Karnataka High Court
Shivanand Yamanappa Mang vs The State Of Karnataka on 28 June, 2023
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NC: 2023:KHC-D:6448
CRL.A No. 100224 of 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100224 OF 2014 (C-)
BETWEEN:
SHIVANAND YAMANAPPA MANG,
AGE: 22 YEARS, OCC: STUDENT,
R/O: YADRAON, TQ: RAIBAG,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. VIJAY K. NAIK, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH RAIBAG P S,
R/BY ADDL.STATE P.P.
HIGH COURT OF KARNATAKA,
Digitally DHARWAD.
signed by J
MAMATHA
J
MAMATHA Date:
2023.07.06
...RESPONDENT
11:06:26 -
0700
(BY SRI. PRAVEEN UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET-ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE FOR THE OFFENCE UNDER SECTION 366(A)OF THE
INDIAN PENAL CODE, 1860 DATED: 21.11.2014 PASSED IN
S.C.NO.411/2011 BY THE LEARNED VIII ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI, BY ACQUITTING THE APPELLANT OF
ALL THE CHARGES.
THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:6448
CRL.A No. 100224 of 2014
JUDGMENT
Appellant/accused feeling aggrieved by judgment of trial Court on the file of VIII Additional District and Sessions Judge, Belagavi, in S.C.No.411/2011 dated 21.11.2014, preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 24.06.2011 in the morning about 6.30 a.m. minor victim girl aged about 16 years, went to Yadraon bus-stand. At about 7.30 a.m. victim boarded KSRTC bus to go to chikkodi for attending the college. The accused also boarded the same bus and after alighting from the bus at chikkodi, accused told victim that he is going to marry, since he is in love with her. Accused has also further threatened that he will commit suicide by leaving death note in the name of victim. On such inducement made the victim to accompany him. In spite of her resistance accused took her from chikkodi to Belagavi and then to Goa. On 25.06.2011 they stayed in Goa for four days and thereafter -3- NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 they came back to Kerur village of chikkodidi taluka. Accused kept the victim in a house of Vilas Dang. On 01.07.2011 at about 8.00 p.m. during night accused had forcible sexual intercourse with victim, though she objected for the same and committed penetrative sexual intercourse against her will. On these allegations made in complaint, the case was registered in Raibag Police station in crime No.185/2011 for the offences punishable under Sections 376 and 366(A) of IPC. The investigation officer on completion of investigation filed the charge sheet.
4. In response to the summons, accused has appeared before the trial Court through counsel. The trial Court after being prima-facie satisfied framed the charges against accused for the aforesaid offences. Accused pleaded not guilty and claimed to be tried. Prosecution in order to prove the allegations made against accused relied on the evidence of PWs.1 to 22 and documents Exs.P.1 to 29 so also identified M.O.Nos.1 to 5.
5. On closure of the prosecution evidence, statement of accused under Section 313 of Cr.P.C, came to be recorded. -4-
NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 Accused denied all the incriminating material evidence appearing against him and claimed that false case is filed. Trial Court after appreciating the evidence on record acquitted the accused for the offence punishable under Section 376 of IPC. However, convicted the accused for the offence punishable under Section 366A of IPC.
6. Appellant/accused challenged the said judgment of conviction and imposition of sentence for the offence punishable under Section 366(A) of IPC and contended that the trial Court has not properly appreciated the evidence on record and recorded erroneous finding in holding that the charge against accused for the offence punishable under Section 366(A) of IPC is proved by the prosecution. The evidence of Victim-P.W.1 and her brother-P.W.2 has not been properly appreciated by the trial Court. The trial Court has not considered the evidence of P.Ws.9 and 10 and they have not supported the case of the prosecution that accused and victim were stayed in his house, so as to sustain the charge under Section 366A of IPC. The approach and appreciation of oral and documentary evidence by trial Court is contrary to law and evidence on record. Therefore, prayed for allowing appeal and -5- NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 to set-aside the judgment of conviction and order of sentence imposed by trial Court. Consequently, to acquit the accused for the offence punishable under Section 366A of IPC.
