Karnataka High Court
State Of Karnataka vs Kiran S/O Mailareppa Dandennavar on 17 April, 2023
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF APRIL, 2023
PRESENT R
THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.100442/2019
BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
ANNIGERI POLICE STATION,
TAL-NAVALAGUND, DIST: DHARWAD,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI V.M.BANAKAR, ADDL. SPP)
AND
VIJAYALAKSHMI
M KANKUPPI
High Court of
Karnataka,
Dharwad KIRAN MAILAREPPA DANDENNAVAR,
AGE: 24 YEARS, OCC: COOLIE WORK,
R/O: BASAPUR, TQ:NAVALGUND,
DIST: DHARWAD PIN CODE-582208.
.....RESPONDENT
(BY SRI NEELENDRA D. GUNDE, ADVOCATE)
(NOTICE TO P.W.1 AND 2-SERVED)
THIS CRIMINAL APPEAL IS FILED U/S. 378 (1) AND (3) OF
CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28/02/2019
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AND
SPECIAL JUDGE, DHARWAD IN SPECIAL SESSIONS CASE
NO.18/2017 AND TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 28/02/2019 PASSED BY THE II ADDL.
2
Crl.A.No.100442/2019
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE,
DHARWAD, IN SPECIAL SESSIONS CASE NO.18/2017 AND TO
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 363, 366 AND 376 OF IPC AND
UNDER SECTION 6 OF POCSO ACT, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.03.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, SHRI T.G.SHIVASHANKARE
GOWDA, J, DELIVERED/PRONOUNCED THE FOLLOWING:
JUDGMENT
The State has challenged the Judgment of acquittal dated 28.02.2019 passed in Special Sessions Case No.18/2017 by the learned II Additional District and Sessions and Special Judge, Dharwad (for short, 'the Trial Court').
2. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.
3. The brief facts of the case are that, P.W.2 is the victim in this case, she is the daughter of P.W.1 and 7. The victim and her parents were residents of Bassapur village 3 Crl.A.No.100442/2019 of Navalgund Taluka. The victim was born on 20.02.2000. In the year 2016, she was studying first year P.U.C. in Gadag Co-operative Textile Mill Independent Pre-University College, Hulakoti, which is situated 20 Kms away from her village. The victim used to attend the college by traveling in local bus. While she was attending the college, the accused herein, who is also a resident of Bassapur village, used to tease her, trouble her, demanding her to accompany and spend time with him. Inspite of she refusing, he did not stop it, created such a situation that she has to succumb to his pressure. With a fear she did not reveal it to her parents. On 24.09.2016, though was a Sunday, the accused insisted the victim to come out of her house on the pretext of special class in the college. In obedience of the dictum of accused, on 25.09.2016 at about 8.00 a.m. the victim left the house informing that she is attending special class in the college. When she met the accused, he took her in the Bus to Mangaluru, thereby kidnapped her from the lawful custody of her parents, kept her in the house of P.W.22- 4 Crl.A.No.100442/2019 Shekavva Chindiya and where accused has forcibly committed sexual intercourse against her.
4. Since the victim did not return back to the home on the evening, her parents made a search here and there, they could not trace her. P.W.1 presented a missing complaint before the Police suspecting the hands of the accused and set the law into motion at Annigeri Police Station in Crime No.151/2016. Later, whereabouts of the victim as well as accused was traced out at Mangaluru. On 14.10.2016, accused brought the victim to the Annigeri, dropped her near bus stand and escaped from the spot. The victim reported to the Annigeri Police, divulged the details of accused kidnapping her, taking her to the house of P.W.22, where committing sexual assault against her. Hence, on 14.10.2016, the accused was arrested and subject to judicial custody till 14.12.2016. P.W.20-Diwakar Payaka, CPI of Navalgund Circle has investigated the case and filed the charge sheet.
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5. On receipt of the charge sheet, the learned Special Judge, Dharwad has taken cognizance for the offences punishable under Sections 363, 366 and 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act, 2012') and secured the presence of accused for trial. The accused pleaded not guilty of the charges. The prosecution examined P.W.1 to 22, marked Ex.P.1 to 46 and M.O.1 to 11. The accused was questioned under Section 313 of Cr.P.C. On behalf of accused one witness was examined as D.W.1 and Ex.D.1 to 5 were came to be marked. After hearing both sides, the impugned Judgment came to be passed acquitting the accused of the charges. Aggrieved by the Judgment of acquittal, the State has preferred this appeal on various grounds.
