Bangalore District Court
Unknown vs In Spl.C.C.333/2014 on 17 March, 2015
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 17th DAY OF MARCH, 2015
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO.333/2014 & 386/2014
COMPLAINANT :
The State of Karnataka by Chickpet
Police Station, Bangalore.
[Rep. by learned Public Prosecutor,
Bangalore.]
/ VERSUS /
ACCUSED IN SPL.C.C.333/2014 :
2. Shanthi
W/o Suresh
Aged 30 years, r/at
Gauthampura,
Near Gundamma Ground,
Opp. Murugan Temple,
Ulsoor, Bangalore.
/2/ Spl.C.C.No.333/2014 &
Spl.C.C.No.386/2014
3. Suresh
S/o Ramu
Aged 32 years, r/at
Reddy Building,
Marutinagar main road,
Madiwala,
Bangalore.
Permanent address at
Gauthampura,
Near Gundamma Ground,
Opp. Murugan Temple,
Ulsoor, Bangalore.
[Rep. by learned Counsel Smt. Shakunthala
M.M.]
ACCUSED IN SPL.C.C.386/2014 :
1. Appu @ Anand
S/o Late Sampangi
Aged 22 years, r/at
No.186, 5th cross, 7th main road,
M.V.Garden, Ulsoor,
Bangalore.
[Rep. by learned Counsel
Sri.M.Prabhakar]
***
/3/ Spl.C.C.No.333/2014 &
Spl.C.C.No.386/2014
JUDGMENT
Spl.C.C No.386/2014 is a spilt up case against accused No.1. Hence, this case has been clubbed with original case in Spl.C.C.No.333/2014 for recording of common evidence. Hence, both the cases are taken together to pass common judgment.
2. Chickpet Police, Bangalore City have charge sheeted the accused No.1 to 3 for the offences punishable under Sections 366, 376 R/w Section 34 of I.P.C.
3. The case of the prosecution in brief, is as under :
Accused No.1 relating to Spl.C.C.No.386/2014 with the assistance of accused No.2 relating to Spl.C.C.No.333/2014 had kidnapped C.W-2, the prosecutrix on 08/12/2011 from Madiwala bus stop with intent to marry her, he got married C.W-2 in a /4/ Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 temple, they both stayed in the house of accused No.2 and 3, accused No.2 and 3 abetted the accused No.1 to have forcible sexual intercourse with C.W-2, accused No.2 and 3 had facilitated accused No.1 to stay with victim in their house. In the meanwhile C.W-1, mother of the prosecutrix had lodged a complaint. Chickpet police have registered the case against accused No.1 to 3, drew necessary Mahazars, recorded the statement of the prosecution witnesses. When the victim and the accused No.2 were near Parappana Agrahara, Chickpet police took them to custody. Thereafter, the statement of the prosecutrix was recorded, subjected her to medical examination. Prior to that accused No.1 was arrested and he was also subjected to medical examination. The prosecutrix was found to be pregnant of 5 weeks 5 days. After receiving the report, by completing the investigation, Investigating Officer /5/ Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 submitted the Charge Sheet to the Court for the aforesaid offences against accused No.1 to 3.
4. Subsequent to filing of the Charge Sheet, the case against accused No.1 was ordered to be split up in C.C.No.19816/2012 as he was absconded. The case against accused No.2 and 3 was committed to Sessions Court. After registering the case in S.C No.1250/2013, it was entrusted to CCH-52, Bangalore. After securing the accused No.1 in split up C.C.No.13803/2013, the case against accused No.1 was also committed by the trial Court to Sessions Court for trial. After receiving the committal records by this Court, registered in Spl.C.C.No.386/2014. By that time S.C.No.1250/2013 which was registered against accused No.2 and 3 was transferred to this Court on the point of jurisdiction and registered in Spl.C.C.No.333/2014. After hearing on both the sides, the charge against accused No.2 and 3 in Spl.C.C.No.333/2014 for the offence punishable /6/ Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 under Section 366(A) R/w Section 34 of I.P.C and Section 114 of I.P.C has been framed and in Spl.C.C.No.386/2014 charge against the accused No.1 for the offences punishable under Section 366 R/w Section 34 of I.P.C and Section 376 of I.P.C has been framed. The accused No.1 to 3 pleaded not guilty and claimed to be tried in the respective cases. Since both are connected matters, Spl.C.C.No.386/2014 against the accused No.1 was ordered to be clubbed with Spl.C.C.No.333/2014 to record the common evidence. The common evidence has been recorded in Spl.C.C.No.333/2014.
