Karnataka High Court
Kallesh vs The State Of Karnataka on 30 September, 2024
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NC: 2024:KHC:41313
CRL.A No. 1082 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 1082 OF 2013 (C)
BETWEEN:
KALLESH
S/O RUDRAPPA
AGED ABOUT 30 YEARS
OCC: COOLIE
R/O KASAVANAHALLI VILLAGE
AT PRESENT H.D.PURA VILLAGE
TALUKA: HOLALKERE
DISTRICT: CHITRADURGA-577 526
...APPELLANT
(BY SRI R.B. DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HOLALKERE POLICE STATION,
THE CPI,
HOLALKERE CIRCLE-577 525.
...RESPONDENT
Digitally signed by
SHAKAMBARI (BY SRI K. NAGESHWARAPPA, H.C.G.P.)
Location: HIGH
COURT OF
KARNATAKA THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
23/25.10.2013 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHITRADURGA IN S.C. NO.165/11 ON THE
FILE OF ADDL. DIST. AND SESSIONS JUDGE, CHITRADURGA -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
P/U/S 363, 366 AND 376 OF IPC AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT, DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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NC: 2024:KHC:41313
CRL.A No. 1082 of 2013
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) The appellant-accused has challenged the judgment of his conviction dated 23.10.2013 and order of sentence dated 25.10.2013 passed in S.C. No.165/2011 by the Additional District and Sessions Judge, Chitradurga (Hereinafter referred to as 'trial Court' for the sake of convenience).
2. The trial Judge on conducting full pledged trial found the accused guilty of committing the offences under Sections 363, 366 and 376 of IPC and sentenced him as under:
"1. The accused-Kallesh S/o. Rudrappa, Age:
28 years, Occ: Coolie, R/o. Kasavanahalli village, at present H.D. Pura village, Holalkere Taluk, shall undergo rigorous imprisonment for period of four years and shall also pay fine amount of Rs.2,000/-
for the offence punishable U/Sec.363 IPC.
2. Further, the accused above stated shall undergo rigorous imprisonment for a period of seven -3- NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 years and shall also pay fine amount of Rs.2,000/- for the offence punishable U/Sec.366 IPC.
3. Further, the accused above stated shall undergo rigorous imprisonment for a period of seven years and shall also pay fine amount of Rs.2,000/- for the offence punishable U/Sec.376 IPC.
4. In default to pay the fine amount, the accused stated above shall undergo simple imprisonment for further period of one year.
5. All the substantive sentences shall run concurrently."
3. Parties to this appeal are referred to with reference to their rank before the trial Court.
4. Brief facts leading up to filing of this appeal are as under:
a) That the accused was charged by the CPI, Holalkere Circle, Holalkere, Chitradurga Distract, for the offences punishable under Sections 366A and 376 of IPC. One M.R. Thimmanna, the father of the victim girl, lodged -4- NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 a complaint before the Holalkere Police Station on 01.06.2010, alleging that the accused herein by enticing his daughter, aged 17 years, had kidnapped her.
b) On 22.06.2010 the victim girl herself appeared before Holalkere Police Station and filed a complaint at 6.00 p.m., stating that she is residing in the address stated in the complaint along with her parents. Accused was her neighbor residing with his wife and children.
Often she used to go to the house of the accused for playing with the children of the accused. At that time, accused used to speak with her and ask her welfare and also telling her that, he is loving her and promised to marry her. For the last three months prior to filing of the complaint accused used to pressurize her. He forced her to marry him. It is alleged by the victim girl that, on 29.05.2010 -5- NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 at 9.00 p.m., when the victim girl was in front of her grandmother's house, accused came there on motorcycle and asked her that both shall run away from the said place. Though she refused to accompany him, he forcibly made her to sit on his motorbike and both went towards Mayakonda Village. There both stayed in the house of friend of the accused.
