Bangalore District Court
SPL.C/207/2014 on 22 June, 2015
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 22ND DAY OF JUNE, 2015
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 207/2014
COMPLAINANT :
The State of Karnataka by Madiwala
Police Station, Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
Mubarak.M
S/o Masood
Aged about 19 years, r/at
No.5/3, 7th cross,
Rose Garden, North Street,
Neelasandra,
Bengaluru.
[Rep.by learned counsel Sri.Mohammed
Usman Shaikh.]
***
/2/ Spl.C.C.No.207/2014
JUDGMENT
Madiwala Police, Bangalore City have charge sheeted the accused for the offences punishable under Sections 366A and 376 of I.P.C.
2. The case of the prosecution in brief, is as under :
C.W.2-Preethi Sandra was of 17 years in the year 2011. She was studying in I PUC. On 03/02/2011 at 1.10pm the accused with intent to marry her had taken away forcibly to Hyderabad and also Mumbai and stayed in hotel of C.W-5 and 6, he had forcible sexual intercourse in the respective lodges and also prior to that on the pretext of marriage, he used to take her to Bannerghatta Park and also had sexual intercourse with the prosecutrix against her will, due to which she became pregnant for 2 months in the month of February. In the meanwhile C.W-1, mother of the prosecutrix had lodged a complaint on receiving the information from the victim's college. The Madiwala /3/ Spl.C.C.No.207/2014 police drew necessary Mahazar. They traced the accused and the victim at Mumbai and brought them back to Bengaluru. Investigating Officer recorded the statement of the prosecutrix and also voluntary statement of the accused, statement of other prosecution witnesses. Both of them were sent for medical examination. By completing the investigation, he submitted the charge sheet to this Court for the aforesaid offence.
3. The chargesheet was submitted to III ACMM Court. Thereafter, the same was committed to the Sessions Court as it is triable by Sessions Court. After registering the case in SC No.1280/2011, it was entrusted to FTC-IV Court. After following the procedure laid down under Law, then Presiding Officer had framed charge against accused for the offence punishable under Section 366A and 376 of I.P.C and read over to the accused. Accused has pleaded not guilty and claimed to be tried. Some of the witnesses /4/ Spl.C.C.No.207/2014 were examined before FTC-IV. Thereafter, on the point of jurisdiction, it was entrusted to 54th Addl.CC & SJ Court (CCH-55). Subsequently, again it has been transferred to this Special Court on the point of jurisdiction. The remaining witnesses have been examined subsequently.
4. On prosecution side got examined as many as 13 witnesses as P.W.1 to P.W.-13 out of 20 charge sheet witnesses and got marked the documents at Ex.P.1 to P.13(a) and MO-1 to MO-3, on accused side got marked documents Ex.D.1 to Ex.D.8, the details of which are given in the annexure of this Judgment. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
/5/ Spl.C.C.No.207/2014
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that on 03/02/2011 at 1.10pm the accused with intent to marry, had kidnapped C.W-2, Preethi Sandra, the minor from Krupanidhi College, Koramangala, Bengaluru punishable under Section 366 of I.P.C ?
2) Whether the prosecution has proved beyond reasonable doubt that accused prior to aforesaid date, had committed rape on C.W-2 in Bannerghatta park and after kidnapping on the aforesaid date, time and place had also committed rape on her in the respective hotel rooms at Hyderabad and Mumbai, punishable under Section 376 of I.P.C ?
3) What order?
7. My findings on the above points are as under:-
/6/ Spl.C.C.No.207/2014 Point No.1 : In the Negative.
Point No.2 : In the Negative Point No.2 : As per final orders for the following:
REASONS
8. Point Nos.1 & 2 : Point Nos.1 & 2 are taken together for discussion to avoid repetition of facts and also discussion as both are interconnected to each other.
The prosecution made allegations against the accused that he had kidnapped P.W-3, Preethi Sandra, the prosecutrix who was of 17 years on 03/02/2011 from her college, with intention to marry her, removed her from place to place, ultimately after lodging a complaint by P.W-1 Metilda, mother of the prosecutrix, Madiwala police traced the prosecutrix and the accused at Bombay and brought them back to Police Station.
/7/ Spl.C.C.No.207/2014
9. At the first instance, the age of the prosecutrix shall have to be looked into. The Protection of Children from Sexual Offences Act, 2012 does not apply to the present case as the incident took place prior to the commencement of the said Act. Even the incident took place prior to the Criminal Amendment Act, 2013 under which the age of the consent 16 years laid down under Section 375 of I.P.C has been substituted by 18 years. Therefore, the age of the prosecutrix plays an important role in the present case.
