Bangalore District Court
SPL.C/505/2014 on 11 March, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 11th DAY OF MARCH 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 505/2014
COMPLAINANT :
The State of Karnataka by K.R.
Puram Police Station, Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
Shiva S/o. Late Rangappa,
20 years, residing at 1st cross,
Shed in Shanthinagar Slum,
Near Hoodi Railway Gate, Hoodi,
Bengaluru 48.
[Represented by learned counsel
Sri.N. Venkataswamy Reddy]
***
JUDGMENT
K.R. Puram Police, Bangalore City have charge sheeted the accused for the offences punishable under Section 366A and 506 of I.P.C.
2 Spl.CC.No. 505 / 2014
2. The case of the prosecution, in brief, is as under :
CW2-is the daughter of CW1 Gangashetty, she was minor in the year 2012. She did not get through in the SSLC examination. Hence she discontinued her education and started working in Garments with her mother. Accused who is her cousin-brother in relation with intent to marry her against her will had taken away on 22.9.2011 in Autorikshaw at about 8.00 p.m., when she was outside the house. He took her to K..R. Puram bus stop, thereafter to Kaiwara on the pretext of visiting temple. On the next day morning he had forcibly tied Tali and exchanged garlands. He threatened her not to reveal this incident before her parents otherwise he would not keep quiet.
Thereafter they returned to Bangalore and stayed in the house of the accused. In the meanwhile CW1 had lodged complaint suspecting the accused. K.R. Puram Police have traced her on 26.9.2011 and brought her to the Police Station from the house of 3 Spl.CC.No. 505 / 2014 the accused, Investigating Officer recorded her statement. Accused was also apprehended. Both accused and victim girl were sent to hospital for medical examination. IO recorded statement of other prosecution witnesses and drew necessary mahazars, by completing the investigation he submitted the Charge Sheet to the Court for the aforesaid offences.
3. The charge sheet was submitted to X ACMM Court and learned Magistrate after taking cognizance, committed this case to the Court of Sessions for trial. After committal this case was made over to this Court and registered in Spl.C.C. After following the procedure laid down under Law the charge for the offence punishable under Section 366 of I.P.C has been framed and read over to the accused. Accused has pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side.
4. The prosecution has examined as many as 5 witnesses as P.W.1 to P.W. 5 out of 18 charge sheet 4 Spl.CC.No. 505 / 2014 witnesses and got marked the documents at Ex.P.1 to Ex.P6, the details of which are given in the annexure of this Judgment. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. Posted for arguments.
5. Heard the arguments on both sides.
Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused had kidnapped CW2- Nandini-minor daughter of CW1 on 22.9.2011 at 8.00 p.m., when she was outside her house with intent to compel her to marry him 5 Spl.CC.No. 505 / 2014 punishable under Section 366 of I.P.C ?
2) What order?
7. My findings on the above points are as under:-
Point No.1) : In the negative
Point No.2) As per final orders
for the following
REASONS
8. Point No.1:- The accused is alleged to have had kidnapped PW1 prosecutrix, the minor daughter of PW2 on 22.9.2011 at about 8.00 p.m when she was outside her house. He took her in an autorikshaw on the pretext of taking a round. Thereafter he took her to K.R. Puram Bus Stop and then had gone to Kaiwara. He took her to Kaiwara stating to visit the temple. On the nextday at about 8.30 a.m. he had forcibly tied Tali to her and also exchanged garlands. Thereafter he brought her to Bangalore and they stayed one night in Majestic Railway Station. On the 6 Spl.CC.No. 505 / 2014 nextday he took her to his house at slum area, Shanthinagar. Based on the complaint given by PW2 Ganga on 26.9.2011 suspecting the accused, K.R. Puram Police registered the case and traced the victim girl in the house of accused and brought back her to Police Station, Investigating Officer recorded her statement. This is the case of the prosecution.