Thereafter accused took her to Harihara in a bus on 30.05.2010 in the morning hours. He also called his three friends with him and all went to one Temple and forcibly tied a wedlock to her. Thereafter, he took her to Ripponpet in Hosanagar Taluk, Shimoga District, hired a house there and started residing there. It was alleged by the victim girl that, when both were staying in the said rented house, accused forcibly committed sexual assault on her. Herself and accused, on 05.06.2010 went to Gunderikaval Village near Holalkere to the -6- NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 parental house of the wife of the accused by name Geeta. There, wife of the accused and her parents abused victim girl filthy language and assaulted her physically and harassed her mentally. Because of that harassment and ill- treatment by them both accused and victim girl consumed poison. They were shifted to Holalkere Government Hospital initially for treatment, thereafter they were shifted to Basaveshwara Hospital, Chitradurga and thereafter to C.G. Hospital, Davanagere for further treatment. On 21.06.2010 after discharge, they went to Ripponpet and started residing in the rented house. It is stated, that on 21.06.2010 the victim girl had an intention to meet her parents. Therefore, in the morning hours she told the same to accused and boarded a bus and went to her village. By that time, she came to know that her father had lodged a complaint alleging kidnapping by -7- NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 accused. With these allegations, a complaint came to be filed which was registered by the Police in Crime No.44/2010 for the offences punishable under Sections 366A and 376 of IPC and criminal law was set in motion.
c) During the course of investigation, the victim girl was sent to the hospital for medical examination and the reports were received by the Police. Accused was also sent to the hospital for medical examination and the I.O. has obtained report from the hospital with regard to his competency and capability of doing sexual intercourse by him. On completion of the investigation, charge-sheet came to be filed against the accused for the aforesaid offences.
d) To bring home the guilt of the accused, the prosecution in all examined 16 witnesses as PWs.1 to 16 and got marked Exs.P1 to P16 and -8- NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 Mos.1 to 6. During the course of cross-examination of prosecution witnesses, Ex.D1 came to be marked. On closure of the evidence of the prosecution, the accused was questioned under Section 313 of Cr.P.C so as to enable him to answer the incriminating circumstances appeared in the evidence of the prosecution. He denied his complicity in the crime and filed written statement in support of his defence.
e) The trial Court on hearing arguments and evaluation of the evidence found the accused guilty of committing the offence under Sections 363, 366 and 376 of IPC and sentenced him as stated above. This is how now the accused is before this Court.
5. The learned counsel for the appellant/accused with all vehemence submits that, the ingredients of the offences under Sections 363, 366 and 376 of IPC are not -9- NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 fulfilled by the prosecution. He submits that the learned trial Court has not properly framed the Charge. The School Certificate was not produced to show the age of the victim girl. The statement of the victim recorded under Section 164 of Cr.P.C., did not attract any of the offences alleged against the accused. He further submits that, initially complaint about kidnapping was filed and there was delay in filing the complaint with regard to other offences stated in the complaint. It is alleged by the prosecution that, the accused forcibly tied wedlock to the victim girl, but the name of the Priest who performed marriage by chanting Mantra, is not cited as witness. The accused and victim girl were known to each other and it was the victim girl, who forced the accused to marry her. Taking advantage of the situation, a false complaint was filed against the accused so as to falsely implicate him. According to him, at the most in view of the evidence placed on record, it reveals consensual sexual intercourse in between accused and victim girl, therefore, the offences alleged against the accused under Sections 363, 366 and
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 376 of IPC are not proved by the prosecution with acceptable evidence. Relying upon various contradictions, omissions and improvements in the evidence of the victim girl as well as the other witnesses he submits to allow the appeal and set aside the impugned judgment.
6. Refuting this submission, the learned High Court Government Pleader submits that, the age of the victim girl is in between 16-17 years when the accused enticed away the victim girl and forcibly married her. Apart from this, accused had sexual intercourse with her by committing rape on her forcibly. He submits that the victim girl's evidence is sufficient to prove the guilt of the accused. He too relied upon various evidence led by the prosecution, especially the evidence of the victim girl and other witnesses. He concedes with regard to the medical report but, submits that, the said medical report is not a conclusive proof in view of the evidence spoken to by victim girl. Thus, it is submitted by him that, this appeal has no merits to stand and has to be dismissed.
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013
7. I have given my anxious consideration to the arguments of both the sides.
8. In view of the rival submissions of both the side, the point that would arise for my consideration is,-
"Whether the Trial Court is justified in finding the accused guilty of the aforesaid offences and convicting and sentencing him as stated hereinabove?"
