Karnataka High Court
Ramesh Irappa Mutyanatti vs The State Of Karnataka on 24 March, 2023
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CRL.A No. 100197 of 2014
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100197 OF 2014 (C-)
BETWEEN:
1. RAMESH IRAPPA MUTYANATTI
AGE: 23 YEARS
OCC: COOLIE
R/O. TEERTHKUNDE
TQ & DIST: BELGAUM
2. CHANNAPPA IRAPPA JAMBOTI
AGE: 30 YEARS, OCC: COOLIE
R/O. TEERTHKUNDE
TQ & DIST: BELGAUM
...APPELLANTS
(BY SRI. S B DEYANNAVAR.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH RURAL POLICE BELGAUM
R/BY SPP DHARWAD
Digitally
signed by
BHARATHI H
M
Location:
...RESPONDENT
BHARATHI High Court of
HM Karnataka,
Dharwad
Date:
(SRI. V.S.KALASURMATH, HCGP FOR RESPONDENT)
2023.04.13
10:37:29
+0530
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO (A)CALL FOR THE PAPERS PENDING ON THE FILE OF
VIIITH ADDL DIST & SESSIONS JUDGE BELGAUM SC NO.413/2011
AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 23/09/2014 (27/09/2014) AND (B)ORDER THE
ACQUITTAL OF THE APPELLANT S/ACCUSED NO.1 AND 6, HEREIN IN
THE CHARGES LEVELED AGAINST THEM IN THE ABOVE CASE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100197 of 2014
JUDGMENT
This appeal is directed against the Judgment and order of sentence dated 23.09.2014 in S.C.No.413/2011 by the VIII Additional District and Sessions Judge, Belagavi (hereinafter referred to as 'trial Judge').
2. The appellants/accused Nos.1 and 2 are convicted by the trial Court for the offence under Section 366(A) read with Section 34 of IPC for a period of seven years simple imprisonment with a fine of Rs.20,000/- each and in default of payment of fine, they are directed to undergo simple imprisonment for six months. The appellants/accused Nos.1 and 2 also convicted for the offence punishable under Section 344 read with Section 34 of IPC with simple imprisonment for one year each and also directed to pay fine of Rs.10,000/- and in default of payment of fine, they are further directed to undergo simple imprisonment for three months each. -3- CRL.A No. 100197 of 2014
3. The brief facts of the prosecution case is that, on 18.03.2011 about 4.00 p.m., at Santibastawad village, near Navage cross, Shivaji Nagar, the accused No.1/appellant No.1 with an intention to marry the daughter of the complainant, along with accused Nos.2 to 6 in furtherance of their common intention enticed the victim-girl and kidnapped her in a motorcycle bearing registration No.KA-22/EE-3684 and took her to Navage cross and from there he took her to Belgaum bus-stand and from there to Kolhapur. It is the further case of the prosecution that, the accused No.1 wrongfully confined the victim in a room for about 18 days and committed forcible sexual intercourse on her and thereafter took her to Ramaguruwadi village of Khanapur taluk and stayed in the house of garden land for two days and committed forcible sexual intercourse on her without her consent.
4. In respect of the said incident, a complaint being lodged by the father of the victim-girl i.e. Durgappa Naik on 21.03.2011 and FIR got registered in Crime -4- CRL.A No. 100197 of 2014 No.644/2011 dated 21.03.2011 against accused Nos.1 to 5 for the offence punishable under Section 366(A), 109 read with Section 34 of IPC. As per Ex.P.29 and subsequently the respondent-police after completing investigation submitted the charge-sheet before the trial Court for the offences punishable under Section 376, 366(A), 344 and 109 read with Section 34 of IPC against 6 accused persons. Later the case committed to the learned VIII Additional District and Sessions Judge, Belagavi and the trial Judge framed charge against the accused for the aforesaid offences.
