Karnataka High Court
The State Of Karnataka vs Syed Sameer Pasha @ Sameer on 28 January, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.273 OF 2017
BETWEEN:
THE STATE OF KARNATAKA
BY WILSON GARDEN POLICE STATION,
BENGALURU,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-01.
...APPELLANT
(BY SRI: THEJESH P., HCGP)
AND
SYED SAMEER PASHA @ SAMEER
S/O ALLABAKSH,
28 YEARS, R/AT NO.11/1,
2ND FLOOR, 3RD CROSS,
LALBAGH FORT ROAD,
BENGALURU-560 004.
...RESPONDENT
(VIDE ORDER DATED 15.10.2019
SMT: RATTIHALLI GEETHA VEERANNA-
AMICUS CURIAE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL
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AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
01.08.2016 PASSED BY THE LEARNED L ADDL. CITY CIVIL
AND S.J., BANGALORE IN S.C.NO.235/2015 THEREBY
ACQUITTING THE RESPONDENT/ACCUSED OF THE OFFENCE
PUNISHABLE UNDER SECTION 366 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the State challenging the acquittal of the respondent/accused for the offence punishable under section 366 IPC.
Heard learned counsel for appellant-State and learned Amicus Curiae-Smt. Rattihalli Geetha Veeranna for respondent-accused.
2. The case of the prosecution is that PW-3-prosecutrix was aged about 16 years in the year 2014; she was preparing for her supplementary exams; the accused was known to her through her sister and brother-in-law; the accused expressed his love and intention to marry the prosecutrix, but the same was not accepted by her. On 20.03.2014 at 3.15 p.m., when she was near her house, the accused informed her that her father is waiting near the main road and on that 3 pretext, took her to the main road and kidnapped her in an autorickshaw. According to the prosecution, from Sudamnagar, accused took the victim/prosecutrix to KSRTC bus stand and from there they proceeded to Chikkamagaluru.
3. The father of the victim lodged a complaint regarding the incident on 20.03.2014, based on which, FIR was registered against the respondent/accused under section 366 IPC. The victim was brought to the police station by her parents. She was sent for medical examination and on completing the investigation, charge sheet was laid against the accused before the Court. The sessions court framed the charge under section 366 IPC. The accused denied the charge and faced trial. The prosecution examined in all eight witnesses.
3a. PWs-1 and 2 are the Medical officers, who examined the victim and issued the medical report Ex-P1. Considering the FSL report, PWs-1 and 2 were of the opinion that the victim was not used to act like that of sexual 4 intercourse. They did not find any trace of sexual violence on the victim.
3b. PW-3 is the victim girl, who deposed in conformity with the case of the prosecution. According to her, on 20.03.2014, at about 3.00 p.m., while she was playing outside, accused brainwashed her and took her to his house at Mavalli and there he proposed to marry her and when she refused to marry him, he took her to a village in Bengaluru and from there to Tamil Nadu; though accused forced her to have physical relationship, she did not agree; the accused having come to know that her father had lodged a complaint by then, he brought back her to Bengaluru on 21.03.2014 and left her in the house of his uncle. Further statement of PW-3 is that her father took her home and thereafter brought her to Wilson Garden police station.
3c. PW-4 is the father of the victim and the complainant. According to this witness, he came to know about abduction of his daughter through his wife and hence, he lodged a complaint before the police and on the next day, his friend called him over phone and stated that the victim 5 and accused were seen in the house of relatives of the accused and accordingly, he secured his daughter and produced her before the police.
3d. PW-5 is a witness to the spot mahazar-Ex-P5. 3e. PW-6 is the mother of the victim. According to her, on 20.03.2014, while the victim was playing outside, accused took her to the double road and she followed him and saw accused taking the victim in an autorickshaw. In the cross- examination, she stated that the victim was playing with two children. One of the child's name was Pooja and she did not know the name of the other girl.
3f. PW-7 is an eyewitness to the incident. According to this witness, when he was informed about the incident, he found the family members of the victim searching for the victim.
3g. PW-8 is the Investigating Officer.
4. On appreciating the above evidence, the Sessions Court was of the opinion that the prosecution has failed to 6 prove its case beyond reasonable doubt and accordingly by the impugned judgment acquitted the accused.
5. Learned HCGP appearing for the appellant-State would submit that the sessions court has committed serious error in acquitting the accused. The witnesses examined by the prosecution have consistently deposed that the accused abducted the victim from her house. The contradictions noted by the sessions court are insignificant and do not cast any doubt on the testimony of the prosecution witnesses, especially the testimony of the prosecutrix, who has unequivocally stated before the Court that on the date of the incident, the accused took her from the house to different places until she was produced before the police on 21.03.2014. Thus the prosecution having established all the ingredients of the offence, the sessions court failed to appreciate the evidence in proper perspective. The findings recorded by the sessions court are contrary to the evidence of the prosecutrix and the testimony of her parents and thus seeks to set-aside the impugned judgment and convict the accused for the above offence.
