Karnataka High Court
Guru @ Gururaj vs The State Of Karnataka on 27 June, 2023
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 227 OF 2016
C/W
CRIMINAL APPEAL NO. 238 OF 2016
CRIMINAL APPEAL NO. 1238 OF 2016
IN CRL.A.NO.227/2016
BETWEEN:
GURU @ GURURAJ
AGED ABOUT 32 YEARS
S/O. KORAGA HANDA
ASSISTANT DOCUMENT WRITER
Digitally R/O. GURUSHRI NILAYA
signed by D BRAMHAVARA POST
K BHASKAR UDUPI TALUK-574001.
Location: ...APPELLANT
High Court (BY SRI. NATARAJA BALLAL - ADVOCATE)
of Karnataka
AND:
THE STATE OF KARNATAKA
REP. BY THE C.P.I.
BRAMHAVARA CIRCLE-576102.
...RESPONDENT
(BY SRI. H S SHANKAR - HCGP)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 14.01.2016 PASSED BY THE
PRL. SESSIONS JUDGE, UDUPI DIST., UDUPI IN
S.C.NO.83/2010 INSOFAR AS CONVICTING THE APPELLANT
FOR THE OFFENCES PUNISHABLE UNDER SECTION 465 R/W
-2-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
SECTIONS 34, 114 AND 471 OF THE IPC IN CRIME
NO.251/2010 OF BRAMHAVARA POLICE STATION.
IN CRL.A.NO.238/2016
BETWEEN:
SUDARSHAN KIRAN
S/O NARASIMHA SERVEGAR
AGED ABOUT 26 YEARS
R/O KUNJALU POST
AROOR CROSS, AROOR VILLAGE
UDUPI-576101.
...APPELLANT
(BY SRI. JAGADEESHA B N - ADVOCATE)
AND:
THE STATE
BY CIRCLE INSPECTOR OF POLICE
BRAMHAVARA CIRCLE, UDUPI
REP. BY SPP
HIGH COURT BUILDING
AMBEDKAR VEEDHI
BENGALURU-560001.
...RESPONDENT
(BY SRI. H S SHANKAR - HCGP)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED OF CONVICTION AND SENTENCING
14.01.2016 PASSED BY THE PRL. SESSIONS JUDGE, UDUPI
DIST., UDUPI IN S.C.NO.83/2010 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 465 R/W SECTIONS 34, 114
AND 471 OF THE IPC AND SECTION 9 OF PROHIBITION OF
CHILD MARRIAGE ACT.
IN CRL.A.NO.1238/2016
BETWEEN:
THE STATE OF KARNATAKA
BY CIRCLE INSPECTOR OF POLICE
-3-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
BRAMHAVARA CIRCLE
REP. BY SPP
BENGALURU-560001.
...APPELLANT
(BY SRI. H S SHANKAR - HCGP)
AND:
1. SUDARSHAN KIRAN
S/O NARASIMHA SERVEGAR
AGED ABOUT 29 YEARS
R/O KUNJALU POST
AROOR CROSS, AROOR VILLAGE
UDUPI TALUK -576101.
2. GURU @ GURURAJ
AGED ABOUT 31 YEARS
S/O. KORAGA HANDA
ASSISTANT DOCUMENT WRITER
R/O. GURUSHRI NILAYA
BRAMHAVARA POST
UDUPI TALUK-576213.