9. Insofar as documentary evidence is concerned, Ex.P1 is the complaint filed by the victim girl narrating her acquaintance with the family of the accused so also taking away her by the accused and kidnapping as well as committing rape on her after performing marriage in the temple. The prosecution placed reliance upon photograph of the victim girl and the accused so also scene of offence photographs where the offence alleged to have taken place and also other documents like scene of offence panchnama, medical records and FSL Report. In a case of
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 the present nature, the evidence of the victim girl plays an important role in deciding whether really accused is guilty of committing the offences alleged or otherwise.
10. PW1 is the victim girl, who had come before the trial Court and deposed in line with the contents of the complaint filed by her at Ex.P1. In her examination-in- chief, she has stated that, the accused is a married person having two children and the name of his wife is Geetha. She further states that in the house of the accused there were two male kids and she used to visit the house of the accused to play with them. At that time, accused used to express his willingness of marrying her stating that he likes the victim girl. But she was telling that he is married person having children, therefore, it is not good on his part. Even then, he forced her. Further, she states that, to her father there are three daughters and one son. Her sister Kavitha is married about 4-5 years prior to giving of her evidence. Her another sister Radha is not married at the time of her kidnap and she is working as Tailor for the
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 last 6 years at Bangalore. The husband of Kavitha is working as Driver in Davanagere. Her brother Krishnamurty was studying in II year PUC. She further states that she had studied her I and II PUC at H.D. Pura. Her parents are illiterate. Her parents have not got written her horoscope. In the cross-examination, she denied the suggestion that when she was studying in PUC she used to speak with accused near H.D. Pura High School. She says that at H.D. Pura there are about thousand houses. Her grandmother's house is situated behind her house. By the side of grandmother's house there are many houses situated in the lane. According to her, when accused called her, though she tried to escape, but, accused did not leave her. She states that, for the first time she deposed this evidence before the Court in her examination-in-chief. It is stated by her that when accused started motorbike, she tried to run away, but accused had caught hold her hands and she admits that for the first time she deposed this in her examination-in- chief. Further, she states that, when she was moving on
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 the motorbike, she did not ask for help from others or did not cry for the same. Further she states that, the accused took her to Maykonda Village and kept her in the house of his friend and on the next day on 30.05.2010 accused and his friends have taken her to a temple in Harihara and forcibly tied Managalsutra and thereafter the accused had taken her to Ripponpet, Shimoga District. Further, she states that, the said motorbike passed through the aforesaid villages, but, at that time, she did not lament for help. She stated that, if anybody spoke to her negatively, she would give a direct answer. This evidence of PW.1 shows that, when accused took her on his motorbike, she did not resist for the same.
11. According to her, accused took her to Mayakonda Village, there, they stayed in the house of a friend of the accused and she did not try to know the name of that friend. In Mayakonda Village, they stayed for one night, thereafter they went to Davanagere in a private bus and even through out their traveling to
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 Davanagere, she did not inform about her kidnap by accused to anybody, much less, with passengers who were traveling in the bus. So also, she did not inform the driver or conductor of the said bus.
12. Further she states that, one time she went to Bangalore for the purpose of work. Even in Davanagere bus stand she did not inform anybody. It is busy bus stop. She did not make any galata in the said bus stand. Even she did not try to run away leaving the accused. When they got down at Holalkere bus stop, she did not try to escape. At any point of time, she has not tried to rescue from the clutches of the accused. She did not inform the Priest of the temple that forcibly she had been brought by the accused. Further, she states that, in Shimoga bus stand when she got down, she did not inform about her kidnap by the accused to anybody. According to her, accused used to give threat to her and she used to cry, but not loudly. According to her, no situation arose to escape from the clutches of the accused. In the cross-
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 examination she states that, she knows what is marriage, what is wedlock so also leading marital life etc. She also knows about the sanctity of the wedlock. Further, she states that Halalkere bus stand is busy location and her village is about 12 kms., from Holalkere. Even in Holalkere bus stand, she did not inform anybody that the accused had kidnapped her and even she has not tried to escape from the clutches of the accused. She states that at Gunderikaval by the side of the house of wife of the accused, there are many houses, but, even to the neighbors at Gunderikaval Village, she did not inform anybody about her kidnap by the accused.