5. On prosecution side got examined as many as 9 witnesses as P.W.1 to P.W.-9 out of 23 charge sheet witnesses and got marked documents at Ex.P.1 to P.11, 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 No.1 to 3.
/7/ Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 Accused No.1 to 3 have denied the whole incriminating evidence against them and they have not chosen to lead evidence on their side. It was posted for arguments.
6. Heard the arguments on both sides. Perused and posted for Judgment.
7. The points that arise for my consideration in Spl.C.C.No.333/2014 are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused No.2 alongwith accused No.1 has kidnapped C.W-2, the child on 08/12/2011 at 8.30am from Madiwala bus stop with intent to perform her marriage with accused No.1 against her will punishable under Section 366(A) R/w Section 34 of I.P.C ?
/8/ Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014
2) Whether the prosecution has proved beyond reasonable doubt that accused No.2 and 3, after kidnapping C.W-2 by accused No.2 alongwith accused No.1, abetted accused No.1 to commit rape on C.W-2 in their house No.1A-7, 20th main road, 14th cross, Venkateshwara Layout, Marutinagar main road, BTM Layout I Stage during their stay in that house, punishable under Section 114 of I.P.C ?
3) What order?
8. My findings on the above points are as under:-
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : As per final orders for the
following:
/9/ Spl.C.C.No.333/2014 &
Spl.C.C.No.386/2014
9. The points that arise for my consideration in Spl.C.C.No.386/2014 are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused No.1 alongwith accused No.2 had kidnapped C.W-2, the child on 08/12/2011 at 8.30pm from Madiwala bus stop with intent to marry her against her will punishable under Section 366 R/w Section 34 of I.P.C ?
2) Whether the prosecution has proved beyond reasonable doubt that accused No.1 after kidnapping C.W-
2, committed rape on her in the house No.1A-7 of accused No.2 and 3 during their stay for a period of one month punishable under Section 376 of I.P.C ?
3) What Order ?
/ 10 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014
10. My findings on the above points are as under:-
Point No.1 : In the Affirmative Point No.2 : In the Negative.
Point No.3 : As per final orders for the following:
REASONS
11. Point No.1 in Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014:- These Points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
The prosecution made an allegation that P.W-1, the prosecutrix was of 17 years as on the date of the alleged kidnap by accused No.1 and 2 with intent to marry the prosecutrix by accused No.1 against her will, after kidnapping her from Madiwala bus stop on 08/12/2011 at 8.30pm, they both took her to a temple and he married the prosecutrix against her will and / 11 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 thereafter, both of them stayed in the house of accused No.2 and 3 for a period of one month.
12. According to prosecution, P.W-1, the prosecutrix was the child i.e., below the age of 18 years. The Protection of Children from Sexual Offences Act, 2012 which came into force on 14/11/2012 does not apply to the present case as the offence is alleged to have been committed on 08/12/2011. However, the age of the prosecutrix has to be looked into at the first instance. The charge against the accused No.1 is under Section 366 R/w Section 34 of I.P.C, the charge against the accused No.2 is under Section 366(A) R/w Section 34 of I.P.C. Ofcourse, on plain reading of Section 366 of I.P.C does not specify the age of the victim. The word 'woman' is used under Section 366 of I.P.C. Section 366 of I.P.C provides kidnapping, abducting or inducing the woman to compel her marriage etc. Section 366(A) of I.P.C provides / 12 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 procuration of minor girl i.e., if a person induces any minor girl under the age of 18 years to go from any place or to do any act with intent that such girl will be forced to illicit intercourse with another person shall be punishable with imprisonment which may extend to 10 years and shall also be liable to fine.
