Karnataka High Court
Siddappa @ Siddu S/O. Fakirappa ... vs The State Of Karnataka on 10 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1495
Author: A.S Bellunke
Bench: A.S Bellunke
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRIMINAL APPEAL NO.2547/2011
BETWEEN:
SIDDAPPA @ SIDDU
S/O. FAKIRAPPA MELINMANI
AGE: 24 YEARS, OCC: AUTO DRIVER,
R/O: MARKANDEYA NAGAR,
BELGAUM.
...APPELLANT
(BY SRI. S.S. YADRAMI, ADV.)
AND:
THE STATE OF KARNATAKA
BY APMC POLICE, BELGAUM
REP: BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH DHARWAD.
...RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT AND
ORDER OF CONVICTION AGAINST THE APPELLANT DATED
27.12.2010 PASSED BY THE V-ADDL. SESSIONS JUDGE,
BELGAUM, IN S.C.NO.354/2009 AND ACQUIT THE
APPELLANT.
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THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal preferred by the accused against the judgment and order of conviction and sentence passed by the V Additional Sessions Judge, Belgaum in Special Case No.354/2009, dated 27.12.2010 for the commission of the offence punishable under Sections 366(A), 347, 376 and 506 of IPC.
2. The learned Sessions Judge sentenced the accused by the said judgment to undergo simple imprisonment of eight years for the offence punishable under Section 376 of IPC and to pay a fine of Rs.10,000/- in default to pay fine, further to undergo simple imprisonment of three years. The accused is sentenced to undergo simple imprisonment of three years for the offence punishable under Section 366(A) of IPC and to pay a fine of Rs.5,000/-, in default to 3 undergo further simple imprisonment of one year. The accused is also sentenced to undergo simple imprisonment of one year for the offence punishable under Section 347 of IPC and to pay fine of Rs.2,000/-, in default to undergo further simple imprisonment of six months. The accused is further sentenced to undergo simple imprisonment of one year of the offence punishable under Section 506 of IPC and to pay fine a Rs.2,000/- in default to undergo further simple imprisonment of six months.
3. Briefly stated facts are that: According to the prosecution, the daughter of complainant was studying in PU Second Year Science at St. Zeviar College, Bogarways. she had fallen in love with accused person of market yard who is a rickshaw driver. The accused driver too was insisting PW.3 to marry him. On coming to know of the fact, the complainant with his wife together advised their daughter and the accused person 4 that PW3 is minor of 17 years old and they cannot marry now. But, the accused person did not heeded their words. On 13.07.2009 as usual at 8.00 a.m. PW3 the victim left the home under the guise of attending the college but did not return to the home till evening hours. In enquiry with teachers and her friends, the complainant came to know that on that day the victim has not attended the school. Therefore, on 14.7.2009, suspecting the accused person the complainant lodged the complaint before the police alleging that their daughter was forcibly taken away by the accused person in order to marry her.
4. On the basis of above said complaint, the jurisdictional police registered crime No.118/2009 for the offence punishable under Section 366 of IPC. Subsequently, the accused and the victim were traced out in a room at Yogapur locality of Bijapur (now called as Vijayapur) by the Investigating Officer. On enquiry 5 with the victim they came to know the accused had taken away the victim on the pretext that he would marry her. He had forcibly taken her in autoricskaw in Chennamma circle. She was kept at Bijapur in rented house so that she should not contact anybody and should not escape from the said place. He had threatened to kill her. It is further alleged that the accused had sexual intercourse with the victim everyday where they stayed together in the said house. Based on such statement of the victim as well as parents of the victim, the Investigating Officer referred the victim as well as accused to the medical examination. As per medical report the accused and the victim capable of performing act of intercourse. The places where the victim was kidnapped and stayed with the accused was shown to the Investigating Officer by the victim. He conducted spot mahazar in the presence of witnesses. Statement of other material witness were also recorded by the Investigating officer. Based on the material 6 evidence, Investigating Officer found evidence against the accused. Therefore, a charge sheet came to be filed for the aforesaid offences.
