Karnataka High Court
The State By Chitradurga vs Ajith @ Ajith Kumar on 28 November, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
-1-
CRL.A. No.447 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A NO.447 OF 2017 (A)
BETWEEN:
THE STATE BY CHITRADURGA
RURAL POLICE STATION
REPRESENTED BY STATE
PUBLIC PROSECUTOR
HIGH COUURT BUILDING
BENGALURU-560 001
...APPELLANT
(BY MR.B.N.JAGADEESH, ADDL. SPP)
AND:
1. AJITH @ AJITH KUMAR
S/O.BRAHMANANDA
AGE:26 YEARS, WORKING AT
SNADER ELECTRICAL COMPANY
RESIDING AT JIGANI, BENGALURU
NATIVE OF BEDAREDDIHALLI VILLAGE
CHELLAKERE TALUK
CHITRADURGA DISTRICT-577 522
2. SHARMILA
W/O.NAGARAJA
AGE: 32 YEARS
HOUSE WIFE
3. NAGARAJA
S/OCHENNAMALLAPPA
AGE 37 YEARS
OCCUPATION: TAILOR
ACCUSED NO.2 AND 3 ARE RESIDING AT
DODDASIDDAVVANA GRAMA
CHITRADURGA TALUK-577 501
-2-
CRL.A. No.447 of 2017
4. H.C.RAMESH
S/O.GURUMURTHY
AGED ABOUT 53 YEARS
R/AT D.S.HALLI VILLAGE
CHITRADURGA TALUK
CHITRADURGA DISTRICT
...RESPONDENTS
(BY SRI.N.SRINIVAS, ADVOCATE FOR R1 TO R3
R4- SERVED)
-------
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) &
(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL DATED
22.11.2016 PASSED BY THE LEARNED SPECIAL II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL.C (POSCO)
NO.28/2015 THEREBY ACQUITTING THE RESPONDENTS/ACCUSED
OF THE OFFENCES P/U/S 109, 342, 363, 506 R/W 34 OF IPC AND
SEC.8 OF POSCO ACT AND SEC.9 OF POSCO ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 23.08.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI, J.,
DELIVERED THE FOLLOWING:
-3-
CRL.A. No.447 of 2017
JUDGMENT
Appellant/State feeling aggrieved by judgment of Trial Court on the file of Special II Additional District and Sessions Judge, Chitradurga in Special Case (POCSO) No.28/2015 dated 22.11.2016 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 daughter of complainant-H.G.Ramesh, aged about 17 years studying in Chitradurga Government I Grade College in B.Com I year was traveling from Doddasiddavvanahalli to Chitradurga everyday. On 29.11.2014, the daughter of complainant went out of the house at 10.00 A.M. for getting zerox of her books and she did not return to the house till the evening. Complainant made search for his daughter with his relatives in Chitradurga and other places. However, she was not traced and hence, complainant filed missing complaint of his daughter on 2.12.2014. Accused No.1, at -4- CRL.A. No.447 of 2017 the instance of accused Nos.2 and 3 and on their abetment, threatened the complainant's daughter, and against her will took her from Chitradurga to Bengaluru by kidnapping and secretly married her. Accused No.1 in spite of knowing that daughter of complainant was minor, with an intention to marry her and in prosecution of such intention, kidnapped her from Chitradurga. On these allegations made in the complaint, the Investigating Officer having carried out investigation filed charge sheet against accused for the offences punishable under Sections 109, 342, 363, 366, 506 r/w Section 34 of IPC and Section 8 of Protection of Children from Sexual Offences (POCSO) Act, 2012 and Section 9 of Prohibition of Child Marriage Act, 2006.
4. In response to the summons, accused Nos.1 to 3 appeared through their counsel. The Trial Court on being prima facie satisfied of charge sheet materials framed charges against accused for the offences alleged against them. All the accused pleaded not guilty and claimed to be -5- CRL.A. No.447 of 2017 tried. Prosecution in order to prove the allegations made against the accused relied on the oral testimony of PWs.1 to 21 and documents Exs.P.1 to P.33.
5. On closure of the prosecution evidence, statements of accused under Section 313 of Cr.P.C. came to be recorded. Accused have denied all the incriminating material appearing against them and claimed that false case is filed. The Trial Court after appreciation of evidence on record acquitted all the accused for the charges alleged against them.
