Karnataka High Court
The State Through vs Sri. Mohamemd Ejjaj Choudri on 18 November, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18th DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.3620/2013
BETWEEN:
The State through
Sadar Bazar Police Station, Raichur
represented by Addl. State Public
Prosecutor, Gulbarga.
...APPELLANT
(BY SHRI GURURAJ V. HASILKAR, HCGP)
AND:
Sri.Mohammed Ejaaj Choudri
S/o Mohammed Gous Choudri
Age: 22 years, Occ: Car Driver,
R/o R.R. Colony, Raichur
Dist: Raichur.
... RESPONDENT
(BY SRI MAHANTESH PATIL, ADVOCATE)
This Criminal Appeal is filed under section 378 (1)
& (3) of Code of Criminal Procedure, praying to set aside
the impugned judgment of acquittal dated:30-08-2013
passed by the Prl. Dist. & Sessions Judge, Raichur in
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S.C No.156/2011 and further be pleased to convict the
respondent/accused for the offences punishable under
sections 366, 323, 504 & 506 IPC in the interest of
justice and equity.
This Criminal Appeal coming on for further
Dictating Judgment, this day, the Court delivered the
following;
JUDGMENT
This appeal is by the State challenging the Judgment of acquittal passed by the learned Prl. District & Sessions Judge, Raichur in S.C No.156/2011 dated: 30-08-2013 acquitting the accused for the offences punishable under Sections 366, 323, 504 & 506 of Indian Penal Code.
2. The brief case of the prosecution is that, one Raisa Jabeen /PW.1 is the daughter of one Syed Usman and was studying in B.Sc 1st year in Ramkrishna Degree college at Raichur. It is the prosecution case that, everyday she use to go to college in the morning at 3 9.00 a.m., by Auto or Bus. It is her further case the respondent Mohammed Ejaaj/accused was known to the prosecutrix. He was working as lorry cleaner in lorry belonging to her father two years prior to the incident. It is further contended that, after some time he left job.
It is case of the prosecution that, one year prior to the date of incident the complainant mother's elder sister Khaja Banu had fallen sick in Kodangal. So complainant, her mother and her mother's sister and maternal uncle went in rented car to that place. There they found this accused was driver of the said car. It is further case of the prosecution that, nine months prior to the incident, the accused telephoned to the mobile phone of complainant and expressed that, he was in love with her and he intend to marry her, even he is prepared to die for his love. But the complainant neglected her love and said that, her status will not match to the status of accused and he was not educated 4 and he was merely a car driver. The complainant stated that she will marry a person whom her parents select and informed the accused not telephoned her frequently. Three - four days prior to this incident accused again telephoned the complainant from his mobile phone No.9449650543 at 9.00 a.m., and abused her in filthy language and threatened her stating that, if she did not respect her love he will take away her life.
3. It is further case of the prosecution that, on 12-03-2011 the complainant after attending her classes at 11.30 a.m., came near D.C office gate where there is a bus stop and she was waiting for bus. At that time, accused came there in a Black Indica car and stopped near her and abused her in filthy language. Then later he caught hold her hands, forcibly made her to sit in a front seat of car and locked the door, then immediately he started car and drove the said car in a high speed. Though the complainant requested to stop the car but 5 the accused did not stop the car. Since the glasses of the car were closed nobody could see from outside. Then the accused drove the car on Gadwal road. When the complainant asked him to stop the car the accused assaulted on her face. On account of the same left side glass of her spectale was broken and her watch glass also broken. She suffered cut injury near her left eye. The accused fisted on the chest of complainant due to which she suffered injury. So she sat silently in the car. At about 1.00 p.m., the accused dashed the car to Gandhi Circle Gadwal. At that the complainant got down from the car. Immediately Gadwal police came there and took the accused and complainant to the police station. There they made enquiry and informed the parents of the complainant. Then at about 6.00 p.m., parents of the complainant took her and accused to Sadar Bazar police Raichur at about 9.00 p.m. There the complainant gave complaint as per Ex.P.1. On the basis of the said complaint, the Sadar Bazar police have 6 registered a case in Crime No.40/2011 against the accused for the offences punishable under sections 366, 323, 504 & 506 of Indian Penal Code. The Investigating Officer after completion of investigation he filed charge sheet against the accused for the offences stated above.