13. According to her, after consuming poison, she was admitted in Davanagere Hospital for about 3 days. At that time, mother of the accused had taken care of her. Even she did not inform the Doctors in the hospital about the reason for consuming poison by her. She says that, in Davanagere Hospital there are different Wards for men and women. When she was in Davangere Hospital, the
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 mother and wife of the accused used to watch her. She denied a suggestion that, she was loving the accused. According to her, from Davangere Hospital, wife of the accused and his mother sent accused and her to Rippenpet. They went to Ripponpet in a private bus. In Para No.48 of the cross-examination she states that, when she was at Ripponpet she has not sustained any injuries when accused committed rape on her. When accused forcibly had sexual intercourse with her, she tried to shout but nobody was there and all went to their respective houses. She admits that, at Repponpet by the side of their house, there were about three houses. According to her, in Harihara Temple accused tied wedlock to her and for 2-3 days she wore the same in her neck. When she came to Gunderikaval Village, the wife of the accused snatched the same from her neck. She cannot say the name of the persons who told the boundaries of the scene of offence when the Police prepared scene of offence panchnama. She further states that, after coming to Ripponpet from Davanagere Hospital, she did not inform
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 anybody about the crime of rape on her by the accused. When he committed rape, she has not sustained any injuries on her person.
14. Though she states many facts in her examination-in-chief, but, in the cross-examination, she has stated with regard to voluntary consensual act of sexual intercourse in between her and accused. She has not sustained any injuries during the time of intercourse. She has not informed her neighbours, her villagers and anybody with regard to her kidnap by the accused and sexual assault on her.
15. PW.2 - Thimmanna is none else than the father of the victim girl. He states that about 2-3 years back he came to know that, his daughter was kidnapped. He states that, initially he lodged missing complaint as per Ex.P4 to the Police when he did not trace her even after making efforts to search her. According to his evidence, after 15 days of lodging the complaint, the Police came to his house and conducted panchnama as per Ex.P5 in the
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 presence two panch-witnesses. In the cross-examination, he states that, he has not got written horoscope of the victim girl - PW.1. He has not even informed the date of birth of the victim to the concerned departments and he cannot say the actual date of birth of his daughter. He has not given any document to the Police to that effect. Therefore, only to the extent of lodging of missing complaint, his evidence is to be accepted. With regard to other facts, his evidence cannot be accepted.
16. PW.3 - M.R. Horake is the panch witness, who states that, in his presence, the scene of offence panchnama was conducted by the Police. In the cross- examination, he admits that the Police wrote the panchanama and he put his signature at the instance of Police. His presence at the time of conducting panchanama is not disputed by the defence. Hence, to the extent of conducting scene of offence panchnama, his evidence is accepted.
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013
17. PW.4 - Dr. Vijay C. Sajjan is the Medical Officer, who medically examined the victim girl. According to his evidence, on 23.06.2010 at 7.00 a.m. to 8.00 a.m., the victim was brought by Holalkere Women Police Constable, with the history of rape. He states that, on local examination of victim, no injuries were seen in the vagina and thigh. He also states hymen torn irregularly, vagina was normal, vagina admits two fingers easily. He further states that, no pain or tenderness present or seen. During the course of examination, he states that he collected 8 articles as stated by him. According to his evidence, as per report from the FSL, Davanagere, there were no seminal stains detected on these articles. He speaks about age of the victim as in between 16 to 17 years at the time of medical examination. According to him, there is evidence of sexual intercourse in the past, but not of recent origin and it was not forceful in nature. To that effect, he had issued Certificate as per Ex.P6.
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013
18. The Doctor has been thoroughly cross- examined by the defence. In the cross-examination, he states that, the victim has not stated before him about the history of rape. But in his examination-in-chief he states that victim girl was brought to him with the history of sexual assault on her by kidnapping her. From the evidence of PW.4 - Doctor it is very much clear that, there is no evidence of recent rape on the victim girl.
19. PW.5 - Vishwanath is a panch witness to Ex.P7 Seizure Panchnama, wherein he states that in his presence 7 - 8 articles were seized by the Police and panchnama was written. He identifies them as MO. Nos.1 to 6. In the cross-examination he states that, he does not know the contents of Ex.P7. Therefore, to the extent he putting signature to Ex.P7, his evidence is to be accepted.
