Karnataka High Court
Vinayak Ashok Hosure vs The State Of Karnataka on 13 April, 2023
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF APRIL 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRL.A. NO.100225 OF 2014
BETWEEN
1. VINAYAK ASHOK HOSURE
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O. SHIRGUPPI, TQ: CHIKODI
DIST BELGAUM
...APPELLANT
(BY SRI. M J PEERJADE, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH NIPPANI TOWN PS
R/BY ADDL.STATE P.P
HIGH COURT OF KARNATAKA
DHARWAD
...RESPONDENT
(BY SRI.V.S.KALASUMATH, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
PRAYING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE FOR THE OFFENCE
UNDER SECTION 366(A) OF THE INDIAN PENAL CODE, 1860
DATED 25.11.2014 PASSED IN S.C.NO.8/2013 BY THE LEARNED
VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELGAVI
BY ACQUITTING THE APPELLANT FOR ALL THE CHARGES.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
24.03.2023 FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, RAJESH RAI K., J. DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence dated 25.11.2014 passed in SC No.8/2013 by VIII Addl. District and Sessions Judge, Belagavi (hereinafter for short 'Trial Court'). The appellant- accused is convicted by the trial Court for the offence punishable under Section 366A of IPC and sentenced to undergo simple imprisonment for 5 years and fine of Rs.10,000/- in default to pay fine amount, simple imprisonment for 3 months. Being aggrieved by the said judgment, the appellant/accused preferred the present appeal.
2. Factual matrix of the case are that on 28.03.2012 at about 11 p.m. appellant/ accused forcibly took victim- PW.8, aged about 16 years from the lawful guardian by giving false assurance of marring her. It is further case of the prosecution that accused/appellant wrongfully confined 3 her in the house of CW.12 examined as PW.3 from 01.04.2012 to 13.04.2012 and thereby committed forcible sexual intercourse on her. Hence, PW.1-father of the victim girl lodged a complaint before the respondent-Police on 04.04.2012 about missing of his daughter. FIR came to be registered to that effect in Crime No.39/2012 dated 04.04.2012. The respondent-Police investigated the matter and arrested the appellant/accused and nine others and registered further FIR in Crime No.39/2012 against nine accused persons for the offence punishable under Section 363, 109 r/w 149 of IPC alleging that accused Nos.2 to 9 have instigated accused No.1 to kidnap the minor girl i.e. the daughter of PW.1-complainant. After registering of the said FIR, respondent-Police continued the investigation and charge sheet has been filed for the offence punishable under Sections 376, 366A and 344 of IPC against the accused No.1 i.e. appellant herein. Accordingly, the case committed to the VIII Addl. District and Sessions Judge, Belagavi. The trial Court framed the charges against the accused No.1 for the offence punishable under Section 4 344, 366A and 376 of IPC. However, accused pleaded not guilty and claimed to be tried.
3. Before the trial Court in order to prove the charges leveled against the accused, the prosecution in totally examined 14 witnesses as PW.1 to PW.14 and got marked 27 documents as per Ex.P.1 to P.27 and produced 10 material objects as M.O.Nos.1 to 10. However, the accused neither examined any witness on his behalf nor produced any documents. After conclusion of trial, based on the arguments of the learned counsel for the parties and assessment of the oral and documentary evidence, learned trial Judge acquitted the accused for the offence punishable under Sections 344 and 376 of IPC. However, convicted him for the offence punishable under Section 366A of IPC as stated supra. Aggrieved by the said judgment of conviction and order of sentence, appellant/accused preferred the present appeal to set aside the impugned judgment and to acquit him from the charges leveled against him.
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4. I Have heard Sri.M.J.Peerjade, learned counsel for appellant and Sri.V.S.Kalasurmath, learned HCGP for respondent-State and perused the material available on records.