5. In order to prove the charges leveled against the accused before the trial Court, the prosecution in all examined 21 witnesses as P.W.1 to P.W.21, got marked 31 documents i.e. Ex.P.1 to Ex.P31 and 15 material objects were marked as M.O.1 to M.O.15. However, the accused has neither examined any witness nor produced any documents in his favour. After hearing the learned counsel for the parties and on assessment of the oral and -5- CRL.A No. 100197 of 2014 documentary evidence, the learned trial Court acquitted the accused Nos.2 to 5 for the offences charged against them, however, convicted accused Nos.1 and 6 i.e. appellants herein for the offences punishable under Sections 366(A) read with Section 34 of IPC and also for the offences punishable under Section 344 read with Section 34 of IPC as stated supra. However, the learned trial Judge acquitted the accused No.1 for the offence punishable under Section 376 of IPC. Feeling aggrieved by the said impugned Judgment, the appellants i.e. accused Nos.1 and 6 preferred this appeal.
6. I have heard the learned counsel Sri. S.B.Deyannavar, appearing for the appellants/accused Nos.1 and 6 and learned HCGP for the respondent-State.
7. Learned counsel for the appellants vehemently contended that, the Judgment under appeal suffers from perversity and illegality and the learned trial Judge has failed to appreciate the evidence and materials available on record. Learned counsel contends that, all the material -6- CRL.A No. 100197 of 2014 witnesses including the victim-girl, have been turned hostile to the prosecution case, the complainant-P.W.1 and the victim-P.W.2 and all other witnesses have turned hostile, in spite of the same, the learned trial Judge has convicted the accused only on the basis of the evidence of P.W.15 to P.W.18, P.W.20 & P.W.21, who are none other than the police officials. He would further contend that, the prosecution even otherwise failed to prove the age of the victim-girl, since the prosecution has not produced any document such as birth certificate of the victim or school certificate in order to prove the age of the victim-girl. Hence, according to the learned counsel, the Judgment under appeal is totally bad in law and liable to be set aside. He would further contend that, the learned trial Judge held that, the prosecution has failed to prove the case for the offence punishable under Section 376 of IPC, then the trial Court ought to have acquitted the accused for the offence punishable under Section 366A of IPC. He also contended that, the prosecution has failed to prove that, there was a forcible sexual assault by the accused on -7- CRL.A No. 100197 of 2014 the victim-girl then there is no question of procuration of the victim-girl by the accused, for such purpose, as such, learned counsel prays to set aside the impugned Judgment.
8. Per contra, learned HCGP vehemently contend that, the Judgment under appeal does not suffer from any perversity or illegality and the same is based on the evidence available on record. Learned trial Judge has rightly convicted the accused Nos.1 & 6 for the offence punishable under Sections 344 & 366A of IPC since the prosecution proved the charges leveled against them. Though material witness i.e. the victim-girl and her father the complainant turned hostile, P.W.3 the mother of the victim-girl deposed that, her daughter was traced about 20 days from the date of her missing at Kolhapur and accused No.1 kidnapped her. Therefore, according to the learned HCGP the trial Judge has convicted the accused by relying on the evidence deposed by P.W.3. Moreover, the Investigation Officer and other police officials who have -8- CRL.A No. 100197 of 2014 conducted the investigation, supported the case of the prosecution. Merely because the investigation Officers being a police witness, their version cannot be discarded as per the settled law by the Hon'ble Apex Court. As such, the learned trial Judge has rightly convicted the accused. He would further contend that, to determine the age of the victim, the trial Court relied on the medical certificate of the victim-girl which clearly depicts her age was 15-16 years as on the date of the incident. Hence, she being a minor at the time of the incident, the accused are liable to be punished for the offence under Section 366A of IPC. Accordingly, he prays to dismiss the appeal.
9. Having heard the learned counsel for the appellants and the learned HCGP and on perusal of the evidence and materials available on record, the points that would arise for my consideration are;
(i) Whether the Judgment and order under this appeal suffers from any perversity or illegality ? -9- CRL.A No. 100197 of 2014
(ii) Whether the trial Judge has justified in convicting the appellants for the offences punishable under Sections 366A and 344, 109 read with Section 34 of IPC ?
(iii) What order ?
10. I have bestowed my anxious consideration to the submissions made by both the counsels and also the evidence on record, including the trial court records.
11. This Court being the appellate Court re-appreciation of entire evidence is required and a cursory glance of the evidence adduced before the trial Court, P.W.1 the victim- girl has turned hostile and not supported the case of the prosecution. According to her, prior to the incident she was staying in the house of her grand father at Teerthkunde and she did not know any of the accused persons in this case and she was not having any acquaintance with the accused No.1. She also denied about the alleged incident of kidnap by the accused and also about forcible sexual intercourse allegedly committed
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CRL.A No. 100197 of 2014by the accused No.1 on her, as alleged by the prosecution. Even during the course of cross-examination by the prosecutor also, nothing worthwhile has been elicited from her evidence.
12. P.W.2 - Durgappa Nagappa Naik is the father of the victim-girl. He also turned hostile and not supported the case of the prosecution. He deposed that, his daughter was aged about 14 years as on the date of incident and after the incident he brought her daughter to his house at Navage cross, Santi-Bastawad. Though he deposed about the lodging of the complaint and also identified the complaint as per Ex.P.3, but he categorically stated that, he never gave any statement before the Police in connection with the incident. The learned Public Prosecutor has treated this witness as hostile and cross-examined him. Nevertheless, nothing has been elicited from this witness during the course of cross-examination.
13. P.W.3 is the mother of the victim-girl who also turned hostile and not supported the case of the
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CRL.A No. 100197 of 2014prosecution. She reiterated the version of her husband i.e. P.W.2 and stated that, one year back, his daughter was missing and they had searched for her daughter and later lodged a complaint. Thereafter, their daughter was traced after 20 days at Kolhapur. Further she deposed that, her daughter P.W.1 never informed her regarding any sexual intercourse on her by accused No.1. This witness also cross-examined by the Public Prosecutor, even in the cross-examination, nothing worthwhile has been elicited by the prosecution.
14. P.W.4 is a circumstantial witness in respect of the alleged incident. He deposed that, 7 to 8 months back, about 4.30 p.m., he saw P.W.1 who came to Kirana shop and accused Nos.1 and 2 and other persons together took the victim-girl in their motorcycle. The accused No.1 was riding the said motorcycle, but he did not know after how many days they were traced. However, he has not deposed anything about the forcible sexual act by the accused on the victim-girl.
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CRL.A No. 100197 of 2014
15. P.W.5 is also a circumstantial witness in respect of the alleged incident of kidnapping the victim-girl by the accused Nos.1 to 6. He totally turned hostile to the prosecution case.
16. P.W.6 - Nagappa Bhima Juddimani is a puncha witness, for seizure of two wheeler Bajaj Plantinum of the accused in which accused took the victim-girl. However, this witness also has turned hostile to the prosecution case.
17. PW.8 is one more witness for the mahazor in respect of seizure of the cloths belonging to the PW.1. However, this witness also turned hostile to the prosecution case. He categorically stated that he could not say the contents of the mahazars at Ex.P11 to P.13.
18. PW.9 is the one more mahazar witness for Ex.P.14. The said witness also turned hostile to the prosecution case.
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CRL.A No. 100197 of 2014
19. PW.10-Mahadev Yallappa Bannur, witness for the seizure mahazar i.e seizer of Splendor Hero Honda Vehicle from accused No.3. The said mahazar is marked as Ex.P.15. Nevertheless, PW.10 turned hostile and denied the contents of the said mahazar.
20. PW.11 is another seizure mahazar witness for Ex.P.15, also turned hostile to the prosecution case.
21. PW.12 is a circumstantial witness. According to the prosecution, he used to stay in the portion of the house where the accused forcibly confined the victim girl and committed alleged act of sexual intercourse. However, this witness also turned hostile to the prosecution case.
22. PW.14 is the doctor of District Hospital Belagavi, who examined both accused and victim girl based on the requisition by the Police as per Ex.P.17. According to him, he examined the accused and issued Ex.P.18 certificate to that effect that the accused is capable of performing sexual intercourse. He further deposed that, on
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CRL.A No. 100197 of 201427.03.2011, at 1 a.m., Kollapur Police brought the victim girl along with the requisition as per Ex.P19 and he examined the said girl. He perused the certificate issued by the radiologist, wherein the age of the victim girl is shown as in between 16 to 18 years. After examining the victim girl, he issued his report that the victim is used to an act like that of sexual intercourse as per Ex.P.20. PW.14 identified the FSL report as per Ex.P.21.
23. PW.15 is Woman Police Constable is a formal witness who carried the articles from the hospital and handed over to the CPI. PW.16 is also Police Constable, accompanied accused No.1 for the medical examination to the District Hospital. PW.17 is also a formal witness who carried FSL articles to the concerned Department and submitted the report.