6. Appellant/State challenging judgment of acquittal of all accused contended that the Trial Court has not properly appreciated the evidence on record. The oral evidence of PW.1-H.G.Ramesh and his wife PW.2-Mangalagowri would speak about their daughter who had gone to Chitradurga on 29.11.2014 to take zerox of her books, did not return to the house in the evening and accordingly missing complaint was filed on 2.12.2014. PW.19-victim in her evidence also substantiate the allegations made in the -6- CRL.A. No.447 of 2017 complaint Ex.P.1. The birth certificate issued by PW.6- Tarini Subhadayini Ex.P.23 would go to show the date of birth of PW.19-victim as 16.04.1997. PW.8-Rangaswamy has performed marriage of victim with accused No.1 in Mangaleshwaramma temple of Belageri village and he admits his presence in the photographs Exs.P.19 and P.20. PW.20-Shivalingappa and PW.11-Hanumanaika, panch witnesses to Ex.P.26 for having recovered the photographs Exs.P.4 to P.21 from PW.15-Veeresh would speak about the performance of marriage of accused No.1 with PW.19- victim. PW.5- S.Rangaswamy and PW.9- Ramalingappa are the panch witnesses to the panchanama Ex.P.3 drawn at the place, Chandapura Village, Hosur road, Bengaluru where victim stayed with PW.16-Lakshmi and PW.17- Sridevi at the instance of accused No.1. The statement of the victim given before the Women PSI Ex.P.22 and the one given before the Magistrate Ex.P.32 coupled with the evidence of PW.19-victim would substantiate the complaint allegations Ex.P.1. The said evidence is further corroborated by the evidence of Investigating Officer, -7- CRL.A. No.447 of 2017 PW.18-D.Raju and PW.21-N.Satish. However, the Trial Court has not appreciated their evidence in proper perspective and has committed serious error by acquitting all the accused from the charges leveled against them. The findings recorded by the Trial Court are contrary to the above referred evidence on record. Therefore, prayed for allowing the appeal and to convict accused Nos.1 to 3 for the charges levelled against them.
7. In response to the notice of appeal, respondents No.1 to 3 have appeared through their counsel. Trial Court records have been secured.
8. Heard the arguments of both sides.
9. After hearing both sides and on perusal of the Trial Court records, including the impugned judgment, the following points arise for consideration:
1) Whether the prosecution has proved beyond all reasonable doubt that on 29.11.2014, the minor victim- daughter of complainant, when had been to Chitradurga for getting xerox of her books and -8- CRL.A. No.447 of 2017 accused No.1, at the instigation and abetment caused by accused Nos.2 and 3, kidnapped her from the xerox shop at Chitradurga, thereby committed the offence punishable under Section 109 r/w.
Section 34 of IPC ?
2) Whether the prosecution has proved beyond all reasonable doubt that accused No.1 on the abetment of accused Nos.2 and 3 came to Chitradurga and with an intention to marry the victim, kidnapped her from the above said place and took her to Bengaluru, thereby committed an offence punishable under Section 363 r/w. Section 34 of IPC ?
3) Whether the prosecution has proved beyond all reasonable doubt that accused No.1 at the instance and abetment of accused Nos.2 and 3 came to Chitradurga and with an intention to marry the victim, kidnapped her and married her against her will, thereby committed an offence punishable under Section 366 r/w. Section 34 of IPC ?
4) Whether the prosecution has further proved beyond all reasonable doubt that accused No.1 having kidnapped the victim from the xerox shop of Chitradurga, took her to different places and inappropriately touched her against the will of the victim, forcibly married her though knowing that she -9- CRL.A. No.447 of 2017 was a minor, thereby committed an offence punishable under Section 8 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006 ?
5) Whether the prosecution has further proved beyond all reasonable doubt that accused No.1 having kidnapped the minor victim with an intention to marry her against her will, took her to Bengaluru and illegally kept her in the house of CWs 13 to 15 under the ownership of CW.12 and wrongfully restrained her and thereby committed an offence punishable under Section 342 R/w Section 34 of IPC?
6) Whether the prosecution has proved beyond all reasonable doubt that accused No.1 knowing that victim was minor, with an intention to marry her threatened and compelled her to marry him, otherwise, he would not leave her and thereby committed an offence punishable under Section 506 r/w Section 34 of IPC ?
7) Whether the judgment of the Trial Court requires any interference by this Court ?
10. On a careful perusal of the oral and documentary evidence placed on record, the contention of the prosecution would reveal that the daughter of the
- 10 -
CRL.A. No.447 of 2017complainant PW.1- H.G.Ramesh on 29.11.2014 went to get xerox copies of her book to Chitradurga and she did not return to the house in the evening. The father of victim, PW.1-H.G.Ramesh could not trace the victim in spite of his due search and enquiry with the relatives spread in different places and as such filed missing complaint of his daughter on 02.12.2014. PW.1- H.G.Ramesh, father of victim, after coming to know from accused No.2 about accused No.1 having taken the victim, filed complaint Ex.P.1. It is on the basis of the said complaint, case was registered in Rural Police Station, Chitradurga under Crime No.478/2014. The Investigating Officer-PW.18 Raju.D has deputed a woman police constable, P.C.1319-Anitha, P.C.1106-Chidanandareddy and gave report Ex.P.30. It is thereafter PW.21-N.Satish who took up further investigation from PW.18-Raju.D, having completed the investigation filed charge sheet against accused Nos.1 to 3.