5. The learned counsel for the appellant vehemently contended that the judgment passed by the trial Court suffers from illegality and perversity and the same is contrary to the evidence on record. He would further contended that the learned trial Judge though acquitted the accused for the offence punishable under Sections 376 and 344 of IPC wrongly convicted him for the offence punishable under Section 366A of IPC. According to him once, the accused is acquitted for the offence punishable under Section 376 then there is no question of convicting the accused for offence under Section 366A of IPC i.e. procuring minor girl for forcible sexual act. As such, he submits that impugned judgment is liable to be set aside.
6. He would further contend that there is no such evidence of the independent witness to prove the 6 allegations leveled against accused. PW.3 the owner of the house where the victim allegedly confined turned hostile to the prosecution case. The evidence of the victim also cannot be relied since the Sessions Judge disbelieved her evidence partially in respect of alleged offence of rape and believed in respect of kidnap is totally contradictory. The learned counsel would further contend that, though the PW.1-father of the victim girl i.e. complainant deposed about lodging of complaint, but he is not an eye witness to the incident of alleged kidnap and by perusal of his evidence, he categorically admitted that on 13.04.2012, the Police called him to the police station and he saw his daughter there and she informed him that the accused kidnapped her. As such, he being hears say witness to the incident his version cannot be believed for any purpose. He would further contend that the victim girl PW.8 clearly deposed in her evidence that there was a fair in the Khaleshwar village and there were entertainment programs and victim had been to there on the date of incident and after the entertainment programs, the victim 7 went along with the accused with an assurance that he would marry her. During that time, victim's engagement was already held with one Surje Rao Tanaji Pawar. Inspite of that, victim girl went along with the accused on her own will to Khaleshwar village from there to Hukkeri village to the house of PW.3 and there they stayed for a period of 8 days. This evidence of victim girl-PW.8 clearly depicts that there was no inducement by the appellant/accused and procuring the victim girl or forced her to illicit sexual intercourse as contemplated under the provisions of 366A. As such according to the learned counsel, trial Judge erred by convicting the accused for the offence under Section 366A of IPC. He further argued that even otherwise, the evidence of the doctor-PW.7 who examined the victim girl clearly deposed that she was unable to give any opinion in respect of the sexual intercourse to the victim girl. The report of the doctor is placed at Ex.P.20 and the final report after the FSL examination placed at Ex.P.21 wherein the doctor opined that according to the FSL report, "there may or may not be a recent sexual intercourse". As such, 8 counsel for the accused submits that learned trial Judge totally erred in convicting the accused for the offence under Section 366A of IPC, since accused has no such intention to procure the girl for any such sexual intercourse. Hence, he prays to allow the appeal.
7. Per contra, learned HCGP contended that judgment under appeal does not suffer from any illegality or perversity and the same is based on the evidence and material placed before the trial Court. According to him, learned trial Judge rightly convicted the appellant/accused for the offence punishable under Section 366A, though acquitted the accused for the offences under sections 376 and 344 of IPC. According to learned HCGP, there is no such hard and fast rule that if the accused is acquitted for the offence punishable under Section 376 of IPC, he cannot be convicted for the offence under Section 366A of IPC, since there is a specific charge framed by the trial Court for the offence punishable under Section 366A of IPC. According to him, when there is a clear evidence of 9 PW.1-father of the victim and the victim girl-PW.8 in respect of procurement of minor girl i.e. victim by the accused, the conviction for the offence under section 366A of IPC sustains. According to him, prosecution proved the age of the victim that she was a minor at the time of incident by producing the school certificate of the victim girl. As such, according to learned HCGP, though, the victim girl voluntarily accompanied the accused, since she being a minor as on the date of incident, accused is liable to be convicted under Section 366A of IPC. As such, he prays to dismiss the appeal.
8. I have bestowed my anxious consideration both on the argument advanced by the counsel for the appellant and learned HCGP and carefully perused the evidence and materials available on record including the trial Court record.
9. Having heard the learned counsel for the parties and having perused the evidence available on record, the points that would arise for my consideration are 10
1) Whether the judgment under appeal suffers from any illegality or perversity?
2) Whether the learned trial Judge justified in convicting the accused for the offence under Section 366(a) of IPC?