10. According to prosecution, the prosecutrix was of 17 years. On looking to the Charge Sheet, complaint at Ex.P.1 and the statement of P.W-1 Metilda, the complainant, there are two inconsistent contentions on prosecution side with respect to age of the prosecutrix. In the Charge Sheet mentioned the prosecutrix was of 17 years. In the complaint at Ex.P.1 mentioned the age of the prosecutrix was 16 /8/ Spl.C.C.No.207/2014 years. But on looking to the whole records available before the Court, the prosecutrix has just completed 17 years at the relevant time. Her date of birth as per the school records for which the certificate at Ex.P.12 issued by the Principal, Krupanidhi Pre-university college, Kormanagala wherein the prosecutrix was studying I PUC at the time of the incident, is 02/02/1994. The date of the alleged incident is 03/02/2011. Based on the school records, she had just completed 17 years on 03/02/2011. There is no other authenticated document produced by the complainant before the Investigating Officer to show the age of the prosecutrix was of 16 years as on the date of the alleged incident. It is not her say that date of birth in school records is not correct. As per the ocular statement of the prosecutrix also, her date of birth is 02/02/1994. Under the circumstances, the age of the prosecutrix mentioned in Ex.P.1 that she was of 16 years does not have any substance. The age of the prosecutrix at the relevant time can very well be /9/ Spl.C.C.No.207/2014 concluded that she was of 17 years. The prosecution has made out its case beyond reasonable doubt so far as the age of the prosecutrix is concerned that she was of 17 years at that time.
11. Now the question arises whether the prosecution made out the offence of kidnapping of the prosecutrix committed by the accused. The learned Public Prosecutor has vehemently argued that there are sufficient materials before the Court to show that accused had taken away the prosecutrix from her college against her will, which amounts to kidnapping. The complaint was not by the Principal about taking away the prosecutrix by the accused, based on the information and also on being checked in the college, due to non-return of the prosecutrix, P.W-1 had lodged a complaint as per Ex.P.1 on 03/02/2011 itself against the accused. It is also further argued by him the accused with the victim was traced out at Bombay by the complainant police and brought them back to / 10 / Spl.C.C.No.207/2014 Bengaluru. Even the prosecutrix has also supported the prosecution that both eloped and found at Bombay. She was subjected to medical examination of which would speak the accused is cause for 7 weeks pregnancy of the prosecutrix. The prosecutrix is below the age of 18 years. Though in view of the legal position then prevailed, the age of consent is 16 years of which does not attract the offence under Section 376 of I.P.C, but the present case would fall within purview of Section 366 of I.P.C as the prosecutrix was below 18 years. In view of Section 361 of I.P.C, the accused removed her from her lawful guardianship without their consent of which constitutes the offence under Section 366 of I.P.C as he had enticed her with intent to marry her and also seduce her to illicit intercourse, due to which she became pregnant for 7 weeks as per the medical examination report at Ex.P.10. the learned Public Prosecutor based his arguments on 2004(2) Crimes 254 (SC) in Moniram Hazarika V/s State of Assam wherein the Hon'ble / 11 / Spl.C.C.No.207/2014 Apex Court held if the "accused had played some role at any stage by which he either solicited or persuaded minor to abandon legal guardianship, it would be sufficient to hold such person guilty of kidnapping." The learned counsel for the defence has strenuously argued at length on legal point referring to Section 361 and 366 of I.P.C. He contends that there are catena of decisions not only by the Hon'ble Apex Court, but also by number of other Hon'ble High Courts that when there is absence of inducement to abandon her lawful guardianship by the minor girl, when she left the house of legal guardian at her own choice, not on the basis of any enticement or persuasion on the part of the accused, does not constitute the offence under Section 366 of I.P.C. He has relied on the four rulings as below out of which two rules from Hon'ble Apex Court are relevant and landmark judgments of which apply to the present case.
/ 12 / Spl.C.C.No.207/2014
1. AIR 1965 S.C 942 ( S.Varadarajan V/s State of Madras)
2. 1994 AIR 966, 1994 S.C.C (1) 468 (State of Karnataka V/s Suresh Babu Pukrajporral)
3. 2009 Cri.L.J. 2508 (Bikash Das alias Ranadhir Das V/s State of Tripura & Ors.)
4. 2011 AIR SCW 2281 (K.P.Thimmappa Gowda V/s State of Karnataka)
12. The learned counsel for the defence has further argued based on the aforesaid rulings that prosecutrix herself candidly admits that she herself took away the accused by inducing that she would commit suicide by falling against running train unless he takes away her elsewhere away from her parents. They both were lovers, except her mother who is complainant in the present case, her other family members almost agreed for their marriage, they have no objection for the same of which is emerged in the evidence of the prosecutrix. Even it is also on record / 13 / Spl.C.C.No.207/2014 that parents of the accused became almost neutral. That means they had no objection for the marriage of the accused with the prosecutrix. Even the letters written by the prosecutrix have put forth the similar facts of which take away the whole case of the prosecution, hence the accused cannot be held to be guilty of the offence under Section 366 of I.P.C merely because she was below 18 years.
13. On looking to the case of the prosecution, the defence taken on accused side and arguments canvassed on both the sides, there is material on record that accused and the victim left the house and had gone to Chennai, Hyderabad, Mumbai from where they both were traced and brought back to the Bengaluru. Whether it attracts Section 366 and 376 of IPC, very particularly Section 366 only. As per the defence there is absence of inducement, there is absence of compulsion, there is absence of allurement, there is no inducement, it is not the accused who took / 14 / Spl.C.C.No.207/2014 away the prosecutrix, hence it does not attract either Section 366 or Section 363 of IPC. According to prosecution, when she is below 18 years, the consent is wholly irrelevant, the act done by the accused at any stage, by which he either solicited or persuaded the minor to abandon the legal guardianship would be sufficient to attract Section 366 of IPC. With this background on perusal of evidence of complainant and also mother of the victim alongwith the complaint at Ex.P.1, her strong statement is that accused had pulled the hand of the prosecutrix to come out of the college and forcibly took away the prosecutrix. Her another statement is accused had hit her due to which prosecutrix was bleeding, he broke her computer, window glass, forced her daughter to marry him. According to the allegations made by the complainant in the complaint that she was intimated from the college that accused had forcibly taken away the prosecutrix. According to the prosecution itself, she was informed by the Principal of the college about / 15 / Spl.C.C.No.207/2014 missing of the prosecutrix. To that effect Investigating Officer collected the certificate from Principal, which is at Ex.P.2. It does not reflect anything against the accused. There is only mentioned that one boy came during lunch break between 1.00 to 1.30pm and took prosecutrix outside the college. As per Ex.P.2, there is no force, no inducement. Hence, the allegations made by the complainant without any support by other materials cannot be based to believe her version.