- 11 -
CRL.A. No.447 of 2017
11. The case of the prosecution entirely rests on circumstantial evidence. The law is well settled that where the case of the prosecution rest on circumstantial evidence, all the connecting circumstances to complete the chain of events must be proved to conclusively to hold that it is accused Nos.1 to 3 are guilty of the offences alleged against them.
12. The prosecution to prove the first circumstance of the PW.19-victim being minor, relied on the evidence of PW.1-H G Ramesh, PW.2-Mangalagowri, parents of PW.19- victim, so also the evidence of PW.6-Tarini Subhadayini, Principal of the College who issued the date of birth record maintained in the records Ex.P.23.
The prosecution to prove the second circumstance that PW.19-missing victim was in the house situated in Chandapura Village, Hosur road, Bengaluru, relied on the evidence of PW.1 H G Ramesh and PW.2-Mangalagowri, father and mother of the victim. PW.12-Leelavathi and PW.13-Shivamma, neighbourers of the complainant and
- 12 -
CRL.A. No.447 of 2017also PW.16-Lakshmi, PW.17-Shridevi who gave shelter to the victim and that of evidence of PW.18-Raju D who has arrested accused No.1.
The prosecution to prove the third circumstance of sexual assault, relied on the evidence of PWs. 1 and 2, father and mother of victim and PW.19-victim, coupled with the evidence of PW.20-Kamalamma S, woman PSI, who recorded the statement of PW.19-victim Ex.P.22.
The last circumstance relied by the prosecution is the marriage of victim with accused No.1. The prosecution to prove the said aspect relies on the evidence of PWs. 1 and 2, father and mother of PW.19-victim, PW.8-Rangaswami who claims to have performed the marriage of accused No.1 with the victim. The said evidence is sought to be corroborated by the evidence of PW.10-Shivalingappa and PW.11-Hanumanaik who are the panch witnesses to the panchanama for recovery of photographs Exs.P.4 to P.21 produced by PW.15-Veeresh under the panchanama Ex.P.26. The above referred circumstances relied by the
- 13 -
CRL.A. No.447 of 2017prosecution will have to be appreciated with reference to the evidence placed on record by the prosecution.
13. Before proceeding further in analysing the evidence laid in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused from the alleged offences punishable under Sections 109, 342, 363, 366, 506 r/w Section 34 of IPC and Section 8 of POCSO Act and Section 9 of Prohibition of Child Marriage Act, 2006. Therefore, accused have primarily the double benefit. Firstly, the presumption under law that, unless their guilt is proved, the accused have to be treated as innocent in the alleged crime. Secondly, the accused are already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in, the evidence placed by the prosecution in the matter is required to be analysed. The Hon'ble Apex Court in catena of judgments has laid down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of an acquittal. It
- 14 -
CRL.A. No.447 of 2017would be appropriate to refer to the latest two judgments of Hon'ble Apex Court in Jafarudheen Vs. State of Kerala reported in (2022) 8 SCC 440 at para 25 of the judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The Hon'ble Apex Court in another latest judgment in Roopwanti vs. State of Haryana and Others reported in 2023 SCC Online 179 wherein it has been observed and held in paragraph No.7 that :
- 15 -CRL.A. No.447 of 2017
"In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of a full trial is strengthened and stands fortified. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the fortified presumption of innocence. This fortification of the presumption of innocence has been held in catena of judgments by this Court."
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed on record by the prosecution.
14. The prosecution claims that PW.19-victim, daughter of PW.1-H.G.Ramesh was a minor as on the date of incident. Accused have denied the same. The prosecution to prove the age of victim relied on the evidence of PW.1- H.G.Ramesh and PW.2-Mangalagowri, parents of victim and the evidence of PW.6 - Principal of the College where PW.19-victim was studying and received the records of the college Ex.P.23 and the evidence of PW.19-victim. The
- 16 -
CRL.A. No.447 of 2017evidence of PW.19-victim and PW.6-Tarini Subhadayini, Principal of the college, would go to show that the date of birth of victim is 16.4.1997 and the date of incident is on 29.11.2014. The said evidence on record would go to show that PW.19-victim was of 17 years, 7 months, 7 days as on the date of incident. The evidence of PW.1-H G Ramesh, father of victim girl has stated that his daughter was aged 17 years as on the date of incident. The same has not been specifically denied from the accused in his cross-examination. PW.6-Tarini Subhadayini, Principal of the college has deposed that the date of birth of PW.19-victim has been recorded as 16.04.1997. The evidence of none else than PW.19-victim girl that her date of birth is 16.04.1997 has not been denied in the cross- examination. Thus, the evidence of PW.6-Tarini Subhadayini regarding the date of birth that victim was born on 16.04.1997 has not been specifically denied from the accused side. On the other hand, in her single sentence cross-examination from the accused side, it was elicited from none else than the accused himself that
- 17 -
CRL.A. No.447 of 2017before issuing admission register extract, the witness has verified the transfer certificate and the SSLC marks card submitted by the victim at the time of her admission. This statement is elicited by none else than the accused himself. Further, no denial suggestion was made from the accused side in the said statement of PW.6. In the light of the above, prosecution has proved that PW.19-victim was minor i.e., less than 18 years as on the date of incident.
