Karnataka High Court
Yamanappa S/O. Bhimappa Galagali vs State Of Karnataka on 6 July, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6 t h DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.2506 of 2013
BETWEEN:
YAMANAPPA, S/O BHIMAPPA GALA GA LI
AGE 22 YRS ., OCC: PANSHOP AND S TUDENT
R/O GOLBHAVI, T Q. JAMAKHANDI,
DIST. BA GALKOT .
... APPELLANT
(BY SRI P.N . HOSA MANE, ADV OCATE)
AND:
STATE OF KARNATAKA
THROUGH CPI BAN AHATTI POLICE ST ATION
TQ. JAMAKHANDI
REPTD. BY SPP HIGH COURT DHARW AD.
... RES PONDENT
(BY SRI. RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 374(2) OF CR.P.C. SEEKI NG TO SET ASID E
THE JUDGMENT OF CONVICTION AND SENTENCE
ADTED 28.11.2012 PASSED BY T HE FAST TRACK
COURT , JAMAKHANDI IN S.C. NO.77/ 2011 FOR THE
OFFENCE PUNISHA BLE UNDER SECTI ON 366A OF I PC.
THIS CRIMINAL A PPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal has been filed challenging the judgment of conviction and order of sentence dated 28.11.2012 passed in SC No.77/2011 by the learned Presiding Officer, Fast Track Court, Jamkhandi, wherein the appellant- accused has been convicted for the offence under Section 366A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for three months. The appellant-accused has been acquitted of the offence punishable under Section 376 of IPC.
2. The factual matrix of the case are as follows:
P.W.7-Smt. Bangarewwa, w/o Shrishail Kichadi @ Meti was working as a Supervisor in preparation of mid day meals for the students in Government High School at Golbhavi and having a minor daughter P.W.16, aged 14 years and she was studying in 8th standard in Government 3 High School at Golbhavi where her mother is working. The accused was running Kirana and Pan shop abutting the Government High School building at Golbhavi village and he is having acquaintance with P.Ws.7 and 16 and developed intimacy with P.W.-16-minor daughter of P.W.7. P.W.1 purchased a scooty motorcycle and the accused was assisting her in learning to ride the two wheeler and taking advantage of strained relations between P.W.7 and P.W.16, the accused kidnapped the minor daughter of P.W.7 on 30.07.2011 in between 8.30 am to 9.00 am from the rented house of PW-7 at Beerappana Maddi in Golbhavi village and made to believe that he will marry her and took the minor girl on his motorbike bearing registration No.KA- 48/4030, out of the lawful custody of her parent, to Kakhandake village and kept in the house of P.W.18, a relative of the accused. It is the further allegation of the prosecution that prior to two months earlier to 31.07.2011 on one day, the accused entered the house of the complainant at 12:00 p.m. and committed forcible intercourse with PW-16 in the Kitchen room of that rented 4 house and also assured the victim girl of marrying her. P.W.7 filed complaint before the Terdal Police Station as per Ex.P.6 on 30.07.2011 at 8:30 p.m. and a case has been registered in Crime No.76/11 for the offence punishable under Section 366A at Terdal Police Station. P.W.16 the victim girl has given her written complaint i.e. Ex.P.19 and the P.S.I, Terdal Police Station submitted the requisition to include the offence punishable under Section 376 of IPC. After investigation, the Investigating Officer has filed charge sheet for the offences punishable under Sections 366A and 376 of IPC. The learned J.M.F.C. committed the case to the Sessions Court.
3. The prosecution has examined as many as 22 witnesses as P.Ws.1 to 22 and got marked Exhibits P.1 to P.34 and M.Os.1 to 3. The accused has been examined under Section 313 of Cr.P.C.
4. The Trial Court heard the arguments and formulated points for consideration and convicted the appellant/accused for the offence punishable under Section 5 366A of IPC and acquitted him of the offence punishable under Section 376 of IPC.
5. The appellant/accused has challenged the judgment of conviction and order of sentence on the following grounds:
i) The impugned order is erroneous, illegal, neither sustainable in law nor on facts of the case. The Trial Court has not considered the evidence on record in proper perspective and failed to appreciate the evidence on record.
ii) The Judgment of the Trial Court is based on assumptions. The evidence of P.Ws.7 & 16 suffers from contradictions.
iii) Ex.P.19 was written by the victim and its contents clearly goes to show that she was not subjected to any undue influence and unlawful force by the appellant. The victim was willing party to the incident. The entire complaint averments goes to show that her mother was having illicit relationship with others and she was fed up with her character and disclosed the fact that she intends to leave the house of her mother.
iv) The victim was willing party and she had knowledge of all the consequences of her 6 conduct before proceeding with the appellant.
v) There are no eyewitnesses to the incident.