...RESPONDENTS
(BY SRI. JAGADEESHA B N - ADVOCATE FOR R-1;
SRI. NATARAJA BALLAL - ADVOCATE FOR R-2)
THIS CRL.A. FILED U/S.378(1) & (3) CR.P.C PRAYING TO
A) GRANT LEAVE TO THE APPEAL AGAINST JUDGMENT AND
ORDER DATED 14.01.2016 PASSED BY THE PRL. SESSIONS
JUDGE, UDUPI DIST., UDUPI IN S.C.NO.83/2010 INSOFAR AS
ACQUITTING ACCUSED/RESPONDENT NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 366 AND 376 OF
THE IPC AND SECTION 10 OF PROHIBITION OF CHILD
MARRIAGE ACT, 2006; B) SET ASIDE THE PORTION OF THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 14.01.2016
PASSED IN S.C.NO.83/2010 PASSED BY THE PRL. SESSION
JUDGE, UDUPI DISTRICT, UDUPI, ACQUITTING
ACCUSED/RESPONDENT NO.1 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 366 AND 376 OF THE IPC AND
ACCUSED/RESPONDENT NO.2 UNDER SECTION 10 OF
PROHIBITION OF CHILD MARRIAGE ACT, 2006 AND
-4-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
C) CONVICT AND SENTENCE THE ACCUSED/RESPONDENT
NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 366
AND 376 OF THE IPC AND ACCUSED/RESPONDENT NO.2 FOR
THE OFFENCE PUNISHABLE UNDER SECTION 10 OF
PROHIBITION OF CHILD MARRIAGE ACT, 2006.
THESE CRIMINAL APPEALS, COMING ON FOR FINAL
HEARING, THIS DAY, K. SOMASHEKAR .J., DELIVERED THE
FOLLOWING:
COMMON JUDGMENT
The appeal in Crl.A.No.227/2016 is directed against
the judgment of conviction and order of sentence rendered
by the Court of the Principal Sessions Judge, Udupi, in
S.C.No.83/2010 dated 14.01.2016, convicting the
appellant/accused No.2 for offences punishable under
Section 465 read with Section 34 / 114 of the IPC and
Section 471 read with Section 34 of the IPC. The appellant
in Crl.A.No.227/2016 / Accused No.2 was directed to
undergo imprisonment for a period of one year and to pay a
fine of Rs.1,000/- for the offence punishable under Section
465 read with Section 34/114 of the IPC and in default of
payment of fine amount, to undergo further simple
imprisonment for a period of one month. He was further
sentenced to undergo simple imprisonment for a period of
one year and to pay a fine of Rs.1,000/- for the offence
-5-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
punishable under Section 471 read with Section 34 of the
IPC. All the sentences were to run concurrently. The
appellant / accused No.2 has preferred the present appeal
seeking to allow the appeal and to thereby acquit him for the
alleged offences, keeping in view the grounds urged therein.
2. The appeal in Crl.A.No.238/2016 is directed against
the judgment of conviction and order of sentence rendered
by the Court of the Principal Sessions Judge, Udupi, in
S.C.No.83/2010 dated 14.01.2016, convicting the
appellant/accused No.1 for offences punishable under
Section 465 read with Section 34 / 114 of the IPC, Section
471 read with Section 34 of the IPC and for offences under
Section 9 of the Prohibition of Child Marriage Act, 2006.
The appellant in Crl.A.No.238/2016 / Accused No.1 was
directed to undergo imprisonment for a period of one year
and to pay a fine of Rs.1,000/- for the offence punishable
under Section 465 read with Section 34/114 of the IPC and
in default of payment of fine amount, to undergo further
simple imprisonment for a period of one month. He was
further sentenced to undergo simple imprisonment for a
-6-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
period of one year and to pay a fine of Rs.1,000/- for the
offence punishable under Section 471 read with Section 34
of the IPC. He was further sentenced to undergo simple
imprisonment for a period of one year and to pay a fine of
Rs.1,000/- for the offence punishable under Section 9 of the
Prohibition of Child Marriage Act, 2006 and in default of
payment of fine, to undergo simple imprisonment for one
month. All the sentences were to run concurrently. The
appellant / accused No.1 has preferred the present appeal
seeking to allow the appeal and to thereby acquit him for the
alleged offences, keeping in view the grounds urged therein.
3. The appeal in Crl.A.No.1238/2016 is preferred by
the State challenging the judgment of the Principal Sessions
Judge, Udupi, in S.C.No.83/2010 dated 14.01.2016,
acquitting the appellant in Crl.A.No.238/2016 / Accused
No.1 for offences punishable under Sections 366 and 376 of
the IPC and further acquitting the appellant in
Crl.A.No.227/2016 / Accused No.2 for offences punishable
under Section 10 of the Prohibition of Child Marriage Act,
2006 and praying to convict Accused No.1 for offences under
-7-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
Sections 366 and 376 IPC and to convict Accused No.2 for
offences under Section 10 of the Prohibition of Child
Marriage Act.