15. The prosecution to prove the second circumstance regarding missing of PW.19-victim, relies on the evidence of PW.1-H.G.Ramesh and PW.2-Mangalagowri (parents); PW.12-Leelavathi and PW.13-Shivamma, who were the neighbourers of complainant; so also the evidence of PW.16-Laxmi, PW.17-Shridevi, who were the tenants of PW.14-Subbamma where the victim was alleged to have been confined from 29.11.2014 till 07.12.2014.
16. The evidence of PW.1-H.G.Ramesh and PW.2- Mangalagowri, parents of the victim, would go to show that their daughter left the house on 29.11.2014 by saying
- 18 -
CRL.A. No.447 of 2017that she was going to Chitradurga for getting xerox of the book at 10.00 A.M. and she did not return to the home in the evening. They searched for their daughter and enquired with their relatives at Bellary, Hosapete, Raidurga etc. but victim was not traced. Therefore, missing complaint was filed by PW.1-H.G.Ramesh on 2.12.2014.
PW.1-H.G.Ramesh further deposed to the effect that, after three days of filing missing complaint through accused No.2 he came to know that accused No.1 has taken PW.19-victim and therefore, he filed complaint against accused Nos.1 to 3 on 7.12.2014 Ex.P.1. The evidence of PW.18-Raju D, the first Investigating Officer of the case goes to show that he has deputed woman police constable P.C.1319-Anitha and P.C.1106-Chidanandareddy for tracing the accused involved in this case and on 7.12.2014, they have produced accused No.1 before him and gave report Ex.P.31.
- 19 -
CRL.A. No.447 of 2017
17. On 7.12.2014 both PW.1-H.G.Ramesh and PW.2- Mangalagowri were called to the police station since their daughter and accused No.1 have been traced. On going to the police station, through their daughter PW.19-victim, they claims to have come to know about accused No.1 having kidnapped their daughter from Chitradurga and carried to Bengaluru with an intention to marry her. Thereafter, PW.19-victim gave statement before the police Ex.P.22 and she has also given statement before the Magistrate Ex.P.32. Therefore, from the evidence of PW.1-H.G.Ramesh and PW.2-Mangalagowri, it would go to show that other than missing of their daughter from the house, their remaining evidence is based on the alleged revelation made by their daughter PW.19-victim. The primary evidence regarding the allegations made against accused is only in the form of PW.19-victim and the statement given by her before PW.20-Kamalamma Ex.P.22 and statement given by PW.19-victim given before the Magistrate Ex.P.32.
- 20 -
CRL.A. No.447 of 2017
18. PW.19-victim has deposed to the effect that she was studying in I year B.Com in Government Womens' College, Chitradurga, by traveling from her native place Doddasiddavannahalli by bus. Accused No.1 is the brother of accused No.2.
On 29.11.2014 for taking xerox of her notes, PW.19- victim left the house at 11.00 A.M. and proceeded to Chitradurga. While she was taking xerox copies, accused No.1 came to the said place and told that he is going to marry her and he will not allow her to marry any another person and even if marriage is performed, he will inform the boy that she is having an affair with him. On such threat, he asked PW.19-victim to accompany him without making any hue and cry. Accused No.1 by saying so, took PW.19-victim to Chitradurga fort and in front of Gopalaswamy pond, accused No.1 has inappropriately touched her over her chest and private part and in the evening, they came down from the fort and had dinner in the hotel by spending time upto 11.00 P.M.
- 21 -
CRL.A. No.447 of 2017Thereafter, they proceeded to Bengaluru in KSRTC bus and while traveling also, accused No.1 inappropriately touched her in spite of resistance of PW.19-victim. They reached Bengaluru in the morning at 6.00 A.M. and after fresh up, had breakfast in the bus-stand. Thereafter, they have visited Lalbagh, Cubbonpark and other places, accused No.1 moved by holding hand and kissed her. They spent time upto 4.00 P.M., then came to Railway Station. After having dinner came to bus-stand and reached Challakere.
