Karnataka High Court
S Surekha vs Ambarish @ Amaresh on 21 March, 2023
Author: P.N.Desai
Bench: P.N.Desai
-1-
CRL.A No. 398 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 398 OF 2012
BETWEEN:
S.SUREKHA,
AGED ABOUT 18 YEARS,
D/O R. SHANMUGAM,
NO.1, I TYPE, BEML NAGAR,
KGF - 563 115.
...APPELLANT
(BY SRI. H.PAVANA CHANDRA SHETTY, ADVOCATE)
AND:
1. AMBARISH @ AMARESH
S/O.NAGARAJAPPA,
AGED ABOUT 20 YEARS,
R/O. ANGALA VILLAGE,
BETHAMANGALA HOBLI,
BANGARPET TALUK.
2. STATE BY BEML NAGAR POLICE,
KGF, KOLAR DISTRICT.
Digitally signed by
NAGARATHNA M ...RESPONDENTS
Location: HIGH
COURT OF (BY SRI. K.P BHUVAN., ADVOCATE FOR R1,
KARNATAKA SMT.K.P.YASHODHA.,HCGP FOR R2)
THIS CRL.A. FILED U/S.372 CR.P.C BY THE ADV. FOR THE
APPELLANT PRAYING TO SET ASIDE THE JUDGMENT DATED
22.02.2012 IN S.C.NO.59/2011 PASSED BY THE P.O., F.T.C., KGF
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 366 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
CRL.A No. 398 of 2012
JUDGMENT
This appeal arises out of the judgment of acquittal passed by Presiding Officer, Fast Track Court, KGF in S.C.No.59/2011 dated 22.02.2012, wherein the accused was acquitted for the offences punishable under Section 366 of Indian Penal Code (for short hereinafter referred to as 'IPC').
2. This appeal is filed by the victim. The State has not filed the appeal against the acquittal of accused.
3. In brief the contention of the appellant is that the victim's father filed a complaint before the BEML Nagar police station KGF, Kolar district alleging that on 25.02.2010 at about 09:00 a.m. the accused kidnapped his minor daughter - C.W.2 - Surekha/victim with an intention to keep her under illegal custody. Therefore, he lodged the complaint stating that his daughter is missing as per Ex.P1 and a missing complaint was registered. Then on 28.03.2010 the jurisdictional police found his daughter and she has stated as she could not performed well in the examination, she was residing in her friends house at Chitradurga. Then -3- CRL.A No. 398 of 2012 again on 29.03.2010, the accused took the victim-Surekha with him. Then when the complainant enquired, he came to know that victim herself voluntarily ran away with accused - Ambarish. As she was a minor, the complainant again lodged the complaint. The police registered the case and after investigation, filed the charge sheet against the accused for the offences under Section 366 of IPC.
4. In order to prove the case, the prosecution has examined seven witnesses as PWs.1 to 7 and got marked four documents as Exs.P1 to P4 and during the cross- examination of DW.1, Exs.D1 and D2 are marked on behalf of accused. After recording the statement of accused under Section 313 Code of Criminal Procedure, (for short hereinafter referred to as 'Cr.P.C.') and hearing the arguments, learned Sessions Judge acquitted the accused. Aggrieved by the same, the victim herself has filed this appeal.
5. Heard Sri. Pavana Chandra Shetty H, learned counsel for the appellant and Sri. K.P.Bhuvan, learned counsel for respondent No.1 and Smt.K.P.Yashodha, learned -4- CRL.A No. 398 of 2012 High Court Government Pleader for the respondent No.2/State.