6. It is the contention of Sri V.M.Banakar, learned Additional S.P.P. that the prosecution has placed the evidence explaining that the victim was a minor, the Trial Court inspite of accepting it ignored the principles of law that a person cannot remove a minor from the lawful 6 Crl.A.No.100442/2019 custody of her parents without their consent and by virtue of it, the very ingredients of the offence under Section 363 of IPC has been explained. The evidence spoken by the P.W.2 take supports from her parents P.W.1 and 7. The medical evidence through P.W.13 did explain that the victim was subjected to sexual assault. The quality evidence that has been placed before the Trial Court has not been properly appreciated. It is also contended that sole testimony of the prosecutrix cannot be the basis for convicting the accused without seeking any corroboration. The prosecutrix has spoken properly and projected the case as pleaded by the prosecution before the Court. Defence cross-examination did not damage her veracity, there is a presumption under Section 29 and 30 of the POCSO Act, 2012, but the Trial Court wrongly came to conclusion that the evidence is not reliable while recording the acquittal. Hence, the impugned Judgment calls for interference, sought for reversal and conviction of the accused.
7. Per contra, learned counsel appearing for accused has contended that there is a land dispute between 7 Crl.A.No.100442/2019 the family members of the accused and the complainant leading to ill will between them. P.W.1 the father of the victim was threatening the family of the accused that he is going to teach them a lesson, for this, by taking advantage of missing of victim, foisted a false case and for this reason the Trial Court was very guard in appreciating the evidence. The evidence spoken to by P.W.2- the victim is not supported by any other evidence, as the medical evidence through P.W.13 clearly explains that there was no sexual assault against the victim. Even, P.W.7 the Doctor, who examined the accused, has specifically stated that the accused has not subjected himself to any sexual activities. When the accused has not subjected himself for any sexual activity and victim did not show any indication of being subjected to sexual intercourse, where was the occasion for the prosecution to establish that the accused has committed intercourse against the victim 3-4 times. This falsifies the evidence of prosecution. The learned counsel also taken us to Ex.P.4 to 6, to say that it was the victim who threatened the accused, forced him to take her with him and she 8 Crl.A.No.100442/2019 voluntarily went. Hence, the evidence of prosecution did not inspire confidence and for this reason the Trial Court is right in recording acquittal of the accused and he supported the impugned judgment.
8. We have carefully perused the impugned Judgment. The Trial Court has recorded that on the date of alleged incident, the victim was minor, not completed 18 years. There is an improved version from P.W.1, 2 and 7 regarding the alleged incident. The medical evidence did not support the prosecution, there is no evidence to accept that the victim was subjected to sexual assault, rather, the victim herself forced the accused to take her away with him. It is also recorded that the accused has not indulged in any sexual activities against the victim, the evidence proposed by the prosecution is not reliable, trustworthy and it is not a fit case enough to accept the prosecution evidence to record the guilt of the accused. The Trial Court even declined to act under Section 357 of Cr.P.C for referring victim to DLSA for award of compensation.
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9. Having heard the arguments on behalf of the parties, we gave our anxious consideration to the evidence and original records placed before the Court.
10. The prosecution relied upon the testimony of P.W.1 to 22. The important witnesses to the case are P.W.2 the victim, P.W.1 the father of victim, P.W.7 the mother of victim, P.W.16 the brother of victim, P.W.13-the Doctor who treated the victim, P.W.17-the Doctor who examined the accused and P.W.3 to 6 and 8 to 12 are the panch witnesses apart from P.W.14 the Headmistress, who issued the school register extract pertains to date of birth of victim. P.W.22- Smt.Shekavva Shivappa Chindiya, the relative of accused in her house the victim was kept at Mangaluru. The other witnesses are Police officials. Let us examine the weight of evidence of witnesses.