After reaching Challakere, they had lunch and accused No.1 took PW.19-victim to Corporation park and thereafter, asking her to sit in the park, went from the place by saying that he is going to photo studio. After some time, accused No.1 came back to the park and in an Autorickshaw, they proceeded to Belegere village. Accused No.1 took her to Mangaleramma temple and against her will knowing that she is a minor, underwent the process of marriage and exchanged garlands. She did not raise any
- 22 -
CRL.A. No.447 of 2017alarm due to threat of accused No.1. One Veeresh took photographs of the said marriage and left the place. Thereafter, accused No.1 carried PW.19-victim to Bengaluru and kept her in the house situated at Chandapura village, Hosur Road, Bengaluru, where she stayed with PW.16-Lakshmi and PW.17-Sridevi. Accused No.1 stated before them that PW.19-victim is his friend and she is in search of job, further he requested them to accommodate PW.19-victim in their house. Accused No.1 left the said place stating that he is having night duty. PW.19-victim has disclosed before PW.16-Lakshmi that accused No.1 has forcibly married her and brought her against her will, further expressed her desire to talk to her parents, as such requested PW.16-Lakshmi to give her mobile, but she refused to give on the pretext that she has no currency and further she also refused to give mobile even to make miss call to her parents. She stayed in the said house for one week and accused No.1 was in search of a separate house.
- 23 -
CRL.A. No.447 of 2017On 7.12.2014, accused No.2 called accused No.1 over phone and informed that the parents of PW.19-victim are in search of them. Therefore, accused No.1 took PW.19-victim to Chitradurga and while they were in the bus-stand, police apprehended them.
On the same day, she has narrated about the incident to her parents and also given statement before the police Ex.P.22. She was taken to Government Hospital for medical examination and then police sent her along with her parents.
On 9.12.2014, she has given statement before the Magistrate and on going through the statement given by her before the Magistrate Ex.P.32, she has signed on the said statement.
On 23.12.2014, police called PW.19-victim and her parents to police station. Accused No.1 led the police officials and panch witnesses and shown the place where PW.19-victim stayed in the house in Chandapura village, Hosur road, Bengaluru. The police after inspecting the said house at the instance of accused No.1, prepared
- 24 -
CRL.A. No.447 of 2017panchanama Ex.P.3 and she has signed on the said panchanama. She further identifies the photographs shown to her Exs.P.4 to P.21.
19. The evidence of PW.19-victim and her parents PW.1- H.G.Ramesh, PW.2-Mangalagowri would go to show that PW.19-victim went out of the house on 29.11.2014 at 10.00 a.m. for getting xerox of her books and she did not return to the house till evening. She was traced in private bus-stand of Chitradurga along with accused No.1 by WPC 1319 Anitha and PC 1106 Chidanandareddy on 7.12.2014 and accordingly, gave a report Ex.P.31. On the same day, accused No.1 was arrested and PW.19-victim was allowed to go with her parents. It means that PW.19-victim was missing from 29.11.2014 to 07.12.2014. The evidence of PW.19-victim would go to show that she moved with accused No.1 at different places, she also took shelter in the house of PW.16-Lakshmi. PW.17-Sridevi corroborate the evidence of PW.19-victim and PW.16-Lakshmi that accused No.1 along with PW.19-victim came to the house
- 25 -
CRL.A. No.447 of 2017of PW.16-Lakshmi and she stayed in her house. The said evidence on record would go to show that PW.19-victim was with accused No.1 for all these days from 29.11.2014 to 07.12.2014. The prosecution by the above referred evidence on record has proved that PW.19-victim was missing from 29.11.2014 to 07.12.2014.
20. The third circumstance projected by the prosecution is that accused has committed sexual assault on PW.19- victim. In order to prove the said fact, the prosecution chose to rely on the evidence of PW.1-H.G.Ramesh, PW.2- Mangalagowri and PW.19-victim. The evidence of PW.1- H.G.Ramesh and PW.2-Mangalagowri, parents of PW.19- victim regarding the alleged sexual assault of accused No.1 on PW.19-victim is based on the revelation made by PW.19-victim herself when she was brought to the police station on 7.12.2014.
PW.19-victim has deposed in her evidence that accused No.1 under threat took her to Chitradurga fort and in front of Gopalaswamy pond, accused No.1 has
- 26 -
CRL.A. No.447 of 2017inappropriately touched over her chest and private part. Thereafter, they proceeded to Bengaluru in KSRTC bus and while traveling also accused No.1 inappropriately touched her in spite of resistance. They have visited Lalbagh, Cubbon park and other places, where accused No.1 moved by holding her hand kissed her. PW.19-victim while giving statement before PW.20-S.Kamalamma also reiterated the above referred fact of accused No.1 inappropriately touching her at various places in Chitradurga fort, while traveling in KSRTC bus from Chitradurga to Bengaluru and while moving in Lalbagh and Cubbon park. The said act of accused No.1 inappropriately touching PW.19-victim at various places was with sexual intent, since nothing has been brought on record in the cross-examination of PW.19-victim as an improvement in a manner known to law.