6. Learned counsel for the appellant argued that the Trial Court committed an error in acquitting the accused without appreciating the evidence on record. The impugned judgment of acquittal is erroneous, contrary to law and facts on record. The Trial Court has passed the impugned judgment based on wrong presumption and assumptions of facts and law suffering from infirmities and without any valid reasons. The Trial Court failed to consider the evidence of PW.1 and PW.2. PW.2 - Surekha stated regarding the kidnap and confining her in his brother's house for three days. The brother of the accused and his parents performed her marriage with accused she was subjected to sexual intercourse. The examination-in-chief and cross-examination of PW.2 not considered by the Trial Court. PW.1 the father of the victim is a blind man, who filed the complaint with the jurisdictional police and explains his grievance. PW.3 who is the investigation officer also supported the prosecution and explains entire investigation and subject matter of the case, -5- CRL.A No. 398 of 2012 but the Trial Court not appreciated the evidence of the investigation officer. The learned counsel argued that one Mr. Dr.Venkatesh/PW.4 who is a duty doctor at KGF Government hospital gave the medical certificate marked as Ex.P4 before the Trial Court. But the Trial Court not appreciated the evidence of doctor. The Trial Court failed to discuss in paragraph No.12 of the judgment that the victim girl Surekha was aged within 18 years and the said facts reveals that she is capable of understanding things and such finding is arbitrary and illegal. The Trial Court by the impugned judgment of acquitted the accused for the offence under Section 366 IPC which has occasioned to failure of justice. Further learned counsel argued that now the respondent No.1/accused married another lady and left the victim left high and dry. He has also argued that she has got a child but no compensation was awarded to her by the District Legal Services Authority as it is a duty of the Court to refer the matter to the District Legal Services Authority under Section 357A of Cr.P.C. under the Victim's Compensation Scheme to award compensation to the victim and the said scheme was introduced in the year 2009 and -6- CRL.A No. 398 of 2012 the learned counsel argued that atleast victim should be given compensation. In support of his contention he has relied upon the following decisions of Hon'ble Supreme Court:
1) Ankush Shivaji Gaikwad Vs. State of
Maharashtra - AIR 2013 SC 2454
2) Rahul Vs. State of Delhi, Ministry of
Home Affairs and another - (2023) 1 SCC 83
3) X Vs. State of Jharkhan and others -
(2021) 2 SCC 598
4) State of Madhya Pradesh Vs. Mehtab -
(2015) 5 SCC 197
7. Learned counsel argued that this Court can also in view of the decisions of Hon'ble Supreme Court even in the cases where the accused is acquitted, the compensation can be given to the victim. Hence, he prayed to allow the appeal.
8. Against this learned counsel for respondent No.1 argued that the Trial Court has properly appreciated the -7- CRL.A No. 398 of 2012 evidence on record and has passed the judgment of acquittal. There is absolutely no evidence to show that the accused tried to kidnap and induce the victim to sexual assault. The Trial Court after considering all the evidence has rightly come to the conclusion that the victim is a major and has rightly acquitted the accused. Hence, he stated that there was no error or illegality in the order. Further the learned counsel argued that the victim had filed matrimonial case in O.S.No.275/2018 and the said matter was settled and the accused has paid a sum of Rs.1,40,000/- as compensation and the said matter was ended in compromise. Hence, he prays to dismiss appeal.
9. I have also perused the judgment of acquittal and other evidence on record.
10. PW.1-Shanmugam is the father of the victim. He states that on 25.02.2010 his daughter went for examination. But she did not return to the house. Hence, he lodged the complaint as per Ex.P1. On 28.03.2010, the police brought the victim to the police station. As the victim was minor her father told that he will keep the victim in his -8- CRL.A No. 398 of 2012 house and thereafter after completion of 18 years, he will talk with accused. But the Police Sub-Inspector has not agreed to this. Hence, the accused took the victim with him. Then the father of the victim gave a complaint to the Human Rights Commission. On the direction of the said Commission, the police arrested the accused and his daughter and they recorded the statement of his daughter and sent her to the hospital to know her age and thereafter his daughter was sent to reception centre and then PW.1 took his daughter to his house. On 10.07.2010 the accused took his daughter with him and again PW.1 lodged complaint and he has not stated in his complaint that, his daughter did not write examination properly and she came to the house and took a sum of Rs.5,000/- and went to her friend's house at Chitradurga and she stayed there and again on 28.03.2010, the accused took her. So this is all his evidence. The prosecution has treated him as hostile witness, but nothing helpful to the prosecution is elicited from his evidence. His cross-examination also shows that his daughter went for examination, but she did not return and hence, he lodged the complaint.