24. PW.18 is a Head Constable who registered the FIR based on the missing complaint lodged by the PW.2 as per Ex.P.25.
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CRL.A No. 100197 of 2014
25. PW.19 provided a room in his house to the accused No.1 and victim for their stay. However, this witness also turned hostile to the prosecution case.
26. PW.20 is the Investigating officer in this case, who conducted investigation and submitted the charge sheet before the Court.
27. PW.21 is the then Police Sub-Inspector of Kanapura conducted partial investigation in the case by recording the statement of witnesses and also conducted the spot mahazar and recovery mahazars.
28. Before appreciating the evidence on record, a charge with reference to 366(a) of the Indian Penal Code needs closure examination. Section 366(a) of IPC is extracted as under;
"366A. Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with
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imprisonment which may extend to ten years, and shall also be liable to fine."
29. A perusal of the aforesaid section reveals that inducing of minor girl to constitute an offence under Section 366(A) should have been with reference to an intent to force or seduced her to "illicit intercourse with another person." In fact, there is no mention of any other person in the sequence of allegations leveled against the appellant/accused.
30. From a bare perusal of the Section 366A, it appears that there are three essential ingredients to constitute an offence of procurement of a minor girl under Section 366A. Those are 1) Victim girl may be induced by accused.
2)She must be minor age i.e. under the age of 18 years and 3) She must be induced by the accused person to go from a place or to do any act that intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. Amongst those, inducement is the basic requirement of law in a case of an offence under 366A of IPC. Though, the word
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CRL.A No. 100197 of 2014'inducement' has not been defined anywhere in the penal code, in ordinary dictionary meaning 'inducement' means the act or process of enticing or persuading another person to take a certain course of action.
31. Sections 366A and 366B were inserted by Amendment Act 20 of 1923 in IPC to effect to certain Articles of the International Convention for the Suppression of Traffic in Women and Children.
Said sections are intended to punish the export and import of girls for prostitution. Section 366A IPC deals with procurement of minor girls from one part to another part of the country. Section 366B IPC makes it an offence to import into India from any country outside India girls below the age of 21 years for the purpose of prostitution. The provisions are framed with pious aim to safeguarding public interest of morality than the chastity of a particular woman.
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CRL.A No. 100197 of 2014
32. The existence of specific intention and knowledge is most important element in the constitution of the offence under Section 366A IPC. The word 'seduced' used in the section is in the sense of inducement of a woman to submit to illicit intercourse at any time or on any occasion with a person other than the accused.
33. By perusal of the evidence adduced by the prosecution before the trial Court, it could be seen from the evidence, PW.2 being the victim girl, totally turned hostile to the prosecution case. She denied the suggestions put forward by the public prosecutor during the course of her cross examination. PW.2 not only turned hostile in respect of the alleged incident of forcible sexual intercourse by accused No.1 but also to the incident of kidnap by accused Nos.1 to 6 on the relevant date. Nevertheless, PW.2, the father of the victim, who lodged the complaint as per Ex.P.4 categorically denied suggestion of Public Prosecutor that the accused No.1 or accused No.6 kidnapped his daughter on the date of
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CRL.A No. 100197 of 2014incident. Further, he also denied the aspect that at no point of time his daughter informed him about the forcible sexual act committed by accused No.1 on her. PW.3 who is none other than the mother of the victim also not supported the case of prosecution. She categorically denied the suggestion put forward by the learned public prosecutor in respect of the alleged act of sexual assault by the accused No.1 or the alleged act of kidnap by accused Nos.1 and 6 along with others. Though, PW.4 deposed before the Court that about 7-8 days back, at 4.30 p.m., he saw accused Nos.1 and 2 and others took victim girl on motorbike and went away but failed to state the exact date on which the accused took the victim girl on motorbike. Further, the version of this witness not supported by PWs.1, 2 or 3. As such, the same cannot be believed to prove the charges leveled against the accused.
34. By perusal of the evidence of other witnesses, all those witnesses were turned hostile in respect of the seizure of motorbike which is said to have used for the
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CRL.A No. 100197 of 2014commission of crime by accused No.1 and also in respect of spot panchanama wherein the accused allegedly confined the victim and committed forcible sexual act.
