Bangalore District Court
SPL.C/236/2015 on 29 March, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 29TH DAY OF MARCH, 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 236 / 2015
COMPLAINANT :
The State of Karnataka by
Yelahanka New Town Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
Chikkanna alias Naveen, S/o.
Gangadharaiah, 21 years, residing
at present C/o. Sridhar, beside
Anjaneya temple, 3rd Stage,
Yelahanka Upanagara, Bengaluru.
[Represented by learned counsel Sri
N.S. Dayananda]
***
2 Spl.CC.No. 236/2015
JUDGMENT
Yelahanka Police, Bangalore City have charge sheeted the accused for the offences punishable under Section 363 and 366 of I.P.C.
2. The case of the prosecution, in brief, is as under :
CW6 the prosecutrix was of 16 years in the year 2013. She was studying in 1st PUC. The accused who was residing in the house of one Muniraju, whose quarters is in the ground floor of the building belonging to Rail Wheel Factory, was loving the prosecutrix since one year. She also fell in love. With intent to marry her forcibly accused had taken away prosecutrix on 07.10.2013 at 12.10 p.m. from Puttenahalli bus stop, to his friend CW7-Manjunath's house which is in Gujjarwadi, Poona, Maharashtra.
They stayed there till 10.10.2013. In the meanwhile CW1 Smt. Sarojamma, mother of the prosecutrix had lodged complaint on 10.10.2013. On coming to know this fact accused and the prosecutrix had returned to 3 Spl.CC.No. 236/2015 Bengaluru. When they were in Nelamangala bypass circle, Yelahanka Upanagara Police had apprehended them and brought to the Police Station. Investigating Officer had recorded the statement of the prosecutrix, both of them were sent to hospital for medical examination. He drew necessary mahazar and recorded statement of the prosecution witnesses. By completing the investigation he submitted the charge sheet to the Court for the aforesaid offences.
3. The charge sheet was submitted to this Court and the same is registered in Spl.C.C. by taking cognizance. After following the procedure laid down under Law the charge for the offence punishable under Section 366 of I.P.C framed and read over to the accused. Accused pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side.
4. On prosecution side got examined as many as 6 witnesses as P.W.1 to P.W.6 out of 15 charge sheet witnesses and got marked documents at Ex.P.1 to Ex.P9 the details of which are given in the annexure 4 Spl.CC.No. 236/2015 of this Judgment. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused had kidnapped CW6 minor daughter of CW1- on 7.10.2013 at 12.10 p.m from Puttenahalli bus stop within the jurisdiction of Yelahanka Upanagara Police Station with intent to compel her to marry him forcibly punishable under Section 366 of I.P.C ?5 Spl.CC.No. 236/2015
2) What order?
7. My findings on the above points are as under:-
Point No.1) : In the negative
Point No.2) : As per final orders for the
following
REASONS
8. Point No.1:- The prosecution has made allegations against the accused that he had intention to marry PW1 prosecutrix against her will, with that intention he had enticed away the minor girl on 7.10.2013 at 12.10 p.m. from Puttenahalli Bus Stop. According to prosecution she was of 16 years as on the date of incident. In order to prove the age of the prosecutrix the prosecution has produced the true copy of the SSLC marks Card at Ex.P5 and also the certificate at Ex.P4 issued by PW3 Manohar Nagaraj, Head Master of the school in which prosecutrix was studying. Ex.P4 has been issued on the basis of the admission register. According to Ex.P4 and 5 the date 6 Spl.CC.No. 236/2015 of birth of the prosecutrix is 28.11.1997. Though PW3 is subjected to cross examination on defence side, nothing contrary has been extracted. There is no other evidence to disbelieve the version of PW3 and documentary testimony of Ex.P4 and 5. ExP5 is the true copy of the SSLC marks card i.e., authenticated document to be placed to conclude the age of the prosecutrix. Accordingly as on the date of the alleged incident she was under 18 years.