The alleged offence occurred in the morning 8:30 and no persons in the village have seen the appellant taking victim by force on motorcycle. All the eyewitnesses to the incident have not supported the case of the prosecution.
vi) P.W.15 has stated only that he saw the appellant going on motorcycle and he has not at all stated about forcible taking of the victim by the appellant.
vii) The only consideration relied upon by the trial Court is that the victim was aged below 18 years and the Trial Court relying upon the school certificate Ex.P.31, even though no school officials have been examined to prove it.
viii) P.W.7 is the mother of P.W.16 i.e. the victim and both are interested and related witnesses and their evidence suffers from suspicion and contradictions.
ix) The Trial Court ought to have considered that the recovery panchas to the motorcycle and MOs.1 and 2 and spot have not supported the prosecution case.
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x) The Judgment of the Trial Court suffers from legal infirmities. The Judgment and order of sentence is exorbitant and excessive and liable to be set aside.
6. Heard the arguments of the learned counsel for the appellant/accused and the learned HCGP.
7. The learned counsel appearing for the appellant has argued that P.Ws.7 and 16 are mother and daughter and they are interested witnesses and their version is not supported by any of the independent witness. The prosecution has not examined the author of Ex.P.31 i.e. school Leaving Certificate to prove the age of the victim. There are material contradictions in the evidence of P.Ws.7 and 16. The Trial Court has relied on Ex.P.19 i.e. written complaint of the victim, even though it has been denied by the victim. He further argued that, the ingredients of offence punishable under Section 366A are not attracted and therefore, the appellant/accused shall be acquitted of the aforesaid offence.
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8. Per contra, the learned HCGP has argued that, the sole testimony of the victim girl i.e. P.W.16 is sufficient to convict the appellant/accused for the offence of kidnapping and more so it is supported by the evidence of her mother i.e. P.W.7 and also by P.W.15. He further argued that as per Ex.P.31, the age of the victim is 13 years and the age of the victim is below 18 years has not been denied by the accused. He further submitted that even if all the ingredients of offence under Section 366A are not attracted, but the ingredients of Section 363 of IPC are attracted. He has supported the reasoning assigned by the Trial Court and submitted that, the Trial Court by appreciating the evidence on record has rightly convicted the appellant/accused for the offence punishable under Section 366A of IPC.
9. On perusal of the grounds urged and the arguments advanced, the following point arises for my consideration:
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"Whether the appellant has made out any ground/s to warrant interference in his conviction and sentence for the offence punishable under Section 366A of IPC?"
10. P.W.7 is the mother of the victim girl. P.W.16 is the victim girl. Ex.P.31 is the school Leaving Certificate of the victim girl, issued by the Government Primary School, Golbhavi, wherein the date of birth of the victim girl is shown as 25.07.1998. The date of incident is 30.07.2011. Therefore, the age of the victim girl is 13 years as on the date of the incident. There is no denial of age of the victim girl that she is under the age of 18 years by the appellant/accused.
11. P.W.7 the mother of the victim girl has deposed that, on 30.07.2011 she had been to school at 7:30 a.m. and when she was returning to home at 8:30 a.m. to carry vegetables along with P.W.1, at that time accused took P.W.16 - victim girl on his motorcycle from her village to some other place and she made hue and cry and the neighbors gathered there and at that time her age was 14 10 years. She has further deposed that, after some search she went to Terdal Police Station and filed complaint as per Ex.P.6 and thereafter the police on the same night brought victim girl - P.W.16 from the relatives house of the accused at Khakhandaki. In the cross-examination, she has stated that along with police she had also went to Khakhandaki.