4. Heard, the learned counsel Shri Nataraja Ballal for
the appellant in Crl.A.No.227/2016 / Accused No.2 and
learned HCGP Shri H.S. Shankar for the respondent / State.
Further, heard the learned counsel Shri Jagadeesha B.N. for
the appellant in Crl.A.No.238/2016 / accused No.1 and the
learned HCGP Shri H.S. Shankar for the respondent / State.
Further, heard the learned HCGP Shri H.S. Shankar for the
appellant in Crl.A.No.1238/2016 inclusive of the learned
counsel Shri Jagadeesha B.N. for Respondent No.1 and the
learned counsel Shri Nataraja Ballal for Respondent No.2.
Perused the impugned judgment of conviction and order of
sentence rendered by the Trial Court in S.C.No.83/2010
including the exhibited documents.
5. The factual matrix of these appeals are as under:
It transpires from the case of the prosecution that on
02.08.2010 at about 11.00 a.m. at Kunjalu of Aroor Village,
-8-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
Udupi Taluk, Accused No.1 / Sudarshan Kiran, with an
intention to marry PW-1 a minor girl, is said to have
kidnapped her with the help of his friends in an
Autorickshaw bearing No.KA-20/B-4664 from Kunjalu to
Kadiyali Mahishamardini Temple, Udupi. Further, Accused
No.1 is also said to have married the minor girl which was
solemnized by Accused No.2 / Guru @ Gururaj. It is the
further case of the prosecution that on 04.08.2010 at
Tarikere, Accused No.1 committed rape on PW-1 / victim girl
against her wish, in the house of PW-14 / Ananda. It is also
stated that prior to the said incident, as on 27.07.2010,
Accused No.2 had forged a document pertaining the age of
PW-1 victim girl to show that she has attained the age of
majority, by producing PW-5 / Shanthi before PW-6 / Dr.
Mahabala K.S., Government Medical Officer and
misrepresenting stating that she was the victim girl PW-1.
Thus, accused are said to have obtained the birth certificate
of the victim girl PW-1 getting it certified by PW-6 / Dr.
Mahabala K.S. and then producing the same before PW-19 /
Ramakrishna K, Deputy Sub-Registrar and thus got
-9-
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
registered the marriage of Accused No.1 with the victim girl.
In this regard, accused have also taken the victim girl, her
younger brother Sadananda to the Sub-Registrar Office,
Udupi and forcibly obtained the signatures of Veena V. Rao,
mother of PW-1 and Vishweshwara Servegar, father of PW-1
and thereby committed the above offences.
6. On the basis of a written complaint lodged by the
complainant namely PW-2 / Vishnumurthy on 03.08.2010
at about 7.00 p.m. as per Exhibit P7, a case was registered
in Cr.No.251/2010 of Brahmavar Police Station. Subsequent
to filing of the charge-sheet by PW-20 / I.O., the Committal
Court had passed a committal order as contemplated under
Section 209 of Cr.P.C. and the case was committed to the
Court of Sessions. Accordingly, the case in S.C.No.83/2010
was registered. Subsequently, accused was secured for
facing of trial. The trial Court heard arguments of the
learned Public Prosecutor for the State and so also, the
defence counsel for accused relating to framing of charge
and having found prima facie that there are certain
- 10 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
materials to frame charge against the accused, had framed
charge against the accused for the afore-mentioned offences.
The charges were read over to the accused in the language
known to them whereby the accused denied the charges and
claimed to be tried. Accordingly, the plea of both the
accused was recorded.
7. Subsequent to framing of charge against the
accused persons, in order to prove the guilt against the
accused, the prosecution let in evidence by subjecting to
examination of PW.1 to PW.21 and got marked several
documents as per Exs.P1 to P48 and also got marked
M.Os.1 to 8. On the part of the defence side, DW-1 to DW-3
were subjected to examination and got marked Exhibits D1
to D15 on the side of the defence. Subsequent to closure of
evidence on the part of the prosecution, the accused were
examined as required under Section 313 of Cr.P.C. to record
incriminating statements which appeared against them.
