Bangalore District Court
State Of Karnataka vs Chandrashekar on 10 October, 2018
IN THE COURT OF LXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-63).
Dated : This the 10th day of October, 2018
:Present:
Sri PARAMESHWARA PRASANNA B., B.A., LL.B.,
LXII Addl. City Civil & Sessions Judge,
Bengaluru City.
SESSIONS CASE NO.621/2014
Complainant :- State of Karnataka
By Kengeri Police Station,
Bengaluru.
[Rep. by : Public Prosecutor]
.V/S.
Accused :- 1. Chandrashekar,
S/o Late Siddappa,
Aged about 27 years,
R/at C/o Sheshappa, House No.52,
Katanayakanapura Village,
Kengeri Hobli,
Bengaluru South Taluk.
2. Raghu @ Dasa,
S/o Guruvaiah,
Aged about 21 years,
R/at C/o Venkatesh,
No.34, Behind Madhu Petrol Bunk,
Uttarahalli Road, Kengeri,
Bengaluru-60.
Permanent resident of
Byramangala, Bidadi Hobli,
Ramangara Taluk & District.
[By : Sri S.S., & M.R.K., Advocates]
2
S.C.No.621/2014
1. Date of commission of : 29.08.2011
offence
2. Date of report of offence : First FIR registered on
31.08.2011 and second
FIR registered on
03.09.2011.
3. Date of arrest of the : A.1 & A.2 arrested on
accused 02.09.2011.
4. Name of the complainant : Sri Sheshachala
5. Date of commencement : 23.12.2015
of trial
6. Date of closing of : 14.02.2018
evidence
7. Offences complained of : U/Ss.366 & 342 r/w
S.34 of IPC.
8. Opinion of the Judge : A.1 & A.2 are acquitted
U/S.235(1) of Cr.P.C.
(PARAMESHWARA PRASANNA B.),
LXII Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This present case arise out of charge sheet submitted by Kengeri Police Station, Bengaluru, against accused Nos.1 and 2 in Crime No.242/2011 for the offences punishable under Sections 366, 342 read with Section 34 of IPC.
3
S.C.No.621/2014
2. The case of the prosecution in brief, as culled out in the charge sheet is that:-
On 29.08.2011 morning at about 8.30 a.m., when CW.2 for going to her house was waiting for bus near Madhu Petrol Bunk, Kengeri Bus Stop, Uttarahalli Road, Kengeri, Bengaluru, the accused Nos.1 and 2 who came in Tata Sumo vehicle bearing Reg.No.KA-42-1239 with a false offer of giving her a lift to her house, got her seated in the vehicle and thereafter, in furtherance of their common intention, the accused Nos.1 and 2 abducted her and compelled her to marry accused No.1 and when CW.2 refused, they took her to Hyderabad and confined her in a rented room in Matta Village, Uppala, Hyderabad, Andhra Pradesh and further compelled CW.2 to marry accused No.1 against her will and thereby the accused Nos.1 and 2 have committed the offence punishable under Sections 366 and 342 read with Section 34 of IPC.
3. That after completion of investigation, CW.15 filed the charge sheet against accused Nos.1 and 2 for the offences punishable under Sections 366, 342 read 4 S.C.No.621/2014 with Section 34 of IPC before the learned III ACMM, Bengaluru.
4. On receipt of charge sheet, the learned III ACMM, Bengaluru, took cognizance of the offences against accused Nos.1 and 2 and case has been registered against accused Nos.1 and 2 in C.C.No.17397/2013. Since the offences alleged against the accused Nos.1 and 2 are exclusively triable by the Court of Sessions, the learned III ACMM, Bengaluru, as per the order dated 04.06.2014 committed the case against accused Nos.1 and 2 to the Hon'ble Principal City Civil & Sessions Judge, Bengaluru. That on committal of the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, case was registered against accused Nos.1 and 2 in S.C.No.621/2014 and the same was made over to this Court for disposal in accordance with law.
5. That after admitting of the case, accused Nos.1 and 2 were secured and on hearing the prosecution as well as the learned counsels for accused Nos.1 and 2 under Section 227 of Cr.P.C., this Court framed the charge 5 S.C.No.621/2014 against accused Nos.1 and 2 for the offences punishable under Sections 366 and 342 read with Section 34 of IPC. When the charges were read over and explained to accused Nos.1 and 2, pleaded not guilty and claims to be tried.