12. P.W.16 - victim girl has deposed that, on 30.07.2011 at about 8:30 a.m. when she was alone in the house, accused came to her house and took her on his motorcycle by holding her hand and she asked him to leave her and in spite of that, he took her on his motorcycle. She has further deposed that, at that time, her mother came there, she also shouted to stop the motorcycle, but the accused did not stop the motorcycle and accused took her to Khakhandaki village and kept her in his maternal aunt's house and he went back to his village leaving her in Khakhandaki and in the same night Terdal Police came to Khakhandaki and took her to Terdal police station. She has identified M.O.2 - motorcycle bearing Registration No.KA- 11 48/K4030, on which the accused took her. She has denied that, she voluntarily wrote the contents of Ex.P-19 statement, but she has stated that she wrote the same as per the instructions of the police. She has stated that, accused has not committed any rape on her two months prior to 30.07.2011. Except denial, nothing material has been elicited in the cross-examination of P.W.16. The evidence of P.W.7 corroborates the evidence of P.W.16. P.W.15 has deposed that he knows P.W.7 and her daughter and further deposed that at about 8:30 a.m., when he was returning from his land towards the village and at that time, the accused took the victim girl on his motorcycle towards Sultanpur and he along with the mother of the victim have searched for them and thereafter P.W.7 has filed complaint. In the cross-examination, P.W.15 has denied that P.W.16 has filed complaint against his mother and 18 others in Terdal Police Station and he is accused No.1 in the said case. He has also denied that there was a quarrel between him and the accused with regard to the accused establishing a shop near High School. The evidence 12 of P.W.15 corroborates the evidence of P.Ws.7 and 16 with regard to accused taking away the victim girl on his motorcycle.
13. As per the prosecution case, the accused has kept the victim girl in the house of P.W.18. P.W.18 has not supported the case of the prosecution. The P.W.18 is the resident of Khakhandaki. P.W.5 is the woman Police Constable and she has deposed that she along with P.C.No.1332 went to Khakhandaki village on 31.07.2011 as per the instructions of P.S.I and found P.W.16 - victim girl in the house of Dundappa Kolkal and brought her from there and produced before the P.S.I. The evidence of P.W.15 corroborates the evidence of P.W.16 - victim girl that she was taken by Police from the house of relative of the accused in Khakhandaki on 30.07.2011. P.Ws.8 & 9 are the panchas to Ex.P9 Spot Mahazar of the spot of kidnap as shown by the P.W.7. The said spot is situated infront of the house of P.W.7. P.Ws.8 & 9 have supported the case of the prosecution and have deposed regarding P.W.7 showing the 13 said spot of kidnap and police preparing the spot panchanama as per Ex.P.9.
14. Therefore, the evidence on record only goes to establish that the accused took enticing P.W.16 minor victim girl aged about 13 years out of the keeping of the lawful guardian of P.W.16 which attracts the ingredients of Section 361 of IPC, punishable under Section 363 of IPC.
15. The ingredients of offence punishable under Section 366A of IPC are; firstly, that the accused must induce a girl; secondly, that the person induced was a girl under the age of 18 years; thirdly, that the accused has induced the victim knowing that it is likely that she will be forced or seduced to an illicit sexual intercourse; fourthly, that such intercourse must be with that person other than the accused; fifthly, that the inducement caused the girl to go there in the place or to do any act.
16. The last three ingredients are not present in the case on hand.
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17. As the appellant did not take the victim or seduced her with an intent to have illicit intercourse with another person, the said provision is not applicable. Therefore, the conviction even for the offence punishable under Section 366A of IPC is not attracted.
18. However, the evidence adduced is sufficient to conclude that the P.W.16 was less than 18 years of age as on the date of incident. The material placed on record would clearly reveal that the accused took the victim girl - P.W.16 from her house without the consent of her parents to Khakhandaki and kept her in the house of his relative. The appellant/accused has not obtained consent of the guardian before taking the victim to Khakhandaki. Therefore, the material placed on record is sufficient to convict the appellant/accused for the offence punishable under Section 363 of IPC.
19. The offence punishable under Section 363 of IPC is a minor offence than that of offence punishable under Section 366A of IPC. Therefore, there can be 15 conviction for the offence punishable under Section 363 of IPC even without there being any charge for that offence as per the provisions contained under Section 222 of Cr.P.C.
20. The appellant/accused enticing the victim girl took her on 30.07.2011 from the lawful guardianship of P.W.7 at about 8:30 a.m. and on the same day in the night the victim girl has been secured from the house of the relative of the accused in Khakhandaki. The accused has not had any sexual intercourse with the victim girl. I think the interest of justice will be met in case if the sentence of imprisonment is reduced to custodial period undergone in addition to payment of fine for the offence punishable under Section 363 of IPC.
In the result, the appeal is allowed in-part. The conviction of the appellant for the charge punishable under Section 366A of IPC is set aside and is acquitted of the offence punishable under Section 366A of IPC. However, the accused is convicted for the offence punishable under Section 363 of IPC. The sentence of 16 imprisonment is confined to custodial period of approximately 04 months 07 days and he is ordered to deposit a fine of Rs.10,000/- before 30th of September 2020, and in default to undergo simple imprisonment for one month.
Sd/-
JUDGE Kmv & *Svh