5. During the course of investigation, accused who was arrested was subsequently enlarged on bail by the order of Sessions Court. The learned Magistrate took cognizance of the offences alleged and registered a criminal case against the accused for the offence punishable under Section 366 and 376 of IPC triable by the Sessions Court. Therefore, the case was committed to the Sessions Court. Learned Sessions Court registered S.C. No.354/2009 against the accused. The presence of the accused was secured. After hearing both sides, the learned Sessions Judge framed charge against the accused for the offence punishable under Sections 366(A), 347, 376, 506 of IPC. Accused pleaded not guilty and prayed for trial.
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6. The learned Sessions Judge held trial of the case, by recording evidence and hearing arguments of both sides. The learned Sessions Judge found that the prosecution has proved the guilt of the accused beyond any reasonable doubt. Therefore, learned Sessions Judge passed the impugned order of judgment and order of conviction and sentence against the appellant- accused. The learned Sessions Judge imposed sentence of imprisonment and fine as stated in the impugned judgment. Therefore, the appellant-accused has challenged the impugned judgment on following grounds:
1. The judgment and order of conviction and sentence passed by the learned trial Court is illegal, arbitrary and contrary law, evidence on record, facts and circumstances of the case.
2. The learned Judge has committed serious error in convicting the appellant relying on the evidence of PWs.1, 2, 3, 6 and 8 who 8 are none but the father, mother, brother and cousin brother of victim. Their evidence is inconsistent with each other and not corroborated by any independent witnesses.
3. The prosecution evidence is not only inconsistent with each other but also suffers from material contradictions and omissions, which go to the root of the case and falsify the entire case of the prosecution.
4. The appellant and victim were in love with each other is admitted by PW1 and PW6 has clearly deposed in his evidence that his parents used to advise victim not to fall in love with the appellant and also that they had scolded both victim and the appellant earlier. The victim denies about the existence of the love affair between herself and the appellant. But, she has admitted in her cross examination that the love affair between herself and the appellant was known to her friend.9
5. The complainant has admitted in his evidence that, on 05.07.2009, i.e., 8 days prior to the alleged incident of kidnapping of his daughter without informing her family members and on the pretext of going to her college, had gone away with the appellant to stay in a old woman's house in Azam Nagar for one entire day and night.
she returned back to her house on the next day afternoon i.e., on 06.07.2009. The complainant had scolded both of them, since they both belonged to different castes. He met the maternal uncle of the appellant and asked him to advise the appellant as both belonged to different castes. PW6 Stanley brother of the victim and PW1 Shanta have deposed that they had taken a written statement from the appellant stating that he will not do such a acts again, after the first incident.
6. Ingredients of Section 366A of IPC have not been made out by the prosecution.
7. The appellant-accused never had any intention or motive to procure victim for the 10 purpose of sexual intercourse with anybody. There is any iota of evidence to suggest that the appellant is guilty under section 366A of IPC. But, the learned trial court Judge without there being any proof convicted the appellant for the said offence. It is illegal and erroneous.
8. It is highly unreasonable to believe that said victim was kept forcibly against her will in the said house for 20 days. There were ample of chances for her to escape from the appellant's custody. The said house is situated in a densely populated area of Bijapur city and there was continuous presence of general public in that vicinity. Moreover, it was possible to escape through doors and windows of the said house. The entire house is made from cement sheets which can be very easily broken even with slightest use of force. It is also very strange that none of the neighbours nor anybody else have heard or come across any kind of altercation or any fights between them.
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9. The victim was brought back by the Police from Bijapur to Belgaum. She gave her statement to the police, about her alleged kidnapping by the appellant which is nothing but far from truth.