9. According to prosecution she was studying in 1st PUC at the relevant point of time. PW1 Saroja mother of the prosecutrix has been working in Rail Wheel Factory. The accused has also been working in the same factory. One Muniraju, uncle of the prosecutrix has also been working in the said factory. The house of Muniraju is in the ground floor belonging to Railway Factory. The house of the prosecutrix is also in the same building. Thus, prosecutrix and the accused came in contact of which led them for friendship and subsequently turned to love affair. 7 Spl.CC.No. 236/2015 Since one year prior to the incident both were loving each other. On coming to know this fact family members of the prosecutrix protested. Even Muniraju in whose house accused was residing, also sent him outside. Then the accused was residing in a rented house in Yelahanka Upanagara. He also left the sweeper job in the Railway Factory and started plumbing work. Because of the shifting his residence they found difficulty to contact each other. Then they started contacting on cell phone. They used to meet each other. On coming to know this fact PW2- Sarojamma, mother of the prosecutrix was torturing her daughter. Then the accused asked her to elope and get married. By agreeing to the same she left on 7.10.2013 at 7.00 a.m. on the pretext of going to the college. Instead she had gone to Puttnahalli bus stop. At 12.10 p.m she went to Majestic and thereafter alongwith accused travelled to Poona where one Manjunath friend of accused was residing. They reached Poona on 8.10.2013 at about 6 a.m. They 8 Spl.CC.No. 236/2015 stayed in his house till 10.10.2013. Prosecutrix had taken away some jewellery from her house for marriage. Both of them stayed in the house of Manjunath which is in Gujjarwadi, Poona. On being learnt about this fact from the accused and the prosecutrix, his friend advised him what he did is not correct and asked them to return to Bangalore. On 10.10.2013 they left Poona at 5.15 p.m and reached Bangalore. Since the accused had apprehension of arrest by the police he contacted his father. His father had come to Nelamangala by bus, where accused and victim girl alighted from the bus. Thereafter Nelamangala Police apprehended them and brought them to Yelahanka Upanagara Police Station. This is the case of the prosecution.
10. The charge against the accused is for offence under Section 366 of IPC. On plain reading of section 366 IPC it applies in case of major as well as minor girls. Enticing or taking away the minor girl is the essential ingredient of offence of kidnapping. If it is 9 Spl.CC.No. 236/2015 coupled with the intent to compel the girl to marry against her will or to seduce her to illicit intercourse against her will constitutes offence u/s 366 of IPC.
11. In order to prove the charge against the accused prosecution has got examined material witnesses. PW2 Sarojamma is mother of the prosecutrix, she is the complainant. PW1 is the prosecutrix PW4 Swarna Gowri is the WPC of Yelahanka Upanagara Police Station. PW5 Dr. B.M. Nagaraj is the Medical officer who subjected the accused and victim girl to medical examination and issued medical report as per Ex.P7 and 6 respectively. PW6-Ananda Nayak-the then PSI in Yelahanka Upanagara Police Station, partly investigated in the present case.