11. The testimony of P.W.1 the father of victim shows that victim was 17 years old, when she was studying first P.U.C. at Hulakoti in the year 2016. One year prior to (witness was examined on 17.11.2017) it was a Sunday the victim went out of the house on the pretext of special class, 10 Crl.A.No.100442/2019 she did not return till evening. He searched here and there, but did not trace her. Doubting that the accused might have taken her, has set the law into motion by filing the complaint to the Police. One week later, he was called to the Police Station, on his visit along with P.W.7, P.W.16, CW-16- Nagappa Kalawad, CW.17- Basavaraj Shelavadi and CW.18- Ningappa Pujar, the victim was in the police station. On interaction, she revealed accused forcefully taken her away on the way to college on Sunday, carried her to Mangaluru and kept her in the house of P.W.22 and committed sexual assault against her 3-4 times. After knowing all the facts, he gave his further statement to police and brought the victim back to the home. On the next day, victim was taken to KIMS Hospital, Hubballi, admitted for 2-3 days. After medical examination she was sent back to home. She was also taken to Magistrate for recording of her statement. Police have also visited his house and conducted Ex.P.3-Mahazar, where the victim was lastly left the house. 7-8 days later police called him to the Police Station and shown Ex.P.4 to 6 slips, drawn Ex.P.7-Mahazar and also taken some signatures at 11 Crl.A.No.100442/2019 Ex.P.8 to 25/slips. One month thereafter, Police took him, victim, P.W.7 and panchas to Mangaluru and drawn Mahazar under Ex.P.26 in a room in which the victim was stayed by taking Ex.P.27 and 28/photographs.
12. P.W.2 the victim and star witness to the case. Her testimony shows that in the year 2016 she was studying first P.U.C. at Hulakoti. She knew the accused for about one year prior to it; he belongs to same village and use to follow her when she was going to college. He use to call her to give company for roaming. She refused his request and threatened him that it will be brought to the notice of her parents, but the accused threatened her that he will insult her in public, he used to bring his motorcycle in obstruction of her movement and made her to feel insulted in presence of her friends. On 24.09.2016, when she was returning home the accused came in a motorcycle, stopped her and asked to come to Annigeri Bus stand on the pretext of special class in the morning, she requested him that it was not possible as it was holiday, if it is known to her parents they will not send her to the college, but he did not oblige 12 Crl.A.No.100442/2019 her request. In order to advice the accused, on 25.09.2016 she left her home, went to Annigeri Bus stand by 9.30 a.m. met him and advised that he should not meddle with her but he threatened that he will kill by throttling her neck and asked her to wear the scarf to face and board the Hubballi bus. She was put to fear, she made galata, tried to escape from the accused, but he caught hold of her hands and pricked her nails with a pin and forcibly dragged her near Bus. He forced her to accompany him and took her to Mangaluru and kept her in the house of his sister. The sister of the accused told her that she lost her reputation having come with the accused, asked her to stay with her and to do household work. Thereafter, she forced her to stay in her house. During so, the accused did commit rape 4-5 times against her. When she objected it, she was forcibly confined to the room. Even the owner of house has observed her presence, but sister of accused was given false pretext as she is the wife of accused. Later, they brought duplicate Tali and toe rings and forced her to wear them. The accused forced her to consume white tablets. The accused also 13 Crl.A.No.100442/2019 forced her to scribe Ex.P.4 to 6 to make use of them as a defence, if there is any complaint filed against him. When she refused to scribe, she was criminally intimidated and forcibly got Ex.P.4 to 6 written in her hand writing. The accused after coming to know about police complaint brought her back to the Annigeri, dropped her and escaped. When she reported to Annigeri Police, her parents were called and she was sent home. Apart from that she was also subjected to medical examination and she was taken to the Magistrate for recording of her statement. Her clothes and the nail clippings etc., at M.O.1 to 7 were also seized. The Police have taken her to Mangaluru along with her parents and drawn Ex.P.26-Mahazar and she gave her statement as per Ex.P.29 before the Magistrate.
13. The testimony of P.W.13 Dr.Rashmi Shalagar, the Medical Officer of KIMS Hospital, Hubballi shows that on 10.10.2016 at 12.30 midnight she has examined the victim, brought with a history that she had eloped with accused to Mangaluru and had a sexual intercourse. On examination, she noticed the torn hymen, victim was matured, she did not 14 Crl.A.No.100442/2019 find any symptoms of sexual assault or sexual intercourse. She has sampled M.O.1 to 7 from the victim and handed over it to the Police for FSL examination. She gave her provisional opinion at Ex.P.34 that the victim was not subjected to sexual assault. Her cross-examination reiterates that there was no sign of sexual assault against the victim and she did not fortify the age of the victim nor subjected her to any age determination test.
14. The testimony of P.W.17-Dr.Ashok Agarwal, the Medical Officer of P.H.C. Annigeri shows that on 14.10.2016 the accused was brought before him for examination with an alleged history of sexual assault by him. On examination, he noticed that the accused has not come across with any sexual intercourse. Even on examination of his genital, there was no symptom of recent sexual intercourse. He has not noticed any scar, injury or contusion on the genital of the accused. He sampled M.O.8 to 10 for FSL examination and gave his opinion report at Ex.P.40 that the accused though fit to do the sexual intercourse, there were any symptoms of accused did any sexual activity.
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15. P.W.7-Smt.Gangavva Sirasangi and P.W.16- Shekharappa Shirasangi are the mother and brother of the victim. Their testimonies show that the victim has left the house at 8.30 a.m., she did not returned in the evening, she was found missing and they came to know that she was eloped to Mangaluru along with the accused. Later, the accused brought the victim back and dropped at Annigeri. They made an enquiry with the victim, she confirmed that the accused kidnapped her and committed sexual assault on her at Mangaluru.
16. P.W.19-Sri G. Halappa is the Head Constable of Annigeri Police Station. His testimony shows that on 02.10.2016 at 12.35 p.m. got recorded the complaint statement of P.W.1 as per Ex.P.1 and registered Ex.P.41-FIR in Crime No.151/2016 under POCSO Act, 2012 and handed over the investigation to P.W.21.
17. P.W.21-Sri S.H.Mulla is the PSI of Annigeri Police Station. His testimony shows that on 02.10.2016 he has investigated the spot by drawing Ex.P.30-Mahazar and prepared Ex.P.45-sketch and also incorporated provisions of 16 Crl.A.No.100442/2019 POCSO Act, 2012 and Section 376 of the IPC and handed over the investigation to P.W.20.
18. P.W.5-Nagappa and P.W.6-Ningappa are the panch witnesses to the Ex.P.30. In the witness box they stand in support of the prosecution regarding missing of the victim, they were called to the house of P.W.1, where Ex.P.30- Mahazar was drawn.
19. P.W.20-Sri Diwakar Payaka, CPI of Naragund Circle. His testimony shows that on 09.10.2016 he took up the investigation, seized M.O.1 to 7 under Ex.P.31-mahazar. On 14.10.2016, accused was produced before him by P.W.21. He made search of the accused and found Ex.P.4 to 6 in his possession same were seized under Ex.P.33- mahazar.
20. P.W.10-Basavaj and P.W.-11-Sangayya are the panch witnesses to the Ex.P.33. But they did not support P.W.20.
21. On 27.10.2016, the victim took him and her parents to Mangaluru shown the house of P.W.22, where 17 Crl.A.No.100442/2019 Ex.P.26-mahazar was drawn by taking Ex.P.27 and 28 photographs. P.W.12-Mahantappa Palled is the panch witness to Ex.P.26; his testimony supports P.W.20 regarding mahazar drawn at Ex.P.26.
22. P.W.22-Smt Shekavva Chindiya in whose house the victim was kept for few days. She did not support the prosecution and denied that she was not present in Ex.P.27 and 28 photographs. She resiled from her statement as per Ex.P.46 denying that accused has not brought the victim to her house nor stayed in her house.
23. The evidence of P.W.20 also point out that on 07.12.2016, P.W.20 called the victim to the Police Station and took the Ex.P.8 to 25 sample hand writings and signatures for FSL examination. On 08.12.2016, he has seized M.O.8 to 10 under Ex.P.32-Mahazar, but P.W.8 and 9 are the panch witnesses who did not support him. On receipt of FSL report in respect of M.O.1 to 11 and receiving hand writing experts opinion as per Ex.P.35 and 44, has charge sheeted the accused.
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24. As we noticed from FSL reports at Ex.P.35 and 44, nothing is found in support of prosecution as it is against the prosecution version that there were no stains on the cloths of the accused or the victim. There is no dispute that victim herself has written Ex.P.4 to 6, but the conduct of Investigating Officer in getting it confirmed from the FSL by taking Ex.P.8 to 25 samples, the hand writing and signatures of the victim is not proper.