6. That in order to prove its case, out of 15 witnesses cited in the charge sheet, the prosecution got examined 11 witnesses as PW.1 to PW.11 and got marked the documents as Ex.P1 to P7(a). Since despite of taking coercive steps repeatedly, CW.5, 7 and 9 were not secured by the concerned Police, in order to render speedy justice prayer of the learned Public Prosecutor for re-issuing further coercive steps against the aforesaid witnesses was rejected and the prosecution evidence was taken as closed on 14.02.2018. Thereafter, the matter was posted for recoding the statement of accused Nos.1 and 2 under Section 313 of Cr.P.C. The accused Nos.1 and 2 when examined under Section 313 of Cr.P.C., denied the incriminating circumstances appearing in the 6 S.C.No.621/2014 evidence against them, but they have not led any defence evidence on their behalf.
7. Heard arguments of both the sides.
8. The learned Public Prosecutor has argued that except PW.4 and PW.8 all other witnesses have supported the case of prosecution and the evidence of PW.2 clearly shows that she was forcibly abducted to Hyderabad by accused Nos.1 and 2 in Tata Sumo vehicle and they confined her in a rented house belonging to CW.9 and they compelled her to marry accused No.1 against her will. It is further argued that the prosecution witnesses have proved both the offences punishable under Sections 342 and 366 read with Section 34 of IPC against the accused Nos.1 and 2 beyond all reasonable suspicion, shadow and doubt. Inter alia, with these contentions the learned Public Prosecutor prays for convicting of accused Nos.1 and 2 in respect of the offences punishable under Sections 366 and 342 read with Section 34 of IPC.
9. Whereas, the learned counsels for the accused Nos.1 and 2 have argued that PW.2 had love 7 S.C.No.621/2014 affair with accused No.1 and PW.2 on her own accord and volition accompanied accused Nos.1 and 2 to Hyderabad. They further argued that there is inordinate delay of two days in lodging the first Fir and the said delay has not been properly explained by the prosecution. They further argued that since PW.4 and 8 have turned hostile, the alleged recovery of Tata Sumo vehicle itself has not been proved by the prosecution. They further argued that no mahazar has been drawn in the room/spot where PW.2 alleged to have confined and CW.9 who alleged to have provided rented room to accused Nos.1 and 2 has not been examined and one Gopala who alleged to have procured rented room to accused Nos.1 and 2 has also been not arrayed as accused or witness in this case. They further argued that the necessary ingredients of Section 342 and 366 of IPC have not been made out by the prosecution beyond all reasonable doubt and hence, the accused Nos.1 and 2 are entitled for acquittal on the ground of benefit of doubt. Inter alia with these contentions, the counsels for accused Nos.1 and 2 pray for acquitting of the accused Nos.1 and 2. 8
S.C.No.621/2014
10. Under the facts and circumstances of the case, the following points arise for consideration of this Court :-
(1) Firstly : Whether the prosecution proves beyond all reasonable doubt that on 29.08.2011 morning at about 8.30 pm., near Auto Stand, Madhu Petrol Bunk, Uttarahalli Road, Kengeri, Bengaluru, when CW.2 was waiting for bus to go to her house, the accused Nos.1 and 2 who came in a Tata Sumo vehicle bearing Reg.No.KA-42-1239 with false offer of giving her a lift to her house, got her seated in the said vehicle and in furtherance of common intention, the accused Nos.1 and 2 abducted her to Hyderabad with intent that she may be compelled to marry accused No.1 against her will and thereby the accused Nos.1 and 2 have committed the offence punishable under Section 366 read with Section 34 of IPC?
(2) Secondly : Whether the prosecution proves beyond all reasonable doubt that the accused Nos.1 and 2 in furtherance of their common intention, took CW.2 to Matta Village, near Uppala, Hyderabad, Andhra Pradesh and confined her in a rented room for three days and thereby accused Nos.1 and 2 have committed the offence punishable under Section 342 read with Section 34 of IPC?
(3) What Order?
11. My findings on the above points are as under:-
9
S.C.No.621/2014 Point No.1 : In the negative;
Point No.2 : In the negative;
Point No.3 : As per final order,
for the following :-
REASONS
12. Point Nos.1 & 2 :- Since these points are
inter-related to each other, they have taken together for discussion to avoid repetition.
13. The case of the prosecution in brief is that CW.2 - Smt Sowmya is wife of CW.1 - Sheshachala. That during the last week of August 2011, CW.1 and CW.2 had visited CW.1's native place in Hanumapura Doddi, Channapatna to attend a Pooja. That on 29.08.2011 morning at about 6.30 a.m., CW.1 sent CW.2 along with his brother - CW.8 - Kumar from Hanumapura Diddi in motorcycle for dropping her to CW.1's house in Kuvempu Nagara, Doddi Palya Main Road, H. Gollahalli, Kengeri, Bengaluru and on the same day at about 10. a.m., when CW.1 returned to his house, he found that CW.2 was not returned to his house and when he enquired CW.8 through phone, CW.8 informed him that he had dropped 10 S.C.No.621/2014 CW.2 at 7.30 p.m., near Madhu Petrol Bunk, Kengeri.