12. The evidence of PW1 and 2 is very material in the present case. PW2-Sarojamma has stated in her evidence that she had lodged a complaint as per Ex.P3 on 10.10.2013 suspecting the accused. She has also 10 Spl.CC.No. 236/2015 stated before the court that the victim girl had taken away the jewellery belonging to her from the house. The accused with intent to marry her daughter forcibly had taken away. She has also given the cell phone number of the accused. With this background on going through the oral testimony of PW1 would contradict the case of the prosecution itself. As per prosecution accused and the victim girl were loving each other, with intent to marry her accused had forcibly taken away. As per the version of PW2 it is the accused who had enticed her daughter for the purpose of marrying her, the victim had also taken away the jewellery. On going through the entire evidence on prosecution side would clearly disclose that accused had not forcibly taken away the prosecutrix on 7.10.2013. PW1-the prosecutrix herself has stated on oath before the Court that she was loving the accused, on coming to know this fact her family members protested, they made accused to shift his residence, when both of them found difficulty to contact each 11 Spl.CC.No. 236/2015 other they started contacting on cell phone. On being learnt this, the mother of the prosecutrix was torturing her. Because of this reason she herself had forced the accused to take her. She has gone to the extent of stating that accused was reluctant to take her, he said it is not correct. When she forced him and she was upset, then he agreed to take her. As per her version she had gone with him in friendship. The whole testimony of PW1 is read between the lines would not disclose the inducement by the accused or compulsion on the part of the accused in taking away the victim girl. Even there is absence of intention of the accused that he wanted to marry her. Prosecutrix has unequivocally stated that at her insistence he took her, both of them had gone to the house of the friend of the accused. They had no physical relationship. On coming to know lodging of the complaint by mother of prosecutrix, both of them had returned to Bangalore and along with the father of accused they had gone to Yelahanka Upanagara Police Station. In the cross 12 Spl.CC.No. 236/2015 examination led by counsel for the defence she has stated that there is difference between accused and her mother. The relevant portion of her version in the chief examination is reproduced as under:
"£ÀªÀÄV§âjUÀÆ zÀÆgÀ EgÀ®Ä EµÀÖ DUÀ°®è, DgÉÆæAiÀÄÄ £À£ÀUÉ MAzÀÄ ¥sÉÆãï PÉÆlÖ£ÀÄ. ¥sÉÆä£À°è E§âgÀÆ DUÁUÉÎ ªÀiÁvÀ£ÁqÀÄwÛzÉݪÀÅ. DgÉÆæAiÀÄ §UÉÎ £ÀªÀÄä vÁ¬Ä DUÁUÉÎ ZÀÄaÑ-ZÀÄaÑ ªÀiÁvÀ£ÁqÀÄwÛzÀÝgÀÄ. £À£ÀUÉ ¨ÉÃeÁgÁVvÀÄÛ, £Á£ÀÄ DgÉÆæUÉ F jÃw ªÀÄ£ÉAiÀÄ°è ªÀiÁvÀ£ÁqÀÄwÛzÁÝgÉ JAzÀÄ ºÉýzÉ£ÀÄ. £À£ÀUÉ ¨ÉÃeÁgÁUÀÄwÛzÉ J¯ÁèzÀgÀÆ ¸Àé®à ¢£À £À£ÀߣÀÄß PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV JAzÀÄ ºÉýzÉ£ÀÄ. DUÀ £Á£ÀÄ ¥ÀæxÀªÀÄ ¦.AiÀÄÄ.¹ AiÀÄ°è EzÉÝ£ÀÄ. DgÉÆæ CzÀPÉÌ FUÀ ¨ÉÃqÀ JAzÀÄ ºÉýzÀ£ÀÄ. £Á£ÀÄ CzÀPÉÌ E¯Áè ºÉÆÃUÀ¯Éà ¨ÉÃPÉAzÀÄ £À£Àß ªÀÄ£À¹ìUÉ vÀÄA¨Á ¨ÉÃeÁgÁVzÉ JAzÀÄ ºÉýzÀÝPÉÌ DgÉÆæ M¦àzÀ£ÀÄ."
13. The aforesaid relevant portion of her version in page 2 indicates that accused had not at all intended to take away the victim girl and to marry her 13 Spl.CC.No. 236/2015 forcibly. There is absence of intention of marrying her. Of course as per her version both of them were loving. The cause for leaving the house by victim on 7.10.2013 is not for the purpose of marriage. Both of them did not want to marry at that time. But because of the bad situation in her house she wanted to go outside for some days, accordingly he made the accused agree to take her outside for few days, then they had left Bangalore in friendship. Under the circumstance it is very difficult to connect the accused with offence under Section 366 of IPC.