10. It is very clear that did not disclose about her alleged kidnapping by the appellant before any Police or the general public at Chennamma circle, before the bus conductor or fellow passengers in the bus, to the appellant's 3 friends at Bijapur, to the house owner or before anybody else during her period of stay at Yogapur. She even did not disclose before the Police when they found both of them at Yogapur. It is only after meeting with her parents and family members at the police station in Belgaum she gave a statement about her alleged kidnapping by the appellant. The victim was a consenting party. The allegation of rape by the appellant does not survive as the victim was above 16 years of age at the time of the alleged incident. 12
11. PW7, Doctor who had conducted the medical test of the victim has pined that on subjecting victim to dental, radiological and physical tests, it was found out that victim was aged between 18 to 20 years of age. Absolutely there was no evidence of any recent sexual intercourse on her.
12. The victim has stated in her statement before the A.P.M.C. Police on 01.08.2009 that the appellant threatened to kill her in the event if she tries to escape or tries to contact anyone over mobile phone, at Yogapur. But, during her evidenc,e she completely reverts back from her statement and deposed that the appellant threatened to do something to her parents while they were traveling in the auto rickshaw from Chennamma Nagar to the Central Bus stand at Belgaum. Which cannot be believed. No explanation why the police did not arrest the appellant on finding him at Yogapur even though the complaint was lodged against him for the offence of kidnapping.
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13. The complainant gaves a very vague and unacceptable reason for this delay in his evidence, that, since he had some work and reached late to his home he gave the complaint on the next day evening.
14. The complainant is not a man of trust worthiness and only with a view to take revenge on the appellant, had lodged this false complaint in collaboration with the police.
15. PW12, P.S.I. gave a very careless and unbelievable statement that since there was an apprehension that they might not get any witnesses at Bijapur, hence took the witnesses from Belgaum to Bijapur.
16. The police officer was more willing in trying to oblige and please the complainant than to follow the proper procedure as prescribed by law in such cases, thereby resulting in abuse of law.
17. The learned trial Judge without perusing the entire evidence placed before him, without interpreting the case judiciously 14 and without application of proper mind, has passed the Judgment and order of conviction hurriedly and mechanically, thereby resulting in gross injustice to the appellant.
18. The entire approach of the case by the learned Sessions court is illegal, invalid, perverse and contrary to law, facts and circumstances of the case. The entire case of the prosecution is nothing but a bundle of lies filled with inconsistencies improbabilities and infirmities, but the learned Sessions Judge without appreciating the case in human probabilities and human perspective, has come to an erroneous conclusion by assigning imaginary, improbable and unjust reasons, thereby resulting in miscarriage of justice to the appellant.
7. The learned counsel for the appellant- accused argued that the approach of the learned Sessions Judge is illegal, invalid and against to the facts 15 and evidence on record. The trial Court ignored inconsistency, contradictions and omissions and improvements in the evidence of prosecution. The alleged act was said to have caused is only by the accused. The parents of the victim have not stated the threat, kidnapping and act of intercourse committed on her. The parents also does not say in their evidence that their daughter was raped by the accused referring to the medical evidence as per Ex.P5.
8. The learned counsel submitted that the school transfer certificate produced by the prosecution disclosing the date of birth of the victim as 05.06.1992 cannot be made basis for holding that the victim was a minor and therefore, the offence of rape stands proved. The medical evidence quite against to the case of prosecution. The conduct of the victim girl and her parents would goes to show that the defence put by the 16 accused is more probable rather than the case been made out by the prosecution.
9. The learned counsel for the appellant submitted that the prosecution has miserably failed to prove the guilt of the accused. Hence, learned counsel prays to allow the appeal by setting aside the order of conviction and sentence imposed by the trial Court.
10. The learned HCGP submits that the evidence of the victim clearly proves that the girl was under
threat and made her to go from one place to another place at the instance of the accused. As per date of birth certificate issued by the school, clearly proves that the victim was minor as on the date of incident. Dentist report proves that she was aged about 16 to 18 years old. The Orthopedic has deposed that she was aged about 18 to 20 years. Therefore, learned counsel prayed to consider the date of birth certificate produced by the prosecution. The evidence of prosecution clearly proves 17 that girl was missing their guardianship. The accused and the victim were found in Yogapur. The victim has clearly stated that the accused had committed a act of rape on her and it against her consent. She was minor, therefore, all the offences alleged have been proved beyond any reasonable doubt. Hence, learned HCGP prayed to dismiss the appeal filed by the appellant-
accused.