-9-CRL.A No. 398 of 2012
11. PW.2-Surekha who is the victim has stated that she knows the accused for the last three years. She has stated that when she was returning from the examination on 24.02.2010, after finishing her ITI examination at BEML Nagar at about 03:00 p.m. at that time, the accused came there and told that, he will marry her and if she did not agree, the accused will die and threatened her and took her and she went with him and she has given statement in that regard. The accused took her to Bengaluru and kept her in the house of his brother and she stayed there for three days and thereafter the accused kept her in a separate house for one month and thereafter he took her to his elder brother's house and he kept her for three days and when she was in the house of Suresh, the accused and his brother performed her marriage with the accused in the presence of their parents in the said house. On 28.03.2010 the police brought her and the accused to BEML police station and her father came to said police station and he told that, his daughter is minor and after completion of her 18 years he will send her with the accused, but the accused and his friends told that if they did not send her with the accused, accused will commit
- 10 -
CRL.A No. 398 of 2012suicide and thereafter police sent her with the accused and again in the month of July, the police arrested her and the accused and produced before the court and the police sent her to General Hospital, KGF and she was subjected to medical treatment and her examination was conducted. Her cross-examination discloses that she went along with accused in a bus. She herself voluntarily went to BEML police station on 28.3.2010. She has stated that she has not given statement before the police as per Exs.D1 and D2. This is all her evidence.
12. PW.3 - Srikantaiah B., Circle Inspector of Police who has conducted the investigation. He has stated about receipt of complaint as per Ex.P1 and sending the police to trace the accused. Thereafter both accused and victim were found in Hangala village and recorded the voluntary statement of accused and also statement of victim and drawn mahazar as per Ex.P3. He has further stated that on 12.07.2010 victim told that her parents were ill-treating her, therefore, she requested the police not to send her to house. Hence, she went to women and child department reception
- 11 -
CRL.A No. 398 of 2012centre as per the order of this Court and she was subjected to medical examination. He has also collected the FSL report and collected the certificate issued by KGF hospital regarding age proof of the victim and the same is marked as Ex.P4. In view of the said certificate, it is evident that age of victim is about 17 to 18 years. Therefore, he has filed the charge sheet.
13. PW.4 - Dr.Venkatesh has stated that on 24.07.2010 while he was working at KGF general hospital, one Surekha was produced before him to know her age and he examined the said Surekha and issued medical certificate as per Ex.P4 and he has stated that as per his examination, the said Surekha is aged more than 17 years and below the age of 18 years.
14. PW.5 - Suresh is the witness for Ex.P3/mahazar has not supported the prosecution case.
15. PW.6 - Dr. Karunakaran is the relative of PW.1/father of victim. He has not stated anything about accused kidnapping her.
- 12 -
CRL.A No. 398 of 2012
16. PW.7 - Prakash is the another panch witness for Ex.P3/mahazar has also not supported the case.
17. Therefore, on perusing the entire evidence of prosecution, it is evident that Ex.P4/medical certificate shows that the age of the victim is above 17 years and below 18 years. So the said certificate is issued by PW.4/Dr.Venkatesh. Therefore, it is evident that the victim may be aged 18 years or just below 18 years.