Thereafter, he made phone call to CW.2, but her mobile was switched off, then search was made, but CW.2 could not be traced and hence, CW.1 lodged written Police complaint on 31.08.2011 by suspecting her abduction by accused No.1 and on receipt of Police complaint, the first FIR was registered in Crime No.242/2011 at 12.15 pm., on the said date and thereafter, I.O.-CW.15 took up investigation and on receiving credible information that CW.2 and accused No.1 were in Hyderabad he along with his staff CW.9 - Chowdaraju and CW.13- Shivanna left Police Station on the night on 01.09.2011 to Hyderabad and in the night at about 2.00 a.m., on 02.09.2011, CW.15 and his staff traced out accused Nos.1, 2 and CW.2 who were in a room in Matta Village, near Uppal, Hyderabad and thereafter, they returned to the Police Station on 03.09.2011 along with accused Nos.1, 2 and CW.2 and Tata Sumo vehicle bearing Reg.No.KA-42-1239 used for the commission of alleged offence and on return to the Police Station, CW.15 recorded statement of CW.2, wherein she stated that on 29.08.2011 morning at about 11 S.C.No.621/2014 8.30 a.m., when she was waiting for bus in order to go to her house, near Madhu Petrol Bunk, Kengeri Bus Stop, Bengaluru, the accused Nos.1 and 2 who came in Tata Sumo Vehicle bearing Reg.No.KA-42-1239 with false offer of giving her lift got her seated in the vehicle and thereafter, they abducted her and compelled her to marry accused No.1 and when CW.2 refused, they took her to Matta Village, Uppal, Hyderabad and there they confined her in a rented room and compelled her to marry accused No.1 against her will. That based on the said statement of CW.2, second FIR was registered against the accused Nos.1 and 2 in the same Crime No.242/2011 of respondent Police Station for the offences punishable under Sections 342 and 365 read with Section 34 of IPC and after completion of investigation, CW.15 filed the charge sheet against the accused Nos.1 and 2 for the offences punishable under Sections 366 and 342 read with Section 34 of IPC.
14. That in order to prove the case of the prosecution, out of 15 witnesses cited in the charge 12 S.C.No.621/2014 sheet, the prosecution got examined 11 witness as PW.1 to PW.11 and got marked the documents as Ex.P1 to P7(a).
15. PW.1 - Sri Sheshachala, the husband of CW.2 deposed in his evidence that CW.2 is his wife and on 29.08.2011 morning at about 6.45 a.m., CW.2 in the motorcycle of CW.8 left Hanumapura Doddi for going to CW.1's house, situated at Gollarahalli, Bengaluru and at 10.30 a.m., on the same day when he reached his house, he could not find CW.2 and when he informed his mother- in-law, she told that CW.2 had not come to the house and on enquirying with CW.8, he told that he dropped CW.2 near Madhu Petrol Bunk, Kengeri and when PW.1 made phone call to CW.2, her mobile was switched off and thereafter, he searched for CW.2 in his relatives house, but he could not trace out her. Hence, by suspecting the abduction of his wife by accused Nos.1 and 2 he lodged Police complaint before the respondent Police as per EX.P1. He stated that since he made search for CW.2, the delay was caused in lodging the complaint. That 13 S.C.No.621/2014 after three days of lodging of complaint he came to know from the Police that CW.2 was in Hyderabad and after three days of lodging of complaint, the accused Nos.1 and 2 were brought to the Police Station and he has seen them in the Police Station and in the Police Station CW.2 told that accused No.1 forcibly took her to Hyderabad. During the cross-examination on behalf of accused No.1, he has stated that he was doing business in petty shop of his father-in-law and he does not know accused No.1 prior to the incident and since his father-in-law and mother-in- law told him that the accused No.1 was frequently coming to the said petty shop he suspected accused No.1. He stated that he does not know whether CW.2 had voluntarily went with accused No.1.
