Karnataka High Court
Mudakappa @ Singadi vs State Of Karnataka on 5 December, 2012
Author: N.Ananda
Bench: N. Ananda
1
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 05TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL APPEAL No.1713/2007
BETWEEN:
1. Mudakappa @ Singadi
S/o. Basappa Hegade
Aged 24 years
R/o. Kankanawadi, Raibag Taluk.
2. Ramappa Basappa Hegade
S/o. Basappa Hegade
Aged 20 years
R/o. Kankanawadi, Raibag Taluk. ...Appellants
(By Sri S.M.Babu, Advocate)
AND:
State of Karnataka
By Ghataprabha P.S.
Gokak. ...Respondent
(By Sri Vinayak S.Kulkarni, HCGP)
This appeal is filed under section 374(2) Cr.P.C., praying to
set aside the judgment of conviction dated 31.10.2007 passed in
S.C.No.297/2006, on the file of District & Addl. Sessions Judge,
Presiding Officer, Fast Track Court at Gokak & etc.
This appeal coming on for final hearing this day, the court
delivered the following:
2
JUDGMENT
The appellant No.1 is the elder brother of appellant No.2 and they are the sons of accused No.2 Basappa Singadi Hegade. The appellants 1 & 2 (hereinafter referred to as 'accused 1 & 3') were tried for offences punishable under sections 363 & 366 r/w 34 IPC.
2. The learned trial Judge has held accused 1 & 3 guilty of offences punishable under sections 363 & 366 r/w 34 IPC and sentenced them to undergo rigorous imprisonment for a period of 5 years and pay a fine of Rs.2,000/- each with default sentence for an offence punishable under section 363 r/w 34 IPC and to undergo rigorous imprisonment for a period of 7 years and pay a fine of Rs.3,000/- each with default sentence for an offence punishable under section 366 r/w 34 IPC. Accused No.2 was acquitted of offences punishable under sections 363 & 366 r/w 34 IPC.
3. I have heard learned counsel for appellants (accused 1 & 3) and learned HCGP for State.
3
4. The charges framed against accused 1 to 3 read thus:-
"1) That you accused No.1 to 3 on 26-03-
2006 at 3.00 a.m. in furtherance of your common intention, kidnapped Kum.Renuka, a minor out of the lawful guardianship of her brother Yankappa Bhimappa Godi, without his consent, and thereby you have committed an offence punishable under section 363 r/w. 34 of IPC, and within the cognizance of this Court.
2) Secondly, that you accused No.1 to 3 on 26-03-2006 at 3.00 a.m., in furtherance of your common intention, kidnapped Kum.Renuka, a minor, by inducing her with intent that she may be compelled to marry Mudakappa @ Singadi Hegade, against her will, and thereby you have committed an offence punishable under Section 366 r/w.34 of IPC, within the cognizance of this Court."
5. PW8 is the victim girl. PW9 and PW10 are the parents of victim girl. PW4 is the elder brother of PW8. 4
6. The evidence on record would reveal that accused 1 to 3 are related to PW9 & PW10, in fact, they had approached PW9 & PW10 and requested them to give PW8 in marriage to accused No.1. PW9 & PW10 rejected the proposal stating that PW8 was still studying.
7. The tenor of cross-examination of prosecution witnesses by accused and examination of defence witnesses and documents relied upon by accused would clearly suggest that accused No.1 has not denied his marriage with the victim on 27.03.2006. It is the specific defence of accused No.1 that victim girl was aged about 19 years at the time of incident and she was willing to marry accused No.1. The victim girl (PW8) on her volition accompanied accused No.1 and their marriage was performed in Ghattige Basaveshwara Temple at Karoshi Village. On 28.03.2006, their marriage was registered in the office of Sub-Registrar at Chikodi. PW3- Salake Mallappa Hemesha was the Sub-Registrar. Accused have not controverted evidence of PW3-Salake Mallappa Hemesha, the then Sub-Registrar of Chikodi. 5
8. PW3 has deposed; that on 28.03.2006, accused No.1 and PW8 (victim) appeared and submitted an application to register their marriage. They stated that on 27.03.2006, their marriage was performed in Ghattige Basaveshwara Temple at Karoshi Village. The application submitted by them in the prescribed form bear the signatures of accused, PW8 and witnesses.
9. The evidence of PW3 that on 28.03.2006, accused No.1 and victim girl (PW8) appeared before him in the Office of Sub-Registrar and submitted an application in prescribed form stating that they have married in Ghattige Basaveshwara Temple at Karoshi Village on 27.03.2006 and they wanted their marriage to be registered and registration certificate was issued has not been controverted.