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7. Learned Amicus Curiae appearing for the respondent/accused however, while taking me through the evidence of the prosecution witnesses submitted that the case of the prosecution suffers from striking contradictions and inconsistencies. The sessions court has appreciated the evidence in proper perspective and therefore, there is no reason to interfere with the impugned judgment. Further referring to section 366 IPC, learned Amicus Curiae submitted that the provisions of IPC are not applicable to the respondent/accused. Charge under section 366 IPC could be sustained only in case where a woman has been abducted. Under the said circumstances, the provisions of Section 366 IPC are not applicable to the facts and thus sought to dismiss the appeal.
8. I have bestowed my careful consideration to the submissions made at the Bar and have carefully scrutinized the material on record.
9. At the first blush, the evidence adduced by the prosecution witnesses appears to be foolproof. But on careful 8 consideration of the same, I find that the case of the prosecution suffers from inherent contradictions and irreconcilable inconsistencies. The case of the prosecution is that the accused abducted the victim from her house and took her to KSRTC bus stand and from there, she was taken to Chikkmagaluru. But contrary to this case, during the course of her evidence, the victim has stated that on the date of the incident, the accused took her in an autorickshaw to a village in Bengaluru and from there to Tamil Nadu. Undisputedly, the house of the accused and the victim are situated at Double Road, Bengaluru. It is not clear from the evidence of the victim as to whether she was taken to a village in Bengaluru in the same autorickshaw or in any other conveyance. It is also not clear from her evidence as to how she was taken to Tamil Nadu. In appreciating her evidence, it is relevant to note that according to her, she was abducted from her house at 3.00 p.m. on 20.03.2014 and she was brought back to Bengaluru on 21.03.2014. According to PW-4 her father, she was found in the house of the relatives of the accused around 12 noon on 21.03.2014. If this time is taken into 9 consideration, it is difficult to believe that after her abduction, the victim was taken to a village in Bengaluru and from there to Tamil Nadu and from Tamil Nadu, she was brought back to accused uncle's house. Prosecution has neither cited nor examined the said uncle of the accused to corroborate the statement of the victim that she was brought to Bengaluru by the accused and was kept in his house. In this context, if the evidence of PW.7 is perused, this witness has stated that on the next day of lodging the complaint, he and father of the victim had gone to police station in the morning and at that time, the police handed over the minor girl to her father. These contradictions completely demolish the veracity of the testimony of the victim-PW-3 and her father-PW-4, wherein they have stated that the she/victim was picked up from the uncle's house of the accused.
10. There is no clarity as to who produced the victim before the police. According to the victim, she was taken to police station in the evening and she was kept in the police station on that day and thereafter she was sent to medical 10 examination. According to PW-2, he examined the victim only on 22.3.2014. All these contradictions create serious doubt in the case of the prosecution and lead to doubt the veracity of evidence given by the prosecution witnesses.
11. It is also important to note that the material witnesses examined by the prosecution are related witnesses. The circumstances brought out in their evidence goes to show that over the years, accused had developed intimacy with the victim which was opposed by her parents. Hence, with a view to dissuade the accused from coming to their house, a false complaint appears to have been lodged against the accused. Otherwise, there would not have been such serious contradictions in the evidence of the prosecution witnesses.
12. In this context, it is also relevant to note that the mother of the victim who is stated to have been present in the house when the victim was abducted has unequivocally stated before the Court that the victim was playing with two other children. She has named one of the children, but the prosecution has neither cited nor examined said child witness. 11 Likewise, the uncle of the accused in whose house the victim is said to have been traced has also not been cited or examined, making it evident that with the aid of the interested witnesses, the prosecution has sought to sustain the charge against the accused. The testimony of these witnesses fail to inspire confidence and the circumstances brought out in their evidence suggest that they are propped up witnesses and therefore, no reliance could be placed on their interested testimony. Prosecution has failed to adduce any independent evidence in proof of the charge framed against the accused. As a result, the prosecution has failed to prove the guilty of the accused beyond reasonable doubt.
13. On reconsideration of the entire material on record, I find that the sessions court has rightly acquitted the accused. The evidence adduced by the prosecution is not sufficient to hold that the accused abducted the victim girl with an intention to force her to marry him. Hence, I do not find any justifiable ground to interfere with the impugned judgment.
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For the above reasons, the appeal fails and the same is dismissed. The impugned judgment and order dated 01.08.2016 passed by the learned L Addl. City Civil & Sessions Judge, Bengaluru in Special Case No.235/2015 is confirmed.
Office is directed to pay a honorarium of Rs.15,000/- to the learned Amicus Curiae Smt. Rattihalli Geetha Veeranna, who assisted the Court on behalf of the respondent/accused.
Sd/-
JUDGE *mn/Bss