16. PW.2 - Smt Sowmya in her evidence deposed that CW.1 is her husband and she got married CW.1 nine years back. That on 29.08.2011 morning at about 6.30 a.m., she along with CW.8 - Kumar left Hanumapura Doddi in the motorcycle for going to her parental house in H. Gollahalli and CW.8 dropped her near Madhu Petrol 14 S.C.No.621/2014 Bunk in Kengeri at 7.30 a.m., and when she was waiting for bus, the accused No.1 who was known to her came along with accused No.2 in a Tata Sumo vehicle and they by giving offer to give her to lift to her parent's house, got seated her in the said vehicle and when the vehicle proceeded towards Uttarahalli instead of Kodi Palya, she questioned accused No.1, at that time, the accused No.1 threatened to kill her if she shouts and compelled her to marry him. Even though, she refused to marry accused No.1 and requested them to drop her to the house, they proceeded in the said vehicle and during the travel the accused given her a juice and after drinking it, she fell unconscious and when she regained conscious, the accused No.1 told that they were in Hyderabad. She stated that the accused confined her in a room in Hyderabad and threatened to kill her if she shouts. She stated that during the confinement, the accused No.1 had compelled her to marry him and on the third day of her confinement, Kengeri Police came to the room where the accused Nos.1 and 2 have confined her. At that time she revealed that the accused Nos.1 and 2 forcibly abducted 15 S.C.No.621/2014 her. She further identified accused Nos.1 and 2 in the Court and stated that they have abducted her. During the cross-examination on behalf of accused No.1 she stated that she knows accused No.1 for the last 6 to 7 years and when his husband was in the shop, the accused No.1 was visiting the shop. She stated that she studied up to 7 th standard and she has given the statement to the Police orally. During the cross-examination she denied that she called accused Nos.1 and 2 over phone at 7.30 a.m., on the said date and she went with them voluntarily. She stated that since there was no currency in her mobile, she could not intimate the incident to her husband. During the cross-examination on behalf of accused No.2, she stated that she is not personally acquainted with accused No.2. The accused No.2 is a driver of Tata Sumo. She denied that she and accused No.1 by hiring Tata Sumo of accused No.2 went to Hyderabad. She admitted that accused No.2 does not know anything about the incident. She stated that they were in Hyderabad for three days and at that time, she has not taken any food 16 S.C.No.621/2014 and she denied that she and accused Nos.1 and 2 have taken food in Hotels at Hyderabad.
17. PW.3 - Smt Susheelamma deposed that CW.2 is her daughter and she along with her family is residing in H. Gollahalli, Kengeri. CW.1 and CW.2 got married about 15 years back. CW.2 had been to her husband's native place in Hanumapura Doddi to attend festival on 26.08.2011 and after three days, CW.1 sent CW.2 in the motorcycle of his brother - CW.8 to Bengaluru. CW.2 reached Kengeri at about 6.30 a.m., but she has not returned to the house even at 12.00 p.m., and at about 12.00 p.m., CW.1 informed her that mobile of CW.2 was switched off. Thereafter, CW.1 made search for CW.2, but CW.2 could not be traced out. She stated that the accused Nos.1 and 2 were frequently visiting their shop and used to kindle CW.2 and hence, she told PW.1 that she is having suspicion on accused Nos.1 and 2. Thereafter, PW.1 had given complaint and after 3 - 4 days of lodging the complaint, she came to know that CW.2 was rescued from accused Nos.1 and 2 17 S.C.No.621/2014 and brought from Hyderabad to Kengeri Police Station. She deposed that CW.2 told her that the accused Nos.1 and 2 abducted her to Hyderabad and by confining her in a room they compelled her to marry accused No.1. During the cross-examination on behalf of accused No.1, she denied that CW.2 with consent went with accused No.1 to Hyderabad and she was unrelieved with accused Nos.1 and 2 in Hyderabad.
18. PW.4 - Prakash who is the alleged witness to recovery mahazar dated 03.09.2011 turned hostile. He stated that about five years back, Kengeri Police summoned him to Police Station and obtained his signature on a document and he does not know the contents of the said document. He stated that he has not seen accused Nos.1 and 2 prior to seeing them before the Court. He stated that when he signed the document in Police Station there was no vehicle. During the cross- examination by the learned Public Prosecutor, he denied seizure of Tata Sumo vehicle bearing Reg.No.KA-42-1239 in the presence of accused by drawing Ex.P2 - mahazar 18 S.C.No.621/2014 in his presence on 03.09.2011 from 3.00 p.m., to 4.00 p.m.