13. As per Section 366 of I.P.C, a person is said to commit the offence punishable under this Section after he kidnaps or abducts any woman with intent that she may/will be forced to marry any person against her will or in order to force or seduce to illicit intercourse.
14. As per the prosecution case, it is the accused No.1 who had kidnapped P.W-1, prosecutrix who was of 17 years from Madiwala bus stop with intent to marry her against her will, for which accused No.2 / 13 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 actively participated in commission of kidnapping the prosecutrix, they both took her to temple, the accused No.1 forcibly married her.
15. Section 366 of I.P.C is the aggravated form of Section 363 of I.P.C. Section 363 of I.P.C provides punishment for kidnapping. Section 361 of I.P.C is definition clause of which provides kidnapping from lawful guardianship, that means whoever takes or entices any minor under the age of 18 years if a female, out of keeping of the lawful guardianship of such minor without the consent of such guardian is said to kidnap such minor person from lawful guardianship.
16. In the present case, there is an allegation against accused No.1 and 2 that P.W-1, prosecutrix was kidnapped by them for the purpose of marrying accused No.1. In view of the Section 361 of I.P.C, if a / 14 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 victim is a female under the age of 18 years, then it attracts Section 361 of I.P.C. In view of the aforesaid Section 361 of I.P.C, if a female under the age of 18 years is enticed or taken away out of keeping of lawful guardian of the child without their consent is said to commit kidnap. In the present case, according to prosecution, without the consent of her guardian P.W-2, prosecutrix was taken away by accused No.1 and 2 from lawful guardian of the prosecutrix. Therefore, the age of the prosecutrix shall have to be looked into at the first instance.
17. As per the prosecution, the prosecutrix was of 17 years. On perusal of records, would reveal that no piece of documentary testimony is placed before the Court with respect to her age as on the date of the alleged kidnap. It is the case of the prosecution that she studied upto 8th Standard. It is also the case of prosecution she was also referred to Doctor to / 15 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 ascertain her age by subjecting her to necessary medical examination. But Investigating Officer has not at all produced any piece of documentary testimony before the Court to show the age of the prosecutrix as on the date of the alleged evidence. However, what is the evidence available before the Court with respect to her age is to be looked into.
18. On going through the whole evidence on prosecution side, would show that there is ocular statement of the prosecutrix, her mother P.W-2 Lakshmi, her aunt P.W-3 Ranjana with respect to age of prosecutrix. They have stated in their evidence that prosecutrix was of 17 years as on the date of the alleged kidnapping. Even P.W-1, prosecutrix has specifically stated in her evidence that she was of 17 years when she left the house. When there was suggestion made in the cross-examination of P.W-2 and P.W-3 that P.W-1 was above 18 years as on that / 16 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 date, it has been specifically denied by them. On looking into the entire evidence of the prosecutrix, nowhere she has stated that she was above 18 years. Even while giving her address including the age before recording the evidence, she has stated that she was of 20 years as on the date of recording of the evidence. Her evidence was recorded on 10/12/2014. She was aged 20 years as on that date. The alleged incident took place on 08/12/2011. As per the address including her age given by the prosecution herself, she was not above 18 years as on that date. Therefore, though the suggestion has been made by the learned counsels for the accused persons that prosecutrix was not under the age of 18 years, there is nothing before the Court to disbelieve the version of P.W-1 to P.W-3. Merely because the documentary testimony has been placed before the Investigating Officer of which showing his negligence in investigation, does not take away the / 17 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 prosecution case and it cannot be concluded that prosecutrix was above 18 years. Above all prosecutrix is none other than wife of the accused now. When herself has come up with a version that she was below 18 years, according to my opinion, it is not proper to disbelieve her version. So far as concerned to age of the prosecutrix, oral evidence of P.W-1 to P.W-3 is found to be reliable, no other iota of evidence is available on defence side to disbelieve their version to be false. Hence, it can be very well concluded that prosecutrix was of 17 years as on the date of the alleged kidnap.