20. PW.6 - Bhairamma is the mother of the victim girl who corroborates the evidence of PW1 in material particulars. But she being hearsay witness, her evidence cannot be accepted as truthful evidence. According to her
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 evidence, her daughter informed her that accused loved her etc., at that time she told that she is still small girl aged 16 - 17 years and it is not proper on her part to marry accused and asked the victim girl not to visit the house of the accused. This is altogether different evidence spoken to by PW.6. She speaks with regard to lodging of the complaint against the accused. In the cross- examination, she categorically states that the wife of the accused used to tell her that PW1 - victim girl is making mobile calls to her husband and asked her to warn victim girl not to call the accused. The important evidence deposed by PW.6 is extracted as hereunder:
"3. ಈಗ ಸು ಾರು ಎರಡು ವಷ ಗಳ ಂ ೆ ಾ 9 ಗಂ ೆ ಸು ಾ ೆ ಾ ಾ.1 ಇವಳ ಅ ಮ ೆ ೆ ಎಂದು "ೇ$ "ೋದಳ . ಮರು&ವಸ 'ೆ$ ೆ( 9 ಗಂ ೆ)ಾದರು ಾ ಾ.1-ಇವಳ ಮ ೆ ೆ *ಾ ಾಸು ಬರ,ಲ.. ನಂತರ ಾವ1 ಅಕ3ಪಕ3ದ ಮ ೆಯವರನು6 78ಾ 9 ೆವ1. ಈ 7ಷಯವನು6 ನಮ:
ಮ ೆಯ ಗಂಡಸ ೆ "ೇ$ ೆನು. ಾ ಾ.1-ಇವಳ ನಮ ೆ 9ಗ,ಲ.. ಆ ೋ<ಯ 78ಾ 9 ೆವ1. ಮ ೆಯವರನು6 ಮ ೆಯವರು ಾ ಾ.1- ಇವಳನು6 ಹುಡು>ಾ?ದರು. ನಂತರ ನಮ ೆ ಆ ೋ<ಯು @ೕ ಾA ೈಕC DೕEೆ ನನ6 ಮಗಳನು6 ಅಪಹ 9>ೊಂಡು "ೋದನು ಎಂದು ೊFಾGHತು. ನಂತರ ನನ6 ಗಂಡ I,ೕJ KಾLೆ ೆ "ೋM ಕಂ ೆ.ಂಟು >ೊಟOರು.
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 I,ೕಸರು ಈ ಬ ೆ( ನನ6ನು6 78ಾ 9 "ೇ$>ೆ ಪPೆದು>ೊಂ? ಾQ ೆ. ಆ ೋ<ಯ "ೋMಬರುFೆGೕ ೆ ಾRೕ ಸ*ಾಲುಃ T ೕ.<.ಎಂ."ೆU. ವVೕಲ ಂದಃ ಆ ೋ< ಪರ*ಾM!
4. ಈಗ ನನ6 ಮದು*ೆ)ಾM 30 ವಷ ಗ$ಗೂ DೕಲWಟುO ಆM ೆ. ಾX ಪ1ನಃ "ೇಳ FಾG ೆ, ನನ6 ಮದು*ೆ)ಾM 30 ವಷ *ಾHತು ಎಂದು. ನನ6 ಮದು*ೆ)ಾM ಒಂದು ವಷ >ೆ3 ನನ6 ೊಡZಮಗಳ ಕ7Fಾ ಹುROದಳ . ನಂತರ ಇಬ[ರು "ೆಣು]ಮಕ3ಳ ಎರಡು-ಎರಡು ವಷ ಅಂತರದ,. ಹುROದರು. 4 ಜನ ಮಕ3ಳ ಕುಂಡ, _ಾತಕವನು6 ಬ ೆ9ರುವ1&ಲ.. ಾ ಾ. ಇವಳ ಜನನ ಪ ಾಣಪತ ವನು6 ಪPೆದು>ೊಂ?ರುವ1&ಲ. ಮತುG ಎ,.ಯೂ ಅವಳ ಜನ:& ಾಂಕವನು6 ಬ ೆ9ರುವ1&ಲ.. ೕ ಾM ನನ ೆ ಜನ:& ಾಂಕದ ಬ ೆ( ೊ Gಲ.. I,ೕಸ ೆ ಕಂ ೆ.ಂಟು >ೊಡುವ ಾ ಾ.1-ಇವಳ ಜನ:& ಾಂಕದ ಬ ೆ( ೊ Gಲ.. I,ೕಸ ೆ ಕಂ ೆ.ಂಟು >ೊಡುವ >ಾಲ>ೆ3 ನನ6 ಮಗಳ ಎರಡ ೇ <ಯು9 ಾ ಾMದQಳ . ಾ ಾ.1- ಇವಳನು6 bಾEೆ ೆ ೇ ಸು*ಾಗ ಜನ:& ಾಂಕ ಾಖEೆಯನು6 bಾEೆ ೆ >ೊROರುವ1&ಲ..