18. It is the settled principles of law that the age of the victim is to be considered based on record. But the school certificate is not produced and the school records are also not produced in proof of the age of victim. Further the Trial Court after referring to the evidence found that the victim went to her friends house, as she did not perform well in the ITI examination. The same was also stated by her father. The only evidence that is available in the record is that according to the victim, the accused told her that he will commit suicide, if she did not marry him. So therefore, the victim went along with him and marriage was performed. It appears that both are in love with each other. The victim
- 13 -
CRL.A No. 398 of 2012was not even ready to live with her parents house, as evident from the evidence of police officer and she was sent to reception centre on her wish. She has resiled from her statement as per Exs.D1 and D2. She had traveled with accused in a bus and moved to different places. It is not her case that the accused confined the victim and threatened her not to disclose this fact to any other person. There are so many opportunities for her to call for help or inform the other person. But she has not done so. So the evidence of prosecution witnesses creates doubt as to whether, the victim was kidnapped by accused.
19. The learned Sessions Judge has relied on the decision of Hon'ble Supreme Court in the case of Shyam and another Vs. State of Maharastra - AIR 1995 SC 2169 and found that the conduct of the victim does not inspire confidence in her to prove the alleged offences committed by the accused. Therefore, the entire evidence of prosecution case creates doubt about the charge leveled against the accused. The learned Sessions Judge found that the prosecution has failed to prove the guilt of the accused
- 14 -
CRL.A No. 398 of 2012and given benefit of the doubt to the accused and acquitted the accused.
20. This Court being an Appellate Court will not interfere with the judgment of acquittal unless it is shown that the judgment of acquittal is perverse, illegal and not based on the evidence on record and which has resulted in mis-carriage of justice. This Court will not interfere, even if other view is possible. If two views are possible from the evidence of prosecution, the view favourable to the accused will have to be accepted. So in the light of these principles, if the judgment of acquittal is considered in my considered view, the judgment of acquittal needs no interference by this Court.
21. The contention of the appellant's counsel that victim father is a blind person as victim was minor no application was made to the District Legal Services Authority under Section 357(A) Cr.P.C under the Vicitm's Compensation Scheme. If that is the case, it is for the District Legal Services Authority to consider the representation if any filed by the victim and pass orders in
- 15 -
CRL.A No. 398 of 2012accordance with victim's compensation scheme to the victim, even though the accused is acquitted as held by Hon'ble Supreme Court in the above referred decision. Therefore, the High Court Legal Services Committee to verify in the light of observations made above, regarding grant of compensation by the concerned District Legal Service Authority to the victim under the Victim's Compensation Scheme which was introduced in the year 2009. The concerned District Legal Service Authority to consider the same in accordance with the victim compensation scheme. The victim is also permitted to file representation to the concerned District Legal Service Authority which has jurisdiction to consider the application of victims of crime. If such representation is filed, consider the case of the victim for grant of compensation in accordance with the scheme framed for grant of compensation to victim and dispose of her application in accordance with any such rules or guidelines.
22. Accordingly, I pass the following:
- 16 -CRL.A No. 398 of 2012
ORDER
1. The appeal is hereby dismissed.
2. Consequently, the judgment and order of acquittal dated 22.02.2012 passed by Presiding Officer, Fast Track Court, KGF, in S.C.No.59/2011 against the respondent/accused is hereby confirmed.
3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. The copy of this judgment be sent to the High Court Legal Services Committee and to the concerned District Legal Service Authority. Since the matter is old, the jurisdictional District Legal Services Authority to consider grant of compensation to victim - PW.2/S.Surekha in accordance with the Victim's Compensation Scheme, guidelines and rules, if any and verify whether PW.2 is entitled for any compensation and take necessary steps as expeditiously as
- 17 -CRL.A No. 398 of 2012
possible and pass appropriate orders in
accordance with law as per the Victim's
Compensation Scheme, in view of observation made in paragraph No.21 of this judgment, if such representation is either filed by victim/PW2 or received by the committee within a period of two months from the date of receipt of certified copy of this judgment.
5. No costs.
Sd/-
JUDGE HJ List No.: 1 Sl No.: 34