Karnataka High Court
State Of Karnataka By The Sub Inspector ... vs Manjunath S/O Rangeshappa on 22 July, 2014
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CRL.A.No.256/2008
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.256/2008
BETWEEN:
STATE OF KARNATAKA,
BY THE SUB INSPECTOR OF
POLICE, SHIMOGA
RURAL POLICE STATION. ... APPELLANT
(BY SRI K.NAGESHWARAPPA, HCGP)
AND:
1. MANJUNATH,
S/O RANGESHAPPA,
AGED ABOUT 24 YEARS,
OCC:AGRICULTURE,
R/O JAVALLI VILLAGE,
SHIMOGA TALUK.
2. SHIVU,
S/O IRAIAH,
AGED ABOUT 24 YEARS,
OCC:AGRICULTURE,
R/O JAVALLI VILLAGE,
SHIMOGA TALUK.
3. KUMAR,
S/O PERISWAMY,
AGED ABOUT 23 YEARS,
OCC:AGRICULTURE,
R/O JAVALLI VILLAGE,
SHIMOGA TALUK.
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CRL.A.No.256/2008
4. NANJUNDA NAIK,
S/O VALYA NAIK,
AGED ABOUT 20 YEARS,
OCC:MASON,
R/O JAVALLI VILLAGE,
SHIMOGA TALUK. ... RESPONDENTS
(BY SRI UMESH.K.M, ADV.-AMICUS CURIAE FOR R1 TO R3,
APPEAL IS ABATED AGAINST R4)
THIS CRL.A. FILED U/S.378(1) & (3) CR.P.C BY
THE STATE P.P. FOR THE STATE PRAYING THAT TO FILE
AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF
ACQUITTAL DT.25.9.2007 IN S.C NO.300/2006 PASSED
BY THE ADDL. S.J SHIMOGA - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.366(A),
506, 342 R/W SEC.34 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has challenged the judgment and order acquitting the respondent Nos.1 to 4 for the charges under Sections 363, 366 r/w Section 34 of IPC on a trial before the Additional Sessions Judge at Shimoga.
2. PW.1-Rudraswamy is the father of the victim-PW.2. Whereas, PW.4-Rajashekarappa is the brother of PW.1 and uncle of the victim-PW.2. The victim-PW.2 was a student of S.S.L.C and on -3- CRL.A.No.256/2008 13.05.2006, her result was to be declared. Therefore, She came to the school to see her result and as she did not return to the house, immediately her father-PW.1 went for her search and on the way he enquired the persons working in the land of one B.H.Manjunath-PW.3 and he told that she was taken by the accused forcibly on a motor cycle and therefore, her father went to the elders of the village and the elder went to Malligenahalli. PW.1- Rudraswamy was informed by PW.6-Mohan that at about 9.30 p.m., accused No.1 was riding the motor cycle bearing registration No.KA-14-S-0075 and accused No.2 was on the hind seat and the victim was on the motor cycle in between both accused Nos.1 and 2. Accused Nos.3 and 4 were accompanying them on another motor cycle and he also told that after seeking PW.6-Mohan, the victim was shouting taking his name. He also told them that both the motor cycles were proceeded towards Sagara. The brother of PW.1 went to Anandapura to the house of the relatives of accused No.1 and then went to the -4- CRL.A.No.256/2008 house of accused No.1. They knocked the door and as the door was not opened and when they forced to open the door, they found accused No.1 and others. They pushed PW.7 and ultimately they found the victim in the bathroom. She informed that the accused having given threat of danger to her life, forcibly taken her on the motor cycle and confined in the house.
3. In the aforesaid circumstances, PW.1 approached the police and submitted his compliant- Ex.P1 for the offences under Sections 366A, 342, 506 r/w Section 34 of IPC in Cr.No.255/2006 and the police recorded the statement of the victim, held the spot mahazar-Ex.P2, Ex.P3-Scene of offence panchanama, Exs.P4 and P5-Seizure panchanama of Mos.1 and 2-motor cycles. He recorded the statements of the other witnesses, the tax assessment extract-Ex.P9, wound certificate--Ex.P10 was collected and on completion of the investigation, the charge sheet came to be filed -5- CRL.A.No.256/2008 against the accused for the offences punishable under Sections 366A, 343, 506 r/w Section 34 of IPC.
4. During the trial, the prosecution examined PW.1 to PW.9 and got marked documents Exs.P1 to P10 and MOs.1 and 2. Anyhow, the accused got marked Exs.D1 to D4(a), the age certificate of the victim, the statements of the witnesses in the cross-examination of the prosecution. The trial Court after hearing the counsel and on appreciation of the evidence on records, acquitted the respondents for the charges under Sections 363, 366 r/w Section 34 of IPC. Aggrieved by the judgment and order acquitting the respondents for the aforesaid charges, the present appeal has been filed.
