Karnataka High Court
Imran vs State Of Karnataka on 18 January, 2013
1 Crl.A.No.1226/2011
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.1226 OF 2011
BETWEEN:
IMRAN
S/O GOUSE MOHIDDIN
AGED ABOUT 20 YEARS
R/AT NO. 172/3, 4TH CROSS
N.H. PALYA, J.P. NAGAR
MYSORE
... APPELLANT
[BY M/S K A PASHA & ASSTS, ADVS]
AND:
STATE OF KARNATAKA
BY VIDYARANYAPURA POLICE STATION
MYSORE
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE.
... RESPONDENT
[BY SRI:SATISH R. GIRJI, HCGP]
THIS CRL.A IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
24/25.11.2011 PASSED BY THE II ADDL. S.J., MYSORE
IN S.C. NO.118/2011 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 363 AND 342 OF IPC. THE
2 Crl.A.No.1226/2011
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR FOUR YEARS AND PAY A FINE OF
RS.5,000/- IN DEFAULT OF PAYMENT OF FINE HE SHALL
UNDERGO SIMPLE IMPRISONMENT FOR SIX MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 363 OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR ONE YEAR AND PAY A FINE OF
RS.1,000/- IN DEFAULT OF PAYMENT OF FINE HE SHALL
UNDERGO SIMPLE IMPRISONMENT FOR ONE MONTH FOR THE
OFFENCE PUNISHABLE UNDER SECTION 342 OF IPC. THE
ABOVE SUBSTANTIVE SENTENCES ARE ORDERED TO RUN
CONCURRENTLY.
THIS CRL.A HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
J U D G M E N T
The appellant has approached this Court challenging the judgment and order convicting him and directing him to undergo rigorous imprisonment for a period of 4 years and to pay fine for the offence punishable under Section 363 IPC and also to undergo rigorous imprisonment for a period of one year and to pay fine for the offence punishable under Section 342 of IPC.
2. The facts relevant for the purpose of this appeal are as under:
3 Crl.A.No.1226/2011
PW9 is the victim girl and daughter of PW1 - B Mahadeva. PW10 - Leelavathi is her step mother. Her natural mother is no more. PW1, PW10 and the victim girl were staying in the house at J P Nagar. There is a playground in front of their house. PW2 - Santhosh, PW3 - Jayamma and PW4 - Devamma are the neighbours of complainant. The appellant who is accused before the Trial Court is a friend of PW2 - Santhosh. They used to play cricket in the ground in front of the house of complainant. The appellant came in contact with the victim girl and he used to come to her house for drinking water. This contact was developed in a love affair and he wanted to marry her. But anyhow, the appellant married the girl belonging to his community and despite the fact he started saying the victim that he is in deep love and intends to marry her. He is said to have lured her and made her to accompany him by leaving the company of her parents. On 02.01.2011 at about 4 Crl.A.No.1226/2011 6.00 a.m. he brought her to Mysore Bus stand and boarded the bus to Kolar and the appellant made arrangement for a rented house at Tamka area of Kolar Town. The said house was owned by PW5 -
Narayanaswamy. The appellant kept the girl in confinement in the said room till 08.01.2011. He is said to have had sexual intercourse with the victim on the promise that he would marry her. The victim was intending to go to her parents and ultimately, she informed PW5 and who in turn contacted the police through one Naveenkumar who had taken part in getting the house of PW5 to the appellant. In the meanwhile, PW1 filed missing complaint and the investigation was on. After receiving the information, the investigating officer traced the appellant and victim girl through Naveen Kumar and he apprehended both the victim and appellant from the house of PW5. Mahazar was drawn and both the appellant and victim were brought to Mysore. A complaint came 5 Crl.A.No.1226/2011 to be filed by PW1 which came to be registered for the offence under Sections 342, 366A and 376 of IPC and during the investigation, victim and the appellant was subjected to medical examination. The appellant was arrested and after completion of investigation, chargesheet came to be filed against the appellant for the aforesaid charges.