11. The learned counsel for the appellant prayed that the medical evidence does not corroborate the prosecution case. The victim was found more than 16 years. Therefore, the act does not amount to rape. Further, there is no corroborative piece of evidence on record to prove that the victim was raped by the accused. Admittedly, both of them were loving each other. Therefore, a case has been foisted against him. 18
12. On the basis of above said facts and circumstances, the points would arise for consideration are :
1. Whether the prosecution has proved beyond any reasonable doubt that on
13.07.2009 at 8.15 a.m. at Ajam Nagar locality of Belgaum, the accused induced PW3 aged 17 years, to go from said place with intent that she will be forced to illicit intercourse with another person at Bijapur thereby committed the offence punishable under Section 366A of IPC?
2. Whether the prosecution has further proved before the trial court that on above said period and place, the accused confined minor PW3 in a house at Yogapur of Bijapur for forcible intercourse thereby committed the offence punishable under Section 347 of IPC?
3. Whether the prosecution has further proved before the trial court that on 19 above said period and place, the accused committed rape on minor PW3 thereby committed the offence punishable under Section 376 of IPC?
4. Whether the prosecution has further proved before the trial court that on above said period and place, the accused committed criminal intimidation by threatening PW3 with injury to her person thereby committed the offence punishable under Section 506 of IPC?
5. What order ?
13. Point No.1 : Answered in Negative.
Point No.2 : Answered in Negative.
Point No.3 : Answered in Negative.
Point No.4 : Answered in Negative.
Point No.5 : As per final order.
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14. The learned counsel for the appellant-
accused has relied on three rulings reported in (1) 1970(3) SCC 21 in the case of Ram Murti V/s. State of Haryana, it is held that "on the point that in order to accept the statement of the Prosecutrix that she was compelled, threatened or otherwise induced to go with the appellant, there should in our opinion, be corroboration of some material particular from some independent source and her bare statement cannot be considered sufficient to sustain the appellant's opinion."
15. The Second authority relied on ruling reported in 2003(3) SCC 175 in the case of Vimal Suresh Kamble V/s. Chaluverapinake Apal S.P and another Wherein, it is held that "In the instant case, the evidence of the Prosecutrix was not of such quality-no other evidence on record which could even lend some assurance, short of corroboration that 21 the Prosecutrix was making a truthful statement. Hence, the Judgment of High Court acquitting the accused uphed."
16. The third authority reported in 2018 SCC Online S.C. 1222, in the case of Rajak Mohammad V/s. State of Himachal Pradesh. It is held as under :
"The prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out. Therefore, have to conclude that the accused appellant deserves to be acquitted on the benefit of doubt.
17. At the very outset, it is to be borne in mind that the victim was more than 16 years old as on the date of incident. Even according to the complainant, if she is held to be less than 18 years then only offence of kidnapping or abduction would attract. So far as the 22 alleged act of kidnapping or abduction of minor girl with whatsoever purpose is to be proved by the evidence of victim herself. Because, there is no direct evidence against the accused to show that he kidnapped or abducted the victim and made her to go from one place to another place. Such kidnapping or abduction with an intention should satisfy ingredients of Section 366 and 366A of IPC. Further, to prove the other offences i.e., act of rape wrongful confinement or threat etc., against the accused only evidence available on record is that of victim only. To corroborate medical evidence on record is to be appreciated. The admitted facts of this case are that there is no allegation against the accused that he has kidnapped or abducted the girl with an intention that she would be forced or seduced to have intercourse with any person other than the accused. The allegation of the prosecution is that the accused kidnapped the victim to marry her. The act of rape is also alleged only against the accused. Therefore, on plain reading of 23 366A of IPC it requires the prosecution has failed to prove that the procuration of minor girl was with an intention that she should undergo illicit intercourse or seduced to such intercourse and thereby he made her to go one place to another place. According to Section 366-A of IPC it describes 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. If the act of kidnapping or abduction is proved that the victim was minor as on the date of incident, then the proper Sections that would be applicable is Section 366 of IPC.