25. P.W.14-Smt. Shashikaladevi Honnuri is the Headmistress of Higher Primary School of Basapur. Her testimony shows that issuing of Ex.P.39 certificate on the basis of Ex.P.38 admission register to explain that the date of birth of the victim was 20.06.2000. Her cross-examination brought out that the victim was admitted to the school on the basis of Anganavadi documents. But no such documents produced before the Court issued by Anganawadi, Bassapur. The cross-examination of P.W.7 as well as P.W.1 have brought that they do not have any records to show the date of birth of the victim. P.W.1 admits that he was aged 48 years and he was married at the age of 22 years. One year 19 Crl.A.No.100442/2019 after the marriage first daughter was born, two years later second daughter was born and third years later victim was born. If it is taken into consideration 22+1+2+3 = 28 minus 48 comes to 20. Is this could be the probable age of the victim?
26. P.W.1 admits that the approximate age was given at the time of school admission as there was no date of birth certificate of the victim or to his other children. However, the said aspect is not in dispute as the trial Court is relied upon the evidence of P.W.14 that on the date of alleged incident the victim was minor. This aspect has not been challenged by the defence and therefore there is no need to go in detail about the minority and majority of the victim.
27. Having heard the arguments of both sides and also the weight of the evidence that the prosecution relied upon, the point that would arise for our consideration is, "Whether the prosecution is able to explain the ingredients of the offences under Section 363, 366 and 376 of IPC and Section 6 of POCSO Act, 2012 against the accused?"
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28. As we have evaluated the evidence of prosecution, the victim has categorically stated that she knew the accused one year prior to the alleged incident. The accused used to intercept her on her way to college. He had insisted for her company and to spend time with him. He was threatening her that if she did not oblige, he will insult her, even in presence of her friends has insulted her. To explain these aspects, the friends of the victim are relevant witnesses as the victim did not reveal all these aspects to her parents when such an acts was being done to her. We have noticed any evidence available in favour of the persecution to this aspect.
29. It is pertinent to note that Exs.P.4 to P6 are the important documents, where the defence banking upon that the victim was forcing the accused to take her away and it is given to impression that victim and the accused both were in love, it was the victim who insisted the accused to prosecute the love affair, as a result of which, the victim herself came out of the house and eloped with the accused to Mangaluru. When the victim was examined by P.W.13, there is no 21 Crl.A.No.100442/2019 symptom that the accused has pricked her nails by means of pin. Even the version of the victim is taken into consideration that she was in love with the accused, she herself insisted the accused to take her away, in view of the findings recorded by the Trial Court that the victim was a minor, whether the accused can act upon on her version is the question for consideration. If really the accused was innocent and he was forced by the victim to take her away, he ought to have reported it to her parents, but defence did not explain it.
30. The defence brought DW-1 before the Court to explain about the ill-will in respect of land dispute resulting the case, nowhere in the cross-examination of the victim or her parents, we find any iota of evidence that the accused did not kidnap her in the background of such dispute. Even if a minor insisted the accused to take her away, he has no authority to remove her from lawful custody. The evidence on record inspires the confidence of the Court that the accused has removed the victim from the lawful custody of her parents, taken her to Mangaluru and after coming 22 Crl.A.No.100442/2019 to know about police complaint brought her back. Therefore, the ingredients of the offence under Section 363 of IPC is fairly explained. We do not find any appreciation of evidence in the impugned judgment by the Trial Court.
31. We have also evaluated the medical evidence through P.W.13, who examined the victim and P.W.17 who examined the accused and Ex.P.34 and 40 are their opinion/reports. Said reports clearly point out that the victim was not subjected to sexual assault or any intercourse. Even the accused was also not indulged in any sexual activity. If he had undergone intercourse with the victim, the evidence is completely contrary and is in support of the defence. Hence, there is no iota of evidence to explain that the victim was subjected to sexual assault in the hands of the accused. Hence, the ingredients of the offence under Section 376 of IPC or Section 6 of the POCSO Act, 2012 are not satisfied.
32. As regards to the ingredients of the offence under Section 366 of IPC is concerned, the evidence of the victim point out nothing that the accused made any proposal to marry her at any point of time nor even he taking her 23 Crl.A.No.100442/2019 to Mangaluru to marry her. Contrary, P.W.22 given explanation to her landlord that the accused married her and they came from village. They brought duplicate Tali and toe rings, made her to wear it to show that she was a married girl. Hence, the intention of the marriage was not forthcoming nor the evidence point out intention of the accused to commit sexual assault against her. Hence, the ingredients of offence under Section 366 of IPC are not forthcoming in the evidence.