14. According to the prosecution, she had also given the further statement as per Ex.P.4 of which almost reiterates the allegations made in the complaint and also removal of the prosecutrix from place to place. In view of ocular statement of PW-1, mother of the prosecutrix has also stated before the Court that accused had forcibly kidnapped the prosecutrix from her college of which was informed from the college, after tracing the prosecutrix she also revealed before her that she was taken by him against her will and / 16 / Spl.C.C.No.207/2014 also committed rape on her in the respective lodges wherever they stayed. Bearing these allegations and the statement given by PW-1 in mind, on gong through the oral testimony of the prosecutrix, Preethi Sandra, would show that it is entirely different from her mother's statement. She has gone to the extent of saying that her mother has given a false complaint with intention to get him convicted, she has actively participated in the medical examination of the victim. Therefore, if the whole evidence of the prosecutrix and also the statement of the complainant are looked together, the true facts would come out.
15. PW-3, Preethi Sandra, is the material witness in the present case. It is the case of kidnapping and also rape. In the cases like this nature, the oral testimony of the prosecutrix carries more weight than any other evidence. In view of her oral testimony, there is no inducement or no compulsion in taking away the prosecutrix. Instead she speaks that it is the / 17 / Spl.C.C.No.207/2014 prosecutrix who gave threat to the accused that he should take away her to be away from her parents on next day of her birthday, for few days, otherwise she would commit suicide by falling against running train. The same is also admitted by the prosecutrix in the cross-examination itself when she was confronted by learned counsel for the defence by referring to her own letters written to the accused. On defence side produced as many as 8 separate letters. Ex.D.1 appears to be written on previous day of her birthday. Ex.D.1 to 8 letters were confronted to the prosecutrix during the course of her cross-examination on defence side, she has admitted the same that they were written by her to the accused.
16. According to Ex.D.1, she asked the accused to take her outside the Bengaluru for few days, after they returned to pavilion, her family would allow them to get married. The contents of the Ex.D.1 would speak the plan made by the prosecutrix herself to get the / 18 / Spl.C.C.No.207/2014 consent from her family members for marriage. She addressed accused by name 'Ghulu'. She also admits in the cross-examination that accused is also called by name Ghulu. She also invited him to come to her college by alleging that he would not be coming to her college. The relevant material portion of Ex.D.1 letter are produced as under :
Tomorrow is my birthday and I won't be going to college and Ghulu I have a plan like we both going out of Bengaluru for few days so that when we come back my family would allow you and me to get married or if not I will make them to agree as much as possible.
I always wanted to be with you, where you and me should be together than our family and to be away from them. Hey Ghulu I love you and always for you forever.
/ 19 / Spl.C.C.No.207/2014
17. Even on defence side not disputed the love affair between the prosecutrix and the accused.
Admittedly she belongs to Christian religion, accused belongs to Muslim religion. As per the ocular statement of the prosecutrix, her mother only is the strong objector for their marriage not her other family members, due to her objection this case cropped up.
18. In view of Ex.D.1 letter, it is made out that prosecutrix invited the accused to her college and also requested him to take her outside the Bengaluru for few days after her birthday. Apart from Ex.D.1 letter, there is another letter at Ex.D.2 under which she expressed her angerness and also expressed to commit suicide because of opposition from her parents for their marriage. The relevant portion of Ex.D.2 is as under :
At the time of my birthday function yesterday, I once again told my parents that I will marry you only. On this they / 20 / Spl.C.C.No.207/2014 become very angry and beat me. Today I want you to take me some where away from my parents or else I will commit suicide by falling against running train. I will be waiting for you Ghulu and I love you forever.
The aforesaid contents of Ex.D.2 would speak that she must have written this letter on the next day of her birthday. It is very clear from Ex.D.2 letter as already discussed in supra that she demanded the accused to take her to be away from her parents otherwise she would commit suicide. With this back ground, Ex.P.2 letter issued by the Principal is read as already mentioned in supra, it does not speak out the force or inducement made by the accused in taking away the prosecutrix. What the learned counsel for the defence has argued appears to be correct that there is no inducement in accompanying the accused, it is the prosecutrix who wanted the accused to take / 21 / Spl.C.C.No.207/2014 her away from her parents. Ex.D.6 is almost similar to Ex.D.1. Ex.D.7 is also almost similar to Ex.D.2. there is no need to have reiterated the contents of Ex.D.6 and 7 again.