19. Now the next question arises for my consideration whether accused No.1 and 2 had taken the consent of parents of the prosecutrix or the parents had given their consent. Ofcourse, P.W-1 prosecutrix has stated that she voluntarily left the house with intent to marry the accused No.1, both were loving / 18 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 each other. As per prosecution accused No.1 had induced the prosecutrix on the pretext of marriage, there was absence of consent of the parents of the prosecutrix, hence, it attracts the ingredients of Section 366 of I.P.C, which is aggravated form of Section 363 of I.P.C.
20. The learned Public Prosecutor has argued that the consent of the child is no valid consent. The consent of guardian/parents of the prosecutrix if a female under the age of 18 years is a mandatory requirement. Though victim girl has stated that she had willingly gone with the accused without making any complaints, it cannot be said that no offence is made out.
21. The learned counsel for the accused persons have strenuously argued that when the prosecutrix herself had joined the company of the accused as they / 19 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 were loving each other and they both got married in a temple since the elders of the prosecutrix would not agree to the same, it does not attract the ingredients of either Section 363 or Section 366 of I.P.C.
22. It is pertinent to note as already discussed in supra, the prosecutrix was of 17 years. It is proved by the prosecution beyond all reasonable doubt by placing satisfactory evidence. The consent of the minor prosecutrix is no consent in the eye of law. She was taken without the consent of her lawful guardian, it attracts Section 366 of I.P.C which is aggravated form of Section 363 of I.P.C.
23. Prosecutrix has been examined as P.W-1. Her oral testimony reflects that accused is her husband now, accused No.2 and 3 are sister and brother-in-law of the accused No.1. In her chief examination itself, she has stated that her mother had lodged a complaint / 20 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 about her missing, she and the accused No.1 got married and stayed together in Kalayannagar. According to prosecution, she alongwith her grand parents had been to their native place Kallakurchi Taluk, Vellapuram District, Tamil Nadu in the month of December, 2011. Her grand mother returned to Bangalore, prosecutrix remained with her grand father there itself. She started her journey on 08/12/2011 to Bangalore, on the way to Bangalore, she disclosed of her coming, to accused No.1, accused No.1 asked her to alight in the Madiwala bus stop, accordingly she got down in Madiwala bus stop and found accused No.1 with accused No.2 there, accused No.1 asked her to marry him, accused No.2 induced her to marry him, no need to afraid of anything, she would help them, they took her to Ayyappa temple, Madiwala, then it was 9.15pm, accused No.1 tied thali to prosecutrix. Thereafter, accused No.2 had sent both of them / 21 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 elsewhere for 2-3 days. On going through 161 statement at Ex.P.1 stated to have been given before the Investigating Officer and the oral testimony of P.W- 1, prosecutrix, would reveal that family of the accused and family of the prosecutrix are not strangers, accused No.2 and mother of the prosecutrix were friends, they were working as domestic servants in the same house, thus accused No.1 and the prosecutrix came in contact, accused No.1 used to move around with her, it was opposed by mother of the prosecutrix, even otherwise he did not stop doing the same. Subsequently when the prosecutrix had been to the native place of her grand parents, the aforesaid incident took place. As per the chief examination of P.W-1, she had willingly gone with accused No.1 and married him in Someshwara temple in Ulsoor. Thereafter, they both stayed together as husband and wife in Kalyananagar. Accused No.1 has been working / 22 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 as Security Guard in Sai Nuskan Splendor Apartment. Since the prosecutrix was minor, the consent of her guardian was required to join the accused. But the evidence placed before the Court by the prosecution would depict that there was absence of consent of parents. Merely because accused No.1 and the prosecutrix are the husband and wife, it cannot be said that no offence was made out when accused No.1 had taken away the prosecutrix on 08/12/2011. There is believable evidence that she was under 18 years. There was absence of consent of her parents. That is corroborated by P.W-2 Lakshmi, mother of the prosecutrix who is also the complainant. She has stated in clear terms that in the year 2011 when the prosecutrix had been to Tamil Nadu, her mother only returned, inspite of their efforts did not trace the prosecutrix, after 2 weeks prosecutrix herself had telephoned to neighbouring house and intimated about / 23 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 her marriage with accused No.1. Then she had lodged a complaint.