18. Since no third person is involved in this case and the victim was not seduced or forced to have 24 intercourse with an another person in this case. Therefore, on prima facie examining the ingredients of Section 366A of IPC, I find that the conviction of the accused of the offence punishable under Section 366A is not sustainable in law. Therefore, the conviction of the accused for the offence punishable under Section 366A of IPC is not sustainable in law.
19. The trial Court has also convicted the accused for the offence punishable under Section 347 of IPC. To constitute the offence under the said Section, the wrongful confinement should be to extort property or constrain to illegal act. In this case, there is no allegation that the girl was in wrongful confinement to extort any property or constrain to commit any illegal act on any persons interested in her or to secure any property or valuable security and the confinement was with an intention that any person interested in such person to do any illegal act or give any information which made to facilitate commission of offence. 25 Therefore, looking Section 347 of IPC, I find that the trial Court committed error in convicting the accused for the said offence. At the most it could be stated that girl might have been in wrongful confinement and the offence that would applicable is Section 342 of IPC and if confinement was more than 10 days, then the offence applicable would be Section 344 of IPC.
20. To attract offence punishable under Section 376 of IPC the prosecution has to prove beyond reasonable doubt the ingredients that the accused had sexual intercourse with the victim. The ingredients that described the offence of rape is defined under Section 375 of IPC. Firstly it must be proved that it is against her will or without her consent. Then the consent said to have by obtained by putting her or any person in whom she is interested, in fear of death or of hurt, with her consent, when the man knows that he is not her husband and that her consent is given because she 26 believes that he is another man to whom she is or believes herself to be lawfully married, with or without consent when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, She was unable to understand the nature and consequences of that to which she gives consent. Then with or without consent that she is under the age of 16 years, 4th or 5th provisions appended to the Section 375 not relevant for this case as there is no such allegation. The date of offence is 13.07.2009, even according to the complaint at Ex.P1 filed by the father the aged of the victim was shown to be 17 years as on the date of incident. Therefore, the prosecution has to prove the act of alleged intercourse with the victim by the accused falls within the definition of rape provided under Section 375 of IPC and the explanation therein.
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21. Before deciding whether there was any kidnapping or abduction of minor girl, Court has to give finding based on evidence available on record. Because, this fact goes to the root of the case. On perusal of the judgment of the trial Court the learned Sessions Judge was swayed away by the school transfer certificate produced at Ex.P2. The entries in Ex.P2 school transfer certificate or the entries that are extracted from a register i.e., maintained by the school of the victim girl was studying. But entries to the original register would be made on the basis of information given by the parents or the birth certificate produced by the parents to the school for the first time when the girl was admitted to the school. Therefore, Ex.P2 cannot be called as a original document of evidencing the birth. It is only a certified copy of the entries made in the register. Therefore, corroboration has to be looked into from the evidence that would be there on the record. 28
22. The next evidence relied on the prosecution is Ex.P5 the medicate certificate issued by the Doctor who had examined the victim. Based on the examination of dentist, radiologist, the Doctor has given opinion that the skeletal age of the girl is 18 years. Even medical report of the accused at Ex.P5 also goes to show that she is at the age of 18 to 20 years. On perusal of the evidence on record, it is found that the person or authority who issued Ex.P2 i.e., Principal of the School in which the girl was studied up to SSLC has not been examined. As per date of birth stated at Ex.P2 it is 05.06.1992. The column at Ex.P2 girl was admitted to the said school under admission No.17/2005-06. Therefore, the first admission of the victim to the school for the first standard is neither been deposed nor any birth certificate issued by the said school, are produced.