4. The said charge sheet is filed before the learned Prl. J.M.F.C., II Raichur for the offences punishable under sections 366, 323, 504 & 506 of Indian Penal Code. This case is committed to the Sessions Court as one of the offence i.e. offence under section 366 of Indian Penal Code, is exclusively triable by the Court of Sessions.
5. Thereafter words the learned Prl. District & Sessions Judge, Raichur framed the charges for the offences under sections 366, 323, 504 & 506 of Indian Penal Code against accused. The accused pleaded not guilty and claims to be tried.
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6. Thereafter words, prosecution examined nine witnesses as PW1 to PW9, got marked ten documents as Exs.P1 to Ex.P10 and got identified three material objects as M.O.1 to 3 and closed its side evidence.
7. The statement of accused as required U/sec.313 of Code of Criminal Procedure was recorded. The accused denied the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused filed written statement. The accused got examined himself as DW.1 and produced one three page letter marked as Ex.D.1.
8. After hearing arguments, the learned Prl. Dist. & Sessions Judge Raichur held that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Giving benefit of doubt acquitted the accused for the offences punishable under Sections 366, 323, 504 & 506 of Indian Penal Code. 8
9. Aggrieved by the said acquittal, the appellant/State has preferred this appeal on the following grounds:-
(a) That the trial court has wrongly acquitted the accused/respondent on the ground that, there is inordinate delay in registering the case and reaching F.I.R. to the Magistrate. It is contended that, the F.I.R.
has reached the Magistrate at about 1.00 p.m., on 13-03-2011 whereas the complaint came to be lodged at 9.00 p.m. So the delay was only due to completion of formality.
(b) That the trial court has not properly appreciated the evidence given by PW.1 which corroborates the injuries found on the person.
(c) The trial court has wrongly appreciated the written statement on the ground that, the eyewitnesses 9 PW.7 & PW.8 have not supported the prosecution case which is not proper.
(d) The doubt expressed by the trial court regarding identity of the car is also not tenable.
(e) The trial court wrongly acquitted the accused on the ground that, Ex.D.1 letter produced by the defense was the letter of the complainant to the accused. The said reasoning is not sound.
(f) The trial court inference regarding exchange of SMS to the mobile phone number of complainant is also not correct.
(g) The trial court has wrongly drawn inference that, the complainant is a consenting party and she was in continuous touch with the accused from 05-03-2011 to 12-03-2011.
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(h) There is clear and cogent evidence before the Court to convict the appellant/accused.
With these main grounds prays to set aside the impugned judgment of acquittal passed by Prl. District & Sessions Judge, Raichur and convict the accused as per law.
10. The accused/respondent appeared through learned counsel.
11. Heard Sri.Gururaj V.Hasilkar learned High Court Government Pleader for the appellant/State and Sri.Mahentesh Patil learned counsel for accused/respondent.
12. The learned High Court Government Pleader for the appellant/State argued that, the prosecution examined the complainant/PW.1-Raisa Jabeen who supported the case. Father of complainant by name Sayyed Usman-PW.4 also supported the prosecution case. PW.6-Hamsaraj, pancha witness also supported 11 the prosecution case. PW.2-Dr.Praveen Medical Officer who examined the complainant has stated about the simple injuries sustained by the complainant. This corroborates the case of the prosecution. PW.3- Raghavalu Head Constable who has registered the case also supported the prosecution case. Simply because the eyewitnesses have turned hostile, is not a ground to acquit the accused. PW.9-Basappa, ASI, has also supported the prosecution case about registering the case and investigation. Though the accused adduced defence evidence there is nothing to believe his evidence. The learned Prl. Sessions Judge Raichur wrongly drawn inference that, the complainant is a consenting party and relying on the SMS message came to the conclusion that there might be love affair and it does not amounts to offence under section 366 of Indian Penal Code. The learned Prl. Sessions Judge is wrong in holding that, the injuries are self inflicted. With these 12 grounds the learned High Court Government Pleader prays to convict the accused by setting aside acquittal.