24. Ex.P.2 is the statement given by P.W-2 Lakshmi by way of complaint on 08/12/2011 at 1.00pm. P.W-6 B.G.Ratnakar, by recording her statement, registered the case and dispatched the F.I.R at Ex.P.4. It is proved from all these materials placed by the prosecution that there was absence of the consent by the guardian of the prosecutrix. It is an admitted fact that prosecutrix is now residing with her mother, her mother has also been residing alongwith her brothers, sisters and mother. The prosecution has proved beyond reasonable doubt that there was absence of guardians of the prosecutrix who was under
the 18 years as on 08/12/2011. It is admitted fact that prosecutrix had gone with accused on 08/12/2011. Whether her marriage with accused No.1 is void or voidable is different aspect. I would like to / 24 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 discuss the same while discussing the commission of rape. The prosecutrix has proved the commission of offence punishable under Section 366 of I.P.C by accused No.1 as the consent of the minor girl is not valid consent, her consent is immaterial. The prosecution has proved the guilt of the accused No.1 beyond reasonable doubt for offence under Section 366 of I.P.C by placing convincing, cogent and trustworthy evidence.
25. So far as the accused No.2 is concerned, I do not find any piece of evidence against her that she accompanied the accused No.1 while taking the prosecutrix on 08/12/2011 and she was also very much present when they both got married in a temple.
The version of the prosecutrix carries more importance. But she has not supported on this aspect. It can very well be gathered from her evidence that accused No.2 was not at all present, she did not take any part in / 25 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 commission of offence punishable under Section 366 of I.P.C by accused No.1. The charge against accused No.2 is procuring the victim girl for accused No.1. P.W- 2 Lakshmi, another material witness has also stated in page 3 of her cross-examination that prosecutrix did not say before her that accused No.2 and 3 compelled to marry accused No.1. Ofcourse, she has further stated in the later part of her cross-examination that accused No.1 and 2 performed their marriage. The evidence of P.W-2 on this aspect is contradictory. She blows both hot and cold at the same time. Such evidence cannot be based to hold the guilt of the accused No.2.
26. P.W-3 Ranjana is another material witness. She is the Aunt of the prosecutrix. She has stated that her sister P.W-2 was not willing to perform the marriage with accused No.1. In page No.3 of her cross- examination she has stated that accused No.2 and 3 / 26 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 did not know the marriage of accused No.1 with prosecutrix till they went to their house. Under the circumstances, the version of the prosecutrix carries more weightage. There is no piece of evidence against accused No.2 that she has committed the offence punishable under Section 366(A) of I.P.C. Even so far as is concerned, none has spoken against him on this aspect. The prosecution miserably failed to prove the offence under Section 366(A) of I.P.C against accused No.2. Hence, I hold point No.1 in Spl.C.C.No.333/2014 in the Negative & Spl.C.C.No.386/2014 in the Affirmative.