5. ಾ ಾ.1-ಇವಳ ಆ ೋ<ಯ ಮ ೆ ೆ ಆ ಾ ೆ( "ೋಗುವ1ದು ಬರುವ1ದು ಾಡು GದQಳ . ಆ ೋ< ಮತುG ಾ ಾ.1- ಇವಳ 8ೆ ಾ6M ಾತ ಾಡು GದQರು. - ಈ ಈ ಬ ೆ( ಆ ೋ<ಯ "ೆಂಡ ಮ ೆಯ,. ಗEಾ ೆ ಾ? ಾ ಾ.1-ಇವ$ ೆ ಆ ೋ<ಯನು6 ಾತ ಾ?ಸ'ೇಡ ಎಂದು "ೇ$ದQಳ ಎಂದ ೆ dಜ. / ಈ ಗEಾ ೆ)ಾದ ನಂತರ ಆ ೋ<, ಆ ೋ<ಯ "ೆಂಡ ಮತುG ತಂ ೆ FಾH ಎಲ.ರೂ ನಮೂ:ರನು6 eಟುO ಗುಂPೇ >ಾವ, ೆ "ೋM *ಾ9ಸಲು ಾ ರಂf9ದರು. ಆ ೋ<ಯ "ೆಂಡ ಾ ಾ.1-ಇವಳ ಆ ಾಗ ತನ6 ಗಂಡd ೆ @'ೈC ಮೂಲಕ ಆ ಾಗ gೕh ಾಡು G ಾQi ೆ ಎಂಬುದನು6 ನನ6 ಗಂಡd ೆ "ೇ$ದQಳ ಎಂದ ೆ dಜ. ಆ ೋ<ಯ "ೆಂಡ ಯು ಮದು*ೆ)ಾಗ'ೇ>ಾMರುವ ಾ ಾ,1-ಇವಳ ಹುಡುM. ಇನು6 ಅವಳನು6 ಅದುQಬ9Gನ,.ಟುO>ೊ$j ಎಂದು ನನ6 ಗಂಡd ೆ "ೇಳ GದQಳ ಎಂದ ೆ ನನ ೆ ೊ Gಲ.. ಈ 7ಷಯವನು6 ನನ6 ಗಂಡ ನನ ೆ "ೇ$ ಾQ ೆ. I,ೕಸ ೆ ಕಂ ೆ.ಂಟು >ೊಟO ೆ ಾ ಾ.1 ಮತುG
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 ಆ ೋ<ಯನು6 ಾತ ಾ?ಸುವ1ದು e?ಸಬಹುದು ಎಂಬ ಉ ೆQೕಶ&ಂದ I,ೕಸ ೆ ಕಂ ೆ.ಂಟು >ೊRO ೆQೕ*ೆ."
21. This portion of the evidence of PW.6 goes against the case of the prosecution. The gist of evidence of PW.6 is that, in order to make her daughter to leave the company of accused, her husband lodged a complaint against accused. But, PW1 and 2 never deposed to this effect. She says that, she has not seen accused kidnapping her daughter. Thus, evidence of PW.6 is quite contrary to the evidence of other witnesses.
22. PW.7 - Geethamma is the wife of the accused. According to her evidence, it was PW1 who used to call the accused, therefore, she informed PW6 the mother of PW1 to warn PW1 not to make call to her husband. This evidence of PW7 is corroborative in nature with that of the evidence of PW6 with regard to giving of warning to PW1 not to call accused. It is her evidence that, since PW1 had good acquaintance with her husband, they left H.D. Pura and started residing in Gunderikaval Village. This witness
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 has been declared as hostile evidence by the prosecution, but nothing worthis elicited from her mouth.