23. Further, the father of the victim is said to be pastor in Church where the date of birth of the girl 29 would be noted in the register of baptisation as the victim belonging to Christian community. Even otherwise, the date of birth certificate would have been available as the parents are found to be illiterate. On the close scrutiny of the evidence tendered by her is that her version is found reliable and acceptable on because a young girl of 17-18 years darely states that she has been raped by the accused person not by once but on 5-6 occasions while at Bijapur that too against her will or desire by taking there forcibly, giving threat to cause injury or something otherwise to her parents.
24. The above said facts are borne out from the evidence on record. The evidence of PW1 the mother and father PW2 would only goes to show that the girl was missing from 13.07.2009. Admittedly they are eye witness for kidnapping. Even according to them, the girl left the house on that day on the ground, that she is going tuition classes and therefore, she is going to 30 school. That goes to show that the girl left the house voluntarily with the knowledge of their guardians. After tracing the victim the mother -PW1 enquired her daughter. She told her that the accused had taken her to Bijapur and kept her in room and she has not agreed for the same. The allegation of forcible sexual intercourse by the accused at Bijapur was not told to her nor to the owner as she was forcible taken and kept in that room. It is also admitted in the cross examination of PW1 that earlier to the incident on 05.07.2009 they ought to have filed complaint against the accused. They took written undertaking from the accused that he will not repeat any such acts. Though the victim is alleged to have been kept in the house of old women at Shahunagar, Belgaum but, no case has been registered against the accused for having kept the victim in the said place. Even according to evidence as on the alleged incident the father was not in a station he had gone to Goa. Suggestion is made that a daughter 31 was left with the accused, if the accused embraces Christian community then they would agree to marry their daughter. The witness denies the said suggestion. Therefore, there would be some force in the said suggestion having regard to the facts and circumstances of the case and fact that accused do not belong to Christian religion.
25. PW2 the father came to know from the friend of his daughter that she is having boy friend i.e., the accused and he had kept his daughter in the house of old women at Shahunagar, Belgaum. His daughter was traced by the Police. But no case was registered on that day. He has deposed about missing of his daughter. On 01.08.2009 Police traced the accused and the victim and the accused was shown to the parents. According to the victim the accused took her forcibly against her consent. He does not say anything about the alleged act of rape on his daughter by the accused. As parents or 32 the at least the mother PW2 must have been told by the victim as she was repeatedly raped by the accused. The earlier incident dated 05.07.2009, has not been mentioned in the complaint dated 14.07.2009. He claims to have gone along with Police and his relative to trace the accused and the victim. He admitted that his daughter did not tell him any of the acts committed by the accused. He could not say whether she was injured or not as he was not allowed to go near the victim. He has also been suggested that the victim tried to cause herself the injury as they had not consented for her marriage with the accused and he had asked the accused to convert Christianity then he will give consent for marriage of his daughter to the accused. Though the suggestion are denied, but they are sufficient to raise some doubt in the minds of the Court. The complaint could have been filed to prevent the victim from the accused to marry. These are the inferences 33 that can be drawn based on the above said facts borne out from the records.