3. During the trial, prosecution examined PWs.1 to 13 and in their evidence, documents Exs.P1 to P45 and Mos.1 to 13 were marked. Statement of the appellant was recorded under Section 313 Cr.P.C. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, acquitted the accused for the charge under Sections 366A and 376 IPC. Anyhow, the appellant was convicted for the charge under Sections 363 and 342 IPC. He was ordered to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.5,000/- for the offence punishable under Section 363 IPC and for 6 Crl.A.No.1226/2011 the charge under Section 342 IPC, he was ordered to undergo imprisonment for one year and to pay fine with default sentence. Aggrieved by the conviction and sentence, the present appeal has been filed.
4. I have heard learned Counsel for the appellant as well as learned High Court Government Pleader.
5. The point that arise for my consideration is:
"Whether the appellant has made out any grounds to warrant interference in the judgment and order convicting and sentencing him for the offence punishable under Sections 363 and 342 of IPC?"
6. It is the submission of learned counsel for the appellant that witnesses have turned hostile and as PW9 - the victim has not supported the case of prosecution, he submits that the 7 Crl.A.No.1226/2011 conviction of the appellant for the charge under Sections 363 and 342 IPC is improper and illegal. He further submits that the appellant is in custody for the last two years and sentence may be reduced by giving set off and he may be released from the custody.
7. On the other hand, learned High Court Government Pleader supporting the judgment and order of the Court below submits that there is ample material for the charge under Sections 342 and 363 IPC and that there are no grounds to interfere with the judgment and order impugned.
8. So far as the offence under Section 363 IPC is concerned, it is necessary for the prosecution to establish that the appellant took away or enticed the victim under 18 years of age from the lawful guardianship without the consent of the guardian. So it is necessary for the prosecution to establish that the victim PW9 is 8 Crl.A.No.1226/2011 minor under 18 years of age and that the appellant took her or enticed her from the lawful guardianship of her parents PWs.1 and 10.
9. On this aspect of the matter, it is necessary to consider as to whether the victim was under 18 years of her age to prove that she was a minor. The prosecution has produced the certificate and PW8 -Dr.Sudarshan is the witness examined to prove the said certificate. As could be seen from the certificate produced at Ex.P22, the victim was born on 08.03.1995. This date of birth was on the basis of admission register maintained by St.Thomas School, Vishweshwaranagar, Mysore and even admission number is also mentioned in the admission register extract produced at Ex.P23. Ex.P23 extract was obtained after perusal of the original register. That apart, PW8 has produced the letter dated 16.03.2011 stating that the victim was absent for school from 25.12.2010 to 16.01.2011. At the relevant point of time, PW9 9 Crl.A.No.1226/2011
-the victim was studying in 10th standard. So, the perusal of documents produced at Exs.P20 to 24, there are no reasons to doubt the said documents and it can be concluded that the victim was born on 08.03.1995. During the investigation, the certificate of birth of the victim issued by the Registrar of Births and Deaths was also collected and the date of birth mentioned therein is 08.03.1995. As the certificate was issued under the Births and Deaths Act of 1969, it has evidentiary value and therefore, from this material it can be stated that the victim was aged 15 years 9 months and 24 days as on 02.01.2011 and she was below 18 years as on the said date.
10. PW1 - B Mahadeva, the father of victim states that his daughter PW9 was 15 years old at the time of incident and she was born in the hospital at Mysore. He also submits that from 02.01.2011 his daughter was missing. He made search for her in the house of his relatives and 10 Crl.A.No.1226/2011 ultimately as she was missing, he filed complaint at Ex.P1. After the victim was secured through police, a complaint Ex.P2 came to be filed by him, but he has denied about the knowledge about her love affair with the accused, but he admits the signature on the complaint Ex.P2. Mahazar was drawn as per Ex.P3 in the house of PW1 and as there was no incriminating circumstances in the said mahazar, it has no relevance for the purpose of assessing the evidence of prosecution. PW1 though has turned hostile to the prosecution, admits in the cross examination that he got the case compromised with the accused. Evidence reveals that he was wavering either to support the case of prosecution or to become hostile. But anyhow, from his evidence, it can be stated that PW9 victim was missing from the house of PW1 since from 02.01.2011.
11. So far as the evidence of PW2 - Santhosh is concerned, he is a friend of appellant and was 11 Crl.A.No.1226/2011 playing cricket with him in the playground as stated above. PW3 - Jayamma is grand mother of PW2 whereas PW4 - Devamma is the neighbour of the house of PW1. These witnesses have turned hostile to the prosecution and Exs.P4 to 13 have been marked as contradiction statement made by them before the police. But anyhow, the evidence of PW4 reveals that boys used to play cricket in the ground in front of her house.
12. The fact that the victim PW9 was with the accused for the period from 02.01.2011 to 08.01.2011 is spoken to by PW5. PW13 - Parashuram is the Police Officer who after getting information from Naveen Kumar went to the premises of PW5 and apprehended the appellant and also the victim PW9 and at that time, mahazar - Ex.P14 was drawn. The place where both these persons were found was shown by Naveen Kumar and PW5 - Narayanaswamy and PW6 - Manjunatha were present at the time when the mahazar was drawn in relation to 12 Crl.A.No.1226/2011 the presence of appellant and the victim in the house of PW5. Even the signature of victim was obtained on the mahazar - Ex.P14.
13. It is no doubt true that the prosecution has not examined CW2 - Naveen Kumar, but dropping of this witness by the prosecution is not intentional but he was dropped only because his present address was not known and he was not traceable. So no blame can be attributed to the prosecution for the non examination of CW2, but anyhow perusal of the material and scrutiny of the evidences of PWs.5 and 6 would clearly establish that the victim PW9 was with the appellant in the premises of PW5 all along and she was confined by the appellant in the said premises. Though PW5 has partly turned hostile to the prosecution, but his evidence with regard to presence of victim PW9 in the premises and also the appellant would clearly indicate that his evidence is acceptable and there is nothing to disbelieve the said 13 Crl.A.No.1226/2011 version. Though PWs.5 and 6 partly turned hostile, the fact that PW13 apprehended those two persons in the premises of PW5 and she was identified as daughter of PW1 itself is sufficient to establish that she was in custody of appellant for the period for which she was missing i.e., from 02.01.2011 to 08.01.2011.
14. The scrutiny of material placed on record would reveal that the appellant had brought the victim on the guise that she was his wife and he stayed in the house of PW5 and ultimately the police apprehended them and drawn the mahazar Ex.P14. So the fact that the appellant had not obtained the consent of guardian PW1 before she was taken to the house of PW5 would clearly indicate that the appellant kidnapped or took PW9 from the house of PW1 i.e., she was out of keeping of lawful guardianship of her father without his consent and she was wrongfully confined and therefore, the requirement under Sections 363 and 14 Crl.A.No.1226/2011 342 IPC are fulfilled. The Trial Court has taken into consideration this material placed on record in the evidence of prosecution and therefore, has rightly convicted the appellant for the charge under Sections 342 and 363 of IPC. The appellant has not made out any grounds to warrant interference in the impugned judgment and order.
15. So far as the sentence is concerned, learned Counsel for the appellant requested to reduce the sentence for the period already he was in custody for the last two years. The offence under Section 363 IPC is punishable with imprisonment for 7 years and fine. Taking into consideration the fact that the appellant is also married, the interest of justice would be met in case if rigorous imprisonment for three years is ordered for the offence under Section 363 IPC in addition to fine. So far as Section 342 IPC is concerned, there is no necessity to interfere with the same.
15 Crl.A.No.1226/2011
16. In the result, the appeal is allowed in part affirming the conviction of the appellant for the charge under Sections 363 and 342 of IPC, the sentence for the charge under Section 363 IPC is modified. Appellant is ordered to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for a period of six months. The sentence ordered by the Trial Court for the offence under Section 342 IPC is affirmed. Both the sentences shall run concurrently. The appellant is entitled for set off under Section 428 Cr.P.C.
Sd/-
JUDGE *bgn/-