5. During the pendency of this appeal, accused No.4 (respondent No.4) died and the case against the said respondent is dismissed as abated. -6- CRL.A.No.256/2008
6. Heard the learned High Court Government Pleader for the appellant-State and also Sri. Umesh.K.M, advocate-Amicus Curia as Sri.M.Vishwajit Rai, advocate is absent.
7. The point that arises for my consideration is:
"Whether the State has made out any grounds to warrant interference in the judgment and order acquitting the respondents for the charges under Sections 363, 366 r/w Section 34 of IPC?
8. Learned High Court Government Pleader submits that the victim girl was a minor and she was taken from the lawful guardianship of father and mother without their consent and therefore, he submits that the trial Court did not consider these aspects and had committed an error in granting an order or acquittal.
9. Furthermore, it is the submission that the victim was kidnapped by the respondents to -7- CRL.A.No.256/2008 perform her marriage and the evidence on record is sufficient to attract the provisions of Section 366 of IPC as well. He contends that not arraigning of PW.7-Benakappa and PW-8-Jayamma, the parents of the accused No.1 as the accused, is insufficient to grant an order of acquittal to the respondents. On this ground, he sought for setting aside the order of acquittal and seeks to award conviction to the respondents for the said offences.
10. The learned Amicus Curia for respondent Nos.1 to 3 submits that the evidence available on record is insufficient to award conviction for the offences under Sections 363, 366 r/w Section 34 of IPC and the trial Court has rightly granted an order of acquittal. He submits that the age of the victim is not proved and therefore, as the victim on her own accompanied the accused and in the aforesaid circumstances, the judgment and order of acquittal cannot be interfered.
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11. So far as the proof of age of the victim is concerned, the prosecution has not produced any documents. As on the date of incident, the victim- PW.2 was studying S.S.L.C. and on 13.05.2006, she went to the school to know her result. Her evidence was recorded on 17.09.2007 and she stated her age as 18 years. Her father was examined as PW.1 and he states her age as 17 years as on the date of the incident.
12. It is in the cross-examination of PW.1 the father of the victim that the accused have produced Ex.D1, the school certificate of the victim. Though it is for the prosecution to produce the age certificate of the victim, the duty of the prosecution has been discharged by the accused by relying upon Ex.D1. Ex.D1 reveals that the Head Master of the High School has issued the certificate and it is certified that the victim was born on 01.12.1988 and in the year 2006 she was studying in 10th standard. As defence itself relied -9- CRL.A.No.256/2008 upon the Ex.D1, its contents can be accepted as evidence and the incident having taken place on 13.05.2006, considering her date of birth, she was approximately 17 years and 5 months on the said date. From Ex.D1, it stands proved that the victim was a minor on that date. She had not completed 18 years and was a minor.
13. After seeing the S.S.L.C result, the victim-PW.2 was returning to the house and on the way, the accused came across the road on two motor cycles and insisted the victim to accompany on their motor cycle. When she resisted, the accused gave threat of danger to her life and despite that she refused. They held her arms, lifted her and made to sit on the motor cycle. The accused No.1 was riding the motor cycle whereas accused No.2 was sitting in the hind seat and she was in between accused Nos.1 and 2 on the said motor cycle. She was taken to Kannikaparameshwari temple and then to a hotel at Shimoga. Accused Nos.3 and 4 also -10- CRL.A.No.256/2008 accompanied accused Nos.1 and 2 on another motor cycle. She was brought to the house of PW.7- Benakappa and PW-8-Jayamma and she said to have been confined in a room in the said house.
14. On the complaint of PW.1, the police came and rescued her. So far as enticing the victim-PW.2 by the accused on the motor cycle, it is the evidence of PW.2 which is made available by the prosecution. As could be seen from the cross-examination of PW.2, nothing is elicited to disbelieve her version. I do not think any mala-fides on her part to implicate the accused.
15. A peculiar suggestion is made in her cross-examination that after seeing her relatives who came to the house of PW.7 and PW.8 to rescue her, she is said to have gone to the bathroom on her own. This suggestion in the cross-examination is denied by PW.2. From this suggestion made by the defence, it could be inferred that the accused do not dispute having brought the victim to their -11- CRL.A.No.256/2008 house. The suggestion could clearly indicate an admission on their part. Thereby, the evidence of the victim-PW.2 is strengthened and therefore, her evidence could be safely relied upon.
16. PW.1 speaks about missing of the victim and having filed the complaint to the police under Sections 366A, 342, 506 r/w 34 of IPC - Ex.P1 and he has explained the delay in lodging the complaint.
