Karnataka High Court
Siddappa S/O Halappa Govindappagol vs The State Of Karnataka By Kagawad Police on 24 July, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24 t h DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.671 OF 2008 [C]
BETWEEN:
SIDDAPPA S/O HALAPPA GOVINDAPPAGOL
AGED ABOUT 22 YEARS
OCC: COOLIE
R/O UGAR KHURD, TAL: ATHANI
DIST: CHIKKODI
..APPELLANT
(By Sri.SRIKANT R.SATTIGERI, ADV.
SRI.VISHWANATH V BADIGER ADV.)
AND:
THE STATE OF KARNATAKA
BY KAGAWAD POLICE
... RESPONDENT
(By Sri.A.A.PATHAN, AGA)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE JUDGMENT
DT.26.4.2008 PASSED BY THE DIST. JUDGE, FTC-I,
CHIKODI, IN S.C.NO.234/07 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S.366 OF
IPC AND SENTENCING HIM TO UNDERGO IMPRISONMENT
FOR A PERIOD OF 2 YEARS AND A FINE OF RS.5,000/-
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I.D., TO PAY FINE OF RS.5,000/- HE SHALL UNDERGO
IMPRISONMENT FOR A PERIOD OF 6 MONTHS. FOR THE
OFFENCE P/U/S.366 OF IPC.
This Criminal Appeal coming on for Final
Hearing this day, the Court delivered the
following:
J U D G M E N T
The appellant (hereinafter referred to as 'accused') was tried, convicted and sentenced for an offence punishable under Section 366 of the Indian Penal Code. Therefore, he is before this Court.
2. I have heard learned counsel for accused and learned Additional Government Advocate for accused.
3. In brief, the case of prosecution and inter se relationship of some of the prosecution witnesses is as follows:-
PW-4:Savitri R.Lunare (Victim) is the daughter of PW-1 (Rama Shivappa Lunare) and :3: PW-5 (Bandawwa R.Lunare). During the year 2007, they were residing in Ugar-Khurd Village, Athani Taluk, Belgaum District. PW-4 was working as a Labourer.
It is alleged that on 30.04.2007 at about 6.00 p.m., when PW-4 was near Ugar Petrol Pump, accused induced PW-4 to marry him and enticed and kidnapped her to a Village in Calicut District, Kerala State. PW-1 noticed that his daughter was missing from his house. Therefore, he lodged a missing complaint with Kagawada Police Station, Beglaum District, Karnataka State.
4. After a period of one month, victim and accused were traced in a village situate in Calicut District of Kerala State. They were apprehended and brought to the jurisdictional police station. PW-4 was given to the custody of her parents and accused was arrested. The victim was examined :4: by PW-6:Dr.Vijaya A.Ghasti, Medical Officer, Government Hospital, Athani, and also PW- 7:Dr.Shrilekha Madan Deshpande, a Dentist. On completion of investigation, final report was filed against accused alleging an offence punishable under Section 366 of the Indian Penal Code.
5. As already stated, learned trial judge convicted accused for aforesaid offence. Therefore, the points that would arise for determination in this appeal are as follows:-
(i) W hether the prosecution has proved beyond reasonable doubt that accused kidnapped PW -4 with an intention that she would be compelled to marry any person against her will, or that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse?
(ii) To what order?:5:
The trial court has determined the age of victim (PW-4) on the basis of evidence of PWs-6 and 7.
6. At the relevant time, PW-6:Dr.Vijaya Ghasti was working as a lady Medical Officer in Government Hospital at Athani. On 06.06.2007 at 10.00 a.m. she examined PW-4. Thereafter, she referred PW-4 to a Dentist. PW-6, a Dentist, examined the denture of PW-4 and opined that she has attained the age of 17 years and she issued a medical Certificate to that effect as per Ex.P-3. During cross-examination, PW-6 has admitted that the presumption of age on the basis of physical features would be an estimation and it is not possible to assess the exact age. PW-6 has opined that the age of PW-4 would be less than 17 years or more than 17 years.
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7. PW-7:Dr.Shrilekha M.Deshpande was a Dentist in Government Hospital, Athani. PW-7 had examined the victim along with PW-6. PW-7 has deposed that she had examined the denture of victim and determined that PW-4 was aged about 17 years.