10. This Court being the Appellate Court, it is essential to re-appreciate the entire evidence on record.
11. On a cursory glance of the evidence of the witnesses examined before the trial Court, PW.1-complainant as well as the father of the victim has deposed in his evidence that the victim is his daughter and was studying in 10th standard at Nippani school and she was aged 16 years at the time of incident. He deposed that there was a fair in the Kaleshwar village and there were also entertainment programs and his daughter had been to fair on the date of incident and after completion of entertainment programs, the victim did not returned to his house and though they have searched, she could not be traced out. Hence, he lodged missing complaint before the Police as per Ex.P1 on 11 04.04.2012. He further deposed that on 13.04.2012, Police called him and informed him that his daughter was being traced out. Accordingly, he had been to the Police Station, saw his daughter and accused persons in the Police station. After enquiry his daughter informed him that she had been kidnapped by the accused. Accordingly, he lodged further complaint as per Ex.P.2. Hence this witness is hear say witness to the prosecution case.
12. PW.2 is a spot mahazar witness. According to him on 14.04.2012, Police called him near the house of one Manohar Makale and drawn Ex.P.3. spot mahazar i.e house where the accused and victim stayed and the accused committed the forcible sexual intercourse with her.
13. PW.3, one Sanjay Govind Jadhav is the owner of the house where the accused and victim were stayed. This witness totally turned hostile.
14. PW.4 and PW.5 are the witnesses for seizure mahazor, both were turned hostile.
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15. PW.6 is the scientific officer who deposed in her evidence that she conducted the chemical analysis examination of 10 sealed articles brought by the Chikkodi Police for chemical analysis. After examination she issued report as per EX.P.19. According to her, she did not find any seminal stains on item Nos.1, 6, 7, 8, 9 and 10.
16. PW.7-doctor who examined the victim girl and issued the report as per Ex.P.20. According to her, there was no sign of injuries on body and she opined that there may be or may not be sexual intercourse and after obtaining report from FSL, she issued her final opinion as per Ex.P.21 that "there may or may not be recent sexual intercourse."
17. PW.8-victim stated that the accused was doing the work with her uncle as a tractor driver and was known to her. On 28.03.2012 at about 11.30 p.m. in the night, she attended a fair in Siraguppi village and after attending the entertainment programs, accused came near to her along with his sister and stated that she should not marry with 13 engaged boy and he would marry her. According to her she was engaged with one Sarjerao Pawar. Then the accused took her to Kolahapura, they wondered here and there and later came to Hupri village of CW.12. They stayed there for a period of 8 days and during that time accused has committed sexual intercourse on her. She further deposed that later they both had been to Nippani at 9.30 p.m. in the night when they came near Tanaji Chowk, Police came near to them enquired and took them to Police station.
18. PW.9 -Mukundrao Dadasaheb Desai is the scribe of the complaint. According to him, on 28.03.2012, the PW.1 called him to give complaint in respect of missing of his daughter. There by, he wrote the complaint and lodged the same.
19. PW.10 is the Police Constable who accompanied the accused to the Hospital for medical check up.
20. PW.11 is the Woman Police Constable accompanied the victim to the hospital for medical examination. 14
21. PW.12 is the Senior Medical Officer, MGM Hospital Nippani who examined the accused on 13.04.2012 and issued report as per Ex.P.27 that the accused was capable of performing sexual intercourse.
22. PW.13 the then Police Inspector, who partially conducted investigation in this case by receiving missing complaint as per Ex.P1 and also subsequently, registered the case against the accused for the offence under Section 366A, 109 r/w 149 of IPC. He also sent requisition to the Court to insert offence under Section 376 of IPC as per Ex.P.30 and handed over the case for PW.14 for further investigation.
23. PW.14 is the Investigating Officer in the case, he conducted investigation by drawing mahazor and recovered the material objects and also recorded the statement of witnesses and after completing the investigation filed the charge sheet before the Court. 15
24. A charge with reference to 366(a) of the Indian Penal Code needs closure examination. Section 366(a) of IPC is extracted as under;
"366A. Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."
