Bangalore District Court
Unknown vs Ravi on 23 November, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 23rd DAY OF NOVEMBER 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 219/2016
COMPLAINANT :
The State of Karnataka by
K.R.Puram Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Ravi,
S/o. Venkatappa,
Aged about 23 years,
R/at Mallappa's house,
II Cross, Near Government
School, Katanallur Village,
Virgo nagar Post,
Hoskote Taluk,
Bangalore Rural District.
[Reptd by Sri. S.G. Vishwanath -
Advocate]
***
2 Spl.C.C.219/16
JUDGMENT
K.R. Puram Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 363 and 376 of I.P.C. and under Section 5(j)(ii) and 5(l) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-2 the prosecutrix was of 17 years during the year 2014.
She studied up to SSLC. She joined the garment factory for work. She and the accused fell in love. On 18.12.2014 at 10.30 a.m., accused had kidnapped CW-2 from nearby her house and got married on 22.12.2014 against her will in Kodi Ganesha temple and thereafter stayed with her in a rented house and had physical relationship with her due to which she became pregnant of 5 months. In the meanwhile, CW-1 Munirathnamma, the mother of the prosecutrix had lodged a complaint on 19.12.2014 reporting missing of CW-2.
Investigating Officer registered the case. On 3.2.2016 Krishnarajapura police had traced accused with victim in the
3 Spl.C.C.219/16 rented house of one Mallappa in Katamnallur and brought them to K.R. Pura police station, Bangalore. Her statement had been recorded. He also recorded the statement of other prosecution witnesses. Investigating Officer drew necessary mahazars. Accused and victim girl were sent to hospital for medical examination. By completing investigation, he submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet submitted to this Court. Cognizance was taken and registered in Special C.C. On hearing both sides the charge was framed for offences punishable under Sections 366 and 376 of I.P.C. r/w Section 5(l),(j)(ii) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012. The same was read over to the accused. The accused pleaded not guilty and claimed to be tried. Hence, posted for prosecution evidence.
4. On prosecution side got examined as many as 6 witnesses as P.W.1 to 6 out of 20 charge sheet witnesses and 4 Spl.C.C.219/16 got marked the documents at Ex.P.1 to Ex.P.10. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that accused had kidnapped CW-2, the child of CW-1 Munirathnamma on 18.12.2014 at 3.30 p.m., from K.R. Puram Extension bus stop with intent to marry her against her will, punishable under Section 366 of I.P.C?
2. Whether the prosecution has proved beyond reasonable doubt that accused 5 Spl.C.C.219/16 had committed rape on her in the house of his friend Venkatesh at Kodi, after he married CW-2 on 22.12.2014 and caused pregnancy of CW-2, punishable under Section 376 of I.P.C. r/w Section 5(l),(j)(ii) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012?
3. What order?
7. My findings on the above points are as under:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : As per final orders for the
following
REASONS
8. Points No.1 & 2:- Points No.1 and 2 are taken
together for discussion to avoid repetition of facts as they are interconnected to each other.
9. The prosecution made allegations against the accused that he had taken away PW-6, the prosecutrix on 18.12.2014 at 3.30 p.m., from K.R. Puram Extension bus stop to Kottamnallur 6 Spl.C.C.219/16 where he got married her on 22.12.2014 due to which she became pregnant of 5 months and they stayed together in a rented house belonging to one Muniyappa and thereafter in another rented house belonging to Mallappa till 3.2.2016. PW- 6 was of 17 years as on the date of occurrence. There are two charges against the accused. One is for offence under Section 366 of I.P.C. and another is offence under Section 376 r/w Section 5(l),(j)(ii) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012. One is offence of kidnapping and another is rape as he got married the prosecutrix who is under the age of 18 years and against her will.
10. In view of Section 2(1)(d) of POSCO Act "child" means any person who is under the age of 18 years. When any person has been prosecuted for offence under Section 6 of POSCO Act, the Special Court shall presume that he has committed said offence unless contrary is proved. The said presumption is laid down under Section 29 of the Act. Therefore, the age of the victim shall have to be determined at the first instance.
7 Spl.C.C.219/16
11. According to prosecution PW-6, the victim was of 17 years as on the date of alleged occurrence. The learned counsel for the accused has argued that as per the oral testimony of PW-1 Munirathnamma, mother of the prosecutrix and also PW-6 the prosecutrix, she was of 19 years as on the date of alleged incident, there is no authenticated proof to establish the contrary to this, hence the oral testimony of PW-1 and 6 shall have to be believed.