19. Ex.D.3, 4 and 5 are the letters written by her to the accused by expressing her repentance, sorry for the act of her mother. Under the Ex.D.3 she disclosed the protest by her mother for their marriage. The relevant portion is reproduced as under :
I am sorry for you going to the jail and I told my people not to go to the police and I will marry you only Father and brother agree but my cousins are making problem for you. Mother is not agreed. I am not allowed to going out. Now I am staying at my relative's house. You are suffering for my mistake. But still I love you and want to be with you only upto death. I promise you my love / 22 / Spl.C.C.No.207/2014 all the time. Don't forget me ghulu. I am always with you and I love you forever. The prosecutrix disclosed the pressure put by her parents to say against him in the Court. There are only 5-6 lines of which is read as under :
Ghulu I am sorry for your criminal case, I did not give case, my parents and police force me to keep quiet, my mother also threatened me saying that she would commit suicide unless I go to the Court and inform that you took me only on my force, I am sorry. I love you forever dear...
The prosecutrix admits in her cross-examination that she has expressed her feelings, pain by writing these letters to the accused. Very particularly Ex.D.4 reflects the pressure under which she was put.
20. Ex.D.5, another letter is almost similar to Ex.D.4. If Ex.D.1, 3 and 4 are read together alongwith the oral testimony of the prosecutrix, would reflect the / 23 / Spl.C.C.No.207/2014 true colour of the case. Nowhere I find the force made by the accused or inducement made by the accused, neither he had enticed nor allured the victim girl to be away from the lawful guardianship of her parents.
21. In the cross-examination, prosecutrix has categorically admitted that they both of them are loving each other, want to marry, her family members except her mother are not objecting. Her own cross- examination very particularly recorded on 22/06/2012 reiterates the contents of Ex.D.1 to 4 letters.
22. The one admission by her in para No.5 at page No.5 is as under :
DgÉÆævÀ£ÀÄ vÀ£Àß PÁ¯ÉÃdÄ ºÁUÀÆ vÀ£Àß PÉ®¸ÀPÁAiÀÄðUÀ¼À°è EgÀĪÁUÀ £À£ÀߣÀÄß ¨sÉÃnAiÀiÁUÀzÉ EgÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ¹r«ÄrUÉƼÀÄîwÛzÉÝ CAzÀgÉ ¸Àj.
The relevant admission by her is necessary to be reproduced here :
/ 24 / Spl.C.C.No.207/2014 £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ M§âjUÉƧâgÀÄ ¦æÃw¸ÀÄwÛzÉݪÀÅ CAzÀgÉ ¸Àj. £Á£ÀÄ DgÉÆævÀ£À£ÀÄß UÁqÀsªÁV ¦æÃw¸ÀÄwÛzÄÀ Ý CªÀ£À£Éßà ªÀÄzÀĪÉAiÀiÁUÀ¨ÉÃPÉAzÀÄ EZÉÒ¥ÀqÀÄwÛzÉÝ CAzÀgÉ ¸Àj. £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è £À£Àß vÁ¬Ä ¥Áæ¸Á.1 ²æêÀÄw.ªÉÄl°Ø EªÀgÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ AiÀiÁgÀÄ £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ ¦æÃw ªÀiÁr ªÀÄÄAzÉ ªÀÄzÀĪÉAiÀiÁUÀĪÀÅPÉÓ vÀPgÀ ÁgÀÄ ªÀiÁqÀÄwÛgÀ°®è. £À£Àß vÁ¬Ä ¥Áæ¸Á.1 vÀPÀgÁgÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ CAzÀgÉ ¸Àj . CzÉà jÃw DgÉÆævÀ£À ªÀÄ£ÉAiÀĪÀgÀÄ £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ ¦æÃw¹ ªÀÄÄAzÉ ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÀPÉÌ C¥ÀgÉÆÃPÀëªÁV ¸ÀªÀÄäw¹zÀªÀgÀAvÉ EzÀÝgÀÄ CAzÀgÉ ¸Àj.
FUÀ vÉÆÃj¹zÀ PÁUÀzÀzÀ°è §gÀªÀuÉUÉAiÀÄ°ègÀĪÀ ¥ÀvÀæªÀ£ÀÄß £Á£Éà §gÉ¢zÀÄ,Ý EzÀÄ £À£Àß PÉʧgÀºÀzÀ°z è É CAzÀgÉ ¸Àj, EzÀ£ÀÄß ¤±Á£É r.1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. FUÀ vÉÆÃj¹zÀ DgÀÄ ¥ÀævÉåÃPÀ PÁUÀzÀUÀ¼À°è §gÀªÀuÉUÉAiÀÄ°ègÀĪÀ ¥ÀvÀæUÀ¼À£ÀÄß £Á£Éà §gÉ¢zÀÄ.Ý EªÀÅ £À£Àß PÉʧgÀºÀzÀ°èªÉ CAzÀgÉ ¸Àj, EªÀÅUÀ¼À£ÀÄß ¤±Á£É r.2 jAzÀ 7 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ.
/ 25 / Spl.C.C.No.207/2014 PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄ JAzÀÄ §gÀªu À ÉUÉAiÀÄ°è w½¹zÉÝ CAzÀgÉ ¸Àj. MAzÀÄ ªÉÃ¼É DgÉÆævÀ£ÀÄ £À£ÀߣÀÄß ºÉÆgÀUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀ¢zÀ° Ý è £Á£ÀÄ DvÀäºÀvÉå ªÀiÁrPÉƼÀÄîvÉÛãÉAzÀÄ DgÉÆævÀ¤UÉ §gÀªÀtôÉUÉAiÀÄ°è PÉýPÉÆArzÉÝ CAzÀgÉ ¸Àj.