21. Whether the above referred act of accused No.1 inappropriately touching PW.19-victim amounts to a sexual assault or not has to be considered. What amounts
- 27 -
CRL.A. No.447 of 2017to sexual assault has been defined under Section 7 of the POCSO Act, which reads as under :
"Section 7 - sexual assault - whoever with the sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does not any other act with the sexual intent which involves physical contact without penetration is said to commit sexual assault."
If the evidence of PW.19-victim as referred above is appreciated, then, it is evident that evidence of PW.19- victim would meet legal requirement in terms of Section 7 of the POCSO Act. In view of the reasons recorded above, it has been held that the prosecution has proved that PW.19-victim is below 18 years. Therefore, when PW.19- victim is minor and even if it is accepted that she has moved with accused No.1 on her consent, such consent has no recognition under law.
22. The prosecution relies on the last circumstance of accused No.1 having forcibly married knowing fully well that PW.19-victim is a minor and the accused No.1 has kidnapped her from Chitradurga under threat to force her to marry with him. The prosecution to substantiate the
- 28 -
CRL.A. No.447 of 2017said allegation, relies on the evidence of PW.8- Rangaswamy who is stated to have performed the marriage of accused No.1 and the PW.19-victim. PW.10- Shivalingappa and PW.11-Hanumanaik are the panch witnesses to the seizure panchanama Ex.P.26 for seizure of photographs Exs.P.4 to P.21 produced by PW.15- Veeresh under seizure panchannama Ex.P.26. PW.15- Veeresh is said to be the photographer who has taken the photographs of marriage of accused No.1 with PW.19- victim in Mangaleramma Temple, Belagere.
PW.8-Rangaswamy has deposed to the effect that there is a temple Mangaleramma by the side of his land and identified the person before the Court as the one who had come to the temple but he has not performed the marriage of the said person with any girl and no photographs were taken. However, on seeing the photographs Exs.P.19 and P.20, admits his presence in the said photographs. The witness has been declared as hostile witness and though he has been subjected to cross-examination, nothing worth material has been
- 29 -
CRL.A. No.447 of 2017brought on record, so as to prove that PW.8-Rangaswamy has performed the marriage of accused No.1 with the girl in the photograph. It is the specific evidence of PW.8- Rangaswamy that he has only performed the pooja. The mere admission of this witness regarding his presence in the photograph in the Exs.P.19 and P.20, further the boy and the girl appearing in the said photographs had come to the temple does not by itself prove the fact that PW.8- Rangaswamy has performed their marriage. PW.10-Shivalingappa and PW.11-Hanumanaik are the panch witnesses to the recovery of photographs Exs.P.4 to P.21 under the recovery panchanama Ex.P.26. Their evidence regarding identification of boy and girl appearing in the photographs seized under the panchanama Ex.P.26 cannot be of much assistance to the case of the prosecution to prove the fact that PW.8-Rangaswamy has performed the marriage of accused No.1 with PW.19- victim. They are not the witnesses to the marriage said to have taken place in Mangaleramma temple at Belagere.
- 30 -
CRL.A. No.447 of 2017
23. The material witness is PW.15-Veeresh who is alleged to have taken photographs of the marriage of accused No.1 with PW.19-victim in Mangaleramma temple of Belagere. PW.15-Veeresh has deposed to the effect that he has not given any photographs to the police regarding the marriage of accused No.1 with Kavya, PW.19-victim. He further deposed to the effect that police came to the studio and taken 18 photographs exhibits P.4 to P.21. The witness has been declared as hostile witness by the prosecution and though he has been subjected to cross- examination, nothing worth material has been brought on record so as to prove that PW.8-Rangaswamy has performed the marriage of accused No.1 with PW.19- victim in Mangaleramma temple at Belagere. The Investigating Officer PW.21-N.Satish in his cross- examination admitted that if the photographs are taken in digital camera, the date and time will be appearing. However, he volunteers that it will appear if fixed. PW.15 Veeresh in his examination-in-chief has stated that police by taking 18 photographs, deleted the same in memory
- 31 -
CRL.A. No.447 of 2017card. PW.21-N.Sateesh, Investigating Officer has admitted in the cross-examination that if photographs are taken in digital camera, then, time and date will be reflected in the photographs. However, he volunteers that if it is fixed in the camera then the date and time of taking photographs will appear. PW.15-Veeresh claims that the photos in the memory card were deleted. If the photographs Exs.P4 to P21 are perused, then it would go to show that the said photographs does not depict the performance of marriage by PW.8-Rangaswamy. In Exs.P.19 and P.20, PW.8-Rangaswamy is appearing with accused No.1 and PW.19-victim. In view of PW.8- Rangaswamy admitting that accused No.1 and PW.19- victim had come to Mangaleramma temple, their presence in the said temple can only be accepted. PW.8- Rangaswamy claims that he had only performed the pooja and his presence in the photographs at Exs.P.19 and P.20 may be at the time of performing the pooja. However, there is no acceptable evidence to prove the marriage of accused No.1 with PW.19-victim was performed by PW.8-
- 32 -
CRL.A. No.447 of 2017Rangaswamy and the photographs at Exs.P.4 to P.21 were taken at the time of performing their marriage. Therefore, the prosecution has failed to prove the last circumstance of factum of marriage as claimed by the prosecution.