12. PW-3 Investigating Officer, Sanjeevarayappa has been examined on prosecution side. His evidence would suggest that he collected the school certificate at Ex.P3 of which would speak that date of birth of PW-6 is 26.4.1998. It is pertinent to note this is neither transfer certificate nor birth certificate. The author of Ex.P3 is not examined on prosecution side. On what basis this certificate has been issued is not before the court. When PW-1 and 6 have stated contrary to Ex.P3, in the absence of birth certificate and also in the absence of examination of author of Ex.P3 the said certificate cannot be based to conclude that she was under the age of 18 years. It 8 Spl.C.C.219/16 is pertinent to note according to Ex.P3 the victim girl was of 17 years as on the date of occurrence. Whereas according to oral testimony of PW-1 and 6 she was of 19 years. There is no opinion obtained by the Investigating Officer from the Doctor as to the age of the prosecutrix. Ofcourse, in view of Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007) in the absence of birth certificate, the document equivalent to that can be relied upon to determine the age of the child. But, in the present case, PW-1 Munirathnamma, mother of the prosecutrix herself has testified that her daughter was of 19 years as on the date of the alleged occurrence. The same is also corroborated by PW-6, the prosecutrix herself. When that is so, Ex.P3 cannot be based under the present circumstances of the case as mentioned in supra to hold that prosecutrix was under the age of 18 years.
13. Now, the question arises whether the prosecution has established the offence of kidnap by the accused and the offence of rape committed by him on the prosecutrix. As 9 Spl.C.C.219/16 already mentioned in supra there are two charges. One is offence of kidnapping and another is offence of rape. Section 366 of I.P.C. reads as under:
"Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid".
In view of the aforesaid provision, it consists of two parts. One is compelling prosecutrix to marry against her will and another is to seduce her to illicit intercourse. Ocourse, the aforesaid provision does not prescribe the age of the woman. As per the case of the prosecution accused is alleged to have kidnapped her by taking away with intention to marry her. The 10 Spl.C.C.219/16 initial burden is on the prosecutrix to establish this aspect. At the first style itself the prosecution has failed to establish the age of the prosecutrix was under 18 years as on the date of incident. Irrespective of it, is there any evidence to show accused compelled her to marry him against her will and accused had taken her forcibly on 18.12.2014.
14. In order to establish its case, the prosecution has got examined as many as 6 witnesses. PW-1 Munirathnamma is the complainant and the mother of the prosecutrix. PW-6 is the prosecutrix. PW-2 Suresh is the brother of the prosecutrix. PW-1, 2 and 6 are the material witnesses in the present case on this aspect.
15. According to prosecution accused was residing in the opposite house of the victim girl. The prosecutrix studied up to SSLC. Thereafter she joined garments and she was working in Bafna Garments. As per the prosecution, PW-6 was under the age of 18 years, she wanted to continued her studies, but PW-1 Munirathnamma forcibly performed engagement of PW-6 with 11 Spl.C.C.219/16 one Gangadhara, own brother of PW-1, it was against the will of PW-6, she was loving the accused for the last one year, but it was opposed by PW-1. When the PW-6 questioned her mother and she wanted to continue her studies, PW-1 assured to perform her marriage only after she attains the age of majority, then PW-6 kept quite, but subsequently Pw-1 and her family members fixed the marriage date of PW-6, then she disclosed this fact before the accused for which accused said he could not do anything, let her marry Gangadhar as arranged by her family members, but PW-6 did not agree to the same. On 18.12.2014 she made a call to accused. She left the house by stating that she is going to garments factory to get the salary. She left the house at 10.00 a.m. but after contacting the accused joined him in K.R.Puram Extension bus stop and thereafter went with him to Katamnallur, Andhra Pradesh which is the native place of the accused where they stayed in the house of Venkatesh, friend of the accused and thereafter they got married in Ganesha temple on 22.12.2014. Thereafter they started living in a rented house taken from one Muniyappa, 12 Spl.C.C.219/16 thereafter they changed their house taken on rent basis from one Mallappa till 3.2.2016. On 19.12.2014 itself PW-1 had lodged a missing complaint as per Ex.P7. K.R. Puram police have traced the accused and the victim on 3.2.2016 in the rented house of Mallappa and by that time PW-6 was pregnant of 5 months. They were brought to Bangalore and they were sent to hospital for medical examination and as per medical report PW-6 was found to be pregnant of 5 months. Her 164 statement was also got recorded. She had also stated same thing before the learned Magistrate. This is the case of the prosecution.