During cross-examination of PW3, evidence of PW3 that accused No.1 and PW8 (victim) appeared before him and marriage was registered in the office of Sub-Registrar on 28.03.2006 has not been controverted. However, it was 6 suggested to PW3 if the age of bridegroom is less than 21 years and the age of bride is less than 18 years, their marriage will not be registered. It was also suggested to PW3 that he registered marriage after confirming that victim girl was born on 06.05.1986 and she had completed the age of 18 years.
10. PW8 (victim) has deposed;- accused 1 to 3 are related to them; accused 1 to 3 had approached her parents and requested them to give PW8 in marriage to accused No.1, however her parents rejected the proposal stating that PW8 was still studying and she had not attained marriable age; on 26.03.2006, there was Karisiddeshwara Jathra (fair) in their village; accused 1 to 3 had come to Karisiddeshwara jathra; PW8 and their parents had gone to Karisiddeshwara jathra; at about 3 a.m., on the intervening night of 26/27.03.2006, accused No.1 with the assistance of accused No.3, forcibly took PW8 on a motorcycle to Kankanawadi village; accused No.2 joined them; PW8 was taken to Ghatti Basaveshwara Temple at Karoshi Village, where the marriage 7 of accused No.1 with PW8 was performed; on the same day viz., 27.03.2006, accused No.1 took PW8 to the Office of Sub-Registrar at Chikodi and she was forced to affix her signatures to certain applications; on the following day, accused No.1 took her to Sri Maruthi Temple at Kallolli Village, at that time, Ghataprabha Police came there and took them to Ghataprabha Police Sation.
PW8 has deposed that accused had threatened to hit her with 'jambi' (a dagger). PW8 has deposed; that she was born on 08.01.1989; at the time of marriage, she was aged about 17 years.
During cross-examination, PW8 has denied suggestion that she was born on 06.05.1986 and as on the date of marriage, she had completed 19 years of age. PW8 has denied suggestion that her marriage was fixed with a boy of Chinchali Village and she was not interested to marry that boy, therefore she had suggested to accused No.1 that they should marry; she accompanied accused No.1 on her volition 8 and married him and they had gone to the office of Sub- Registrar at Chikodi and got their marriage was registered.
11. PW8 has admitted in the presence of sub-Registrar (PW3) that she had submitted an application stating that she had completed age of 19 years. PW8 has admitted before the Sub-Registrar that she had married accused No.1 on her volition, however she has added that it was under threat.
12. The evidence of PW8 that she was forcibly taken by accused 1 & 3 from Karisiddeshwara Jathra to Ghatti Basaveshwara Temple at Karoshi Village, where marriage of accused No.1 and PW8 was forcibly performed looks highly improbable. It goes without saying that there were number of people in Karisiddeshwara Jathra. Therefore, evidence of PW8 that accused 1 to 3 took her forcibly looks improbable. The evidence of PW8 that she was forcibly taken by accused 1 to 3 to Ghatti Basaveshwara Temple at Karoshi Village and accused No.1 married her, thereafter PW8 was forcibly taken to the office of Sub-Registrar at Chikodi looks highly 9 improbable. All these events had taken place in public places, within public vision. PW8 was in the company of accused No.1 for two days. PW8 had moved with accused No.1 in public places. There were plenty of opportunities for her to cry for help to escape from the clutches of accused. The conduct of PW8 through out would establish that she was a consenting party to the marriage with accused No.1.
13. At this juncture, it is relevant to state that PW3, the then Sub-Registrar of Chikodi, who had registered marriage of accused No.1 and PW8 has not deposed that PW8 was under the state of fear or accused had brought PW8 to the office of Sub-Registrar by threatening her. The prosecution has not suggested to PW3 when accused No.1 and victim (PW8) came to the Office of Sub-Registrar for registering their marriage, PW8 gave her consent due to threat or fear.
14. The evidence of PW9-Bhimappa Mayappa Godi (the father of victim) is not consistent with the evidence of PW8. PW9 has deposed; on the date of incident, he was busy in 10 Karisiddeshwara Jathra; accused 1 to 3 had come to said jathra around 2.30 a.m. or 3 a.m.; PW9 came to know that accused have forcibly taken his daughter on night. PW9 has deposed that PW12 told him that accused 1 to 3 proceeded on a motor cycle. PW9 has deposed that his daughter was aged about 17 years at the time of incident. The evidence of PW9 in his examination-in-chief does not incriminate accused. Even then, learned counsel for accused has cross- examined PW9. Even during cross-examination, PW9 had taken specific defence that PW8 on her volition married accused No.1.