19. PW.5 - Kumar in his evidence deposed that PW.1 is his brother and PW.2 is his sister-in-law and PW.3 is mother of PW.2. He stated that on 26.08.2011 he and PW.1 and PW.2 had been to his native place in Hanumapura Doddi and they stayed there for three days. That on request of PW.1, he on the morning of 29.08.2011 took PW.2 in his motorcycle and dropped her in Kengeri Bus Station at about 8.30 am., and went to Srinagar on his duty and at about 1.00 a.m., PW.1 called him over phone and told that PW.2 not returned to the house and thereafter, search was made to trace out PW.2 and since she could not be traced out, PW.1 lodged complaint before Kengeri Police Station regarding missing of PW.2. He stated that subsequently, the Police traced out PW.2 and accused Nos.1 and 2 in Matta Village, Uppal, Hyderabad and brought them to the Police Station on 03.09.2011 and at that time he was summoned to Police Station. He stated that at that time accused No.1, PW.1, 19 S.C.No.621/2014 PW.2, and CW.7 were present and PW.2 in the Police Station stated that the accused Nos.1 and 2 with false offer of dropping her to her house abducted her in Tata Sumo to Hyderabad and compelled her to marry accused No.1 and they confined her in a room in Hyderabad. During the cross-examination on behalf of accused No.1 he denied that PW.2 was having love affair with accused No.1 and it was known to PW.1. He denied that PW.2 told accused No.1 to come to Kengeri Bus Stop at 8.30 a.m., on 29.08.2011 and she her own accord voluntarily went with accused.
20. PW.6 - Dr. Pradeep Kumar M.V., deposed in is evidence that on 04.09.2011 on request of Police Sub Inspector of Kengeri, Bengaluru he examined accused No.1 and on local genital examination of accused No.1 he found that the accused No.1 is capable of performing intercourse, but the evidence of signs of recent sexual intercourse was absent on accused No.1 and in that regard he has given report as per Ex.P3. 20
S.C.No.621/2014
21. PW.7 - Dr. Nirmala C., Associate Professor of Rajrajeshwari Medical College, Bengaluru, deposed that on 04.09.2011 afternoon at about 12.50 p.m., WPC No.10311 - Chandramma of Kengeri Police Station brought PW.2 along with requisition from I.O., for examination and to give report as there was recent sexual intercourse on PW.2. She stated that on enquiring about her history, PW.2 told her that she is having two children and she begotten one child through cesarean delivery and another child through normal delivery. She stated that on medical examination of PW.2, no injury was found in the vagina of PW.2 and her hymen was ruptured long back and on local genital examination of PW.2 she found that the evidence of sign of recent sexual intercourse was absent. She stated that since PW.2 had two children she was used to sexual intercourse long back and after examination she has given report as per Ex.P4.
22. PW.8 - Deepak B.K., turned hostile. He denied his alleged signature in Ex.P2 mahazar dated 21 S.C.No.621/2014 29.08.2011. During the cross-examination by the learned Public Prosecutor, he denied seizure of Tata Sumo vehicle bearing Reg.No.KA-42-1239 in the presence of accused Nos.1 and 2 and CW.4 by drawing Ex.P2 mahazar in his presence on 03.09.2011 from 3.00 p.m., to 4.00 p.m.
23. PW.9 - P. Chowdaraj, the then P.C., of Kengeri Police Station deposed in his evidence that for tracing out accused No.1 and victim in Crime No.242/2011, CW.15 - I.O., took him and other staffs to Matta Village, Uppal of Hyderabad and there when they confronted photograph of PW.2 to CW.9 - Anjaneyalu, he identified the photograph of PW.2 and he shown the rented house where PW.2, accused Nos.1 and 2 were staying and immediately, CW.15, he and other staffs went to the said room and taken PW.2, accused Nos.1 and 2 to their custody and returned to the Police Station along with Tata Sumo vehicle bearing Reg.No.KA-42-1239 at 2.30 p.m., on 03.09.2011.
24. PW.10 - H.R. Siddalingaiah, the then PSI of Kengeri Police Station in his evidence deposed that on 22 S.C.No.621/2014 31.08.2011 morning at about 10.30 a.m., when he was in-charge of Police Station, CW.1 lodged complaint regarding missing of his wife as per Ex.P1 and on receipt of Ex.P1, he got registered Ex.P5 - FIR in Crime No.242/2011 regarding missing of PW.2 and after receipt of complaint, he informed all the Police Station through wireless regarding missing of PW.2 and he handed over the case file for further investigation to PW.15/CW.11.