16. The learned counsel for the accused has argued that PW-6 was major as on the date of the alleged occurrence and she herself voluntarily left the house and joined the accused and they were loving each other, the said marriage was not against the wish and will of the PW-6 and they were happily living together and now also they have been stayed together and they have one female baby of 6 months. It does not attract the ingredients of either Section 366 of I.P.C. or offence 13 Spl.C.C.219/16 of rape punishable under Section 376 of I.P.C as well as under
provisions of POSCO Act.
17. On going through the oral testimony of PW-1 Munirathnamma, the complainant, ofcourse she has partly supported the prosecution by stating that she had lodged a complaint by reporting missing of prosecutrix. Ex.P7 is missing complaint reported to the police on 19.12.2014. As per the case of the prosecution the spot mahazar was executed as per Ex.P1 on 19.12.2014 near the house of the complainant. This is not supported by PW-1. As per prosecution she had given the statement as per Ex.P8 on 5.2.2016 after tracing the victim girl that it is the accused who had enticed away the prosecutrix and committed rape on her due to which she became pregnant of 5 months. The evidence of PW-1 would not suggest the case of the prosecution. Though she is subjected to cross-
examination by the learned Public Prosecutor extensively, nothing is extracted from her mouth. She has flatly denied the statement under Ex.P8. The oral testimony of PW-1 does not incriminate the accused either for offence of kidnapping or 14 Spl.C.C.219/16 offence of rape. Her evidence is not helpful to the prosecution in establishing its case.
18. PW-6 is the prosecutrix. She is another material witness in the present case. Her evidence carries more weight. I have already discussed in supra about the case of the prosecution. As per the prosecution she had given the 161 statement as per Ex.P10 on 3.2.2016 and also she had given the 164 statement as per Ex.P6 before the learned Magistrate. Ex.P6 and also P10 are almost identical. On going through the Ex.P6 and 10 also she herself left the house as her mother and other family members fixed her marriage with Gangadhar, her maternal uncle, which was against her will and she was loving the accused since one year prior to that and it was opposed by her family members, hence she herself made a call to the accused and joined him and had gone to Katamnallur. Ex.P6 and 10 do not speak that the marriage of the prosecutrix with accused taken place on 22.12.2014 is against her will. They also suggest that they got married by mutual consent on the aforesaid date in Ganesha temple at Kodi, thereafter they 15 Spl.C.C.219/16 started their marital life in a rented house belonging to one Muniyappa, thereafter they changed their residence to another rented house taken from one Mallappa. They were living as husband and wife and she conceived. On 3.2.2016 they were traced by the police. Here the question arises whether accused had enticed the prosecutrix by assuring to marry her and got married against her will. They are the essential ingredients of Section 366 of I.P.C. But, as mentioned in supra either Ex.P10 the 161 statement dated 5.2.2016 given before the Investigating Officer and Ex.P6 the 164 statement given before the learned Magistrate do not disclose that she was compelled to leave the house or to marry him forcibly and it was against her will. The history of the leaving the house itself is the root cause. Mother of the prosecutrix fixed her marriage with her own brother one Gangadhara who is maternal uncle in relation to PW-6, the engagement was conducted, though mother assured to perform their marriage after she attains the age of 18 years suddenly fixed their marriage of which is against her will. Ofcourse, PW-6 has denied that her age as on the date 16 Spl.C.C.219/16 was under 18 years. According to her she was of 19 years, but she partly supported the prosecution that fixation of her marriage with one Gangadhara, brother of her mother was against her will, she was loving the accused since 1 year before that and she wanted to marry him, when the marriage was suddenly fixed by her mother, then she had taken a decision to leave the house and to join the accused. Her 161 statement itself would disclose that accused advised her to follow her elders' decisions, she flatly rejected and refused to marry as decided by her elders, but called the accused to take her and she joined him and thereafter as mentioned in supra they got married and started their marital life. On looking to these facts and circumstances of the case as could be seen from the oral testimony of PW-6 and also Ex.P10 and 6, there is no compulsion in leaving the house by PW-6 and also in joining the accused. There is absence of force to marry the accused, it was solemnized by mutual consent. Under the circumstance, the prosecution has failed to establish the offence of kidnapping by the accused.