9. As per the prosecution PW1 prosecutrix was minor at the relevant point of time. She was under the age of 18 years. As per the complaint at Ex.P2, PW2 mother of prosecutrix mentioned her age as 16 years. In view of oral testimony of PW1 Nandini her date of birth is 10.9.1994 of which could be seen in her cross-examination led by learned Public Prosecutor. A per the case of the prosecution itself she studied up to SSLC, since she failed in SSLC she discontinued her education, started working in Garments. There is no documentary testimony on the prosecution side to prove her age under 18 years or to prove her date of birth is 10.9.1994. On defence side 7 Spl.CC.No. 505 / 2014 disputed the age of the prosecutrix. According to defence she has completed 18 years. Under the circumstance what is the evidence placed by the prosecution to prove the age of the prosecutrix under 18 years is material aspect. In view of oral testimony of PW2 mother of prosecutrix there was only 2-3 moths to complete 18 years of age. There is inconsistent evidence on the part of the prosecution on the point of age of the prosecutrix. According to prosecution prosecutrix was subjected to medical examination even to assess her age. According to Ex.P4 the doctors opined her age was about 17 years based on her physical development and dental test. There is no ossification test done as per evidence of PW4. PW4 Dr. Nagaraj, who issued Ex.P4 with respect to age of the prosecutrix has admitted that the he cannot say exact age, there may be one year more or less than the age observed by him. In the absence of other documents on prosecution side, medical report with respect to the age of the victim girl assessed by 8 Spl.CC.No. 505 / 2014 the doctors can be looked into. But in view of jurisprudence the margin of plus or minus of two years is to be taken. Whichever is beneficial shall be given to accused. The contradictory oral testimony of PW1 and 2 cannot be based to hold that she was under 16 years or under 18 years. Under the circumstance the prosecution has failed to establish her age under18 years. Prosecutrix cannot be said to be under 18 years at the relevant point of time. At the first instance the prosecution has failed to prove its case beyond doubt so far as age proof of prosecutrix is concerned.
10. Now the question arises whether accused had kidnapped PW1 prosecutrix for the purpose of marrying her forcibly against her will. According to prosecution as discussed in supra he took her away to Kaiwara temple on 22.9.2011 and forcibly married her in the temple. On the next day itself both of them returned to Bangalore. In the cases like this nature the evidence of prosecutrix carries more weightage. In 9 Spl.CC.No. 505 / 2014 view of oral testimony of PW1 she admits that accused is not a stranger to her family, he is her cousin brother in relation. But she has not at all supported the case of the prosecution. In the chief examination itself she has stated that accused had never taken her to anywhere, he had not forcibly married her in Kaiwara temple. She has totally denied whole case of the prosecution as could be seen from her cross examination done by the learned Public Prosecutor. Under the circumstances the court shall have to look for other evidence to find out whether accused had taken her to Kaiwara with intent to marry her against her will.
11. As per prosecution there are no eye witnesses to the offence of kidnapping. In order to prove this charge against accused the prosecution has got examined other material witnesses. i.e., PW2 mother of the victim as well as complaint. PW3 Murthy and PW5 Kirshnamurthjy H.C in K.R. Puram Police Station.
10 Spl.CC.No. 505 / 2014
12. PW2 is another material witness to speak about the kidnap of prosecutrix by the accused. She is the complainant. She had lodged complaint on 26.9.2011 suspecting the accused. Her daughter was missing on 22.9.2011 at 8.00 p.m. but she did not offer any explanation for delay in reporting the incident to the Police. No explanation is found either in complaint at Ex.P2 or in the oral testimony of PW2 or in the evidence of PW5 Krishnamurthy who has received the complaint and registered the case.
13. According to the prosecution the accused had allegedly taken PW1 on 22.9.2011 at 8.00 p.m. But the same had been reported on 26.9.2011. There is absence of any explanation for delay in reporting the missing of the prosecutrix. It is fatal to the prosecution case. The prosecutrix herself has not supported the prosecution case. According to her there was always galata in her house and she had gone to her uncle's house. There was an ill will between the complainant and the accused due to 11 Spl.CC.No. 505 / 2014 which her mother had lodged a complaint making false allegations against him. Under the circumstance non-explanation as to delay itself doubts the case of the prosecution.
14. On going through the oral testimony of PW2 it is found contradictory to the case of the prosecution. As per the prosecution she had lodged the complaint as per Ex.P2 on 26.9.2011 suspecting the accused. K.R. Puram Police after registering the case traced the victim girl in the house of the accused itself and brought to the P.S. Whereas PW2 has stated in her evidence two days after missing, her niece received a phone call from the accused that prosecutrix was with him, immediately she and her niece Geetha had gone to the house of the accused and found accused and victim girl exchanging garlands and said marriage was over. This is not at all the case of the prosecution that PW2 had gone to the house of the accused and found accused and victim girl in his house. As per the prosecution it is 12 Spl.CC.No. 505 / 2014 the police who traced the victim girl in the house of accused, at that time accused was not at home, he had gone outside. In the absence of support by the prosecutrix the inconsistent and uncorroborative evidence of PW2 cannot safely be relied to hold guilt of the accused.
15. PW2 has also stated in her chief examination that her neighbours had told that accused had taken away the prosecutrix. Hence she had lodged complaint suspecting the accused. She is subjected to cross examination on defence side that who is that neighbour. Then she has resiled from her version in her chief examination. She has given contradictory statement "that the neighbours did not inform her, but her niece Geetha had received the phone call from the accused that prosecutrix was with the accused. Then they had gone to his house in autorikshaw." This also was not stated by her before the Police. Therefore her version in the chief examination that neighbours told her about the 13 Spl.CC.No. 505 / 2014 accused and phone call received by her niece are of no consequence.
16. Of course PW3 Murthy who is the brother of PW2 has supported the prosecution to the extent "that his sister PW2 informed on telephone that her daughter was missing. He has further stated that after two days they had gone to Hoodi with police and brought the victim girl. By that time accused and victim girl got married." However, it is not at all the case of the prosecution that either the complainant or PW3 accompanied the police to bring prosecutrix from the house of the accused. Firstly there is no support by the prosecutrix. Secondly there is no corroborative and trustworthy evidence of the complainant. Thirdly there is no explanation offered for the delay in reporting the missing of the prosecutrix. There was a delay of four days. There is no other evidence to connect the accused with alleged offence. Lastly the prosecution has failed to prove that prosecutrix was under the age of 18 years as discussed in supra and 14 Spl.CC.No. 505 / 2014 also in the oral testimony of complainant itself there was only 2-3 months to complete 18th year at that time. In the absence of any acceptable evidence and in the absence of convincing and reliable evidence it is difficult to draw inference against the accused and to convict for the offence under Section. 366 of IPC.
17. PW4 Dr. B.M. Nagaraja has been examined on prosecution side. His evidence is not helpful to the prosecution as his oral testimony does not throw any light upon the case of the prosecution. Of course he has stated that victim girl was brought to hospital for medical examination and accordingly he examined and issued medical report as per Ex.P5 and Ex.P4 assessing the age of the prosecutrix as already discussed in supra. This is not a case of rape, but this is only a case of kidnapping. Even there is nothing found in evidence of PW4 as to the history of the case given by the prosecutrix.
15 Spl.CC.No. 505 / 2014
18. PW5 Krishnamurhty is then HC in K.R. Puram Police station according to prosecution on the basis of the complaint lodged by PW2 on 26.9.2011 he had registered the case and dispatched FIR as per Ex.P6. But even he did not speak about why there was delay in lodging the complaint / reporting the missing of prosecutrix. Therefore the delay in reporting to the police is fatal to the prosecution. There is no enough evidence to believe the case of the prosecution that accused had enticed way the victim girl with intent to compel her to marry him against her will and he got married in Kaiwara temple. There is no strong piece of evidence to believe the story of the prosecution. The prosecution has miserably failed to place sufficient, cogent and reliable evidence. It has failed to prove its case beyond all reasonable doubt. The benefit of doubt should go to the accused. Hence I hold point No.1 in the negative. 16 Spl.CC.No. 505 / 2014
19. Point No.2: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Section 366 of I.P.C.
(Dictated to the Judgment Writer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 11th day of March, 2016.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Nandini PW 2 Ganga PW 3 Murthy PW 4 Dr. B.M.Nagaraja PW 5 Krishnamurthy 17 Spl.CC.No. 505 / 2014 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Statement of victim Ex.P 2 Complainant Ex.P 2(a) Signature of PW2 Ex.P 2(b) Signature of PW5 Ex.P 3 Mahazar Ex.P 3(a) Signature of PW2 Ex.P 3(b) Signature of PW5 Ex.P 4 Medical Certificate of victim Ex.P 4(a) Signature of PW4 Ex.P 5 Medical certificate of accused Ex.P 5(a) Signature of PW4 Ex.P 6 FIR Ex.P 6(a) Signature of PW5 LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** 18 Spl.CC.No. 505 / 2014 11.03.2016 State by Public Prosecutor Accused by Sri NVR For Judgment Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Section 366 of I.P.C.
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.