Karnataka High Court
Lokesh S/O Narasimha Murthy vs State Of Karnataka on 14 September, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14 T H DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.873 OF 2011
BETWEEN:
Lokesh
S/o. Narasimha Murthy
Door No.270
Infront of Dodd amma Temple
8 t h Block
1 s t Main Road
Koramang ala
Bang alore.
...Appellant
(By Sri M.R. Balakrishna, Advocate)
AND:
State of Karnataka
Represented by State
Public Prosecutor
High Court Build ing
Bang alore.
...Respondent
(By Sri K. Rahul Rai, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. p raying to set aside the order dated
6/8.8.11 p assed by the Prl. District and S.J.,
Davanagere in S.C. No.43/2008 convicting the
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app ellant/accused for the offence punishab le under
Section 366 of IPC etc.
This Criminal Ap peal coming on for final hearing
this d ay, the Court d elivered the following:
JUDGMENT
This appeal is by the accused challenging the judgment of his conviction for the offence punishable under section 366 IPC. He has been sentenced to simple imprisonment of six years and fine of Rs.25,000/- with a default sentence for a period of six months. The prosecution case is:-
2. PW.3 is the daughter of PW.1. Their family was living in Kormangala extension of Bengaluru City. PW.3 was a student of 10 t h standard in a High School. The accused used to follow PW.1 and pester her with a love proposal. PW.3 coming to know of this, shifted his family to Davanagere and admitted his daughter to a school there. On 9.1.2008, accused went near the school of PW.3 at Davanagere and enticed and brought her to :: 3 ::
Bengaluru with an intention to marry. He kept her in a house situate in the 9 t h main, 3 r d cross of Hongasandra , Bommanahalli Road.
3. The prosecution examined 9 witnesses and got marked documents Ex.P.1 to P.8. Ex.D.1 to D.4 were the defence documents.
4. For convicting the accused, the trial court has believed the oral evidence of PW.3 apart from finding corroboration from the oral testimonies of PW.1 and PW.6. The trial court has specifically held that the oral evidence of PW.3 establishes that the accused brought her to Bengaluru against her will. Her age was 15 years 6 months and 26 days on the date of incident. She would qualify for the definition of the word 'woman' according to section 6(10) of IPC. It is further finding that evidence as to drawing up mahazars as per Ex.P.2 and Ex.P.3 is believable, and the contention of the defence that non examination of a woman by name :: 4 ::
Deepa, owner of the house where accused had confined PW.3, is not fatal to prosecution, as the evidence of PW.6, a woman Assistant Police Sub- Inspector would indicate that she collected a current bill from Smt. Deepa by recording her statement. Therefore the evidence of PW.6 would establish that accused confined PW.3 in the house of Smt. Deepa after kidnapping her from Davanagere.
5. I have heard the arguments of Sri. M.R. Balakrishna, learned counsel for the appellant and Sri K. Rahul Rai, learned Government Pleader for the respondent - State.
6. PW.1 and PW.3 are the main witnesses.
The evidence in regard to mahazars is not necessary to be referred to, as the evidence in that regard, whether disputed or not, does not establish the offence of kidnap. Given a reassessment to evidence of PW.1 and PW.3, it is :: 5 ::
found that PW.1 being the father of PW.3 has stated that since the accused had fallen behind his daughter when she was a student of a High School at Koramangala, he decided to shift his family to Davanagere. He has also stated that on 9.1.2008 at 1 p.m., PW.3 telephoned him and told that the accused had taken her to a park and she would return home one hour later, but she didn't. He searched for her everywhere and lodged FIR as per Ex.P.1 on the next day. The tenor of cross examination is that there was a love affair between his daughter and the accused, which he has denied.
7. In the examination-in-chief, PW.3 has stated how the accused was trying to entice her for marriage when she was going to school at Koramangala, and even though her father had asked him not to fall behind his daughter, he started pestering her again after keeping quite for :: 6 ::
sometime. She has stated that the brother of the accused, by name Vinod, was also making calls to her father, and her father decided to shift the family to Davanagere to avoid the accused. Her further statement in examination-i-chief is that on 9.1.2008 at 9.20 a.m. her father gave a drop to the school at Davanagere and, the accused who was waiting there, brought her forcibly to Bengaluru in a bus and kept her in a house from 9 t h to 13 t h January 2008. She has stated that the accused used to compel her to marry him and threatened to kill her parents if she did not agree.
8. If evidence given by PW.3 in the examination-in-chief is read, of course, it gives an impression that PW.3 might have been kidnapped by the accused in order to obtain her consent for marriage. The trial court has just placed reliance on her examination-in-chief. It has not considered the impact of her answers in the cross-
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examination on the creditworthiness of her testimony in the examination-in-chief. The essential ingredient of section 366 IPC is kidnapping or abduction of any woman with the intention of compelling her to marry a person against her will or forcing or compelling her to sexual intercourse. If a minor woman is kidnapped for compelling her to marriage, the act complained of must come under the scope of section 361 IPC. In order to find out whether these ingredients are present, the answers of PW.3 in her cross-examination are to be considered.
9. If the way PW.3 has fared in the cross-
examination is seen, it becomes very clear that there was good acquaintance between her and the accused. When the accused came near the school on 9-01-2008 to take her to Bengaluru forcibly, she could have run inside the class room or raised alarm to attract the attention of the watchman :: 8 ::
standing near the gate of the school. She could have cried for help while being taken in auto- rickshaw or the bus. After coming to Bengaluru, they stayed together for 5 days in a house. Atleast whenever the accused went out of the house, she could have brought to the notice of somebody in the building. She did no such attempt. The defence theory is that she was in love with the accused and she went voluntarily with him. PW.3 has stated that she was threatened to write the letters as per Ex.D.1 to D.4. But if those letters are seen, it is impossible to infer that she wrote them under threat. Her hand writing is so clear; she has marked love symbols, and the contents of letter appear to be poetic. In Ex.D.4, she has written, "Lokesh, I Love U & ur my husband" 500 times. Therefore, Ex.D.1 to D.4 throw light on the conduct of PW.3. They do not appear to have been written under threat. The trial court has wrongly held that the :: 9 ::
accused obtained those letters by putting threat. From the answers of PW.3 in the cross examination a clear inference can be drawn that she went with the accused voluntarily. Though PW.3 was a girl below 16 years of age, the circumstances indicate that she was not induced or compelled by the accused. In this context the judgment of Supreme Court in the case S. Varadarajan Vs. State of Madras [AIR 1965 SC 942], it is held as below:
"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 :: 10 ::
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."
10. Then in the case of Thokarlal D.Vadgama Vs. State of Gujarat [(1973) 2 SCC 413], the following are the observations of the Supreme Court.
"10. ............The word "entice" seems to involve the idea of inducement or allurement, by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on :: 11 ::
the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices', as 'used in s. 361 I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour, and content from the other. The statutory language suggests that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in s.361 I.P.C. But if the, 'guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for :: 12 ::
him to plead innocence on the ground that the minor had voluntarily come to him."
11. Applying the above principle to the facts of the case, a clear conclusion can be drawn that the trial court has erred in convicting the accused. It requires to be set aside and hence the following order.
ORDER Appeal is allowed. The judgment of the Principal District and Sessions Judge, Davanagere in SC No.43/2008 is set aside. Accused is acquitted of the offence under Section 366 IPC. His bail bond is cancelled.
Sd/-
JUDGE sd