Bangalore District Court
(Represented By The Learned App) vs For The Offence Punishable Under on 25 October, 2021
1 CC 13577 of 2019
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 25th DAY OF OCTOBER 2021
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 13577 OF 2019
BETWEEN
1. STATE represented by
Beguru Police ....COMPLAINANT
(Represented by the learned APP)
AND
Vinodh Kumar S/o Late Vijay Kumar,
Aged about 22 years,
R/o Ground Floor, Yellamma Building,
Nanjundappa Extension, Behind Govt. School,
Devarachikkanahalli Road, Bengaluru.
....ACCUSED
(Represented by Sri.Nataraj., Advocate)
BEGURU POLICE HAVE CHARGE SHEETED THE
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 363 OF IPC.
AFTER ADJUDICATION, THIS CASE, COMING ON FOR
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING....
2 CC 13577 of 2019
Offences alleged u/s : 363 of IPC
Charge sheet filed on : 20112017
Trial commenced on : 20022020
Trial completed on : 19102021
Judgment date : 25102021
Total duration : DaysMonths Years
05 11 03
JUDGMENT
1. Case of the prosecution is stated hereinafter; It is alleged that PW1 is the daughter of PW2 and the accused promised PW2 that he would drop PW1 to her school to enable her to appear for examinaitons on 11/09/2017 at about 08.30 a.m. Accordingly he took PW1 from the house of PW2 by way of Kidnap.
2. The investigation officer visited the spot, drew the mahazar and seized the articles and recorded the statements of the witnesses. Upon completion of his investigation, he charge sheeted the accused for the offences aforementioned.
3. This court took the cognizance of an offence punishable under section 363 of IPC. As per the 3 CC 13577 of 2019 directions of the court, CC.No.13577 of 2019 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
4. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which he claims to be conversant with. But he did not plead guilty and he claimed then, to be tried. Therefore, this court issued summons to the witnesses.
5. In the course of trial, prosecution has examined CW2 as PW1 and CW1 as PW2. Further prosecution has relied upon Ex.P.1 to 3 as well. They did not support the case of the prosecution. Keeping in mind, the nature of their evidence, this court has dropped other witnesses CW3 to 11, only to minimize the time consumption in adjudication of this matter, as PW1 and 2 are being material witnesses 4 CC 13577 of 2019 in this matter, and as they only did turn hostile to the case of the prosecution. Accordingly this court has dispensed with the statement of accused, which ought to have been recorded under section 313 of Cr.P.C., if any incriminating evidence would have been adduced by the prosecution against accused.
6. Heard the arguments of learned Sr.APP.
7. Heard the arguments of the learned counsel for accused.
8. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that, on 11/09/2017 at about 08.30 a.m., the accused herein promised PW2 that he would drop PW1 to her school to enable her to appear for examinaitons, but he took away illegally the PW1 by way of kidnap and he deserves punishment in accordance with section 363 of IPC ?
2) what order ?
5 CC 13577 of 2019
9. Above points have been answered as under; Point no.01: In the Negative Point no.02: As per final orders for the following reasons...;
REASONS
10. Point no.01 ; Prosecution is duty bound to establish in the court thet as on the date of the alleged incident, the PW1 was a minor by age and the accused kidnapped her from the lawful gaurdianship of PW2. Prosecution examined both CW1 and 2 as PW2 and PW1 respectively. At this juncture it is beneficial to extract both sections 361 and 363 of IPC ;
Section 361 in The Indian Penal Code Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.--The words "lawful guardian" in this section include any 6 CC 13577 of 2019 person lawfully entrusted with the care or custody of such minor or other person. Section 363 in The Indian Penal Code Punishment for kidnapping.--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
11. From the above extraction, it is clear that if at all this court has to believe that a crime got constituted as alleged herein above at the instance of accused, firstly, the prosecution shall establish that the PW1 herein was under 16 years of her age, she was under
the gaurdianship of PW2, accused has taken the said minor from the gaurdianship of PW2, without her consent.
12. In the case on hand, both PW1 and 2 did not support the case of the prosecution. In their examinations in chief they did depose that they do not know accused. He did not trouble them in any way. They do not know about the case. Because of some 7 CC 13577 of 2019 anxiety an information was rendered to police against somebody else etc.
13. Even in their cross examinations conducted by the learned Senior APP, he did not elicit anything from their mouth which would dismantle their evidence. Therefore, they being the alleged victims in this matter, their testimonies play a vital role in the case. As per the case of the prosecution the PW1 was a minor who was below the age of 18 as on the date of alleged incident and she was taken away by way of Kidnap from the lawful guardianship of PW2 by the accused and therefore he shall be punished etc.
14. Keeping in mind the totality of the aforementioned aspects, this court has no impediment to state that the prosecution has miserably failed to establish the case against accused. No document is being adduced during evidence to show the court that as on the date of alleged incident, PW1 was a girl of 17 years age. 8 CC 13577 of 2019 The prosecution has not at all whispered a word as to the place where the PW1 was allegedly taken by the accused. Therefore, for all the above reasons, it is clear to state that the ingredients contemplated in section 361 of IPC are not forthcoming from the record and thus the aforementioned point is hereby answered in the Negative.
15. Point No.2 : The facts and circumstances of this matter for the above reasons, warrant the following operative portion in this judgment;
OPERATIVE PORTION Invoking section 248(1) of Cr.P.C, the accused is hereby acquitted of the offence punishable under section 363 of IPC.
The bail bond and surety bond of accused if any, will be in force till completion of appeal period, thereafter, they shall stand cancelled. 9 CC 13577 of 2019 Property shown in the PF No.65/2017, item Nos.1 to 13 which are worthless, shall be destroyed after the lapse of an appeal period. (Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 25102021) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 10 CC 13577 of 2019 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : Kum.Deeksha PW.2 : Smt.Uma List of documents marked on behalf of the Prosecution: Ex.P.1 : Complaint Ex.P.1(a) : Signature of PW2 Ex.P.2 : Statement of PW2 Ex.P.3 : Spot Panchanama List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU;