Karnataka High Court
Manjunatha S/O Sotta Basappa vs The State Of Karnataka on 9 July, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.1259/2010
BETWEEN:
MANJUNATHA
S/O SOTTA BASAPPA
AGED ABOUT 23 YEARS,
OCC AGRICULTURIST AND COOLIE,
R/O BENNURU VILLAGE,
TALUKA SORAB
DISTRICT SHIVAMOGGA. ...APPELLANT
(BY SRI R.B DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CPI SORABA CIRCLE, SORAB
ANAVATTI POLICE STATION. ...RESPONDENT
(BY SRI NASRULLA KHAN, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
Cr.P.C. PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED:25/26.10.2010
PASSED BY THE PRESIDING OFFICER, FTC-III,
SHIVAMOGGA IN S.C.NO.36/2010, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 366-A & 376 OF IPC AND ACQUIT THE
APPELLANT IN S.C.No.36/2010.
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THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment dated 25.10.2010 passed by the Presiding Officer, FTC-III, Shivamogga in S.C.No.36/2010 wherein the accused was found guilty for the offences punishable under Sections 366-A and 376 of IPC and was sentenced to undergo seven years' simple imprisonment and pay a fine of Rs.10,000/-, in default of payment of fine to undergo simple imprisonment for one year for the offence punishable under Section 366-A of IPC and to undergo simple imprisonment for seven years and pay a fine of Rs.10,000/-, in default of payment of fine to undergo simple imprisonment for one year for the offence punishable under Section 376 of IPC. It is against the said order of conviction and sentence, this appeal has been preferred by the accused. 3
2. Heard the learned counsel appearing for the parties and perused the record.
3. The case of prosecution in brief is as follows:
A complaint came to be lodged by one Ramappa at about 8.45 p.m. on 08.10.2009 before the Anavatti Police Station, wherein it is alleged that his second daughter aged 14 years was studying 9th standard in Government High School at Kerehalli and while she was on her way to school, for the past 6 months the accused Manjunatha, S/o Sotta Basappa was teasing her and she brought it to the notice of her father complainant.
He secured said Manjunatha and advised him. But the said Manjunatha took the matter as insult and vengeance was hovering in his mind.
4. On 02.10.2009 on the day of Gandha Jayanti when she was returning from Kerehalli at about 10.00 a.m. near Ganakalmatti the said Manjunatha forcibly kidnapped the complainant's daughter. After 4 searching her in the house of relatives the complainant came to know through his younger brother Shivarayappa S/o Basavannappa that Amanathulla of Bennur Village, Satisha, Ravi, Prakasha and Noorullah kidnapped her.
5. On the basis of said complaint, First Information Report came to be registered against the appellant - accused for the offence punishable under S.366A IPC in Crime No.136/2009 on 08.10.2009. Spot mahazar was drawn as per Ex.P2 on 09.10.2009 from the place of offence. Another mahazar was conducted as per Ex.P6 on 03.12.2009 at arecanut garden belonging to Shamanna s/o Singappa Hebbar at Thotadur, Kalasa Hobli, Mudigere Taluk. It is stated in Ex.P6 that two months back Manjunatha forcibly committed rape on victim and the place is stated in the mahazar.
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6. On completion of investigation, charge-sheet came to be filed against the accused for the offences punishable under Sections 366A and 376 IPC. It is stated therein that the accused Manjunatha often used to tease victim when she was on her way to school and even the advice given by the father of the victim was of no avail. On 02.10.2009 when she was on the way to attend the School in view of Gandhi Jayanthi she was forcibly kidnapped by Manjunatha who took her to estate of CW-13 at Thotadur, Mudigere Taluk, Chikkamagaluru District and raped her.
7. The learned Trial Judge found that there were grounds to frame charge against the accused for the offence and accordingly charges were framed against which Manjunatha pleaded not guilty and came to be tried.
8. As many as 17 witnesses were examined on behalf of the prosecution, as PWs 1 to 17, 18 documents 6 were marked as Exs.P1 to P18 and 07 and material objects were marked as Mos.1 to 7 and on concluding trial, the learned Trial Judge found the accused guilty and sentenced him as stated above.
9. The material witnesses who were examined are: complainant PW-1, his daughter victim PW-2, School Head Master PW-10 who is said to have furnished Ex.P9 Certificate regarding the entry made with regard to age of the victim, and Dr. Mamatha PW-
16.
10. The complainant-Ramappa who deposed as PW-1 states about the relationship between him and the victim, her age as 14 years, further identifies the accused Manjunatha and he teasing and annoying his daughter and also states about his daughter being kidnapped by the appellant - accused. This witness further states that accused Manjunatha had grown long hairs when the offence was committed by him and as 7 they are trimmed and cut on the date of evidence he could not recognize him. Further he says that the accused forcibly took his daughter and carried her in a car. He states that he was afraid of family pride and honour and hence gave complaint on 08.10.2009 belatedly.
11. He has been cross examined by the learned counsel for accused. He denies the suggestion made regarding the topography of the place and improbability of the commission of offence and also regarding the family matter that when the marriage of the sister of the victim was performed, the victim was dissatisfied for not performing her marriage and had gone to a village.
12. PW-2 Subhavathi, the victim was examined in chief on 13.07.2010 and it is stated that her age is 17 years. She admits that she is the second daughter of the complainant, attending school at Kerehalli. She states that she knows the accused, calls him as Manju, 8 he is a cooli and resident of Bennur. To a question that what accused used to do for you, she answers nothing. This may be improper way of asking question. She further tells that she was liking accused and did not like to stay at home and told accused over phone to take her out of the house. At this stage, she was treated hostile by the prosecution counsel. She admits during cross- examination by the prosecution counsel that on 02.10.2009 she met him at 10.00 a.m. Thereafter, she telephoned the accused and told him that if he does not come, she would commit suicide. Thereafter the accused met her and both of them went to Soraba in a bus from Kerehalli, from Soraba to Shivamogga and thereafter to Chikkamagaluru. It was 7.00 p.m. when they went to Chikkamagaluru. The accused and victim went to the house of the sister of the accused and also went to the house of one Parameshi and stayed there for 7 days. During their stay in the house of Parameshi they apprehended the arrival of police and hence they went 9 to Thotadur. Incidentally, she admits the suggestion that both of them were sent out from the house of Parameshi as they had come out of the house without informing the parents.
13. She further tells that she was instrumental in both of them going to Thotadur. She also states that she had sexual contacts with accused. She remembers her date of birth and tells as 07.03.1995. After their arrival to Anavatti they went to Police Station and she gave a statement before the police. She denied suggestion regarding accused teasing her when she was on the way to attend school and then back home. She refutes the statement that she was forcibly taken by the accused and has given statement to that effect which is marked as Ex.P5. She denies the suggestion that accused had sexual intercourse with her during their stay despite her resistance. She denies the suggestion that because of the compromise accused and victim 10 have come to terms and hence she is speaking in favour of the accused.
14. She is cross-examined by the learned counsel for the accused. Obviously she nods for all questions in affirmation. She admits that she told the accused that if she is given in marriage to other person she would be committing suicide. She admits in substance that there was no wrong act or force on her by accused. She also admits the suggestion that the accused told her that both of them can go home, may be beaten but she suggested an idea of going to Police Station. She admits that accused had all respect towards her and looked after her in a decent way. She denies the suggestion that for five to six days there was no physical contact between them. She reiterates that she had consented for sex and she admits that accused is a good person and because of that she intended to marry him. She also admits that she came to know 11 about the date of birth because it was read over to her she does not know whether her sister had completed age of 21. To a question whether she was aged 18 to 19 years, she says it as above 18 years. She has been further examined in chief by the prosecution. She admits that police took her to Thotadur house and Mahazar Ex.P6 was drawn and she has signed the said mahazar. On further cross-examination by learned counsel for the accused, she says that she does not know as to what is written in Ex.P6 mahazar.
15. Shivarayappa the uncle of the victim has deposed as PW-3. He reiterates the version of his brother complainant, regarding teasing of victim by the accused and getting information regarding kidnap and rape of the victim.
16. Ravi PW-4 is stated to be a circumstantial witness. He states that he knows the accused. Accused is doing coolie work but he does not know what wrong 12 was committed by the accused. In cross-examination he denies the suggestion that accused used to tease and annoy the victim etc. This witness is treated as hostile to prosecution version.
17. PW-5 Srinivasa Hebbar is the owner of Thotadur Estate. Lakshmi PW-6 and Pandu PW-7 both are labourers in the estate of PW-5. PW Nos.5 to 7 are circumstantial witnesses and not material witnesses. Bhoodyappa M.K. PW-8 is treated as hostile to the prosecution case.
18. T.S. Subramanyam PW-9 is another witness who was present at the time of drawing the mahazar Ex.P6 and he has signed the said mahazar and his signature is marked as Ex.P6(a).
19. H.K Naika PW-10 is the Head Master of the School where the victim was studying. He identifies the School Certificate Ex.P9 and attendance certificate 13 Ex.P10 issued by him and his signatures are marked as Ex.P9(a) and Ex.P10(a) respectively. The date of Birth mentioned in ExP-9 is 7.3.1995.
20. PW11-Eerappa is PC No.801 of Anavatti Police Station who has carried the clothes and other articles to FSL.
21. PW-12 Dharmaraya is the Constable who brought accused Manjunatha and the victim from Jade Village to Anavatti Police Station on 13.10.2009.
22. PW-13 Mohd. Shabhir is the ASI who has registered the FIR Ex.P11 against the accused for the offence punishable under S.366A of IPC.
23. PW-14 Erriswamy is the PSI who sent accused Manjunatha and victim to Government Hospital at Soraba for medical examination. 14
24. Dr. Devaraj PW-16 has examined the accused and issued certificate in respect of age of the accused. Has been cross examined. However, his evidence is not of significance.
25. Mohd. PW.16 Dr.Mamatha works as a Medical Officer in Government hospital, Soraba. She examined the victim on 13.10.2009 and found her age between 15 to 17 years. By clinically examining the victim, she found that victim had sex within 24 hours prior to her examination.
26. PW17-Krishnamurthy K., is the Police Circle Inspector at Soraba. He is another I.O. who sent seized materials to FSL Davanagere and on completion of investigation, filed charge-sheet against the accused.
27. Learned counsel for the appellant Sri R.B. Deshpande would submit that basically there was no complaint of illegal act by the victim against the 15 accused. He further submits that there are no instances of accused teasing the victim or annoying her and she has not chosen to complain before the school authority and the version of her father in this connection is false.
28. Learned counsel for the appellant further focused that there was no misunderstanding between the accused and the victim. They had passion, besides, liking towards each other. There was no occasion for the accused to force or kidnap or consign her or to have sex on her forcibly without her consent. Learned counsel further submits that the age of the victim is manipulated to suit the case of the prosecution. As a matter of fact she was aged beyond 18 years. Learned counsel stresses on the opinion given by the doctor who examined her stating that on the date of examination i.e. on 13.10.2009 victim might be aged 15 to 17 years. Learned counsel for appellant would further submit that 16 there was no occasion for the accused to entice or lure or confine the victim and the allegations attracting the provisions of S.376 IPC did not arise.
29. Shri Nasrullah Khan learned HCGP would submit that the age of the victim, the consenter either for taking her away out of house as she does not want to stay there or accepting for sexual intercourse is of no relevance as she was aged about 16 years on the date of sexual intercourse by the accused with her. Thus in the totality of circumstances and context of the case the relationship of the victim with the accused is not disputed. It is not disputed that she was studying in 9th standard. It is equally not seriously disputed that both the accused and victim had gone to different places from Thotadur to Soraba and Chikkamagaluru and stayed in the house of sister of the accused privately and later stayed in the house of one Parameshi for seven days and later went to Thotadur. Further, it is 17 seen that there is a positive assertion on the part of the victim that it is not a case of single act but in series.
30. Insofar as Section 366A is concerned, whenever a female victim aged below 18 years is taken away or enticed or induced to go away from the place with an intention to have sexual intercourse, the offence is punishable with imprisonment that may extend up to 10 years and fine. It is to be seen that even in the cross- examination of the victim she admits firmly that she was looked after with respect by accused Manjunatha. It is further necessary to observe that she advised accused not to go to Thotadur as they may have to face the wrath of parents and hence, on the other hand it is better to go to Police Station. In the circumstances it is clear that she was with the accused and remained absent from school/home and went to various places and also had sex with the accused.
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31. Learned counsel for the appellant with regard to the consideration of age of the victim and its relevance to the present case, relied on the decision of the Apex Court in the case of State of Madhya Pradesh Vs. Munna @ Shamboonath (92016) Supreme Court Cases 696), wherein, the Head Note reads as under:
Penal Code, 1860 - S/375 Sixthly - Rape- Evidence establishing sexual intercourse to be consensual - Age of prosecutrix- Not proved beyond reasonable doubt to be less than 16 years of age at the time of incident - Therefore, High Court was right in holding that prosecutrix was more than 16 years of age and was competent to give her consent- Hence, held, question of rape does not arise, as consensual intercourse was proved- Therefore, acquittal of respondent-accused under Section 376 by High Court, stands confirmed.
32. Learned counsel would further submit that the victim having consented for sex and voluntarily 19 stayed with accused for many days, even if alleged by parents as kidnapped by accused, accused is not liable for punishment.
33. In view of the facts and circumstances of this case as above, the moot point before the Court is whether accused induced the victim for the purpose of sex or marriage or illicit intercourse with another man and hence, punishable under S.366A of IPC?
34. The scope of Section 366A as mentioned is, enticing a girl of less than 18 years age to go away to any place with an intent to force her for sexual intercourse and punishable with imprisonment up to ten years and also fine.
35. In so far as the offence of kidnapping is concerned, the mere 'kidnapping' is defined under Section 363 IPC, that 'kidnapping may be kidnapping a person from India or from a lawful guardianship'. The 20 first part of the offence spells out that prescribed age is not contemplated when a person is kidnapped or taken away from India. However, when it is kidnapping within India invariably it is necessary that victim is deprived of her guardianship and she is taken away from the care and custody of guardianship regard being had to the fact that guardian is relevant.
36. Having said that the offence committed under S.363 is punishable for 7 years and further it is necessary to mention that offence of kidnapping depends on the object behind kidnapping. For instance if a minor is kidnapped in order to use the child for begging that becomes offence punishable under Section 363A with imprisonment of either term up to 10 years and fine. Further if any person is kidnapped with an intention of murdering, the offence is liable for punishment with Rigorous imprisonment for a period of 10 years and fine under Section 364 IPC. Thereafter 21 under Section 364A if kidnapping is for ransom and threatens or causes death or hurt compelling that person for ransom, the offence is punishable with death or life imprisonment and fine. Further Section 366 deals with kidnapping for different purposes such as illicit intercourse, marry against the wish of victim etc and Section 366A deals with procurers to entice the minor victim.
37. The punishment imposed under Section 363 IPC for kidnapping is, imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
38. Thus the aggravated form of kidnapping depends on for the purposes for which the victim has enticed for marriage, trafficking so on. However, if there is no second object and if it is kidnapping simplicitor itself is punishable. The purpose need not be established.
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39. In the instant case, the factors that assume significance are, kidnapping of PW2 when she was minor depriving her of rights of guardianship and the sexual contact between the accused and PW2. Regard being had to the fact that, learned counsel Sri. Deshpande, appearing for appellant brought to my notice that marriage has taken place between the accused and PW2 on 5.8.2014.
40. The date of offence being 2.10.2009 i.e. marriage is after 4 years 10 months and 3 days. It is in this background, the offence punishable under Section 366A has to be examined looking into the said provision.
41. The ingredients to attract the said provision are:
(i) Inducing a minor girl under the age of 18 years by means to go from any place or to do any act;23
(ii) The intention on the part of the person who entices that the girl may be or likely would be forced or seduced for illicit intercourse with another person shall be punishable with imprisonment that may be extended to 10 years.
42. To understand the scope of Section 366A, a cursory glance of Section 366 is also necessary, wherein it provides, 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 which may extend to 10 years and fine.
43. In the context and circumstances, person who kidnaps the woman may also included in the concept of any person. The victim is not a minor even if 24 it applies to female irrespective of age as the term is 'abducts any woman'.
44. Thus, 'any person' was included within the scope of Section 366A, that could have amounted to repetition of Section 366. Thus on the contextual reading of Section 366A, it could be seen offence on the part of the procurer of the victim which excludes the kidnapper.
45. In the context and circumstances, a person who has kidnapped according to the prosecution, it is the accused on record. A case was registered against the accused in Cr.No.136/2009 for the offence punishable under Section 366A as by that time, commission of offence punishable under Section 376 was not revealed. Final report under Section 173 of Cr.P.C. filed against the accused for the offences punishable under Section 366A and 376 IPC. On conclusion of the trial, accused was found guilty for 25 having committed the offence punishable under Sections 366A and 376 IPC and sentenced him to undergo seven years' simple imprisonment and pay a fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for one year for each of the offences.
46. Learned counsel for the accused submitted that Doctor's report regarding the age of victim is, either 15 years or 17 years. PW1 stated that his daughter was aged 14 years as per complaint Ex.P1. Head Master of the School has been examined as PW10 and he has deposed for having issued Ex.P9-School certificate, stating that date of birth of the victim is '7.3.1995'.
47. Learned counsel for appellant would submit that Ex.P9 is not proved for the reason that, extract is produced and the original register is not produced. The Doctor's evidence is otherwise and claims to be 15 to 17 years. More particularly, if the accused has reason to 26 believe that victim was beyond 18 years and she gave consent to the intercourse/ marriage as well, there was no impediment on his part to produce any document which is issued by the competent authority falsifying Ex.P9.
48. In the over all circumstances of the case, for the purpose of Section 366A which has its source from Section 366 IPC, minority is reckoned which refers upto completion of '18' years.
49. The accused knowing that the victim was less then '18' years has enticed her. However, the learned trial Judge has convicted him for the offence punishable under Section 366A IPC and at the most set of events falls under Section 363 IPC. With all that are the contention and rival contentions, if the victim is under the age of 16 years her consent is irrelevant and the act amounts to offence under Section 376 IPC. The tone and tenor of the evidence of victim is, "she had sex 27 and shared privacy with the accused. She asked him to come out of his house and take her out of her house and she had sex with him".
50. In this connection, learned counsel for the appellant would submit that accused with all humility married the victim and through the wedlock she got two children. Now the circumstance that is to be examined is, whether the offence punishable under Section 376 IPC gets absolved because of the marriage that has taken place between the accused and the victim.
51. To consider the age of the victim, it is necessary to rely on Ex.P9, wherein the date of birth is mentioned as '7.3.1995' and the said document is issued on '5.8.2014' and she is said to be studying in 9th standard. The date of offence is 2.10.2009. If the date of birth of victim is 7.03.1995, her age on the date of the offence is 14 years, 7 months 5 days. In the context and circumstances, on perusing the evidence of PW1 28 and also that of the victim, it is established that she was aged less than 16 years and in her evidence, umpteen number of times, she states by different sentences that she had no objection for sexual intercourse and on the other hand, she made the accused to come out of the house. According to her, it was free and genuine consent. When the age of the victim is less than 16 years, her consent has no relevance.
52. Even in her evidence, she says that her date of birth is '7.3.1995'. During cross examination, obviously, she answers that she is aged more than 18 years. Thus, she wanted to taken a U turn from her version regarding date of birth. To a suggestion passed to her regarding the age as 16 to 17 years is prefixed by two words in Kannada language "Nanage eega 18 athava 19 varsha vayassagide endare sakshi 18 melpattu antha helthare" that means "now I am 18 years or 18 to 19 years, I say it is more than 18 years". Regard being had 29 to the fact that her examination was done on 13.7.2010. Viewed from any angle, she falls less than the age of 16 years on the date of incident.
53. Sofar as the marriage of the accused and the victim and they begot two children are concerned, it is always a principle that social interest prevail in front of individual interest. Rape and subsequent marriage between the victim and accused is not equal to innocence. Thus, the complainant or the victim cannot be allowed to have overriding authority over law.
54. Under such circumstances, I hold that the say of the victim that she consented for sex has no relevance in the case on hand, sexual intercourse is established and also admitted. Insofar as consent is concerned, victim in unequivocal terms has stated that she has consented. Crucial aspect of age is concerned, it was established that she is less than 16 years. I hope that in the circumstances considering the evidence and 30 material on record, the offence squarely falls under Section 375 (6) IPC.
55. Learned trial Judge erred in convicting the accused for the offence punishable under Section 366A IPC when the circumstances suggested that it was an offence punishable under Section 366 IPC. However, I agree and concur with the finding of the learned Trial Judge insofar as offence punishable under Section 376 IPC is concerned.
In the context and circumstances of the case and the relationship between the accused and the victim, I find the minimum sentence appears to be proper for the offence punishable under Section 376 IPC.
56. In the result, the appeal is allowed in part. The judgment dated 25.10.2010 and sentence dated 26.10.2010 passed in SC No.36/2010 convicting the accused for the offence punishable under Section 376 IPC and sentencing him to undergo seven years' 31 simple imprisonment and pay a fine of Rs.10,000/-, in default of payment of fine to undergo simple imprisonment for one year is hereby confirmed.
Instead of Section 366A the offence committed by the accused before the commission of offence under Section 376 IPC is the one under Section 363 IPC.
The judgment convicting the accused for the offence punishable under Section 366A IPC and sentencing him to undergo seven years' simple imprisonment and pay a fine of Rs.10,000/-, in default of payment of fine to undergo simple imprisonment for one year is hereby set aside.
The accused is found guilty for having committed the offence punishable under Section 363 IPC and he is sentenced to undergo simple imprisonment for 7 years and to pay a fine of Rs.10,000/- in default of payment of fine to undergo simple imprisonment for one year.
Both the sentences shall run concurrently. 32 The accused is entitled for the benefit under Section 428 Cr.P.C.
Sd/-
JUDGE SBN/sac/tsn*