13. As against this, the learned counsel for accused/respondent during the course of argument relied upon the decision of Apex Court reported in AIR 2020 Supreme Court 1766 in case of Satish Kumar and another Vs State of Himachal Pradesh and another wherein the Hon'ble Supreme Court while considering the appeal against acquittal held that, High Court in an appeal against acquittal does not interfere only if the Appellate Court has a different view on basis of evidence that was taken by the learned trial court. He also relied upon decision of Hon'ble Supreme Court reported (2018) 6 Supreme Court Cases 664 in case of Kavita Chandrakant Lakhani Vs State of Maharashtra and another wherein the Hon'ble Supreme Court considered the ingredients of section 366 of Indian Penal Code - Held that mere abduction does not bring accused under ambit of Sec.366 of IPC - court cannot 13 hold accused guilty and punish him under section 366 of Indian Penal Code.
Learned counsel for respondent/accused further argued that, there is no cross-examination which would indicate that, the defense evidence of the accused is not correct. On the other hand, it is the complainant herself who use to call the respondent/accused and he never committed any such act. It is only at the instance of her father, the complainant filed false complaint against the accused. He submitted that, the trial court has considered the evidence meticulously, arrived at just and proper conclusion based on the sound principles regarding appreciation of evidence in criminal cases and come to the conclusion that, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The said finding cannot be interfered unless the material evidence is discarded. With these contentions he prayed to dismiss the appeal. 14
14. I have perused the Judgment of the trial Court, records of the trial Court, evidence and appeal Memo.
15. From the above materials, evidence and arguments the point that would arise for my consideration are as under:-
01. "Whether prosecution proved its case beyond the reasonable doubt that on 12-03-2011 at about 11.45 a.m., when PW.1 was standing infront of D.C office bus stand, accused went there held her by hands and dragged her with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse; or by means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or 15 knowing that she will be, forced or seduced to illicit intercourse and thereby committed an offence punishable under Section 366 of Indian Penal Code?"
02. Whether the prosecution proved beyond reasonable doubt that, on the above said date, time and place while abducting PW.1 accused assaulted her in the car and caused hurt to her and thereby committed an offence punishable under section 323 of Indian Penal Code?
03. Whether the prosecution proved beyond reasonable doubt that, on the above said date, time and place while abducting PW.1 accused abused her in filthy language and intentionally insulted her and thereby committed an offence punishable under section 504 of Indian Penal Code?
04. Whether the prosecution proved beyond reasonable doubt that, on the above 16 said date, time and place while abducting PW.1 in car accused threatened her taking away her life and criminally intimidated her with orally as well as telephonically and thereby committed an offence punishable under section 506 of Indian Penal Code?
05. Whether the Judgment of acquittal of learned Sessions Judge is not based on sound principles regarding appreciation of evidence in criminal cases and needs interference of this court?
16. My answer to the above points is as under
for the reasons given below.
17. When appeal arises from a judgment of acquittal the approach of the 1st appellant is stated by the Hon'ble Supreme Court in the case of Satish Kumar and another vs. State of Himachal Pradesh and another reported in AIR 2020 SC 1766 wherein at para 24 held that -
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24. The trial court has recorded an order of acquittal. Such order of acquittal could be interfered with only if there was perversity in the findings recorded by the trial court. Mere fact that the High Court has a different opinion will not be sufficient to enable the High Court to set aside the order of acquittal. The High Court in appeal took a different view than what was taken by the trial court to set aside the judgment and convict the appellants herein. While exercising the jurisdiction under Section 389 of the Code of Criminal Procedure, 1973, especially when trial court has recorded a finding of not proving the guilt, the Appellate Court should interfere only if the findings are perverse and are not possible by any reasonable person. The High Court in an appeal against acquittal does not interfere only if the Appellate Court has a different view on process of evidence than what was taken by the learned trial court. This Court in Chandrappa and Others v. State of Karnataka considered the scope of powers of the appellate court against an order of acquittal passed by the trial court under the Code and held as under:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence 18 before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds" "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."19
18. In the light of these principles, let me consider the evidence placed before the trial Court and its reasoning.
19. Except PW.1-complainant, no other witnesses have supported the case of the prosecution. It is also not disputed that this accused was earlier driver with the father of PW.1 and thereafter he left the job.
20. PW.1-Raisa Jabeen is the complainant. In her examination in-chief she has stated that the accused telephoned to her and told her that he was in love with her and he intends to marry her. He further stated her that if she did not marry him he would not allow anybody else to marry her. But she refused to marry him because there was lot of difference in their status and accused was an uneducated person. She has also stated that accused had telephoned her cell phone and abused her and told her that if she did not 20 marry him he would ensure that nobody else marry her and threatened her that he would commit her murder. Therefore, she did not inform anybody about it as she was afraid that he might actually do so.
21. PW.1 has further stated that on the date of incident when she was waiting for bus near D.C. office gate, accused came in a black colour Indica car and abused her and dragged her by holding her hands and forced her to sit in the front seat of the car and thereafter he got into the driver's seat and drove the said car in a high speed. He threatened her that if she did not sit silently he would commit her murder. So this narration clearly indicates that according to prosecution this incident had taken place in front of D.C. office gate morning at 11:30 a.m.. The trial Court has considered this aspect with reference to the scene of offence panchanama and held that the place is surrounded by three to four hotels and shops and all 21 college going students will be there and there will always be a lot of crowd. The father of the complainant- PW.4 has also admitted that there will be always a lot of crowd near D.C. office. If accused was dragging her against her will and wishes, she could have ran away from the car but nothing such type happened. Initially it was suggested that the car was "TATA Indica", finally it has emerged during the trial that it was "TATA Indigo"
car and the registration number of the car is also not stated in complaint. According to the prosecution this incident was witnessed by PWs.7-Mahaboob Pasha and PW.8-S.M.Khadri. Both have not supported the case of the prosecution and nothing has been elicited in their cross-examination.
22. PW.1-complainant has further stated that the accused took the said car towards Gadwal and there he assaulted her and kicked her, so she sustained injuries. Due to said assault, the left side glass of her 22 spectacle was broken and wrist watch glass was also broken. She further stated that the accused had driven the car in a rash and negligent manner and caused accident by dashing the car near Gandhi circle in Gadwal.
23. It is pertinent to note that PW.3- G.Raghavalu, Head Constable of Gadwal police station in his evidence he has stated that on 12.03.2011 when they were on duty at 1:00 p.m. a black car came from Raichur city side and dashed to a kirana shop near Gandhi circle. Then they went near the car and found both accused and the complainant were inside the car. They took them to the police station and produced them before the superior officer in the police station. During enquiry PW.1-complainant informed that the accused had abducted her. Immediately they informed the parents of PW.1-complainant and parents came at 3:00/4:00 pm. to police station and took the 23 complainant and accused to the Raichur police station along with car. In the cross-examination it is admitted that there was damage to the shop, but no complaint was lodged by the shop owner regarding any damage. He has also admitted that no case is registered about any accident caused by the said vehicle nor they recorded any statement or any witness nor seized any vehicle or drawn any panchanama. So this conduct of the witness creates doubt about the charge leveled against the accused. He has also stated that complainant was not having any books with her. This further strengthens doubt. Because according to complainant after attend her college, she was waiting for bus to go to house. So naturally when a student go to the college carry some books, notebooks but nothing is available with the complainant. He has also stated that both have mobile phones with them. If at all the accused had abducted her as stated by her she could have called her parents or any other person through her 24 mobile phone. It is not her case that accused had closed her mouth by putting cloth or tied her hands. Therefore, this makes the very nature of the accused abducting her and taking her to Gadwal doubtful.
24. PW.1 further admitted that she lodged a complaint as per Ex.P1 and MOs.1 and 2 were seized by the police on the same day. It is again contrary to the case of the prosecution. She has stated that PW.7 and PW.8 were selling fruits near D.C. office and they came to rescue her when the accused abducting her. It is pertinent to note that name of these two witnesses are not mentioned in Ex.P1-complaint. Added to that these two witnesses have never stated about any incident. She has stated that accused had taken her with an intention to marry her. She has admitted in her cross- examination that when she went to college on the date of incident she had taken books and practical notebooks, but she had not taken the mobile phone. 25 On the other hand, the police of Gadwal stated that she was not carrying any books but she had mobile phone with her. She has denied suggestion that accused has not told her that if she did not marry him, he would commit suicide. She has denied about any phone calls made by her which is again contrary to the evidence placed before the Court.
25. The trial court has considered all mobile call details of the accused and the complainant, which is marked at Ex.P10 in this case. The said discussion is at para-17 of the impugned judgment wherein the statement shows the accused cell number calls and the cell numbers used by PW.1, which is admitted by the complainant-PW.1. Because she has stated that cell number in her evidence. The call details in Ex.P10 covers the period from 05.03.2011 at about 11:54:15 hours to 12:03:2011 at about 12:41:21 in the afternoon and the statement also indicates about more than 150 26 SMS and calls were exchanged between their cell numbers belonging to both accused and the complainant within a period of one week. If at all the accused had left the job as a lorry driver from their house i.e. from the lorry belonging to her father, then there is no necessity to make call or any SMS to him. When admittedly she has stated that accused is not equal to their status and he is an uneducated person, there is no necessity for her to make any call or SMS to accused. The trial Court also found that some calls beyond 11:00 pm in the night were exchanged on several days and also several SMS were sent and even on the date of abduction there were as many as 33 calls and SMS were exchanged between the cell number of the accused on one side and complainant cell number on the other side from 1:00 am. to 10:30 a.m on the same day. If PW.1 was really of status conscious and was a loyal daughter willing to marry only such person as chosen by her parents why was she making these 27 calls to him is not forthcoming. In the light of the defence evidence that PW.1 was insisting him to marry her otherwise she would commit suicide, if her evidence is considered it creates doubt about prosecution charges. Of course she has denied that letter stated to have been written by her as shown by accused in the cross-examination. She has also admitted that her marriage was fixed with one Imran of Yaramaras village within 15 days of this incident but it was cancelled. She has denied the suggestion that herself informed the said Imran that she is having love affair with the accused. She has denied the suggestion that at the instance of her parents and due to their pressure, she filed a false complaint against the accused.
26. It is also pertinent to note that on the date of incident whether she went to college or not itself is doubtful because she cannot say who are her other classmates who had come to the college on that day. 28 Even she has stated that she do not know the name of the college principal or lecturer. She has stated that there was no girls in her college so she has no friends. That was also creates doubt whether she had going to college or not on the date of alleged incident.
27. The PW.2/Doctor-Praveen Kumar in his evidence stated that when he examined PW.1 at 12:40 on 13.03.2011 he found simple injuries such as minor abrasion over face, right chest tenderness present and minor abrasion over the right chin region. He has also admitted that in Ex.P4 the wound certificate it is not mentioned who has sent her but she was accompanied by her brother with some injuries. So the police have not sent her to the treatment but it is on her own she went to the hospital. The doctor has also admitted that she has not mentioned any allegation about abduction in Ex.P.4.
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28. PW.4-Syed Usman is the father of the complainant. He has also stated that accused was troubling PW.1 and accused was insisting his daughter to give respect to his love. He has not stated that accused had threatened her. He has admitted that accused was driver of his lorry. He do not know about any phone calls or SMS made by his daughter. He has denied a suggestion that he himself removed the accused from the job as he came to know about love affair between his daughter and accused. He has also stated that his daughter had married other person and at that time the accused was in jail. He has not seen any incident.
29. PW.5-Nagappa is the pancha witness. He has not supported about seizure panchanama, about material objects i.e. MOs.1 and 2. He has also admitted he acted as a pancha witness to 3 or 4 cases of the police. So he appears to be a stock pancha. PW.6- 30 Hansaraj is the pancha witness. His evidence also not helpful to the case of the prosecution. PW.9-Basappa is the ASI who conducted the investigation. His evidence will also not help the case of the prosecution and other witnesses have not supported the case of the prosecution.