17. PW.3 is a villager states that on 13.05.2006 at about 4 to 5 p.m. while he was in the land, he had seen accused No.1 speaking to the victim-PW.2 and states that she was taken by accused No.1 on the motor cycle. He states that he did not identify the other persons who were at the place. There is no factual cross-examination to disbelieve the version of PW.3.
18. PW.4 is the senior uncle of the victim who speaks of the information given by his soon -12- CRL.A.No.256/2008 PW.4-Rajashekarappa who told him about the accused having taken the victim on his motor cycle. After the complaint was filed by PW.1, the police had taken PW.4 to the house of PW.7 and PW.8 wherein the mahazar was held as per Ex.P2 and the victim was found in their house. Anyhow, in his presence, both Mos.1 and 2 were seized under the mahazar Exs.P4 and 5. The evidence of PW.4 also corroborate the evidence of the other witnesses.
19. PW.6 who is the son of PW.4 also supports the version relating to the accused taking his cousin the victim-PW.2 on the motor cycle. But as could be seen from the evidence of PW.6, he speaks of accused Nos.1 and 2 taking the victim on their motor cycle. He states that accused No.1 was riding the motor cycle and accused No.2 was on the hind seat. He states that the victim was sitting in between accused Nos.1 and 2 on the motor cycle.
19. PW.7 and PW.8 are none other than the parents of accused No.1. PW.7 admits in his -13- CRL.A.No.256/2008 evidence, having brought the victim to his house. He states that the victim expressed her desire that she intends to marry accused No.1 and her parents were insisting her to marry some other person. Both the witnesses are treated as hostile and to the extent that the victim was brought to their house by accused No.1, the version of the prosecution stands corroborated.
20. From the aforesaid evidence, two requirements of the provisions of section 363 stands proved. One, the victim was 17 years and 5 months old as on the date of the incident and she was not in custody of her parents, the natural guardian. Further, on that date when she was returning to the house, accused Nos.1 and 2 came across the road and taken her on their motor cycle to their house. Though in the cross-examination of the victim, the consent of the victim appears to be suggested but she has denied the same. Taking the victim on the motor cycle while she was returning -14- CRL.A.No.256/2008 to the house would attract the provisions of Section 363 of IPC and as could be seen from the said provisions, if a person kidnapped any person from or from the lawful guardianship, punishment is provided under Section 363 for the offence under Section 361 of IPC. Section 361 provides that in case if any person takes or entices any minor under the age of 18 years, if a female, out of keeping of the lawful guardianship of such minor, without the consent of such guardian, it is an offence of kidnap would be punishable under Section 363 of IPC.
21. The question as to whether the victim on her own accompanied the accused Nos.1 and 2 on the motor cycle is of no relevance as she was a minor and she was incompetent to give her consent to take her on the motor cycle. The accused Nos.1 and 2 would have refused to take her on the motor cycle. The fact that they take the victim without the consent of their parents itself attract the -15- CRL.A.No.256/2008 provisions of Section 361 of IPC punishable under Section 363. Scrutiny of the judgment of the trial Court would reveal a finding that the victim voluntarily accompanied the accused. The judgments relied on the trial Court are not in respect of the offence under Section 361 of IPC punishable under Section 363 of IPC. The trial Court has misdirected itself on the ground that the victim had attained the age of majority. When the person who is less than 18 years i.e., minor, her consent is of no relevance. It is necessary for them to take the consent of her parents who are the natural guardian. In the absence of which, the provisions of Section 361 are attracted.
22. In view of the evidence of PW.6, the son of PW.4 having seen only accused Nos.1 and 2 taking the victim on their motor cycle and as he has not referred to accused Nos.3 and 4, I think it is not proper to accept the version of PW.2 in this regard. Therefore, the material placed on record is -16- CRL.A.No.256/2008 sufficient to hold that accused Nos.1 and 2 guilty for the offence under Section 361 of IPC punishable under Section 363.
23. The prosecution has examined PW.9-the police officer who registered the complaint and held the investigation. View from any angle, the trial Court has committed an error in acquitting respondent Nos.1 and 2 (accused Nos.1 and 2) for the charge under Section 363 of IPC. Taking into consideration, the nature of offence, the punishment provided, the reasonable sentence has to be awarded.
24. Consequently, the appeal is allowed in part. The respondent Nos.1 and 2 are held guilty for the offence under Section 363 of IPC. They are ordered to undergo simple imprisonment for one year and to pay a fine of `5,000/-, in default to undergo simple imprisonment for three months. The judgment and order as against accused No.3 stands -17- CRL.A.No.256/2008 affirmed. The trial Court is directed to secure respondent Nos.1 and 2 to undergo sentence.
25. The fee of Sri Umesh.K.M, Amicus Curiae for respondent Nos.1 to 3 is fixed at `5,000/- and the State shall pay the same.
Sd/-
JUDGE VM