him as a God. Further, the prosecutrix in her

statement before CID Police as well as before the court,
she has offered a special fruit by name ‘Rama buthana’
grown in her arcade at her native place to the accused
on 24.6.2014, that too by reaching Math on her own
volition along with her second daughter this clearly
shows the entire story has hatched by prosecutrix in
secrecy is unnatural, concocted and devoid of merit.

113. The sole material of prosecutrix being a

improbable and opposed to commonsense of reasonable
prudent man cannot be accepted at its face value as her
conduct is unnatural as opposed to human conduct.
The story of prosecutirx is unworthy credence and not
supported by legally admissible evidence. The
discrepancy is go to root of the matter and is properly
noticed would lead any court to discard the version of
prosecutrix. Thereby entire prosecution case the
investigation appeared to be concocted. So, placed to
media and women organization as such the final report
is filed by not producing relevant materials collected in
the course of investigation. The investigation appears to
be artificially biased as even in the absence of material
evidence to connect the accused with crime charge sheet
 112 S.C.No.1242/ 2015

is filed without any basis. In an over all assessment of

the so called incriminating material evidence that shows
put forth is the prosecutrix and improvements made at
every stage is patently false and not amenable to the
sense of reasonable prudent man as such no reasonable
prudent man can even come to conclusion of guilt
against the accused on this solitary ground alone the
accused deserves to be discharged.

114. Once again at the cost of repetition it is stated

that the prosecutrix being an educated lady having a
extensive traveling at her credit as the popular singer
exposed to modern dynamic world having blessed with
two grown up children submitting herself for sex as
alleged by her under the fear of promise on Sri Rama for
169 times cock and bull story unbelievable and opposed
to common sense and apparently appears unnatural.

115. The prosecutrix has categorically stated that

was disassociated with the activities relating to Math for
more than six months, as such she should not have
come back if she had really suffered sexual assault as
alleged by her. This act of prosecutrix also appears to be
unnatural and speaks in volumes about ulterior motives
 113 S.C.No.1242/ 2015

or selfish motive and conspicuously hatched in sinister

design to malign accused Swamiji.

116. Innumerable inconsistent and contradictory

statements couched with the half truth patent lie shows
that an evidence of prosecutrix is in the nature of
accomplice and cannot be accepted without
corroboration. In substantive particulars or materials
enshrine under Section 114 of Indian Evidence Act.

117. The accused deserves to be discharged only

on the ground that the complaint lodged after delay of
more than 3 years from the date of alleged first incident
and materials object alleged to be relating to this case
produced from unprotected dustbin with foreign
materials after 82 days.

118. The learned Special Public Prosecutor

submitted that one of the prosecution witnesses who
not supported in his 161 Cr.P.C. statement take ‘U’ turn
and gave 164 Cr.P.C. statement and supported the story
of the prosecution. This material coupled with other
materials on file is sufficient to proceed against the
accused by framing charge.
 114 S.C.No.1242/ 2015

119. Per contra, Sri. SPH advocate submitted that

there are two contradictory version of a witness on
record is itself smashes the whole effect the material
which is favourable to the accused is to be preferred.
We agree with the views expressed by both the sides to
the extent of their admissibility only. We have gone
through the entire charge sheet materials and
authorities and submissions made by both sides, we
apply the ratio decinded wherever applicable on either
sides.

120. From the aforesaid detailed analysis made of

both facts (five successive 161 Cr.P.C. and Sec. 164
Cr.P.C statements of prosecutrix recorded by the
Investigating officers of Honnavara taluk, Girinagara
Police Station, Bengaluru, CID Bengaluru and Sec. 161
Cr.P.C. statements of CW 24, 33, 38, and one more
witness and other witnesses) of the case and documents
(FSL reports) produced by the prosecution, the legal
principle, the only materials can be taken into as a legal
evidence taking into consideration at the time of
hearing before charge and concept of section 227 of
Cr.P.C. coupled with Sec. 228 of Cr.P.C., coupled with
provisions of medical jurisprudence) and recovery
 115 S.C.No.1242/ 2015

panchanama dated 18.5.2014, the disputed material

objects, the other documents, the CDRs of prosecutrix
issued by the Government of India, the materials found
in the i-pad, i-phone and computers of the prosecutrix
recovered under mahazar by the Honnavara Police in
Crime No. 342/14 and interpretation of things floated
in the statements of prosecutrix on the yardstick of
norms of prudent women, which are not establishes
prima facie, no strong and grave suspicion much less
suspicion exists as to involvement of the accused in the
alleged crime of rape in the given case on hand. The
above materials placed on record, is not sufficient to
frame the charge against the accused and to try him.
In the presence of above materials the prosecution of the
accused would nothing but harassment and
embarrassment to him, no purpose would serve. So, it is
a most fittest case to drop the accused from the charges
leveled against him under Sec. 376 (2) (F) & (N), Sec.
506 of Indian Penal code and to discharge him from the
case. Absolutely no any or iota of materials against the
accused to go for trial. On the cost of repetition, from
the above detailed discussion made from all angles and
perspectively we do not find existence of grave and
strong suspicion much less any suspicion as to
 116 S.C.No.1242/ 2015

involvement of the accused in the alleged crime of rape

absolutely no iota of materials to frame the charges
against the accused. On study of the five successive five
each statements under Sec. 161 Criminal Procedure
code and Sec. 164 Criminal Procedure code statements
of prosecutirix, the statements of several witnesses, the
FSL reports and other allied records, seizure
panchanama etc., this court find supports to the case of
defence, considering the various facts and law discussed
above along with above, this court in view of the
prosecution not make out the case for trial. So, it is a fit
case to discharge the accused from the charges 376(2),
(F) (N) and Sec. 506 of Indian Penal code. Hence, we
answer Point No.1 in the affirmative.

121. Point No.2: In view of my findings on the

point No.1, we proceed to pass the following:

ORDER

The application under Sec. 227 of Cr.P.C. filed

on behalf of the accused/Mathadipathi is hereby
allowed as prayed for. The accused/Mathadipathi
is ordered to be discharged from the case.
 117 S.C.No.1242/ 2015

Hence, the accused is ordered to be acquitted

of the offences punishable under Sections 376 (2) (F)
and (N) and 506 of Indian Penal code.

The Bond and Bail bond of the accused shall

continue till the conclusion of trial under Section
437(a) of Cr.P.C., completely.

The accused is set at liberty.

(Dictated to the Stenographer, transcribed by

him, corrected and then pronounced in Open
Court on this the 31st day of March, 2016).

(G.B.MUDIGOUDAR)
LIII ADDL. CITY CIVIL & SESSIONS
JUDGE,BNGALORE.
 118 S.C.No.1242/ 2015

31.03.2016

Orders pronounced in open court;

(Vide separate order)

The application under Sec. 227 of

Cr.P.C. filed on behalf of the accused/
Mathadipathi is hereby allowed as
 119 S.C.No.1242/ 2015

prayed for. The accused/Mathadipathi is

ordered to be discharged from the case.

Hence, the accused is ordered to be

acquitted of the offences punishable
under Sections 376 (2) (F) and (N) and
506 of Indian Penal code.

The Bond and Bail bond of the

accused shall continue till the conclusion
of trial under Section 437(a) of Cr.P.C.,
completely.

The accused is set at liberty.

(G.B.MUDIGOUDAR)
LIII ADDL. CITY CIVIL & SESSIONS
JUDGE,BNGALORE.