25. A perusal of the aforesaid section reveals that inducing of minor girl to constitute an offence under Section 366(A) should have been with reference to an intent to force or seduced her to "illicit intercourse with another person." In fact, there is no mention of any other person in the sequence of allegations leveled against the appellant/accused.
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26. From a bare perusal of the Section 366A, it appears that there are three essential ingredients to constitute an offence of procurement of a minor girl under Section 366A. Those are 1) Victim girl may be induced by accused.
2)She must be minor age i.e. under the age of 18 years and 3) She must be induced by the accused person to go from a place or to do any act that 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. Amongst those, inducement is the basic requirement of law in a case of an offence under 366A of IPC. Though, the word 'inducement' has not been defined anywhere in the penal code, in ordinary dictionary meaning 'inducement' means the act or process of enticing or persuading another person to take a certain course of action.
27. Keeping in view the legal provision and definition of the word 'Inducing', 'Inducement', while appreciating the evidence in the case on hand, PW.8-victim girl in her evidence stated that on 28.03.2012 at about 11.30 p.m. in 17 the night hours, there was a fair in her village and entertainment programs were being arranged. The accused came near to her along with his sister and stated that she should not marry with the engaged boy and accused would marry her, since, the victim was already engaged with one Sarjerao Pawar. She further deposed that accused took her to Kollapur, thereby they wondered here and there and came to Hupri village to the house of CW.12 and they stayed there for about 8 days and during that time accused committed sexual intercourse on her. From her evidence, it is seen that there was no 'inducement' on the part of the accused to take her from her village from the place of fair in other words, she was never enticed or persuaded to come along with the accused nor did the accused induced her to go from any place or to do any act with an intent or knowledge contemplated by this Section. As such, the primary ingredient of Section 366A of IPC appears to be absent in the present case.
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28. Though, the PW.1 i.e. father of the victim girl deposed that he lodged missing complaint of his daughter, subsequently, Police investigated and informed him that accused took her from the fair of their village. But, he categorically admitted that in the Police Station i.e. after 8 days at the time when he has gone to take his daughter, she informed that the accused took her from the fair. Hence, it is clear that he is hearsay witness to the incident.
29. Though, other witness i.e owner of the house where the accused and victim stayed for a period of 8 days, examined by the prosecution, turned hostile and more over, the PW.7-doctor also issued her final report as per Ex.P21 stating that "there may be or may not be a sexual intercourse on victim girl". As such, there is no corroborative evidence placed by the prosecution to prove the guilt of the accused for the offence punishable under Section 366A of IPC that the accused procured the minor girl for illicit sexual intercourse with another person. By perusal of the evidence of the victim girl, it appears that 19 victim girl was simply accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366A of IPC.Though, the learned HCGP vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366A of IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person.
30. In that view of the matter, on close inspection of material available on record including the impugned judgment, this Court is of the view that the trial Court failed to constitute and consider the essential ingredients of Section 366A of IPC in order to convict the appellant for the said offence.
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31. My view is fortified by the judgment passed is the case of Golapi Bibi And Anr. vs State Of Assam reported in 2004 CriLJ 2209 and the decision of Division Bench of this Court in the case of State of Karnataka Vs. S.R.Mahesh, Crl.A.No.524/2014 connected with Crl.A.No.194/2014. Admittedly, the State has not filed any appeal against the acquittal of the accused for the offence punishable under Sections 376 and 344 of IPC.
32. In the facts and circumstances of the case, in my considered opinion, trial Judge has erred in convicting the appellant for the offence under Section 366A of IPC and accordingly points for consideration are answered.
33. In view of the above discussion, I proceed to pass the following:
ORDER The Judgment of conviction and Order of sentence dated 25.11.2014 passed in SC No.8/2013 by VIII Addl. District and Sessions Judge, Belagavi is hereby set aside.21
Accused is acquitted for the offence punishable under Section 366A of IPC.
Fine amount deposited if any, shall be paid the accused.
Sd/-
JUDGE HMB