Apart from this, prosecution has not produced documentary evidence in proof of age of PW-4.
8. In a decision reported in 1984 Crl.L.J 1081 (In the case of SHANMUGHAM vs. THE STATE), the Division Bench of Madras High Court has held:
"5. Taking up first for consideration the certificate given by the Radiologist, we find from the certificate that the Radiologist has specifically confined his opinion to the fusion of the iliac crest. He has also reported that the lower end of radius and the lower end of ulna, :7: which, fuse at the age of 18, have become fused. Then has referred to the fusion of the illiac crest. No doubt in Pillai's table in Modi's Medical Jurisprudence, the age of fusion of the crest of ilium has been given as 14 to 18 years. On that score alone, we are not prepared to accept the contention that the appellant would have only completed the age of 18 and would not have completed the age of 21 on the date of Radiological examination. This is because of the fact that the fusion of bones occurs for different persons at different times and the variation is due to a multiplicity of causes, such as, the health conditions of the family in which the person was born, the climatic conditions in which he is living, the dietary habits he is accustomed to, the type of life he is leading etc. Consequently the determination of age on the basis of radiological examination can only be an approximate factor and it cannot be taken as a decisive and incontrovertible feature. Even Modi has pointed out that a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the evidence afforded by the radiological examination. At page 31 of Modi's Text Book of :8: Medical Jurisprudence and Texicology, 20th Edn. it has been stated as follows :-
"In ascertaining the age of young persons, radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following table, but it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development."
Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person, but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error."
9. In a decision reported in AIR 1982 SC 1297 (In the case of JAYA MALA vs. HOME SECRETARY, GOVT. OF J. AND K.), the Supreme Court has held that one can take judicial notice that the margin of error in age ascertained by :9: radiological examination is two years on either side.
In the case on hand, evidence of PW-6 & PW- 7 is not sufficient to prove beyond reasonable doubt that victim (PW-4) was less than 18 years of age as on the date of incident.
10. The next point for consideration is whether the accused had induced or enticed PW-4 to take her from the lawful custody of her parents with an intention to marry her.
11. In order to determine the above point, evidence of victim would be relevant. PW-4 has deposed that on the date of incident, she had come to railway station to receive her salary. She was in the company of one Ladamma (PW-9). The accused met PW-4 and expressed willingness to marry her. PW-4 was not willing. The accused : 10 : threatened her that he would commit rape on her. The accused took her in a truck to Kudachi. The accused, PW-9 and other persons (In all six persons) boarded a train at Kudachi and reached some place in Kerala State. They were staying in a house in a village of Calicut District, Kerala State. After a period of one month, police from Kagawada Police Station came and took accused and PW-4.
12. During cross-examination, she has not assigned reasons to go to railway station on the date of incident. She has admitted that PW- 8:Rekha and PW-9:Ladamma were going to railway station to coolie work and they were also going for cleaning vessels. PW-4 has admitted that she was not working in railway station. However, she was working as a coolie and she was going to fields to remove weeds. She has admitted that PW-4, : 11 : accused and other four persons traveled in a train to Kerala State. When Kerala Police came, PW-4, accused and other four persons namely PW- 8:Rekha, PW-9:Ladamma and one Avinash were together living in a house.
13. On careful consideration of evidence of PW-4, we find that she had reasons to go to railway station on the date of incident. It looks probable that PW-4 had gone to railway station on her volition. She had left her native place in the company of PW-8, PW.9 and accused. The accused, PW-4 and above said persons were staying in a house in a village of Calicut District of Kerala State. They had stayed there for a period of one month. In the circumstances, the evidence of PW-4 that she had been threatened by accused looks improbable. If accused had threatened PW-4 in the railway station, she had every opportunity : 12 : to raise hue and cry to escape from the clutches of accused. Even, while travelling with accused to Kerala in a train, she had opportunities to raise hue and cry to escape from the clutches of accused. Above all, she was in the company of other persons. PWs-8 and 9 had accompanied accused and PW-4 (victim).