26. Therefore, the evidence of PW1 and 2 only prove the missing of their daughter from their custody. The girl has also left the house voluntarily not on the threat or inducement given by the accused. Because, PWs1 and 2 themselves have not deposed about their daughter left the house on the ground that the accused had induced or threatened her etc.,
27. PW3 is victim herself, according to her, she was followed by accused at Chennamma circle. He forced her to come and sit inside the autorickshaw. He took her to Belgaum bus stand and from there to Bijapur in a bus. Where she was kept for 18 days in a rented house. It is alleged that the accused had forced her and had intercourse with her. Thereafter, she was brought by the Police and parents etc., Though she denies that herself and the accused had love affair, but 34 parents themselves have admitted the victim acquaintance with the accused. Admittedly victim has taken from the busiest place, within the city limit of Belgaum near a circle. Therefore, the possibility of forcing the victim to get into autorickshaw does not appear to be probable one. Admittedly that incident has not at all been corroborated by examining any independent witness who might have seen it. It is also admitted that the chennamma circle, there will be police personnel. Therefore, if she had raised any hue and cry in public, then the Police constable would have definitely rescued her. Though she denied that she was in love with the accused, but, admitted that her friend knows that she is in love with the accused. She denied that there is also mark on her chest to show that she was loving the accused. She also admits that lot of people were there near the chennamma circle. She has not noted the number of auto-rickshaw, she has not stated who was driving the said rickshaw. Admittedly, 35 the accused alone is said to have kidnapped the victim. If no other person was there while kidnapping, then she could have prevented herself from the boarding the Autorickshaw. Therefore, inference that can be drawn is that, the victim must have gone with the accused voluntarily. She further admits that on the left side road of chennamma circle there will be a Police van. She has not raised any voice while going in autorickshaw and also in the bus. She was unable to explain how the accused had threatened her, what was that nature of threat, whether there was threat of causing injury or to kill her. She further admits that there were people at bus stand, if she raised loud voice, then the Police would have reserved. She has not complained to the bus conductor or passenger while going in bus. She claims to have not at all gone out from the bus even for nature calls. She denies that she is loving the accused, therefore, she did not raise any voice. She cannot say on which road the accused took 36 her from chennamma circle towards bus stand. Admittedly, the accused has not tied her mouth or closed her eyes when she was made to sit in the autorickshaw. Then she deposed that she had been kept in rented house at Yogapur in Bijapur. Friends of the accused were also there. She has not stated before the owner of the house that she had been forcibly brought. She denies that after coming to know about her love affair with the accused by her parents she was sent to her grand father's house on 07.07.2009. Though she denies but she deposed that she did not remember on what date she had gone. Admittedly her native place is Dandeli. She did not remember on which date she was brought Police station from Bijapur. She has not answered as to what time and where the accused touched her. According to her, meals was supplied by the friends of the accused. They use to come daily once to supply meals to her. She has not at all disclosed anything about those friends before the 37 Police. The investigating Officer has not questioned the said friends of the accused. Why she did not inform the neibourers though the shed was surrounded by any houses. Her statement was not recorded in Bijapur. She contends that the accused had sexual intercourse about 4 to 5 times. Therefore, the evidence stated by the victim both in examination in chief and cross-examination on appreciation would clearly goes to show that she has tried to cover her silence in not opposing kidnapping or in not opposing alleged forcible sexual intercourse. As per medical evidence there was no injury could be consented on the victim. The act between the accused and the victim could be consented one. The only inference can be drawn if at all any intercourse, it must have been with the consent of the victim. Since the victim is admittedly more than 16 years as on the date of incident, therefore, the 38 ingredients of 376 of IPC cannot be said to have been proved.
28. Further, the panch witness namely PW4 to Ex.P3 is known to the family of the PW2 father of the victim. He has signed Ex.P3 after reading the same and the same is written by Police. He does not know the name of the Police. PW2 is not at all an eye witness to the said incident. He has not seen the place of incident. In fact the victim should have been known from where she was taken.
29. PW5 is the panch witness to Ex.P4, where the girl was kept in Yogapur extension in Bijapur. He knows PW1 and 2. He had also gone in search of the victim along with PW2. He identified the victim before the Court. They have not seen any document pertaining to the said house. He claims to have signed Ex.P4 in 39 the Police station, he do not know the contents of the Ex.P4. Therefore, the contents of Ex.P4 cannot be said to have proved.
30. PW6 is the brother of the victim has stated in his evidence that he knows the accused. He stated that his sister went out from the house at 7.00 a.m. as she told in home that she is going to college. Thereafter, she is missing. He do not know with whom she has gone. He has gone to the police station along with his father to give complaint. He does not know whether his father knows about his sister is having love affair with the accused. He admitted that his father and mother had advised the victim, not to indulge in love affair. Further, he denies that the victim has tried to cause injury on her hand as she was abused by her parents.