Accused Nos.1 and 2 had denied the truth of the evidence of
the prosecution adduced so far. Accordingly it was
- 11 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
recorded. Subsequent to recording the incriminating
statement of the accused, the accused were called upon to
adduce defence evidence as contemplated under Section 233
Cr.P.C. However, the accused did not come forward to
adduce any defence evidence on their side. Accordingly it
was recorded.
8. Subsequent to closure of evidence of the prosecution
and the defence, the Trial Court heard the arguments
advanced by learned Public Prosecutor and so also, the
counter arguments advanced by the defence counsel and on
an examination of the evidence of the witnesses inclusive of
the exhibited documents, rendered a conviction judgment
against accused Nos.1 and 2 for the alleged offences. It is
this judgment which is under challenge in the appeal in
Crl.A.No.227/2016 and Crl.A.No.238/2016 by the respective
appellants / Accused urging various grounds. While the
State by its appeal in Crl.A.No.1238/2016, has challenged
the acquittal rendered by the Trial Court in respect of
Accused No.1 for offences punishable under Sections 366
- 12 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
and 376 of the IPC and acquittal in respect of Accused No.2
for offences punishable under Section 10 of the Prohibition
of Child Marriage Act, 2006 and thereby praying to convict
Accused No.1 for offences under Sections 366 and 376 IPC
and to convict Accused No.2 for offences under Section 10 of
the Prohibition of Child Marriage Act.
9. Learned counsel Shri Nataraja Ballal for the
appellant in Crl.A.No.227/2016 / Accused No.2 has taken
us through the evidence of PW-1, PW-5 and PW-6. He
contends that the impugned judgment is passed without
proper application of mind and without appreciating the
contradictions in the evidence of the prosecution both oral
and documentary. The case of the prosecution is that the
Appellant / Accused No.2 had forged Ex.P-32 / Age
Certificate and obtained the same from P.W.6 / Dr.
Mahabala K.S. by producing P.W.5 / Smt. Shanthi before
the Doctor saying that she was P.W.1 / victim girl and also
used the said certificate to register the marriage of the
accused No.1 with P.W.1 / victim girl. Learned counsel
contends that a perusal of the Ex.P-32 clearly shows that it
- 13 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
is not an Age Certificate as marked in the impugned
judgment but a 'Fitness certificate' and therefore the
question of the appellant / Accused No.2 forging Ex.P-32,
would not arise. Therefore learned counsel contends that the
conviction judgment rendered by the Trial Court in respect
of Accused No.2 on the basis of a non-existent document, is
liable to be set aside.
10. It is further contended that a perusal of the
evidence of P.W.1 / victim girl shows that there are several
contradictions about the alleged incident of the appellant /
Accused No.2 obtaining signatures forcibly on Ex.P-6 being
the Memorandum of Marriage in Form No.1. In that, she has
stated that the appellant had taken her signature forcibly on
the said document in the office of the sub-Registrar.
However in the later part of her evidence she has stated that
she has not spoken to the Appellant at any point of time,
thereby contradicting her own statement.
11. Further, PW-5 / Smt. Shanthi states in her
evidence that she was taken to PW-6 / Dr. Mahabala K.S. by
- 14 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
the Appellant / Accused No.2 and that PW-6 handed over
the certificate to the Appellant. However PW-5 in her cross-
examination states that she never spoke to accused No.2 at
any point of time, which clearly is a contradiction from the
evidence in chief and therefore proves that the Appellant /
Accused No.2 is unnecessarily arraigned as an accused and
is convicted for offences which have not been proved.
12. A perusal of the evidence of PW-6 / Dr. Mahabala
K.S. clearly shows that he had issued a physical fitness
certificate to the lady produced before him. However, the
prosecution has produced the same as Age Certificate (Ex.P-
32), based on which the entire prosecution case stands.
Further there is contradiction in the evidence of PW-5 and
PW-6 wherein this witness states that he has handed over
the certificate to the victim girl / PW-1.
13. PW-6 / Dr. Mahabala K.S. himself admits that he
has not issued any Age Certificate and also admits that for
issuing the same, the opinion of the Radiologist and Dentist
is necessary. He further states that he has not even taken
- 15 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
the X-rays before issuing the certificate, which is also
necessary for the issuance of the Age Certificate. Therefore
on this ground also, the conviction of the appellant is liable
to be set aside.