The aforesaid relevant portion of ocular statement disclosed that she herself wanted the accused to take her away from Bengaluru otherwise she would commit suicide. This would be sufficient to say that accused had neither induced nor forced her in leaving Bengaluru at the relevant time.
23. The prosecutrix herself has admitted in para No.6 page No.5 of her cross-examination that "£Á£ÀÄ §gÀªÀuÉUÉAiÀÄ°è DgÉÆævÀ¤UÉ ¥ÀvÀæ PÀ¼ÀÄ»¹PÉÆlÖ PÁgÀt DgÉÆævÀ£ÀÄ ¢B 03.02.2011gÀAzÀÄ £ÀªÀÄä PÁ¯ÉÃfUÉ §AzÀÄ £À£Àß §½ §A¢zÀÝ CAzÀgÉ ¸Àj." This statement also would show that accused had not visited the college on the date of the alleged / 26 / Spl.C.C.No.207/2014 incident on his own accord, but inspite of letter from PW-3, prosecutrix. Therefore, there is absolutely no substance in the allegations made by the complainant that he had intention of taking her away from lawful custody of her parents. Even the fact remains that accused and PW-3 had not carried the luggage including the clothes. It is also the case of the prosecution that both of them were got vacated from Everest lodge in Chennai on 04/02/2011 since they did not have any luggage. It is nobody's case that they took away the clothes while leaving Bengaluru. That itself shows that accused did not have any intention of taking away PW-3 to outside the Bengaluru or there is nothing to show his intention to marry her or seduce her to illicit intercourse. According to prosecution they had gone to Chennai, thereafter they had moved to Hyderabad and reached on 05/02/2011 at 9.30pm wherein they stayed in Jewellery Residency lodge, on 07/02/2011 again they had gone to Mumbai and reached at 1.00pm on 08/02/2011 and they both of / 27 / Spl.C.C.No.207/2014 them stayed in a lodge till 12.00pm on 09/02/2011. If the accused had intention of inducing the prosecutrix with intention to marry her or seduce her to illicit intercourse, he would have made a necessary arrangement. But from the materials on record including the admission by PW-3 and letters written by her at Ex.D.1 to 7, there is no doubt that he had neither induced nor enticed PW-3 having an intention as laid down either in Section 361 or in 366 of IPC.
24. P.W-3 has also unequivocally admitted that prior to this incident, they used to visit Bannerghatta Park and they had physical relationship number of times, it was not disclosed by her before the parents. On going through her chief as well as cross- examination I do not find anywhere the inducement or allurement made by the accused.
25. P.W-6 Umadevi is the classmate of P.W-3 prosecutrix. According to prosecution she is the eye witness to the alleged inicdent that accused took away / 28 / Spl.C.C.No.207/2014 the P.W-3 forcibly from the college. But no materials forthcoming from her chief as well as cross- examination to show that P.W-3 left the college at the instance of accused.
26. P.W-5 Manjula was the Principal of Krupanidhi Pre-university college in which P.W-3 was studying I PUC at that time of incident. In her chief examination she has stated that she was informed by the students that one boy had taken P.W-3 from nearby ladies bathroom of college. Hence, she had telephoned to parents of P.W-3. In the cross-examination led by the learned counsel for the defence, she has stated in clear terms that she did not state before the police that said boy had forcibly taken P.W-3. The prosecution has failed to make out its case that accused had forcibly taken P.W-3 or she had left the college at his instance only.
27. Ofcourse, P.W-4 Mariya priya, own elder sister of P.W-3 has reiterated the words of her mother that / 29 / Spl.C.C.No.207/2014 accused had taken away P.W-3 from the college and committed rape on her against her will, this has been stated by the prosecutrix herself before them. But no inference could be drawn that P.W-3 had been forcibly taken away by the accused nor induced by him to leave Bengaluru on the pretext of marriage. Merely because mother and sister of prosecutrix have stated that accused had forcibly taken away P.W-3 from her college having an intention to marry her, it is not safe to hold him the guilty of the offences either under Section 361 or Section 366 of I.P.C. The mother and sister of prosecutrix are only hearsay witnesses. The version of P.W-3 carries more weight. There is no support by eye witnesses to the prosecution. Therefore, it is very difficult to believe the evidence of P.W-1, mother and P.W-4 Mariya Priya, sister of the prosecutrix. The prosecutrix herself has admitted the real facts, she had disclosed each and everything happened on the date of the alleged incident till they were brought back to the Police Station, the statement / 30 / Spl.C.C.No.207/2014 of which inspires confidence to be relied to find out the truth of the case. Her evidence does not appear to be tainted. Not only the facts on record, but also the circumstances would speak that there is absence of inducement or force.