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31. The evidence of PW7 the Doctor who has categorically stated that the victim is aged about 17 years old. As per dental, radiology, physical examination she is aged about 18 to 20 years. There is no evidence of recent intercourse. After examining, he had issued certificate as per Ex.P5.
32. PW8 is the panch witness to Ex.P3 who is also from Belgaum. Ex.P3 and P7 said to have been the place shown by the victim. He also belong to the caste of complainant. He denies that he is a relative of PW2. It is not stated that the witness is from the same locality or nearby.
33. PW9 has not supported the case of prosecution. PW10 is said to be person who is the owner of house in which the victim and accused stayed together on rental basis. He has 41 deposed that about year back he had gone to Kembavi Village. Before he return to Bijapur that time PW3 and the accused were staying in the house since 15 days. He has not at all seen the accused earlier and he has not given the house on rental basis to the accused. He has not given any statement before the Police. Therefore, prosecution treated him hostile and cross-examined him. PW12 and 13 are the Investigating officers. The main investigating Officer is PW12. PW11 Investigating Officer had registered the crime and had conducted spot mahazer Ex.P3.
34. PW12 has made efforts to trace the victim and the accused. On 01.08.2009 he claims to have traced the accused and the victim and brought them to Bijapur Police Station. During his investigation he has not collected the 42 property extract of the house in which the victim and the accused residing together at Bijapur. It is not mentioned at Ex.P9 that he has gone Bijapur along with staff. Statement of those constables who had accompanied and assisted in this case have not been examined. When they reached the Bijapur it was at about 12.00 to 1.00p.m. When they found the girl, she was frightened. She was not in a position to give statement. He has not found any injury on her. The statement was recorded after the victim accompanied with her parents.
35. Though PW13 the Investigating Officer had conducted investigation where the victim was kept by the accused, but he has not colleted the property extract of that house nor examined any neighbors who knew about the incident in this case. He has not traced any of the friends of 43 the accused who had assisted the accused at Bijapur in supplying meals to the victim.
36. He do not remember who prepared Ex.P10 the sketch. The utensils used for cooking or clothes used by the victim were not found nor any articles in the house. He do not remember what type of clothes were used by the victim or bag in which they were taken while going out from her home. He has not examined any panch officials. The panchanama said to have been drawn has not been attested. There is no corroboration of time mentioned in Ex.P4. Therefore, on re-appreciation of evidence on record, I find that the prosecution has failed to prove beyond any reasonable doubt that the accused is guilty of any of the offence alleged. The reasoning of learned Sessions Judge in convicting the accused are perverse, capricious 44 and against to the evidence on record. The evidence on record does not show that she was less than 18 years as on the date of incident. Both of them had fallen in love is borne out from the evidence on record. Therefore, the girl appears to have voluntarily gone out of the house. Hence, ingredients of Section 366 of IPC kidnapping or abducting of minor with an intention to have forcible marriage or sexual intercourse etc., are not at all proved by the prosecution. Hence, the order of conviction passed by the trial Court ignoring doubts and evidence on record not proving the ingredients alleged offences, is as not sustainable in law and it is liable to be set aside. Hence, for the aforesaid reasons the points are answered in the negative.
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37. The impugned judgment passed by V Additional Sessions Judge, Belgaum in SC No.354/2009, dated 27.12.2010 for the offence punishable under Section 366(A), 347, 376 and 506 of IPC is hereby set aside. The accused is acquitted of all the offences alleged against him.
38. The accused be released on executing personal bond of Rs.25,000/- with one surety for likesum to the satisfaction of the Sessions Judge and the same shall be in force for a period of six months or till the expiry of the appeal period, whichever is later. After executing the bond, the learned Sessions Judge to pass the release order.
Fine amount, if any, deposited by the accused, shall be refunded to him.
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Office to send back the records forthwith along with a copy of the judgment of this Court for further needful action.
Sd/-
JUDGE MNS/