24. The prosecution out of the above referred material evidence on record has proved that PW.19-victim was minor as on the date of incident and she was missing from the lawful custody of her parents from 29.11.2014 to 7.12.2014. PW.19-victim and accused No.1 have moved to different places and accused No.1 with sexual intent has inappropriately touched PW.19-victim as deposed by her during the course of evidence and also evident from the statement given before PW.20-Kamalamma.S Ex.P.22.
25. The evidence placed on record by the prosecution would go to show that other than allegation made in the complaint Ex.P.1 by PW.1-H.G.Ramesh that accused No.2 alleged to have revealed that accused No.1 has taken PW.19-victim, accused Nos.2 and 3 were involved in this case on the premise that they have abetted accused No.1
- 33 -
CRL.A. No.447 of 2017to kidnap PW.19-victim by giving information that she had gone to Chitradurga for taking xerox of her notes. Other than uncorroborated oral testimony of PW.1-H.G.Ramesh, there is no evidence to prove accused Nos.2 and 3 have abetted accused No.1 in kidnapping PW.19-victim with an intention to marry her. The prosecution has failed to prove charge of abetment leveled against accused Nos.2 and 3.
26. The prosecution alleges that in pursuance of such abetment, accused No.1 has followed the victim and kidnapped PW.19-victim with an intention to marry her. Prosecution in order to prove the charge under Section 366 of IPC against the accused, has to establish the following ingredients :
1) That the accused induced the complainant to go from any place;
2)That such inducement was by deceitful means;
3) That such kidnapping or abduction took place with intent that the complainant may be seduced to illicit intercourse; and
- 34 -CRL.A. No.447 of 2017
4) That the accused knew it to be likely that the complainant may be seduced to illicit intercourse as the result of her kidnapping or abduction.
The above referred evidence placed on record by the prosecution does not meet the legal requirement of Section 366 of IPC that accused No.1 kidnapped PW.19- victim with an intention to compel her marriage with him and married PW.19-victim. The evidence of PW.8- Rangaswamy, PW.15-Veeresh and that of PW.19-victim does not meet the above referred legal requirement to prove the offence under Section 366 of IPC.
27. The above referred evidence of PW.1-H.G.Ramesh, PW.2-Mangalagowri and PW.19-victim would go to show that PW.19-victim was not in the custody of lawful guardianship of PW.1-H.G.Ramesh and PW.2- Mangalagowri from 29.11.2014 to 07.12.2014. The evidence of PW.19-victim would go to show that she was with accused No.1 and moving along with him in different places as deposed during the course of her evidence. The
- 35 -
CRL.A. No.447 of 2017evidence of PW.16-Lakshmi and PW.17-Sridevi would go to show that accused No.1 left PW.19-victim in the house of PW.16-Lakshmi on the pretext that she is in search of PG and requested for accommodating her and PW.19- victim stayed in the house of PW.16-Lakshmi. The said evidence on record would go to show that accused No.1 has made such arrangement of PW.19-victim to stay in the house of PW.16-Lakshmi. It means that PW.19-victim was all along in the company of accused No.1 till 7.12.2014. In terms of Section 361 of IPC whoever takes or entices minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian, is said to kidnap such minor or person from such guardianship. It is not the defence of accused No.1 that she has taken PW.19-victim, minor with consent of her parents. Therefore, the taking away of PW.19-victim who is minor by accused No.1 and moving with her to various places without the consent of lawful guardianship in terms
- 36 -
CRL.A. No.447 of 2017of Section 361 of IPC will attract penal action in terms of Section 363 of IPC. The prosecution out of the above referred evidence on record has proved that accused No.1 has committed offence under Section 363 of IPC.
28. The prosecution also alleges that PW.19-victim was wrongfully confined in the house of PW.16-Lakshmi. Admittedly, PW.16-Lakshmi and PW.17-Sridevi are staff nurses working in Narayana Hrudayalaya and they will be attending to their duties. It is not the evidence of PW.19- victim that during their absence, she was confined in the house of PW.16-Lakshmi and her movements were restricted. She was freely moving out of the house and accused No.1 also used to visit her. In the absence of positive evidence that PW.19-victim was prevented from proceedings beyond circumscribing limits, it cannot be said that PW.19-victim was wrongfully confined within the meaning of Section 340 of IPC attracting penal action in terms of Section 342 of IPC.