15. PW12-Pundalik Shivappa Sanganatti has deposed; that on 27.03.2006 during early morning, he was going towards his garden, at that time he saw accused 1 & 3 taking Renuka (the victim) on a motorcycle and accused No.2 was going by walk; parents of the victim were searching PW8.
11
During cross-examination, PW12 has admitted that PW9 was his maternal uncle. PW12 has not deposed that accused 1 & 3 had forcibly taken PW8.
The evidence of PW12 is contrary to the evidence of PW9 that he came to know that his daughter was taken by accused 1 to 3 around 2.30 a.m. or 3 a.m. The evidence of PW12 is contrary to evidence of PW10, who has deposed that accused gagged the mouth of PW8 and forcibly took her.
16. At this juncture, it is relevant to state that PW12 being the close relative of the victim had not immediately informed the parents of victim about kidnap of the victim by accused. This would create a grave suspicion in the evidence of PW12. The evidence of PW12 gets suspected by the fact that first information of the incident was lodged by PW4 (the elder brother of the victim) at 10.30 a.m. on 28.03.2006.
17. PW10-Rathnavva is the mother of victim (PW8). PW10 has deposed; accused gagged victim and forcibly took her, thereafter they searched PW8. PW10 has deposed as if 12 accused gagged PW8 and forcibly took her in the presence of PW10, yet the first information was lodged on 28.03.2006. The place of incident is at a distance of 16 kilometres from the jurisdictional police station. PW9 & PW10 in their evidence have deposed that they were searching for their daughter. This reason cannot be accepted as they have categorically deposed that accused had kidnapped victim.
18. PW4-Yankappa is the elder brother of victim. PW4 has lodged first information that accused enticed the victim from their house.
PW4 has deposed; on the date of incident, accused had come to their house in connection with some festival; at about 1 a.m., they took the victim on a motorcycle.
19. Thus, we find that versions given by the parents and elder brother of victim are totally inconsistent and they cannot be reconciled. In the circumstances, defence of accused that victim had gone with accused No.1 on her volition and married him looks probable. 13
20. As per evidence adduced by prosecution and documents relied upon by prosecution, victim was born on 08.01.1989. The incident is alleged to have taken place on 26.03.2006. Even if the age suggested by prosecution is accepted, the victim was aged about 17 years 2 months and 18 days on the date of incident.
21. In a decision reported in AIR 1965 SC 942 (in the case of S.Varadarajan Vs. State of Madras), the Supreme Court has held:-
"(7) The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined 14 thus in the first paragraph of s. 361 of the Indian Penal Code:
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan, she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference 15 could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-
Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived 16 as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her 17 life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision in Abdul Sathar Vs. Emperor, 54 MAD.L.J. 456 : (AIR 1928 MAD 585) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of S. 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In 54 MAD.L.J.456: (AIR 1928 MAD
585) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit 18 suicide if she was not taken away from there and observed:
"If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or brought about by something that the accused did."
In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself; it was she who telephoned to the appellant and fixed the rendezvous, she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only 19 intention was to become the appellant's wife and thus be in a position to be always with him.
(8) The learned Judge also referred to a decision in Queen Vs. Kumarasami, 2 MAD HCR 331 which was a case under s. 498 of the Indian Penal Code. It was held there that if whilst the wife was living with her husband, a man knowingly went away with her in such a way as to deprive the husband of his control over her with the intent stated in the section, it would be a taking from the husband within the meaning of the section.
(9) It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins 20 the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian".
22. As per evidence of prosecution, after the victim was traced, she was sent to PW1-Dr.Bharathi Balappa Goni, the then Medical Officer of Community Health Centre at Mudalagi. PW1 has deposed; the victim refused to undergo medical examination stating that she was not subjected to sexual harassment by accused No.1; therefore, PW1 could not examine the victim. The refusal of PW8 to undergo medical examination would suggest that she did not have grouse or grudge against accused, soon after she was apprehended. PW8 has not assigned any reasons for refusal to undergo medical examination. This circumstance would 21 also suggest that PW8 had accompanied accused No.1 and married him on her volition.
23. The next point for determination is:-
"Whether prosecution has proved beyond reasonable doubt that victim was less than 18 years of age on the date of incident?"
24. The prosecution has relied on Ex.P.4-Memorandum of marriage. As per this document, victim had given her age as 19 years at the time of her marriage with accused No.1. The contents of this document have not been disowned by PW8.