30. Therefore from entire reading of the evidences of the prosecution witnesses it is evident that, the accused was known to the complainant earlier as he was working as a driver with her father. It is also evident that the accused left the said job and according to the accused he was removed, because father of the complainant came to know about love affair of the complainant and the accused. The breaking of the spectacle and the wrist watch due to alleged assault made by the accused during the course of such abduction cannot be believed. On the other hand the above circumstance probabilities, may, clearly 31 establishes the defence of the accused that PW.1 was relentlessly wooing him by making frequent calls and SMS even prior to the incident.
31. Admittedly the marriage of PW.1 was fixed prior to the alleged incident and now she is married to some other person when the accused was in jail. The alleged kidnapping or abduction is not proved. The identity of the car was also not proved. The car met with an accident at Gadwal is also not proved. Therefore, ingredients of Section 366 of IPC are not attracted. In this regard the learned counsel for the accused relied on the decision of the Hon'ble Supreme Court in the case of Kavita Chandrakant Lakhani vs. State of Maharashtra and another reported in (2018) 6 SCC 664, at Para No.15 to 17 and 21 held as under-
Discussion:-
15. In the above backdrop, it is pertinent to mention here the ingredients of Section 366 IPC which are as under:-
"366 "Kidnapping, abducting or inducing woman to compel her 32 marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."
16. In order to constitute the offence of 'abduction' a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this Section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the 33 woman consented to the marriage or the illicit intercourse.
17. Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC.
21. This Court has time and again held that mere abduction does not bring an accused under the ambit of Section 366 IPC. It must be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or 34 knowing it to be likely that she will be forced or seduced to illicit intercourse.
32. In the light of the above referred decision, if the evidence of prosecution is considered, it is evident that the prosecution has failed to prove the ingredients of offence under Section 366 of IPC. Regarding injuries, it is evident that they are very simple and superficial in nature. Wound certificate itself shows doubt about any such injuries caused due to the incident. In view of the several suspicious circumstances noticed in this case, the injuries spoken to by PW.2 does not in any way advance the case of the prosecution. None of the prosecution witnesses have supported the case of the prosecution. In the light of the defence evidence taken by the accused it is crystal clear that the prosecution has failed to prove its case beyond all reasonable doubt as alleged. It is settled principle of law that prosecution has to prove its case beyond all reasonable doubt. If from the evidence of prosecution witness two views are 35 possible. The view favourable to the accused will have to be accepted. In view of the evidence placed before the trial Court the possibility of falsely implication of the accused just to avoid him also cannot be ruled out. Therefore, accused is entitled for benefit of doubt in view of the principle stated in the decision in the case of Satish Kumar's case stated supra.
33. I have carefully perused the judgment of trial Court. The learned Sessions Judge has raised the points for consideration, discussed the evidence and came to the conclusion that the evidence adduced by the prosecution witnesses creates doubt before the Court. The trial Court has given cogent reasons and appreciated the evidence. The learned trial Judge has rightly came to the conclusion that implication of the accused by the father of PW.1 also cannot be ruled out. As admittedly the accused was not well to do person and father of the complainant is a lorry owner and he is 36 a rich person. The trial Court has properly drawn inference based on the mobile calls and SMS sent to the effect that it creates doubt about very theory of kidnapping or abduction alleged by the prosecution. The entire allegations regarding the accused abducting PW.1, abusing her, assaulting her and threatening her is part of the same course of transaction is not proved. The trial Court has considered the evidence in proper perspective and also appreciated the evidence based on settled principles of law regarding appreciation of evidence in criminal trial. The trial Court has rightly given benefit of doubt to the accused.
34. In view of the above, absolutely there are no ground to interfere with the judgment and order of acquittal passed by the trial court. The appeal being devoid of merits, is liable to be dismissed. Therefore, I answer Point Nos.1 to 4 in the Negative. Accordingly, I proceed to pass the following:
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ORDER Criminal Appeal is dismissed.
The Judgment and order of acquittal of accused/respondent passed by Prl. Sessions Judge, Raichur, in SC No.156/2011, dated 30.08.2013 is hereby confirmed.
Send back the records of the trial Court forthwith.
Sd/-
JUDGE MNS/sdu