14. Further, the evidence of the Panch witness PW-7 /
Sadashiva Naik for the recovery a sum of Rs.20,000/- from
the house of the accused No.2 is also contradictory, in view
of the fact that the panch witness has admitted in his cross-
examination that he has signed the mahazar in the Police
Station and not at the spot; however the spot mahazar
speaks otherwise.
15. PW-3 / Sadananda who is alleged to have
accompanied the victim and who is brother of the victim has
admitted in the cross-examination that he does not know
the appellant / Accused No.2 at all and he has also not seen
him.
16. On a perusal of the entire records, it would
establish that the case of the prosecution is concocted and
the Appellant / Accused No.2 has been arraigned as an
- 16 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
accused only at the instance of people inimical to him with
an intention to harass him. Therefore, learned counsel for
appellant / Accused No.2 prays to allow the appeal in
Crl.A.No.227/2016 and thereby to set aside the impugned
judgment of conviction for the alleged offences.
17. Learned counsel Shri Jagadeesha B.N. for the
appellant in Crl.A.No.238/2016 / Accused No.1 has taken
us through the evidence of PW-1 to PW-21 let in by the
prosecution inclusive of the Exhibits at P1 to P48 and the
material objects at MO-1 to MO-8 and contends that the
Trial Court has grossly erred in convicting the Appellant /
Accused No.1 for an offence under Section 465 r/w 34/114
of IPC and Section 471 r/w 34 of IPC and Section 9 of
Prohibition of Child Marriage Act.
18. It is contended that the Trial Court has failed to
realize the importance of the independent witness statement
in connection with the offences lugged against the accused.
All the witnesses who have been subjected to examination
- 17 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
and cross-examination in the instant case are all inter
related and public officers.
19. It is contended that, during trial, PW-1 / victim girl
has given false and contradictory evidence. It is evident from
her deposition that she gave completely contradictory
statement, which indicates that there was some external
force as regards her deposition about her age and the
manner the certificate of age has been produced. Therefore
the question of accused producing the certificate is
completely false and fabricated.
20. It is the contention of the learned counsel that the
age of PW-1 / victim girl was more that 18 years and she
was a major at the time of alleged incident i.e., 02.08.2010.
In order to support the said contention, learned counsel has
referred to the evidence of PW-1 / victim girl wherein she
has stated before PW-12 / Dr. Manjunath S under Ex-P.24
that her date of birth is 07.11.1994, which is against the
entry made in her school records at Ex-P.17 which shows
her date of birth as 24.02.1994. In this regard, the
- 18 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
prosecution has failed to produce the age certificate showing
her authentic date of birth obtained from the Registrar of
Births & Deaths to prove her real date of birth. The school
authorities especially PW-8 Santhosh Kumar Shetty, the
person who has issued the birth certificate Ex-P.17 on
behalf of V.K.R. Acharya, during his cross examination had
deposed that he did not know the correct age of PW1 /
victim and also he did not know, on the basis of which fact,
the date of birth has been mentioned.
21. PW-1 has stated before PW-12 / Dr. Manjunath
that her date of birth is 07.11.2014 as per Ex-P.24.
According to PW-12 / Dr. Manjunath, the Ossification Test
reveals that the age of victim is ascertained to be between 16
to 17 years. It is established fact that in order to ascertain
the age, at least 2 years margin shall be given to the
ossification test. So in the absence of an authentic age
certificate, it shall be inferred that age of victim is more than
18 years on the date of alleged offence. The Hon'ble High
Court has considered this issue in various judgments and
held that the margin of 2 years is safe principle. So that
- 19 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
being the case that the age of the so called victim is more
than 18 years, the charge of kidnapping or abducting and
marrying a minor girl, would not arise.