- 37 -
CRL.A. No.447 of 2017
29. The prosecution further alleges that accused No.1 has threatened with an intention to cause alarm to PW.19- victim committed criminal intimidation within the meaning of Section 503 of IPC attracting penal action in terms of Section 506 of IPC. PW.19-victim has freely moved with accused No.1 at various places and did not object for the same till she was apprehended by police in Chitradurga on 7.12.2014 along with accused No.1. The evidence of prosecution witnesses fall short of the legal requirement for the offence under Section 506 of IPC.
30. In view of the reasons recorded as above, the prosecution has proved the guilt of accused No.1 for the offences punishable under Sections 363 of IPC and Section 8 of the POCSO Act. Whereas the prosecution has failed to prove the charges under Section 109 R/w.Section 34, Section 366, 342 and 506 of IPC. The interference of this Court is required for the offence under Section 363 of IPC and Section 8 of the POCSO Act against accused No.1. Consequently, we proceed to pass the following :
- 38 -CRL.A. No.447 of 2017
ORDER Appeal filed by Appellant/State is hereby partly allowed;
The judgment of Trial Court on the file of Special II Additional District and Sessions Judge, Chitradurga in Special Case (POCSO) No.28/2015 dated 22.11.2016 is hereby set aside for the offence under Section 363 of IPC and Section 8 of POCSO Act.
Accused No.1 is convicted for the offence under Section 363 of IPC and Section 8 of the POCSO Act.
Acquittal of accused No.1 for the offences punishable under Sections 366, 342 and 506 of IPC and Section 9 of the Child Marriage Act, 2016 and accused Nos.2 and 3 for the offence punishable under Section 109 R/w.34 of IPC stands confirmed.
Call to hear on quantum of sentence.
SD/-
JUDGE SD/-
JUDGE rs
- 39 -CRL.A. No.447 of 2017
HEARING ON SENTENCE Heard both sides on quantum of sentence.
Learned HCGP appearing for learned Addl. SPP for appellant/State submits that accused No.1 has kidnapped PW.19-victim knowing that she is minor, took her to various places and inappropriately touched her with intention of sexual assault has been proved by the prosecution. Accused No.1 is not entitled for any leniency with respect to the offences proved against him.
Per contra, learned counsel for respondents submits that the incident in question took place in 2014 and entire family is dependent on the income of accused No.1 and he is not a habitual offender. Therefore, prayed for taking lenient view while imposing sentence including enlarging accused No.1 under the Probation of Offenders Act, 1958.
It is the sentencing policy that the sentence ordered must be proportionate to the proved offence against the accused. The imposition of sentence shall be neither exorbitant nor flee bite sentence. In the present case, accused No.1 is found guilty for the offence punishable
- 40 -CRL.A. No.447 of 2017
under Section 363 of IPC and Section 8 of the POCSO Act.
Looking to the facts and circumstances of the case, coupled with the allegations against accused No.1 in kidnapping PW.19-victim from lawful guardianship of her parents PW.1-H.G.Ramesh and PW.2-Mangalagowri, further accused No.1 has inappropriately touched PW.19- victim at various places with sexual intent. Therefore, we are of the opinion that accused No.1 is not entitled to the benefit of Probation of Offenders Act. Hence, we proceed to pass the following :
ORDER ON SENTENCE Accused No.1-Ajith @ Ajith Kumar, S/o.Brahmananda, Age :26 years, working at Snader Electrical Company, Residing at Jigani, Bengaluru, Native of Bedareddihalli Village, Chellakere Taluk, Chitradurga District-577 522 is sentenced to undergo simple imprisonment for four years and pay a fine of Rs.5,000/- and in default of payment of fine, shall undergo further
- 41 -CRL.A. No.447 of 2017
simple imprisonment for 3 months for the offence under Section 363 of IPC.
Accused No.1 as referred above is sentenced to undergo S.I. for a period of 3 years and pay a fine of Rs.5,000/- and in default of payment of fine, to undergo additional simple imprisonment for 3 months for the offence under Section 8 of POCSO Act.
The sentence of imprisonment as ordered above are ordered to run concurrently.
Accused No.1 is entitled for the benefit of set-off under Section 428 of Cr.P.C. for the period having undergone by him in judicial custody, if any, in the matter.
On realisation of fine amount, the entire fine amount is ordered to be paid to PW.19-victim.
Accused No.1 shall surrender before the Sessions Court within 30 days from today to serve the sentence.
- 42 -CRL.A. No.447 of 2017
Accused No.1 is entitled for free copy of this judgment immediately.
Registry to transmit a copy of this judgment along with Sessions Court records to the concerned Sessions Court immediately for compliance.
SD/-
JUDGE SD/-
JUDGE rs