7. In response to notice of appeal, the learned HCGP appeared for respondent.
8. Heard the arguments both sides.
9. On the strength of complaint filed by the brother of complainant-P.W.1 case was registered against accused in Raibag Police station in crime No.185/2011 for the offences punishable under Sections 376 and 366(A) of IPC. The brother of victim earlier has filed missing complaint-Ex.P.1. The victim was not traced from the date of filing of missing complaint on 27.06.2011 till 08.07.2011. On victim returning to home, the brother of victim has filed another complaint. On the alleged revelation of victim-P.W.1 about penetrative sexual assault on her in between 27.06.2011 till 08.07.2011. On trial the accused was acquitted for the offence punishable under Section 376 of IPC. The judgment of the trial Court acquitting the accused for the offence punishable under Section 376 of IPC has not been challenged by the State by filing appeal. Therefore, the -6- NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 judgment passed by trial Court in acquitting the accused for the offence punishable under Section 376 of IPC has attend finality. The scope of present appeal is only to decide the correctness and legality of the judgment of the trial Court only with respect the offence under Section 366A of IPC.
10. On perusal of the complaint filed by P.W.2 as per Ex.P.1 after victim returning to the home would go to show that victim left the house on 24.06.2011 at about 6.30 a.m. stating that she is going to attend the college. Thereafter, she did not return to home. The brother of victim-P.W.2 has filed missing complaint on 27.06.2011. On 08.07.2010 at about 2.00 p.m. while complainant was in the house with his parents, the victim came to home by crying. On enquiry with victim as to where she had gone for all these days, victim revealed that accused told that he is in love with her and if she do not respond to the same, he will commit suicide by leaving death note. On such threat, accused induced the complainant to accompany him. Accused carried the victim to Belagavi, Goa and kerur. During the said period accused has committed penetrative sexual assault on victim against her will in spite of her resistance. Accused left the victim in Raibag bus-stand and victim reached -7- NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 the home. On the alleged revelation made by the victim, her brother P.W.2 filed the complaint as per Ex.P.2. The material witness speaks on the allegation of charge under Section 366(A) of I.P.C are PWs.1 and 2. PW.1 in her entire examination in chief does not speak anything that accused having carried her from Chikkodi by force to the places at Belagavi, Goa, Kerur. PW.1 has deposed to the effect that accused committed sexual intercourse forcefully against her will. PW.1 from 24.6.2011 till 8.7.2011 was in the company of accused and had enough opportunity to make hue and cry and object the accused for carrying victim by force. However, the cross examination of PW.1 would reveal that accused is knowing the victim prior to 24.6.2011 and there was bodily contact between herself and accused. PW.1 has further stated, when she was got examined in the hospital of Belagavi, doctor enquired about her pregnancy of two months. PW.1 has further stated in the cross examination that earlier to 24.6.2011, herself and accused use to meet each other at the outskirts of village. The accused has given one mobile phone and from the said mobile phone, she used to contact with accused for four -8- NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 months earlier to 24.6.2011. PW.1 victim belongs to Lingayath community and accused belongs to schedule caste.
11. The evidence of PW.2/brother of victim would go to show that he has spoken about filing of missing complaint as per Ex.P.1. Thereafter, on victim returning to home on the revelation made by her filed complaint Ex.P.2. The victim was untraced from 24.6.2011 till 8.7.2011. The victim was in the accompany of accused during the said period. PW.2 has admitted in cross examination that even earlier to 24.6.2011 his sister PW.1 and accused were having acquaintance with each other and they were knowing about the same. They advised PW.1 not to have such contact or any other relationship with the accused. PW.2 has further admitted that accused has given mobile to his sister and on coming to know about the said fact she was asked to return the said mobile to accused and mobile was returned to accused. If the above referred evidence of victim PW.1 and that of her brother PW.2 are read together, then it is evident that accused and victim were knowing each other even much prior to 24.6.2011 and they were meeting at the outskirts of village. The victim and accused were studying in the same college and they were minors as per the evidence -9- NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 of PW.7 and birth certificates Ex.P.5 and 6. The evidence of PWs.1 and 2 would also further go to show that victim accompanied the accused without there being any resistance and they were having contact with each other even much prior to the date of filing missing complaint on 24.6.2011. PW.2 admitted the fact that his sister was in contact with accused even much prior to 24.6.2011 and victim was advised not to continue her contact with accused. However, in spite of that both of them continued to move together in outskirts of village and thereafter from 24.6.2011 moved the places at Belagavi, Goa, Kerur till 8.7.2011 and in all these places, though the victim PW.1 was having every opportunity to raise alarm complaining about she being carried by accused under force against her will. However, victim without raising any objections, she accompanied the accused. The said conduct of victim would go to show that victim has voluntarily accompanied the accused to be out of house from 24.6.2011 to 8.7.201. The trial Court for the reasons recorded in paragraphs No. 33, 34 and 36 of the judgment has observed and held that victim was minor and she was carried out of the custody of her guardian from 24.6.2011 to 8.7.2011 and thereafter, concluded that the
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NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 prosecution has proved the accused has induced victim to leave her house by holding promise to marry her. On such finding convicted the accused for the offence punishable under Section 366(A) of I.P.C.