27. Point No.2 in Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014:- These Points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
The prosecution made an allegation that accused No.1 had committed rape on P.W-1, prosecutrix in the / 27 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 house of accused No.2 and 3, bearing No.1A-7, 20th main road, 14th cross, Venkateshwara Layout, Marutinagar main road, BTM Layout 1st Stage, Bangalore. There is charge against accused No.2 and 3 that they have abetted accused No.1 in commission of rape. The prosecution made an allegation that accused No.2 and 3 not only allowed accused No.1 and the prosecutrix to stay in their house and also facilitated them to live as husband and wife though prosecutrix was minor.
28. As per the prosecution, accused No.1 with the prosecutrix stayed in the house of accused No.2 and 3 for a period of one month and thereafter they stayed in a room given to them in Sai Nuskan Splendor Apartment, Kalyananagar. Accused No.1 has been working as Security Guard in that apartment, a room has been given to him, they both were residing therein.
Accused No.1 had sexual intercourse with the
/ 28 / Spl.C.C.No.333/2014 &
Spl.C.C.No.386/2014
prosecutrix in that room also and he is the cause for her pregnancy, when the Chickpet police had taken her to hospital for medical examination she was found to be pregnant of 5 weeks 5 days.
29. The learned counsels for the accused have vehemently argued that there is absolutely no offence to attract the ingredients of offence under Section 376 of I.P.C. Smt.P.K, standing counsel for the accused No.1 has addressed her arguments that prosecutrix was above 18 years, there is no documentary testimony to show that she was pregnant during that time, now accused No.1 and the prosecutrix have one baby who was born in the year 2014, in the absence of any authenticated document, the oral testimony of Doctors cannot be based.
30. The charge against accused No.1 is commission of rape which is punishable under Section / 29 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 376 of I.P.C and the charge against accused No.2 and 3 is that they have abetted him in commission of rape punishable under Section 114 of I.P.C. I have already discussed in supra about the age of the prosecutrix as on the date of kidnap. On going through the evidence of all the prosecution witnesses including the prosecutrix after she joined the accused No.1, they both got married, started living as husband and wife, till accused No.1 was arrested she was living with him, accused No.1 is in judicial custody now also, hence, now she has been residing with her mother. The same is also corroborated by P.W-2, mother of the prosecutrix. Ofcourse, P.W-5 Dr.H.C.Ramanna who had examined the prosecutrix has stated that as per the Ultasound Scanning, she was found to be pregnant of 5 weeks 5 days. The said report is not before the Court. P.W-7 Dr.Suresh Kannakanavar has examined the victim and also made an entry in MLC register as / 30 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 per Ex.P.10. What was the age of the prosecutrix as on the date of the alleged offence of rape is very material. The prosecutrix was of 17 years as on 08/12/2011 when she left the company of her parents and joined the accused. As already discussed in supra, Protection of Children from Sexual Offences Act, 2012 has no application to the present case. In view of the position of law then prevailed, whether it attracts Section 376 of I.P.C is to be seen. The offence was alleged to have been committed by accused No.1 after kidnapping the victim girl. She was of 17 years. Section 375 of I.P.C is definition clause of rape. It provides " a man is said to commit rape who has sexual intercourse with a woman with or without her consent when she is under 16 years of age."