28. Now the question arises when P.W-3 is below the age of 18 years and both of them moved from place to place after leaving Bengaluru, does it attract either Section 361 or Section 366 of I.P.C. There is charge against the accused for the offence under Section 366 of I.P.C. Section 361 of I.P.C provides kidnapping from lawful guardianship. It reads as under :
Whoever takes or entices any minor under 16 years of age if a male, or 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of / 31 / Spl.C.C.No.207/2014 such guardian, is said to kidnap such minor or person from lawful guardianship. The words here 'takes away' or 'entices' found in Section 361 of I.P.C is not established by the prosecution. The ingredients of the aforesaid section is not made out by the prosecution. I have already discussed at length in supra, there is absence of inducement or force or taking away or allurement. At the instance of the prosecutrix, accused went with her and moved from place to place, but not with the intention to marry her or seduce her to illicit intercourse. Ofcourse, the fact remains that they both had physical relationship at 3 places mentioned above when they stayed in the lodge. Merely because they had physical relationship, does not mean that he took away the prosecutrix with intent to seduce her to illicit intercourse. The history of leaving Bengaluru by victim with accused is very material. I have already discussed in supra whey they left Bengaluru, at whose / 32 / Spl.C.C.No.207/2014 instance went outside the Bengaluru for few days. P.W-3 voluntarily accompanied the accused in the present case. Even because of her threat that she would commit suicide, accused joined her and they left the Bengaluru for few days of which could be seen from the admission by the P.W-3 and also from her letters. Accused is not a stranger to the family of P.W-
3. He is neighbour. But what is material to attract Section 361 of I.P.C is not made out by the prosecution. So also Section 366 is also not attracted.
The burden lies upon the prosecution to establish the ingredients of Section 366 of I.P.C. Section 366 of I.P.C is aggravated form of Section 363 of I.P.C, the definition clause is Section 361 of I.P.C. of the offence under Section 363 of I.P.C. Section 366 of I.P.C provides kidnapping, abducting or inducing the woman to compel her marriage or to seduce to solicit intercourse. But the ingredients of this Section are not proved by the prosecution by placing sufficient, cogent and credible evidence. There was / 33 / Spl.C.C.No.207/2014 neither promise of marriage nor inducement nor allurement. The act of the accused accompanying P.W-3 does not amount to enticement of minor. Therefore, the accused cannot be held guilty of the offence under Section 366 of I.P.C.
29. I have already noted in supra about the rulings of which the learned Public Prosecutor and the rulings of which the learned counsel for the defence placed strong reliance to support their arguments. 2004(2) Crimes 254 (SC) cited by the learned Public Prosecutor itself is explicit enough to show that prosecution has failed to prove the offence under Section 366 of I.P.C. In Vardarajan's case noted in supra has been discussed at para No.6 of this ruling. The Hon'ble Apex Court has clearly observed that on the basis of said finding that minor in Varadarajan's case walked out of the guardian without any inducement from the accused, this Court came to the conclusion that accused in that case was not / 34 / Spl.C.C.No.207/2014 guilty of the offence. The Hon'ble Apex Court has also further observed that it is also worthwhile to notice what this Court said about the act of the accused in such cases which amounts to enticement which is found at para 10 of the said judgment of Varadarajan's case. With that observation only, the Hon'ble Apex Court upheld the conviction by the Courts below for the offence under Section 366 of I.P.C. Each case depends on its own facts. In Varadarajan's case, the Hon'ble Apex Court held that victim girl was under the age of 18 years, one month 12 days was less to attain the age of majority, she herself telephoned to the accused to meet her at certain place where he brought the car, she got into the car, they took one person to Sub-Registrar office to witness their marriage, the agreement for marriage was entered into between them. Subsequently, they were traced by the police. The Hon'ble Apex Court in Varadarajan's case held that victim girl had attained the age of discretion, she on the verge of attaining / 35 / Spl.C.C.No.207/2014 the majority, there is no threat administered by the accused to the victim or any blandishment, she willingly accompanied him, she was not uneducated or unsophisticated village girl, but a senior college student who had probably of her life, lived in a modern city, there is distinction between the taking and allowing the minor to accompany the person. Something more is to be shown in case of this kind that some kind of inducement held out by the accused or an active participation by him in the formation of the intention of the minor to leave the house of guardian.
30. In 2004(2) Crimes 254 (SC), Moniram Hazarika V/s State of Assam, the victim girl was a student of 8th Standard on the date of incident. By suspecting the accused of having kidnapped the victim girl, her brother went to his house where he was not allowed to enter the house by the accused and the brother, he noticed there that arrangements were made for / 36 / Spl.C.C.No.207/2014 performing the marriage ceremony, the victim girl herself stated in her evidence that on the relevant date when she had gone out to answer nature call, accused had forcibly took her to his house where his mother and sister-in-law were present, who made her change her dress and put vermillion on her forehead and prepared for her marriage with the accused. On the basis of this evidence, the Courts below found the accused guilty for the offence under Section 366 of I.P.C. Therefore, the Hon'ble Apex Court based on the facts and evidence on record in that case and also based on the observation made in para 10 of the judgment in Varadarajan's case held the accused had taken the minor by enticing her and committed the offence of kidnapping which was for the purpose of marrying her, upheld the conviction for the offence under Section 366 of I.P.C.
31. Para 10 of the judgment in Varadarajan's case is as under :
/ 37 / Spl.C.C.No.207/2014 It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so.