22. The case of the prosecution that PW-5 / Shanthi
had obtained the certificate in the name of the victim girl
stating that her age is 22 years, has not been proved. It is
the case of the prosecution that PW-5 Shanthi had gone to
Dr. Mahabala K D (PW.6) and obtained the age certificate in
the name of the victim girl (PW.1) stating that her age is 25
years. But, this witness during her evidence, has stated
that she went to PW.6 Dr. Mahabala and obtained certificate
in the name of Jayashree and not in the name of the victim
girl and in the cross examination she has stated that she
had no acquaintance with Accused No.1 / Sudarshan Kiran.
Hence, it is hard to believe that she would go to the extent of
obtaining a certificate in the name of the victim girl in order
to help Accused No.1 / Sudarshan Kiran, with whom she
has no acquaintance. The certificate alleged to have been
obtained in the name of the victim girl also had not been
- 20 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
produced before the court. Hence, PW-5 / Shanthi has not
supported the case of the prosecution.
23. It is the further contention of the learned counsel
that the prosecution has failed to examine the material
witnesses to unfold the real facts. In that, the prosecution
has neither cited nor examined the mother of PW-1 / victim
girl, to substantiate the charge against the accused. The
mother of P.W.1 would have become the best witness to
disclose about the age and relationship of PW.1 with the
appellant and whether she was a consenting party to the
marriage of her daughter PW-1 with accused. The failure on
the part of the prosecution to examine the mother of PW.1 /
victim, is fatal to the case of the prosecution.
24. Accused No.1 has examined himself as DW-1, who
has given correct explanation as to his relationship with
PW.1 and he has explained as to how and under what
circumstances PW.1 being a major girl, has persuaded him
to marry her. The accused examined himself as defense
witness and has given his evidence in detail stating that he
- 21 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
has not forged any document. Further, he has not produced
any false documents to get his marriage registered before the
Sub-registrar, or that he has committed any sexual acts
against PW.1. He has also given evidence that on account of
the emotional threat given by PW.1 / victim girl that if he
failed to marry her, she will commit suicide, he was
compelled to go the Registrar office and get the marriage
registered.
25. Further, the examination of Shri Ramakrishna K. /
PW.19 Sub Registrar, Udupi reveals that he was very much
convinced as regards the age of the parties to the marriage
and also he was satisfied that both the parties have
consented for the marriage and there was no coercion or
threat by either party to the marriage. Hence, he had
registered the marriage. On all these grounds, learned
counsel Shri Jagadeesha B.N. for the appellant in
Crl.A.No.238/2016 / Accused No.1 contends that the
judgment of conviction rendered by the Trial Court is
unsustainable and requires to be set aside by allowing the
appeal filed by Accused No.1.
- 22 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
26. Shri H.S. Shankar, learned HCGP for the appellant
/ State in Crl.A.No.1238/2016 contends that the learned
Sessions Judge failed to appreciate the evidence of PW.1 /
victim girl being a minor who has deposed that, accused
Nos.1 and 2 kidnapped her and thereafter threatened her
and got her married in a temple and also forced her to sign
in the Sub-Registrar Office and thereafter, in spite of her
protest, accused committed forcible sexual intercourse on
her. Under the circumstances, the learned Sessions Judge
ought to have considered the evidence of PW.1 and convicted
the accused for the above said offences. But the learned
Sessions Judge ignoring this important evidence, has
granted on order of acquittal on erroneous grounds. Hence,
the judgment rendered by the Trial Court is not just and
proper.
27. Further, the learned Sessions Judge has not
appreciated the evidence of PW.2 father of the victim who
has deposed that, the accused has kidnapped the victim girl
and he lodged the complaint as per Ex.P-7 and the police
have arrested the accused when he was in the company of
- 23 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
the victim girl and further deposed that, her date of birth is
24.02.1994. His evidence is also supported by the evidence
of PW.3, brother of the victim who has also stated that the
accused persons forcibly kidnapped the victim girl and got
her married with Accused No.1 in a temple and by forging
her signature they got the marriage registered in Sub-
Registrar Office and thereafter they took both of them to
Tarikeri and then to Bangalore. All these evidence, prima
facie establishes the case of the prosecution. Hence, there
was no occasion for the learned Sessions Judge to disbelieve
the same to grant an order of acquittal.