31. In the present case, the prosecutrix is above 16 years as on that date. As per her ocular statement, she voluntarily left the company of her parents and joined / 31 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 the accused with intent to marry her, accordingly, she married him in a temple. Thereafter, they started residing in a room in Sai Nuskan Splendor Apartment, not in the house of accused No.2 and 3. Her evidence clearly establishes that there was no compulsion in marrying the accused No.1. Her evidence would reveal that accused No.2 and 3 had never participated in their marriage. The said marriage was free from compulsion or force. The prosecutrix is the material witness to speak about her willingness for marriage with accused No.1. Even as per evidence of P.W-2 and 3, who are other material witnesses to speak about this aspect, prosecutrix had willingly married the accused No.1, the mother of the prosecutrix did not agree to the same. There is absolutely nothing before the Court to prove the compulsion or force to prosecutrix to marry accused No.1. She was above 16 years as on that date. Ofcourse, her marriage with accused No.1 becomes / 32 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 voidable, after she attains the majority it becomes valid. As on the date they had sexual intercourse, she was of 17 years. It does not attract the ingredients of Section 375 of I.P.C. Therefore, the non production of Ultasound Scanning report is immaterial here. The version of the prosecutrix is found trustworthy so far as concerned to her willingness for marriage with accused No.1. Even the mother and Aunt of the prosecutrix have stated that after the accused No.1 was arrested and remanded to judicial custody, then only she returned and has been residing with her mother since accused No.1 is not with her. The accused and the prosecutrix have a baby now. It can be gathered from the evidence on prosecution side, very particularly from ocular statement of the prosecutrix that no evidence of rape was committed by accused No.1 on prosecutrix. Hence, the further question whether accused No.2 and 3 had abetted accused No.1 / 33 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 in commission of rape does not arise at all. Even otherwise the evidence of prosecution witness is to be looked into, no satisfactory, no piece of evidence is available against accused No.2 and 3 to prove that they were behind the screen in commission of rape by accused No.1. There are no materials to show the abetment by accused No.2 and 3 for commission of rape by the accused No.1. Viewed from any angle, the prosecution has utterly failed to establish the commission of rape by the accused No.1, even commission of offence punishable under Section 114 of I.P.C by accused No.2 and 3 beyond reasonable doubt. Hence, I hold point No.2 in Spl.C.C.No.333/2014 and point No.2 in Spl.C.C.386/2014 in the Negative.
32. Points No.3: In view of my above discussion and findings, I proceed to pass the following:
/ 34 / Spl.C.C.No.333/2014 &
Spl.C.C.No.386/2014
ORDER
Acting under Section 235(1) of
Cr.P.C. accused No.2 and 3 are
acquitted for the offences punishable under Sections 366(A) and 114 of I.P.C.
Accused No.1 is acquitted for the offence punishable under Section 376 of I.P.C.
Accused No.1 is found guilty of the offence punishable under Section 366 of I.P.C.
To hear regarding sentence.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 17th day of March, 2015.) ( SHUBHA GOWDAR ) L Addl.City Civil & Sessions Judge, Bangalore.
***
/ 35 / Spl.C.C.No.333/2014 &
Spl.C.C.No.386/2014
ORDER ON SENTENCE
Heard on both sides regarding the sentence. The learned counsel for the accused No.1 has submitted that accused No.1 is youngster who is at the age of 20s, he is none other than the husband of the prosecutrix, before he was arrested they both got married at their own will, they have one baby also. His presence is very much required for the prosecutrix herself and her baby. Seeks for showing sympathy in imposing the sentence.
2. The learned Public Prosecutor has submitted that there is ample evidence to show the commission of offence under Sec.366 of I.P.C. However, when the accused No.1 has the family consisting of wife i.e., prosecutrix, one kid of their own, he may be released under the Probation of Offenders Act by taking necessary bond atleast for a period of 2 years.