25. PW.15 - Mallikarjuna N.C., the then PSI of Kengeri Police Station deposed that on 01.09.2011 PW.10 Siddalingaiah handed over the case file of this case to him for further investigation and on the same day on receiving of credible information that PW.2- Sowmya was along with accused No.1 in Hyderabad, on the same day night he along with his staffs PW-9 Chowdaraju and CW.13 - Shivanna went to Matta Village, Hyderabad and on 02.09.2011 he taken PW.2, accused Nos.1 and 2 to his custody at 2.00 a.m., on 02.09.2011 from a room where they were staying. He stated that he along with accused, PW.2 and Tata Sumo vehicle bearing Reg.No.KA-42-1239 23 S.C.No.621/2014 returned to the Police Station and on return to the Police Station he obtained statement of PW.2 got marked as Ex.P6 in the Police Station and based on Ex.P6, he got registered second FIR as per Ex.P7 in Crime No.242/2011 for the offences punishable under Sections 366 and 342 read with Section 34 of IPC. He stated that thereafter, he recorded voluntary statement of accused and later he by drawing mahazar as per Ex.P2 seized the Tata Sumo vehicle bearing Reg.No.KA-42-1239 used for commission of offence in the presence of Panchas PW8 - Deepak and PW.4 - Prakash and subjected it under P.F.No.84/2011. He stated that on 04.09.2011 through his staff he sent accused No.1 and PW.2 for medical examination to Rarjarajeshwari Hospital and thereafter, on the same day he got produced accused Nos.1 and 2 before the concerned Court and after completion of investigation he filed the charge sheet against the accused Nos.1 and 2. He identified accused Nos.1 and 2 in the Court. During the cross-examination on behalf of accused No.1, he stated that he has been suspended from duty for the last one year. He stated that he along with his staff went to 24 S.C.No.621/2014 Hyderabad in a private vehicle and there is entry in the movement register for he and his staff having went to Hyderabad.
26. Now let me consider whether based on the above evidence, the prosecution has proved the case against accused Nos.1 and 2 beyond all reasonable doubt.
27. In the case of Jinesh Lal Sah vs. State of Bihar, reported in (2003) 1 SCC 605, the Hon'ble Apex Court held that 'to establish charge under Section 366, there should be acceptable evidence to show that girl was compelled to marry accused against her will or forced or induced to intercourse against her will and the prosecution is required to prove that there was some such undue force on the girl either to marry the accused or to have intercourse with him.' Thus from the above precedent it is clear that Section 366 of IPC requires kidnapping or abduction of victim with a requisite intent and intent must be to compel her to marry any person against her will or in 25 S.C.No.621/2014 order that she may be forced or seduced to illicit intercourse the proof of such intention is necessary for attracting Section 366 of IPC.
28. In the light of the aforesaid precedent and settled principles of law, let me consider the evidence of PW.2. It is pertinent to note that except the evidence of PW.2 there are no other direct evidence to show that PW.2 was abducted for compelling her to marry accused No.1 against her will. No doubt, it is settled proposition of law that if the sole testimony of prosecutrix is wholly reliable and credible then the conviction can be based thereon. Now let me consider whether the evidence of PW.2 is reliable or not?
29. PW.2 in her evidence stated that at about 7.30 a.m., on 29.08.2011 when she was waiting for the Bus near Madhu Petrol Bunk, Kengeri, Bengaluru, the accused No.1 who was known to her came in Tata Sumo Vehicle along with accused No.2 and offered her to give lift to her house and when she sat in the vehicle, said vehicle proceeded towards Uttarahalli instead of 26 S.C.No.621/2014 Kodipalya and when she questioned regarding the same with accused No.1, he threatened PW.2 and persuaded her to marry him and despite of her refusal and request to leave her, they proceeded in the vehicle. She stated that when she was traveling in the vehicle, the accused gave her juice and thereafter, she fell unconscious and when she regained conscious, the accused No.1 told that they were in Hyderabad.
30. It is pertinent to note that Ex.P6 - statement of PW.2 is silent regarding the allegation of giving juice by the accused to PW.2 during taking her in vehicle or PW.2 getting unconscious in the vehicle and regaining conscious in Hyderabad. During the chief-examination itself she stated that she cannot say the particular place where she was confined in Hyderabad and she has not stated as to how she was confined. Even though in her chief-examination she deposed that the accused Nos.1 and 2 by confining her in a room compelled her to marry accused No.1, during the cross-examination on behalf of accused No.2 she admitted that the accused No.2 does 27 S.C.No.621/2014 not know anything about the incident. She stated that she does not know whether the accused No.1 took the vehicle of accused No.2 for hire.