17 Spl.C.C.219/16
19. Even Ex.P4, the medical report and oral testimony of PW-5 Dr. Sara Fathima who conducted local examination of PW-6 corroborate the oral testimony of PW-6 that joining the accused is not against her will and even the marriage with the accused is not forceful. Ofcourse, PW-6 Sanjeevarayappa, Investigating Officer has stated that PW-1, 2 and 6 had given the statement as per Ex.P8, 2 and 10 respectively. But, as already discussed above, the 161 statement of PW-6 would suggest that she voluntarily left the house and accompanied the accused for the purpose of marrying him of which is not against her will. Even PW-2 Suresh has flatly denied the suggestion made by the learned Public Prosecutor that accused had forcibly taken PW-6 with intent to marry against her will. Even nothing is forthcoming in the evidence of PW-1, the complainant who is another material witness. There is no satisfactory and abundant evidence to hold the guilt of the accused for offence of kidnapping. The essential ingredient of Section 366 of I.P.C. is not proved by the prosecution.
18 Spl.C.C.219/16
20. Now, the question arises whether the physical relationship between PW-6 and the accused amounts to offence of rape. In view of the discussion made in supra while discussing whether it amounts offence of kidnapping or not, that itself clearly enlightens that it is consensual act, they got married by consent on 22.12.2014, they started their marital life, they are husband and wife. There is no authenticated proof that she was under 18 years as already discussed in supra. As per oral testimony of PW-1 and 6 she was of 19 years as on the date. After marriage, they started their marital life, due to which she conceived and after they were traced by the police, she was found to be 5 months pregnant as on 3.2.2016. But, it does not fall within the purview of either Section 376 and under Section 5(l), (j)(ii) of POSCO Act. PW-6 has clearly stated in her evidence that she and the accused are husband and wife they got married on their accord and they have one female baby of 6 months and they have been happily living in Kuppam, the native place of the accused. Therefore, he is not found guilty of offence of rape. As per Ex.P4, the 19 Spl.C.C.219/16 medical report PW-6 was 5 months pregnant as on the date of medical examination done on 4.2.2016. Even the oral testimony of PW-1 and 2 is not corroborative. They have also not supported the case of the prosecution, in view of PW-6 she is the wife of the accused. Under this circumstance, the prosecution has utterly failed to establish the offence of rape. There are no materials on record to convict the accused for the alleged charge of rape. Victim and accused got married by consent. They are husband and wife. It does not attract ingredients of offence of rape/penetrative sexual assault. The prosecution has failed to prove its case beyond reasonable doubt. The benefit of the same should go to accused. Hence, I hold point Nos.1 & 2 in the negative.
21. Point No.3: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable under Sections 366 and 376 of 20 Spl.C.C.219/16 I.P.C. r/w Section 5(l)(j)(ii) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012.
Award of compensation as in Section 7(2) of POSCO Act, to PW-6 the prosecutrix is hereby recommended to District Legal Services Authority, Bangalore Urban. Submit the copy of the F.I.R., complaint, charge sheet and last day order sheet to D.L.S.A. (Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 23rd day of November, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Munirathnamma PW.2 Suresh PW.3 Sanjeevarayappa PW.4 Dr. B.M. Nagaraj PW.5 Dr. Saraa Fathima PW.6 Prosecutrix LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Spot mahazar 21 Spl.C.C.219/16 Ex.P 1(a) Signature of PW-1 Ex.P 2 Statement of PW-2 Ex.P 3 Age certificate Ex.P 3(a) Signature of PW-3 Ex.P 4 Medical certificate of victim Ex.P4(a) Signature of PW-3 Ex.P 5 Medical certificate of accused Ex.P 5(a) Signature of PW-3 Ex.P 5(b) Signature of PW-4 Ex.P 6 164 statement of victim (copy) Ex.P 7 Complaint Ex.P 7(a) Signature of PW-1 Ex.P 8 Statement of PW-1 Ex.P 9 Panchanama Ex.P 9(a) Signature of PW-6 Ex.P 10 Statement of victim Ex.P 10(a) Signature of PW-6 Ex.P10(a) Signature of PW-8 LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
22 Spl.C.C.219/16 *** 23.11.2016 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable under 23 Spl.C.C.219/16 Sections 366 and 376 of I.P.C. r/w Section 5(l)(j)(ii) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012.
Award of compensation as in Section 7(2) of POSCO Act, to PW-
6 the prosecutrix is hereby
recommended to District Legal
Services Authority, Bangalore
Urban. Submit the copy of the
F.I.R., complaint, charge sheet and
last day order sheet to D.L.S.A.
(SHUBHA GOWDAR)
LIII Addl.City Civil & Sessions Judge, Bangalore.