12. The prosecution in order to attract penal action in terms of Section 366(A) of I.P.C. must prove the legal requirement of offence under Section 366(A) of I.P.C. which reads as under:
366A. Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
(Underlined by me) On careful perusal of the said proviso, it would go to show that force or inducement to have illicit intercourse with any other person is necessary to attract penal action in terms of Section 366(A) of I.P.C.
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NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014
13. Learned counsel for the appellant in support of his contention relied on the Division Bench judgment of this Court in STATE OF KARNATAKA BY KUDUR POLICE RAMANAGAR DISTRICT VS. S.P.MAHESHA. In the said judgment relying on the judgment of Hon'ble Apex Court Sat Prakash V/s. State of Haryana and another, reported in (2015) 16 SCC 475 and Parminder Kaur Alias P.P.Kaur Alias Soni V/s. State of Punjab, reported in (2020) SCC online SC 605 held that, prosecution has failed to make out an offence under Section 366(A) of I.P.C. On appreciation of evidence on record it has been held that offence under Section 366(A) of I.P.C. is not attracted. The required evidence to prove the force or inducement to have illicit intercourse with another person is necessary ingredients to prove the offence under Section 366(A) of I.P.C.
14. Learned HCGP has argued that if ingredients of Section 366(A) of I.P.C. is not made out, then accused may be convicted for the lesser offence under Section 366 of I.P.C without there being any specific charge for the said offence in terms of Section 464 of Cr.P.C. It is true that effect of omission to frame charge or absence of error in charge cannot
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NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 be a ground to acquit the accused. There must be evidence on record to prove the lesser offence, if evidence is available, then not withstanding specific charge for the lesser offence, the accused can be convicted. In the present case, in order to attract penal action either under Section 363 of 366 of I.P.C. there is no reliable evidence placed on record by the prosecution. The evidence of PWs.1 and 2 is not sufficient to hold the accused being guilty of the offences punishable either under Sections 363 or 366 of I.P.C. The trial Court without noticing the legal requirement for holding the accused guilty for the offence under Section 366(A) of I.P.C. that force or inducement to have illicit intercourse with another person is not proved by the prosecution, proceeded to record erroneous finding that prosecution has proved the offence under Section 366A of IPC. The entire allegation as per the case of prosecution is only against the accused and there is no another person other than the accused in order to attract penal action in terms of Section 366(A) of I.P.C. Therefore, the trial Court was not justified in convicting the accused for the offence punishable under Section 366(A) of I.P.C. Therefore,
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NC: 2023:KHC-D:6448 CRL.A No. 100224 of 2014 interference of this Court is required. Consequently proceed to pass the following:
ORDER Appeal filed by appellant/accused is hereby allowed. The judgment of trial Court on the file of VIII Additional District and Sessions Judge, Belagavi, in S.C.No.411/2011, dated 21.11.2014 in conducting case for the offence punishable under Section 366(A) of I.P.C. and imposition of sentence is hereby set aside.
The accused is acquitted for the offence punishable under Section 366(A) of I.P.C.
The registry is directed to transmit the records along with copy of this judgment.
(Sd/-) JUDGE AC,VB List No.: 1 Sl No.: 43