31. It is pertinent to note that as per the evidence and statement of PW.2 she has not raised any alarm either during the alleged travel or during her alleged confinement in a rented house in Matta Village, Uppal, Hyderabad and no effort was made by her to inform others or to escape, hence her conduct appears to be unnatural and abnormal. It is pertinent to note that PW.1 came to know about missing of PW.2 on 29.08.2011 at about 10.30 a.m., but FIR registered regarding missing of PW.2 at 12.15 p.m., on 31.08.2011 and hence, there is inordinate delay of two days in lodging the FIR. The reason given in Ex.P1 - complaint regarding the delay is that PW.1 searched for PW.2 in his relatives house. PW.1 in his evidence has not stated as to the places and timings during which the alleged search was made by him. Under the facts and circumstances, I am of the view that the delay in lodging the complaint has not been 28 S.C.No.621/2014 properly explained by the prosecution. In Ex.P6 statement of PW.2 it is urged that the accused No.1's friend Gopala secured him a rented room in Matta Village of Uppal, Hyderabad where PW.2 alleged to have confined, but the aforesaid Mr. Gopala has not been neither arrayed as accused nor arrayed as witness. According to the prosecution, the accused No.1's friend Gopala secured room in the house of CW.9 - Anjaneyalu, but CW.9- Anjaneyalu has not been examined by the prosecution. PW.9 - P. Chowdaraju and PW.8 - Mallikarjun
- I.O., in their evidence have not stated at the time of taking accused Nos.1 and 2 and PW.2 to their custody from a rented room in Matta Village, near Uppal, Hyderabad, PW.2 was in a confined position.
32. The prosecution claims that during the night at about 2.00 a.m., on 02.09.2011, PW.15 along with his staff went to the rented house belonging to CW.9 in Matta Village of Uppal, Hyderabad and taken PW.2 and accused Nos.1 and 2 to their custody. It is pertinent to note that even the door number of the alleged rented room has not 29 S.C.No.621/2014 been mentioned in the charge sheet and admittedly, no mahazar was drawn in the said rented room where PW.2 alleged to have confined. Hence, the alleged wrongful confinement of PW.2 itself not established by the prosecution.
33. In the instant case, PW.4 - Prakash and PW.8- Deepak, the alleged witnesses to the recovery mahazar dated 03.09.2011 have turned hostile.
34. In the case of Jitendra vs. State of Madhya Pradesh, reported in 2003 SAR 402, the Hon'ble Apex Court held that 'in the event of independent panchas having turned hostile, the panchanama nothing but is a document written by the concerned Police Officer.' Since PW.4 and 8 have turned hostile, the recovery of Tata Sumo vehicle bearing Reg.No.KA-42-1239 by drawing mahazar as alleged, itself has not been proved by the prosecution.
35. The Hon'ble Apex Court as per the judgment dated 14.04.2018 passed in Criminal Appeal No.459/2016 30 S.C.No.621/2014 in the case of Kavitha Chandrakanth Lakhani vs. State of Maharashtra and another held that 'mere proof of abduction of a women does not attract the offence under Section 366 of IPC without proving that the woman was abducted with intent that she may be compelled or knowing it to be likely that she will be likely to be compelled to marry any person in order that she may be forced or seduced to illicit intercourse or knowing it be likely that she will be forced or seduced to intercourse.
36. From the above precedent it is clear that in order to attract Section 366 of IPC there should be compulsion on the woman to marry accused against her will or she should be forced or induced to intercourse against her will. There is no whisper in the statement or evidence of PW.2 to the effect that she was forced or induced to sexual intercourse by accused No.1. Moreover, according to the medical reports and evidence of Doctor, there was no sign of evidence of recent sexual intercourse on PW.2. It is pertinent to note that as per 31 S.C.No.621/2014 the material on record at the time of alleged incident PW.2 was a married women and there was no possibility of valid marriage between accused No.1 and PW.2 and there is no allegation in the evidence of PW.2 that the accused Nos.1 and 2 had made arrangements and preparation for the forcible marriage of PW.2 along with accused No.1.
37. PW.1 during his cross-examination stated that he does not know whether PW.2 on her own accord or volition went with accused No.1. It is the defence of accused that PW.2 voluntarily accompanied accused Nos.1 and 2 to Hyderabad on her own accord. PW.2 in her cross-examination admitted that she was acquainted with accused Nos.1 and 2 since 6 to 7 years. She also admitted that accused No.1 used to visit their shop prior to the incident. During the cross-examination she stated that PW.2 was knowing that accused No.1 was frequently visiting their Tea shop. In view of various material discrepancies in the evidence of prosecution witnesses, the say of PW.2 that she was forcibly abducted to 32 S.C.No.621/2014 Hyderabad and confined in a rented room belonging to CW.9 cannot be believed and her evidence does not appears to be trustworthy and reliable.