23. PW.8 - S.A. Wadeyar, P.I., visited the scene of offence and conducted the panchnama of the scene of offence as per Ex.P5. He being the I.O. of the case, spoken about conducting of the panchnama and receiving of the complaint from PW.1 etc., He has been thoroughly cross-examined, but nothing worth is elicited from his version.
24. PW.9 - Dr. Sathyanarayana was the Junior Specialist, District Government Hospital, Chitradurga, who medically examined victim girl on 23.06.2010 at about 11.30 a.m., to find out the age of the victim girl. Upon examination of the victim, he noticed by conducting radiological test that, the age of victim girl is about 16 to 17 years. To this effect he has issued Certificate Ex.P11. Thus, the evidence of PW9 can be accepted to the extent of age of the victim girl as 16-17 years at the time of incident.
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013
25. PW.10 - Laxman is the neighbour of accused. According to the prosecution, this witness had seen the accused taking the victim girl with him on motorbike. But he turned hostile to the case of the prosecution.
26. PW.11 - Vishwanath, is the panch-witness to Ex.P3 - Spot Panchnama, who turned hostile and nothing worthwhile is elicited from mouth of PWs.10 and 11 by the prosecution. Therefore, the evidence of PWs.10 and 11 would not help the case of the prosecution.
27. PW.12 - Nagarathnamma is examined to prove that the accused enticed the victim girl to Rippenpete and stayed in the rented house owned by her. But she states that she has not given her house to the accused on rental basis. But she states of taking her signature on the panchnama marked as Ex.P3 by the Police. She being the owner of the house, in which, it was alleged that accused along with victim girl stayed, having turned hostile,
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 therefore accused along with victim girl resided in Rippenpete, in a rented house cannot be accepted.
28. PW.13 - Bhagya P., is the Woman Police Constable, who took PW1 - victim girl to the District Hospital for medical test. To that extent only her evidence is to be accepted.
29. PW.14 - Dadapeer is Police Constable, who has registered the crime against accused with regard to enticing away the victim girl by the accused and set the criminal law into motion.
30. PW.15 - K.H. Udusalappa, Retired ASI, was the I.O. and initially conducted investigation and handed over the further investigation to the PW16.
31. PW.16 - M.A. Nataraj, P.I., conducted the further investigation and after completion of the investigation filed charge-sheet against the accused. In the cross-examination he states that, there was no statement given by PW1 before him that she married in
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 the temple with the accused and even there was no information with regard to name of the Priest, who performed their marriage. According to him, though he did not investigate with regard to the place of marriage, but he did not get it. He states that he seized the motorcycle, on which accused enticed away the victim girl.
32. Accused was questioned under Section 313 of Cr.P.C. and he has given a statement stating that, it was PW1 who was forcing him to marry her. As he was already married, he refused her. This fact was known to his wife PW7. The victim girl used to talk with him through mobile phone and wife of the accused warned victim girl through her mother. Thereafter, because of this they left the village. This statement of accused recorded under Section 313 of Cr.P.C., is corroborated with the evidence of his wife, so also the mother of the victim girl.
33. In a case of present nature, it is burdened duty of the prosecution to prove that really such an offence has taken placed in the manner alleged by the prosecution.
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 The medical evidence is very much silent. The evidence of the victim girl is quite silent. The Doctors have opined that though hymen was torn, but it is possible because of riding of bicycle and doing Jim etc. So the very allegation of kidnapping is missing and so also commission of rape on the victim girl is missing. Except the improved evidence of PW1 with that of the contents of the complaint filed by her, there is no evidence placed on record by the prosecution. But the trial Court believing the evidence of the victim girl only, has come to the conclusion that, the offence of kidnapping/enticing away the minor girl by the accused and committing rape on her is nor duly proved in accordance with law. Nobody witnessed the incident of kidnapping though the alleged offence of kidnapping has taken place at 8.30 p.m., on that day.
34. The essential ingredients of kidnapping are: (1) the person takes or entices a minor person or a person of unsound mind; (2) The person takes or entices: (i) minor under the age of 16, male or (ii) under the age of 18, if
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 female, (iii) a person of unsound mind; (3) Such person is taken out of the keeping of lawful guardian of such minor or person of unsound mind and (4) There is no consent by the lawful guardian. If these ingredients are proved, then the offence of kidnapping is complete.