25. The prosecution has relied on Ex.P.3-Certificate stated to have been issued by the Principal of Sri Ningappa Rayappa Patila Independent Pre-University College at Kalloli. In this document, it is shown that PW8 was born on 08.01.1989. This document is not an extract of the admission register maintained by the college. This document has been issued by the Principal on a letterhead of the aforestated college.
22
26. The prosecution has examined PW2-Mahadeva Jakkappa Vajamani, the then Principal of aforestated College to prove the contents of Ex.P.3. PW2 apart from production of document (Ex.P.3) has not given evidence in proof of age of the victim. Above all, PW2 had issued Ex.P.3 on the basis of entry found in the college register.
27. At this juncture, it is necessary to state that entries made in the college admission register do not form primary evidence. The entries were made in the college admission register on the basis of entries made in the previous school records.
28. The prosecution has also relied on evidence of PW15- Vilas Basavanta Shamannavar (the then Tahsildar of Raibag), who has produced Ex.P.10-Part II: Still Births Register of Mantura Village. PW15 has deposed that entries in the register have been altered.
23
29. It is seen from evidence of PW15 that he was examined to dispute contents of Ex.D.1-Birth Certificate relied upon by accused.
30. The accused have relied on Ex.D.1-Birth Certificate of PW8 (victim), which has been issued from the office of PW15. In Ex.D.1 it is shown that PW8 was born on 06.05.1986. PW15 has admitted that Ex.D.1 was issued from the Office of Tahsildar at Raibagh. Ex.D.1 was issued after verifying records maintained in the office of Tahsildar. PW15 has deposed that contents of Ex.D.1 are not altered.
31. The prosecution has relied on the contents of still birth register marked as Ex.P.10. This register is maintained to record still births. The relevant entry is marked as Ex.P.10. At this juncture, it is relevant to refer to the provisions of the Karnataka Registration of Births & Deaths Rules, 1970, (for short, 'the Rules') which provides for maintenance of registers such as Still Birth Register, Live Birth register and Death register.
24
32. Under section 2(g) of the Registration of Births & Deaths Act, 1969 (for short, 'the Act'), "still birth" means foetal death where a product of conception has attained at least the prescribed period of gestation. Under section 2(d) of the Act, "live-birth" means the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes or shows any other evidence of life, and each product of such birth is considered live-born.
33. It looks ridiculous that prosecution has relied on still birth register to prove the age of living person. In the still birth register, the names of victim and her parents are entered. These entries would belie that the victim was born on 08.01.1989.
34. It is obvious from this document (Ex.P.10), neither prosecution nor the learned trial Judge was aware that still births register will be maintained to enter foetal death, where 25 a product of conception has attained at least prescribed period of gestation. If this document is accepted, still birth by name Renuka was born on 06.05.1986. PW15, who had given evidence was not aware of relevancy or implication of this document. It is unfortunate that learned trial Judge on the basis of contents of still birth register, has discredited contents of Ex.D.1 to hold that victim was born on 08.01.1989.
35. From the contents of Ex.D.1-Birth Certificate of victim issued from the office of Tahsildar, Raibag, it is proved that victim was born on 06.05.1986 and victim was more than 18 years of age on the date of incident. The learned trial Judge without bestowing his attention to documentary evidence relied upon by accused, has held that victim was less than 18 years of age on the date of incident. The learned trial Judge has not even referred to definition of 'kidnap'.
36. Thus, from the evidence on record, it is established that victim (PW8) on her volition had 26 accompanied accused No.1 and married him. She was aged more than 19 years on the date of incident. PW8 had gone to the Office of Sub-Registrar at Chikodi along with accused No.1 on her volition and got her marriage with accused No.1 registered in the Office of Sub- Registrar at Chikodi. Therefore, the learned trial Judge was not justified in convicting accused 1 & 3 for offences punishable under sections 363 & 366 r/w 34 IPC.
37. In the result, I pass the following:-
ORDER The appeal is accepted. The impugned judgment is set aside. The appellants - accused 1 & 3 are acquitted of offences punishable under sections 363 & 366 r/w 34 IPC in S.C.No.297/2006, on the file of Fast Track Court at Gokak. The bail bonds executed by accused 1 & 3 shall stand cancelled. The fine amount deposited by 27 accused 1 & 3 shall be refunded to them on proper identification. Office is directed to send back records along with a copy of this judgment to the trial court, forthwith.
Sd/-
JUDGE SNN