38. It is settled law that the burden of proof in a criminal trial never shifts and it is always the burden of prosecution to prove its case, on the basis of the acceptable evidence.
39. It is settled principle of criminal jurisprudence that a mere serious the offences the stricter the degree of proof is required since a higher degree of assurance is required to convict the accused. Though an offence may be gruesome and revolt the human conscience, accused can be convicted only on legal evidence and not on surmise and conjuncture.
40. The Hon'ble Supreme Court in Anil Sharma Sute and another vs. State of Mysore reported in 2013 Criminal Law Journal 2223 (SC) held that "Section 3 of the Indian Evidence Act -
Appreciation of evidence - Proof of - Suspicion 33 S.C.No.621/2014 however strong cannot take the place of proof - Clear and unimpeachable evidence is necessary to convict a person."
41. The Hon'ble Supreme Court in Harendra Narain Singh vs. State of Bihar, reported in AIR 1991 SC 1842 held that "If there are two possible views from the evidence on record, one pointing to the guilt of accused and another as to the innocence of the accused, then the view which is favourable to the accused is to be accepted and benefit of doubt is to be given to the accused."
42. Therefore, on appreciating the entire evidence on record and considering the above precedents, I am of the view that the prosecution has failed to prove its case beyond all reasonable doubt and as such, accused Nos.1 and 2 are entitled for acquittal on benefit of doubt. Hence, point Nos.1 and 2 are answered in the negative.
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43. From the perusal of record, it is notied that the Tata Sumo vehicle bearing Reg.No.KA-42-1239 alleged to have seized in this case was released to its R.C. Owner - Sri Avilash C., by the learned III ACMM, Bengaluru as per the order dated 07.09.2011 and since till date, no rival claims has been made in respect of the aforesaid vehicle, I am of the view that the release of the vehicle made in favour of R.C. Owner/petitioner- Sri Avilash C., should be made absolute.
44. Point No.3 :- In view of the reasons discussed above, I proceed to pass the following:-
ORDER Acting under Section 235 (1) of Cr.P.C, accused Nos.1 and 2 are acquitted in respect of the offences punishable under Sections 366 and 342 read with Section 34 of IPC.
The earlier bail bonds executed by the accused Nos.1 and 2 and their sureties are hereby canceled.
Acting under Section 452 of Cr.P.C., the release of Tata Sumo vehicle bearing Reg.No.KA-42-1239 made to the interim 35 S.C.No.621/2014 custody of its R.C. Owner - Sri Avilash C., is made absolute.
Office is hereby directed to take personal bond for a sum of Rs.50,000/- each from accused Nos.1 and 2 with a surety for the like sum in compliance of Section 437(A) of Cr.P.C. (Dictated to the Judgment Writer, transcribed and computerized by him, transcript thereof corrected and then pronounced by me in the open Court this the 10th day of October, 2018.) (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
ANN EXURE List of witnesses examined on behalf of prosecution :-
PW.1 : Sri Sheshachala,
PW.2 : Smt Sowmya,
PW.3 : Smt Susheelamma,
PW.4 : Sri Prakash,
PW.5 : Sri Kumar,
PW.6 : Dr. Pradeep Kumar M.V.,
PW.7 : Dr. Nirmala C.,
PW.8 : Sri Deepak B.K.,
PW.9 : Sri P. Chowdaraj,
PW.10 : Sri H.R. Siddalingaiah,
PW.11 : Sri Mallikarjuna N.C.
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List of exhibits marked on behalf of prosecution :-
Ex.P1 : Complaint dated 31.08.2011, Ex.P1(a) : Signature of PW.1, Ex.P.1(b) : Signature of PW.10, Ex.P2 : Mahazar, Ex.P2(a) : Signature of PW.3, Ex.P3 : Report given by PW.6 Ex.P3(a) : Signature of PW.6, Ex.P4 : Report given by PW.7, Ex.P4(a) : Signature of PW.7, Ex.P5 : First FIR dated 31.08.2011, Ex.P5(a) : Signature of PW.10, Ex.P6 : Statement of PW.2, Ex.P6(a) : Signature of PW.11, Ex.P7 : Second FIR, Ex.P7(a) : Signature of PW.11.
List of material objects marked on behalf of prosecution :-
NIL List of witnesses examined on behalf of defence :-
NIL List of exhibits marked on behalf of defence :-
NIL List of material objects marked on behalf of defence :-
NIL 37 S.C.No.621/2014 (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
HRN/-