28. It is the further contention of the learned HCGP
that the learned Sessions Judge has ignored the evidence of
PW.4 / Ramesh Shettigar who strongly supported the case
of the prosecution and deposed that the accused has
kidnapped the minor girl and married her forcibly and PW.5
/ Smt. Shanthi also supported the case of the prosecution
who stated that she also knew that accused No.1 had
kidnapped the victim girl and forcibly got her married and
she also identified the accused. It is his further contention
- 24 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
that the learned Sessions Judge also failed to appreciate the
evidence of PW.6 / Dr. Mahabala K.S., who supported the
case of the prosecution, and also failed in considering the
evidence of PW.8 / Santhosh Kumar Shetty who is the Head
Master of the High School who has issued Ex.P.17 and 18 in
respect of the date of birth of the victim girl and he has also
supported the case of the prosecution alleging that as on the
date of kidnapping the victim girl, she was a minor and
hence the prosecution has placed prima facie materials and
proved its case beyond reasonable doubt.
29. Thus learned HCGP contended that viewed from
any angle, the impugned order in S.C.No.83/2010 dated
14.01.2016 acquitting Accused No.1 for offences under
Sections 366 and 376 of the IPC and further acquitting
Accused No.2 for offence punishable under Section 10 of the
Prohibition of Child Marriage Act, 2006 is unjust and
improper. Hence, the order of acquittal is liable to be set
aside and Accused Nos.1 and 2 require to be duly punished
for the aforesaid offences. Thus, the learned HCGP prays
that the appeals filed by appellants namely
- 25 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
Crl.A.No.227/2016 and Crl.A.No.238/2016 be dismissed
and the appeal preferred by the State in Crl.A.No.1238/2016
be allowed.
30. In the context of the contentions made by the
learned counsel for the appellants respectively in respect of
Accused Nos.1 and 2 and so also having regard to the
contentions of the learned HCGP who has preferred the
State appeal and on a perusal of the entire records including
the evidence on record, we find that the entire case revolves
around the evidence of PW-1 / victim girl and PW-2 / father
of the victim girl and so also PW-3 / brother of the victim
girl. On the fateful day, that is on 02.08.2010 at about
11.00 a.m. Accused No.1 / Sudarshan Kiran, with an
intention to marry PW-1 a minor girl, is said to have
kidnapped her with the help of his friends in an
Autorickshaw bearing No.KA-20/B-4664 from Kunjalu to
Kadiyali Mahishamardini Temple, Udupi. Further, Accused
No.1 is also said to have married the minor girl which was
solemnized by Accused No.2 / Guru @ Gururaj. Though PWs
1, 2 and 3 are the main witnesses to the case of the
- 26 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
prosecution, the document at Exhibit P32 / age certificate,
obtained from PW-6 / Dr. Mahabala K.S., by producing PW-
5 / Shanthi before him and misrepresenting stating that she
was the victim girl PW-1 and producing the said certificate,
the marriage of accused No.1 was got registered with PW-1 /
victim girl. A perusal of the contents at Exhibit P32 clearly
indicates that it is not a certificate as marked in the
judgment rendered by the Trial Court but it is a Fitness
Certificate. Therefore, the question of forging the document
at Exhibit P32, does not arise.
31. Learned counsel Shri Jagadeesha B.N. has taken
us through the evidence of PWs 1, 2 and 3. They are the
main witnesses on the part of the prosecution to establish
the guilt of the accused. PW-12 / Dr. Manjunath S who had
subjected the victim girl PW-1 to bone ossification test, has
certified the age of the victim girl to be between 16 to 17
years. However, it is an established fact that two years
margin shall be given to the result of the ossification test.
- 27 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
32. At a cursory glance of the entire evidence of the
prosecution witnesses, mainly the evidence of PWs 1, 2 and
3 inclusive of PW-12 / Doctor, the entire evidence adduced
by the prosecution is found to be inconsistent and
contradictory to each other and it does not repose
confidence in the mind of the Court and appears to suffer
from infirmities. Despite of the same, the Trial Court has
rendered a conviction judgment against the accused
persons. In order to hold conviction against the accused,
the prosecution is required to facilitate worthwhile evidence
relating to the ingredients in respect of each count of
offences. But in the present cases, the prosecution has
failed to facilitate worthwhile evidence in terms of cogent,
consistent and acceptable evidence that the accused is
alleged to have committed the offences by abducting the
minor girl in the presence of her brother / PW-3, on the
fateful day.