Based on this observation made in Varadarajan's case and also based on the evidence of victim girl as she supported the prosecution case, the Hon'ble Apex Court held him the guilty of the offence under Section 366 of I.P.C in Moniram Hazarika's case. Whereas in Varadarajan's case, the Hon'ble Apex Court held that there is absence of inducement to minor to slip out of keeping her of lawful guardian and therefore, it does not tantamount to taking. The facts of Varadarajan's case aptly apply to the present case. Even in the present case, it is clear from the facts on record that no arrangement was made by the accused to / 38 / Spl.C.C.No.207/2014 accompany the victim girl to move from place to place as already discussed in supra, even they did not carry any luggage, with insistence of the victim girl, made him to accompany her to go outside the Bengaluru for few days, there is nothing to show that he made pre- arrangement either for taking her away or to abandon lawful guardianship of her parents. There was no intention of marrying nor taking. There is absence of force or blandishment or intention like that. The prosecutrix on the date of birthday celebration, she asked her parents, they did not agree for their marriage, it made her upset, on next day she had written a letter about which I have already discussed in supra, by insisting him to take her away from her parents for few days otherwise she would commit suicide by falling against the running train. From all these facts and materials found on record, it does not attract the ingredients as contemplated under Section 361 of I.P.C or Section 366 of I.P.C to hold the guilt of the charge against him. The Moniram Hazarika's case / 39 / Spl.C.C.No.207/2014 cited by the learned Public Prosecutor does not help the prosecution to hold the guilt of accused for the offence under Section 366 of I.P.C. Whereas it favours the accused. In Varadarajan's case the distinction is made between the 'taking' or 'enticing' and 'accompanying' the minor girl though under the age of 18 years, she has attained the age of discretion. In the present case also she has completed 17 years at the relevant time, she was studying in I PUC in one of the reputed college in the capital city Bengaluru.
32. Viewed from any angle, the present case does not fall within the purview of Section 366 of I.P.C to convict the accused for the said offence. The prosecution has miserably failed to establish its case beyond reasonable doubt. Hence, I hold point No.1 in the Negative.
33. Point No.2 : According to prosecution, accused had committed rape on P.W-3, prosecutrix when he had kidnapped her and moved from place to place i.e., / 40 / Spl.C.C.No.207/2014 in Chennai, Hyderabad and Bombay. They had stayed in the hotels of the respective places, during that time, he had committed rape on her, even prior to the incident, he had physical relationship with the victim in Bannerghatta park. It is clear from the materials on record that she is above 17 years. The incident took place prior to the commencement of the Protection of Children from Sexual Offences Act, 2012 and even Criminal Amendment Act, 2013. Ofcourse, the fact remains that both of them had physical relationship. But the burden lies upon the prosecution to establish that there was absence of consent of the P.W-3. In view of the ocular statement of P.W-3, the prosecutrix it is a consensual act, what they had in Bannerghatta park and also in the respective lodges in Chennai, Hyderabad and Bombay. She herself has admitted in her cross-examination that they had sex by mutual consent. In the chief examination at para No.1 page No.2, she has stated that :
/ 41 / Spl.C.C.No.207/2014 ZÉ£ÉÊ£À C¥À¯ÉÆà D¸ÀàvÉæAiÀÄ°è E½zÀÄ ªÀÄÄAzÉ JªÀgɸïÖ ¯ÁqïÓ£À°è ¨ÁrUÉ gÀÆA ¥ÀqÉzÀÄPÉÆAqÀÄ £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ E½zÀÄPÉÆAqɪÀÅ. DgÉÆæ ªÀÄvÀÄÛ £Á£ÀÄ ¥ÀgÀ¸ÀàgÀ ¸ÀA¨sÉÆÃUÀ QæAiÉÄ £Àq¹É zɪÀÅ. £ÁªÀÅ E½zÀÄPÉÆArzÀÝ ¯ÁqïÓ gÀÆAUÉ M§â ªÀåQÛ §AzÀÄ £À£Àß ªÀÄvÀÄÛ DgÉÆævÀ£À §½ AiÀiÁªÀÅzÉà ¨ÁåUÀÄ, ®UÉÃdÄ E®èzÀ PÁgÀt ¯ÁqïÓ gÀÆA£ÀÄß SÁ° ªÀiÁrj JAzÀÄ ºÉýAzÀAvÉ gÀƪÀÄ£ÀÄß SÁ° ªÀiÁr ºÉÆgÀUÉ §AzɪÀÅ. ZÉ£ÉʤAzÀ £ÁªÀÅ ºÉÊzÀgÁ¨ÁzïUÉ ºÉÆÃzɪÀÅ. ºÉÊzÀgÁ¨Ázï£À°èAiÀÄ dÄåªÉ®j gɹqÉ¤ì ¯ÁqïÓ£À°è ¨ÁrUÉ gÀÆA vÉUÉzÀÄPÉÆAqÀÄ £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ G½zÀÄPÉÆAqɪÀÅ. ¸ÀzÀj ¯ÁqïÓ gÀÆA£À°Aè iÀÄÆ ¸À»vÀ £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ ¸ÀA¨sÉÆÃUÀ QæAiÉÄ ªÀiÁrzɪÀÅ.