14. It is not the case of prosecution that PWs-8 and 9 had abetted the accused to kidnap PW.4--victim. PW.4--victim and above stated persons namely PW-8:Rekha and PW-9:Ladamma had stayed in a house in Kerala State for a period of one month. PW-4 has not deposed that accused had seduced or forced her for sexual intercourse. PW-4 has deposed that PW-4, accused and other above stated persons were staying in Kerala State and accused had forced her to marry him. : 13 :
15. In a decision reported in AIR 1965 SC 942 (In the case of S.VARADARAJAN vs. STATE OF MADRAS), the Supreme Court has held:
"7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code :
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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 such guardian, is said to kidnap such minor or person from lawful guardianship.": 14 :
It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.
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9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
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16. In a decision reported in (2006) 5 SCC 740 (In the case of GABBU vs. STATE OF M.P.), the Supreme Court has held:
"To constitute an offence under Section 366, IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal Section. So far as a charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court : 16 : cannot hold the accused guilty and punish him under Section 366 IPC."
17. In the case on hand, prosecution has failed to prove that PW-4 was less than 18 years of age as on the date of incident. The evidence of PW-4 is not sufficient to hold that accused had enticed or induced her to accompany him with an intention to marry her or force her to marry him.
18. The evidence of PW-1/father of victim does not support the case of prosecution in entirety. PW-1 has deposed that PW-4 was missing from the house. He has searched for his daughter for four days and thereafter, he lodged a complaint with Kagawada Police station. After eight days, the police traced PW-4 and brought her to village. He learnt from the police that her daughter was traced from the State of Kerala and she was in the company of accused. PW-1 has : 17 : deposed that PW-4 was less than 18 years of age as on the date of incident, which cannot be believed in view of the evidence of PWs-6 and 7, discussed supra. PW-1 has not stated the circumstances under which PW-4 had left the house of PW-1.
19. PW-5: Bandawwa is the mother of PW-1. PW-5 has deposed that about ten months prior to 23.02.2008, PW-4 left the house by stating that she was going to collect wages. She did not return home. They searched for her for about fifteen days. Thereafter, they informed the matter to police. After one month, PW-4 was traced and brought back to village. During cross- examination, she has admitted that there was acquaintance between accused and PW-4.
20. The evidence of PWs-1 and 5 does not indicate that accused enticed or induced PW-4 to : 18 : leave her house or take PW-1 from the custody of PWs-1 and 5.
21. PW-8:Rekha and PW-9:Ladamma have not supported the case of prosecution.
22. The evidence of PW-10:Anand (P.I.) relates to the investigation of the case. PW-10 has deposed that accused, PW-4 and other three persons were residing in a village near Calicut District of Kerala State.
23. Thus, on re-appreciation of evidence, we find that prosecution has not proved beyond reasonable doubt that the victim was aged less than 18 years as on the date of incident. The prosecution has failed to prove that accused had enticed or induced PW-4 to leave her house or forcibly took her from the house, with an intention to seduce or force her to marry him. The evidence : 19 : of investigation officer and other witnesses would reveal that not only PW-4 and accused, but also other persons were found in the company of PW-4. PW-4 had left her house on her own volition and she had traveled with accused and other persons from her native place to a place in Calicut District of Kerala State.
24. In the circumstances, the prosecution has failed to prove that accused had committed an offence under Section 366 IPC beyond reasonable doubt. The learned trial Judge without understanding the basic ingredients of an offence under Section 366 IPC and also ignoring the discrepancies found in the evidence of prosecution has convicted the accused. The learned trail Judge has ignored the settled principles of law regarding determination of age of victim on the basis of physical features.
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25. The learned trial Judge has found fault with the accused for denying the incriminating circumstances when he was examined under Section 311 of Cr.P.C. Therefore, the impugned judgment cannot be sustained.
26. In the result, I pass the following:-
O R D E R
(i) The appeal is accepted;
(ii) The impugned judgment is set
aside;
(iii) The accused is acquitted of an
offence punishable under Section 366 of the Indian Penal Code;
(iv) The bail bonds executed by
accused shall stand cancelled;
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(v) The fine amount, if any,
deposited by accused shall be
refunded to him;
Sd/-
JUDGE
RK/-