35. It is alleged that accused enticed away the victim girl with a promise to marry her. Law says that, promise to marry the minor girl and making her to leave the house of her lawful guardian prove the case of kidnapping. But in this case, the very conduct of the victim girl contacting the accused being aged between 17 to 18 years do establish that, she was having the worldwide knowledge. She knows what is friendship, what is love, what is sanctity of the marriage and what is sanctity of wedlock etc. When she was having knowledge about all these, then it can be never be stated that, such contention of enticing away of the victim girl by the accused on the promise of marriage does not arise at all. More importantly the friends of the accused who
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 accompanied them at the time of marriage are not cited as witnesses. The Priest who performed marriage of the accused with victim girl is also not examined by the prosecution. The evidence of the I.O. is very much silent about the same. He has not made any investigation that where exactly the accused married the victim girl. So, the very offence of kidnap as defined under Section 359 of IPC is not proved in accordance with law by the prosecution.
36. Insofar as the offence of rape is concerned, Section 375 of IPC defines what is rape. For easy reference, the said provisions is extracted as follows:
"375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.-With or without her consent, when she is under sixteen years of age."
37. Thus, essential ingredients to establish the rape are: (1) a man has sexual intercourse with the woman forcibly (2) such intercourse falls under Sub-clause (7) of this Section and (3) it does not fall within exercise of the sex.
38. On reading of evidence of PWs.1 to 6, the ingredients as stated under Section 375 of IPC are not fulfilled by the prosecution. No evidence is placed on record by the prosecution to that effect.
39. The incriminating circumstances brought on record by the prosecution goes against the prosecution
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 and it proves the innocence of the accused. Though the victim resided with the accused for many days, she never informed about her kidnap to anybody including her parents. She has either informed the neighbors or any body about her kidnap by the accused. She traveled from Rippenpet to Davanagere, from Davanagere to Holalkere and to various places, even her neighbours were not informed about where she was residing with the accused. It is the human tendency in a case of kidnap to inform parents, well wishers and others about the committing of kidnap. But she having worldly knowledge has not informed anybody much less to her parents. Even she has not called her parents during those days. If she was really kidnapped and raped by the accused in the manner stated by her, she would have tried to inform the incident of kidnapping to her parents or her well wishers. Thus, evidence spoken to by PW1 cannot be accepted. The victim girl having passed II PUC has crossed 17 years of age and even knowing that accused was a married person and not a boy, married him. Further, in view of the
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 evidence of PW7-wife of the accused that she gave warning to the mother of the victim that PW1 is speaking to her husband etc., the culpable involvement of the accused in the commission of the crime is missing in this case. But altogether different evidence has been spoken to by the victim girl, which cannot be accepted at any stretch of imagination.
40. The trial Court only believing the evidence of the victim girl, which is full of contradictions, omissions and improvements, has come to the conclusion that, accused is involved in the commission of crime. The finding of the trial Court is not based upon the factual evidence spoken to by PW1. Her evidence cannot be accepted as truthful evidence and her evidence is not credit worthy to be accepted. Therefore, in view of the contradictions, omissions and improvements in the evidence of victim girl and other witnesses, the prosecution has utterly failed to prove the guilt of the accused. The trial Court is not right in finding the accused
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NC: 2024:KHC:41313 CRL.A No. 1082 of 2013 guilty of the aforesaid offences and in sentencing him. Hence, the appeal deserves to be allowed and the impugned judgment of conviction and order of sentence is liable to be set aside.
41. Resultantly, the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment of conviction dated
23.10.2013 and order of sentence
dated 25.10.2013 passed in S.C.
No.165/2011 by the Additional District and Sessions Judge, Chitradurga is hereby set aside. Consequentially the accused is acquitted of the charges punishable under sections 363, 366 and 376 of IPC.
(iii) His bail bond stands cancelled. He is set at liberty.
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NC: 2024:KHC:41313
CRL.A No. 1082 of 2013
(iv) The fine amount if paid by the
accused, be refunded to him digitally after collecting necessary documents.
(v) Send the operative portion of this order to the trial Court forthwith by mail.
(vi) Send back the Trial Courts records and appellate Court records forthwith along with the copy of this judgment.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SBS