/ 36 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014
3. It is the case wherein the accused is found guilty of the offence punishable under Section 366 of I.P.C., not for the offence of rape. The offence punishable under Section 366 of I.P.C. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. The Court may for adequate and special reasons to be recorded impose a sentence of imprisonment for lesser term. The accused is held guilty for the offence punishable under Section 366 of I.P.C. for the reason prosecutrix was under the age of 18 years as on the date of the incident. She had willingly joined the accused for the purpose of marrying him, they both got married by mutual consent, they started their marital life by staying in a room belonged to Sai Nuskan Splendor Apartment wherein he had been working as Security Guard till he was arrested by the complainant police, the accused No.1 and the / 37 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 prosecutrix were living together. They have one kid also out of their marriage. After she attains the majority, their marriage becomes valid. As on the date of the alleged incident, she was of 17 years. Since the accused No.1 is in judicial custody, there is none to look after the prosecutrix and her kid, she started residing with her mother. That could be gathered from the evidence available before the Court of which has already been discussed in judgment. From the facts and materials available before the Court, it can be very well be seen that accused alongwith the prosecutrix had been living happily, since he was arrested by the complainant police, he is in judicial custody because of that reason, the prosecutrix alongwith her kid has been residing with her mother, the same has also been stated by the complainant, who is the mother of the prosecutrix. Under the circumstances, I do not think it is needed to release him on execution of bond for / 38 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 certain period, instead, as discussed in supra, by taking leniency in imposing the sentence for the period already undergone by accused. From all these facts and circumstances, the presence of the accused is very much required for the prosecutrix and her kid. The accused is in judicial custody from 05/06/2012 to 05/07/2012 i.e., for a period of 31 days and subsequently he has been in judicial custody from 29/07/2014 to till date i.e., 18/03/2015 i.e., for a period of 232 days, totally for 263 days. Keeping in view all these mitigating circumstances, sympathy may be shown and leniency may be taken in imposing the sentence. Otherwise it may break up the marital relationship of accused No.1 and the prosecutrix and also may have great impact upon their future as well as bright future of the kid.
4. It is an offence relating to Section 366 of I.P.C. By considering the mitigating circumstances available / 39 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 on record as discussed in supra, the ends of justice would be squarely met if the sentence for offence under Section 366 of I.P.C. is imposed to the period already undergone by the accused. Accused was in judicial custody from 05/06/2012 to 05/07/2012 for a period of 31 days and subsequently he has been in judicial custody from 29/07/2014 to till date i.e., 18/03/2015 for a period of 232 days, totally for 263 days. Keeping in view all these factors, I proceed to pass the following:
/ 40 / Spl.C.C.No.333/2014 &
Spl.C.C.No.386/2014
ORDER
Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offence punishable under Section 366 of I.P.C. and sentenced to undergo Simple Imprisonment of 263 days and shall also pay fine of Rs.2,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of one month.
The J.C. period of accused from 05/06/2012 to 05/07/2012 for a
period of 31 days and subsequently he has been in judicial custody from 29/07/2014 to till date i.e., 18/03/2015 for a period of 232 days, totally for 263 days, be setoff as laid down under Section 428 of Cr.P.C.
Accused who is in J.C at present, shall be set at liberty forthwith, if fine amount is paid and if accused is not required for any other cases.
/ 41 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 Issue copy of judgment free of cost to the accused forthwith.
( SHUBHA GOWDAR ) L Addl.City Civil & Sessions Judge, Bangalore.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Priya P.W.-2 Lakshmi P.W.-3 Ranjana P.W.-4 Dr.Srilakshmi P.W.-5 Dr.H.C.Ramanna P.W-6 B.G.Rathnakar P.W-7 Suresh S.Kannakanavar P.W-8 Nachiket Siddappa Janagowda P.W-9 Prakash.R / 42 / Spl.C.C.No.333/2014 & Spl.C.C.No.386/2014 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Statement of P.W-1 Ex.P.2 Complaint Ex.P.3 Medical report Ex.P.3(a) Signature of P.W-4 Ex.P.4 F.I.R Ex.P.5 Scanning report Ex.P.6 Mahazar Ex.P.7 Mahazar Ex.P.8 Mahazar Ex.P.9 FSL report Ex.P.10 Original MLC register Ex.P.10(a) Page No.86 to 89 of MLC report Ex.P.10(b) True copy of register Ex.P.11 Medical report of accused LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF WITNESSES EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
/ 43 / Spl.C.C.No.333/2014 &
Spl.C.C.No.386/2014
(SHUBHA GOWDAR)
L Addl.City Civil & Sessions Judge, Bangalore.
***