33. Adverting to the contention of learned counsel for the accused on the point of Ex.P.4 to 6, even if it is probable, the accused did not dispute the age of the victim, the Trial Court has already recorded its finding that the victim was minor as on the date of alleged incident, even if the said defence is accepted, in what way it is going to help the defence is not explained. When the victim was minor, the accused was not supposed to remove her from the lawful custody of her parents. In the cross-examination of P.Ws.1 and 7, nothing has elicited that the accused has taken permission from them to take her to Mangaluru not it was 24 Crl.A.No.100442/2019 his defence. As the panch witnesses point out that the victim has taken the Investigating Officer, her parents and panchas and shown the place where she was stayed explains that till return of the victim to Annigeri village from the date of alleged incident she was not in lawful custody of her parents and therefore the evidence on record explains the ingredients of offence under Section 363 of IPC against the accused.
34. The Hon'ble Apex Court repeatedly observed in a catena of judgments that the appellate court while considering the judgment of acquittal must be very slow in interfering with such view of Trial Court unless there is any error committed in appreciating the evidence, particularly in a case where two views are possible. The accused is entitled to plead innocence. In view of the acquittal recorded by the trial court, that innocence stands corroborated. The trial court has watched the demeanor of the witnesses, kept it in mind while appreciating the evidence, which the appellate courts do not have. Hence, under such circumstances, the appellate court must be very slow in interfering with the 25 Crl.A.No.100442/2019 findings of the trial court unless the trial court has committed a serious error while appreciating the prosecution evidence.
35. Keeping these principles into consideration and also the defence, we noticed from the evidence, the conduct of victim forcing the accused to take her voluntarily will not bail him out from the offence under Section 363 of IPC, even though the defence is probable, medical evidence stands in support of prosecution. Hence, we are of the considered opinion that the evidence on record point out the ingredients of offence under Sections 363 of IPC and the Trial Court rightly acquitted the accused for the offence under Section 366 and 376 of IPC and Section 6 of the POCSO Act, 2012 and calls no interference.
36. Thus, on total evaluation of the evidence, we are persuaded to accept the version of the prosecution as it is explained through positive and qualitative evidence that the accused removed the victim from the lawful custody of her parents from 25.09.2016 till 13.10.2016, when she was brought back and dropped at Annigeri by the accused point 26 Crl.A.No.100442/2019 out the guilt of the accused for the offence under Section 363 of IPC. There is no second view is possible in this regard to extend the benefit of doubt in favour of the accused. Hence, we are of the considered opinion that acquittal of the accused for the said offence by the Trial Court is erroneous and will not stand to its reasons and call for the interference by this Court.
37. As regards sentence is concerned, records point out that the accused was arrested on 14.10.2016 and he was released on 14.12.2016. He was in judicial custody for a period of two months and the period for which he was sent to the judicial custody has already served. An offence under Section 363 of IPC attracts the punishment - "whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine". The accused was aged 21 years as on the date of alleged incident, as he was aged 22 years when the charge sheet was filed in the year 2017. Hence, though the accused deserves to be punished, having regard to the facts 27 Crl.A.No.100442/2019 and circumstances of the case, we opine that instead of sentencing the accused, he may be released on probation of good conduct acting under Section 4 of the Probation of Offenders Act, 1958. Accordingly, appeal deserves to be allowed in part. In the result, we pass the following :
ORDER
(i) The appeal is allowed in part.
(ii) The order dated 28.02.2019 passed in Special Sessions Case No.18/2017 acquitting the accused for the offences punishable under Sections 366, 376 of IPC and Section 6 of the POCSO Act, 2012 is hereby confirmed.
(iii) The order dated 28.02.2019 passed in Special Sessions Case No.18/2017 acquitting the accused for the offence punishable under Section 363 of IPC is hereby set aside.
(iv) The accused is convicted for the offence under Section 363 of IPC.
(v) Acting under Section 4 of the Probation of Offenders Act, 1958 the accused is put on a probation of two years from today with a condition that he shall offer self bond of Rs.50,000/- and surety for the likesum to the satisfaction of the Trial Court. In case the 28 Crl.A.No.100442/2019 accused contravenes the good conduct during this period of two years, he shall surrender before the Court to receive the sentence of punishment in accordance with law.
(vi) Further, the accused shall deposit a sum of Rs.10,000/- as compensation to the victim for the ordeal she has undergone. On deposit of the same, the entire amount shall be paid to the victim as compensation.
(vii) Office is directed to send a copy of this judgment along with records to the Trial Court to comply the directions of this Court.
SD/-
JUDGE SD/-
JUDGE Ckk