35. PW.12 and 13 are also the material witnesses, their house is situated left and right portion of the house where the accused detained the victim and committed the sexual assault on her. These two witnesses turned hostile to the prosecution case. Nevertheless, the owner of the said house also turned hostile to the prosecution case.
36. The learned trial Judge convicted the accused solely relying on the evidence of police officers and the doctor who conducted examination of the victim. By perusal of the evidence of PW.14-doctor, in his cross examination, he clearly deposed that according to the dentist the age of the victim is 12 to 15 years and according to the radiologist the age of the victim girl is 16 to 18 years. Admittedly, the prosecution did not produce any documents to ascertain the age of the victim girl. In the circumstances, when the doctor himself deposed two
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CRL.A No. 100197 of 2014versions in respect of the age of the victim then, it is clear that the prosecution failed to prove the age of the victim girl that she was minor at the time of alleged incident.
37. It is also settled position of law that in a criminal trial, the testimony of official witness needs to be subjected to strict scrutiny and as far as possible the same shall be corroborated in material particulars and the evidence of independent witnesses as held by the Hon'ble Supreme Court in the case of Pradeep Narayan Madgonkar Etc.. vs State Of Maharashtra reported in (1995) 4 SCC 255.
38. The learned trial Judge acquitted the accused No.1 for the offence under Section 376 of IPC and strangely convicted the accused for the offence under Section 366A and 344 of IPC along with accused No.6. No detailed reasoning is forthcoming in the judgment, how the offence under Section 366A of IPC is proved.
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CRL.A No. 100197 of 2014
39. Viewed from any angle and considering the evidence available on record, more particularly, the victim herself turned hostile to the prosecution case and the father and mother of the victim girl also turned hostile to the prosecution case by categorically denying the very incident of kidnap and forcible sexual assault by the accused No.1, In my considered opinion, the learned trial Judge has erroneously came to the conclusion that the charges leveled against accused are proved beyond all reasonable doubt. It is for the prosecution to prove it's case beyond all reasonable doubts and by relying on the stray admissions made in the cross examination of hostile witnesses and by assumption and presumption, the accused cannot be convicted for the charges leveled against them. It is the settled position of law by the Hon'ble Apex Court in catena of judgments while appreciating evidence in a criminal trial, the Court has to presume the innocence of the accused where there is a doubt or two views are possible. The benefit of doubt has to be extended to the accused. The trial court cannot act
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CRL.A No. 100197 of 2014on hunchas instincts and conjectures while convicting the accused. The trial Court has to appreciate evidence in such a manner by considering the contradictions, inconsistency, exaggerations and embellishments. My view is fortified by the judgment of Division Bench of this Court in the case of Yenkappa and another Vs. State of Karnataka, reported in (2021) 1 KLJ 222(DB).
40. In that view of the matter, on close inspection of material available on record including the impugned judgment, this Court is of the view that the trial Court failed to constitute and consider the essential ingredients of Section 366A of IPC in order to convict the appellant for the said offence.
41. Nevertheless, the State has not filed any appeal against the acquittal of the accused for the offence punishable under Sections 376 and 344 of IPC.
42. In the facts and circumstances of the case, in my considered opinion, trial Judge has erred in convicting the
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CRL.A No. 100197 of 2014appellant for the offence under Section 366A of IPC and accordingly points for consideration are answered.
43. Hence, for the aforesaid reasons, I am of the opinion that the Prosecution failed to prove the guilt of the accused/appellant for the offences charged against him i.e. offence under Section 366A and 344 r/w 34 of IPC. Accordingly, the judgment of learned trial Judge is liable to be set aside and I proceed to pass the following:
ORDER The Judgment and order of sentence dated 23.09.2014 in S.C.No.413/2011 passed by the VIII Additional District and Sessions Judge, Belagavi is set aside.
The appellants/accused Nos.1 and 6 are acquitted from the charges leveled against them and their bail bonds stand cancelled.
Fine amount deposited if any, shall be returned to the appellants/accused Nos.1 and 6.
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CRL.A No. 100197 of 2014Office is directed to transmit the trial Court records forthwith along with the copy of the Judgment.
Sd/-
JUDGE Svh/--Up to para 11 HMB -Para 12 to end List No.: 1 Sl No.: 19