£Á£ÀÄ £À£Àß CPÀÌ ªÀÄjAiÀÄ ¦æAiÀiÁUÉ ºÉÊzÀgÁ¨Ázï£À°èzÁÝUÀ ¥sÉÆÃ£ï ªÀiÁr ªÀiÁvÀ£ÁqÀÄwÛgÀĪÁUÀ CªÀ¼ÀÄ £À£Àß CtÚ £ÀªÀÄä£ÀÄß ºÀÄqÀÄQPÉÆAqÀÄ §gÀÄwÛzÁÝ£ÉAzÀÄ ºÉýzÀ¼ÀÄ, F PÁgÀt £ÁªÀÅ ¨ÀsAiÀÄ¥ÀlÄÖ ºÉÊzÀgÁ¨Ázï¤AzÀ ¨ÁA¨ÉUÉ ºÉÆÃzɪÀÅ. ¨ÁA¨ÉAiÀÄ°è ¸ÉÖÃE£ï ¯ÁqïÓ£À°è ¨ÁrUÉ gÀÆA ¥Àqz É ÀÄPÉÆAqÀÄ / 42 / Spl.C.C.No.207/2014 G½zÀÄPÉÆAqɪÀÅ. ¸Àzj À gÀÆA£À°è MAzÀÄ gÁwæ ªÀÄvÀÄÛ MAzÀÄ ¢£À ºÀUÀ®Ä EzÉݪÀÅ. ¸ÀzÀj gÀÆA£À°èAiÀÄÆ ¸À»vÀ £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ ¸ÀA¨sÉÆÃUÀ QæAiÉÄ ªÀiÁrzɪÀÅ. F WÀl£ÉUÀÆ ªÉÆzÀ®Ä £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ PÀÆr ¨ÉAUÀ¼ÀÆj£À°èAiÀÄ §£ÉßÃgÀÄWÀlÖ ¥ÁPïðUÉ ºÉÆÃUÀÄwÛzÉݪÀÅ. §£ÉßÃgÀÄWÀlÖ ¥ÁPïð£À°èAiÀÄÆ ¸À»vÀ £Á£ÀÄ ªÀÄvÀÄÛ CgÉÆæ PÀÆr ¸ÀA¨sÉÆÃUÀ QæAiÉÄ ªÀiÁqÀÄwÛzɪ Ý ÀÅ.
The aforesaid oral testimony of the prosecutrix denotes that it is a consensual act. Nowhere she has stated that he did it against her will or by force or under any inducement. As already discussed in supra, they both are lovers, even after registering the criminal case also she had written some of the letters to the accused of which were discussed in supra. In view of Section 375 of I.P.C, the age of consent is 16 years as per the position of law then prevailed. Accordingly in the present case also she is above 17 years. In view of Section 375 of I.P.C, the age of the consent is 16 years. I have placed reliance on the another ruling cited by / 43 / Spl.C.C.No.207/2014 the learned counsel for the defence in 2011 AIR SCW 2281 (K.P.Thimmappa Gowda V/s State of Karnataka). The Hon'ble Apex Court has held that "sex with woman above 16 years of age with her consent is not rape- victim herself stated in her evidence that she had sex with accused on several occasions- shows that she was consenting party-Accused entitled to benefit of doubt."
34. The aforesaid ruling applies to the present. In the instant case also I do find similar facts and circumstances. As mentioned in supra, she had sex with accused on several occasions. Nowhere she raised alarm or protest. It is not her say that he had sex against her will. From the evidence on record. Inference can be safely drawn that it was with consent. Therefore, the prosecution has utterly failed to prove its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold point No.2 in the Negative.
/ 44 / Spl.C.C.No.207/2014
35. Point No.3: In view of my above discussion
and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offences punishable under Sections 366 and 376 of I.P.C.
MO-1 to MO-3 are ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 22nd day of June, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Metilda P.W.-2 Dr.Babu Rao P.W-3 Preethi Sandra / 45 / Spl.C.C.No.207/2014 P.W-4 Mariya Priya P.W-5 Manjula P.W-6 Umadevi P.W-7 Savithramma P.W-8 Padmavathi P.W-9 Siddaramaiah P.J P.W-10 N.Basavaraju P.W-11 Chandradhara P.W-12 Dr.Rajesh P.W-13 Purushothama M.L LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P.1(a) Signature of P.W-1 Ex.P.2 College certificate Ex.P.3 Medical Report Ex.P.4 Further statement of P.W-1 Ex.P.5 Mahazar Ex.P.5(a) Signature of P.W-5 Ex.P.6 Statement of P.W-6 Ex.P.7 Report of P.W-7 Ex.P.7(a) Signature of P.W-7 Ex.P.8 Report of P.W-10 Ex.P.8(a) Signature of P.W-10 Ex.P.9 Requisition Ex.P.9(a) Signature of P.W-10 Ex.P.10 Medical report of P.W-3 / 46 / Spl.C.C.No.207/2014 Ex.P.10(a) Signature of P.W-10 Ex.P.11 PF No.120/2011 Ex.P.11(a), (b) Signature of P.W-10 Ex.P.12 Certificate Ex.P.12(a) Signature of P.W-10 Ex.P.13 F.I.R Ex.P.13(a) Signature of P.W-11 LIST OF MATERIAL OBJECTS MARKED MO-1 Pubic hair MO-2 Scalp hair MO-3 Uretral swab LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.D.1 Letter by P.W-3 Ex.D.2 to Letters Ex.D.7 Ex.D.8 Birth Certificate LIST OF WITNESSES EXAMINED AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** / 47 / Spl.C.C.No.207/2014