33. In this regard, it is relevant to refer to a judgment
of the Hon'ble Supreme Court in the case of RAI SANDEEP
@ DEEPU vs. STATE OF NCT OF DELHI ((2012 (8) SCC 21))
- 28 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
relating to 'sterling witnesses' which has been dealt with and
considered by the Hon'ble Apex Court. In our considered
opinion, the 'sterling witness' should be of a very high
quality and caliber whose version should, therefore, be
unassailable. The Court considering the version of such
witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a witness,
the status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement made
by such a witness. What would be more relevant would be
the consistency of the statement right from the starting
point till the end, namely, at the time when the witness
makes the initial statement and ultimately before the Court.
These are the observations made by the Hon'ble Apex Court.
The same squarely applies to the present case on hand.
34. Therefore, we are of the opinion that the judgment
of conviction rendered by the Trial Court requires
interference. If not interfered with, certainly the accused
being the gravamen of the accusation would be the sufferer
and it would result in a miscarriage of justice. On a close
- 29 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
scrutiny of the impugned judgment, it is found to suffer from
infirmities and also inconsistencies and contradictions and
there is no cogent evidence to believe the theory put forth by
the prosecution. When the doubt arises in the evidence of
prosecution, the benefit of doubt always accrues in favour of
the accused alone. Therefore, on re-appreciating the
evidence and on re-visiting the impugned judgment of
conviction rendered against Accused Nos.1 and 2 by the
Trial Court, we are of the opinion that the entire case of the
prosecution suffers from infirmities even though viewed from
any angle. Hence, the impugned judgment rendered by the
Trial Court requires interference in these appeals.
35. Hence, we are of the opinion that the appeals
preferred by appellants / accused Nos.2 and 1, i.e.,
Crl.A.No.227/2016 and Crl.A.No.238/2016 challenging their
conviction requires to be allowed. Further, the appeal in
Crl.A.No.1238/2016 preferred by the State challenging the
acquittal of Accused No.1 for offences under Sections 366
and 376 of the IPC and the acquittal of Accused No.2 for
- 30 -
NC: 2023:KHC:22285-DB
CRL.A No. 227 of 2016
C/W CRL.A No. 238 of 2016
CRL.A No. 1238 of 2016
offences punishable under Section 10 of the Prohibition of
Child Marriage Act, 2006, requires to be dismissed. For the
aforesaid reasons and findings, we proceed to pass the
following:
ORDER
The appeal in Crl.A.No.227/2016 preferred by the appellant namely Guru @ Gururaj / Accused No.2 and the appeal in Crl.A.No.238/2016 preferred by the appellant namely Sudarshan Kiran / Accused No.1 are hereby allowed. Consequently, the judgment of conviction and order of sentence rendered by the Prl. Sessions Judge, Udupi District, Udupi in S.C.No.83/2010 dated 14.01.2016 is hereby set aside. Consequent upon setting aside the impugned judgment of conviction, Accused Nos.1 and 2 are acquitted of the offences punishable under Sections 465 and 471 read with Section 34 of the IPC. Further, Accused No.1 is also acquitted of the offence punishable under Section 9 of the Prohibition of Child Marriage Act, 2006. The appeal preferred by the State in Crl.A.No.1238/2016 under Section
- 31 -
NC: 2023:KHC:22285-DB CRL.A No. 227 of 2016 C/W CRL.A No. 238 of 2016 CRL.A No. 1238 of 2016 378(1) and (3) of the Cr.P.C. is dismissed as being devoid of merits.
If Accused No.2 / appellant in Crl.A.No.227/2016 and Accused No.1 / appellant in Crl.A.No.238/2016 have deposited any fine amount as ordered by the judgment of the Trial Court, the same shall be refunded to the respective accused, on due identification. If any bail bond is executed by the respective appellant in Crl.A.No.227/2016 and Crl.A.No.238/2016, the same shall stand automatically cancelled.
Sd/-
JUDGE Sd/-
JUDGE KS