14. The learned Public Prosecutor has argued that it is found in the evidence of PW1 and 2 that accused had taken away the victim girl, that itself proves the offence committed by the accused. The learned counsel for the accused has argued that when there is absence of intention of the accused to marry the victim girl and when there is no evidence on record for that purpose both of them left the house he cannot be convicted for the offence under Section 366 of IPC. 14 Spl.CC.No. 236/2015 On this point he has referred me to 2016 SAR (Criminal) page 163 Supreme Court (Sat Parkash V/s. State of Haryana and another) wherein Hon'ble Apex Court held:-
"Kidnapping and rape - Proof -
Allegation is that the appellant kidnapped the deceased, a minor girl, committed rape on her and killed her - Appellant, his uncle and aunt, were charged with offences punishable under Sections 363, 366-A, 376 and 302 R/w. Sec. 34 IPC- Uncle and aunt of appellant have since been acquitted - Appellant has also been acquitted of the offence punishable under section 302 of IPC - Surviving charges against the appellant are relatable only to Sections 363, 366, 366-A and 376 of IPC - In her suicide note the deceased clearly and unequivocally stated that she had left her residence by her own free will - It cannot be said that appellant had enticed the deceased to accompany him
- Conviction of the appellant upheld by the impugned order passed by the High 15 Spl.CC.No. 236/2015 Court is liable to be set aside and is accordingly set aside"
15. I have gone through the aforesaid ruling. In that case the victim girl was aged about 15 years. The appellant was acquitted for the reasons that there are substantial materials on record to establish that deceased prosecutrix had not been persuaded or compelled to marry appellant therein before she committed suicide. The deceased had left a suicide note by mentioning that no one should be held responsible for her death. She loved the appellant, she was leaving that writing as proof of her true love. She only needs appellant whom she cannot get while she was alive she would get him after death. Based on the facts and circumstances of the case and the evidence the Hon'ble Apex court held that though she was of 15 years, as per her suicide note, she left her residence on her free will. Hence it does not constitute enticement on the part of the accused.
16 Spl.CC.No. 236/2015
16. The facts and circumstances of the case on hand is identical. In the present case the victim girl was of 16 years, i.e., under the age of 18 years. She and accused fell in love of which was protested by mother of the prosecutrix. Because of the scolding by her mother she did not tolerate, she herself left the house voluntarily forcing the accused to take her outside for few days. There is absence of inducement on the part of the accused. There is absolutely no evidence on record to establish that accused had compelled her to marry, for that purpose only he had enticed away. The essential ingredients of section 366 of IPC are not proved by the prosecution. There is no material on record to show the intention of the accused to marry her forcibly or he had persuaded to leave the house. Therefore based on the version of mother of the prosecutrix the inference cannot safely be drawn against accused. Conviction cannot be drawn against the accused for offence of kidnapping under Section 366 IPC.
17 Spl.CC.No. 236/2015
17. PW4 Swarna Gowri was then WPC in Yelahanka Upanagara Police Station, she along with other staff apprehended the accused and the victim girl from Nelamangala Bypass circle. The father of the accused himself had shown them. They were brought to the Police Station as per the statement of the prosecutrix before the Investigating Officer. Since the accused had apprehension of arrest by Police, they contacted father of the accused, as per his advise they alighted in Nelamangala Bypass circle. As per the oral testimony of PW4-WPC the accused's father had shown them. As per evidence of the prosecutrix, PW4-official witness and as per the prosecution accused and the victim girl on coming to know lodging of the complaint wanted to approach the police. Through father of the accused they had come to the Police Station. On looking to the facts and circumstances and also version of the prosecutrix it is a clear case that she left the house on her free will, she had gone with accused only in friendship not for other purpose, there was no 18 Spl.CC.No. 236/2015 persuasion on the part of the accused in leaving the house by the victim. Under the circumstance it is not safe to convict the accused for alleged charge under Section 366 of IPC.
18. Even on going through the evidence of PW5 Dr. B.M. Nagaraj he has stated that victim girl was brought by Yelahanka Upanagara Police for medical examination, she has given voluntary statement before him that she had gone with accused in friendship, she did not take away the jewellery. Of course PW1 has admitted that she took some jewellery with her while leaving the house. Merely because of that reason presumption cannot be drawn that accused has persuaded or enticed her in leaving the house and he had intention of compelling her to marry him. As per the evidence on record, the essential ingredient under Section 366 of IPC is not established by the prosecution. Merely because she left the house with accused does not constitute offence under Section 19 Spl.CC.No. 236/2015 366 of IPC. It does not tantamount culpability of the accused under Section 366 of IPC.
19. The charge against the accused is not proved by the prosecution by placing corroborative, cogent, acceptable and convincing evidence. The aforesaid ruling applies to the present case. Under the circumstances accused cannot be convicted. Though PW6 Investigating Officer, who partly investigated has been examined by the prosecution is not much helpful in proving its case beyond reasonable doubt. The prosecution has miserably failed to prove its case beyond reasonable doubt. Benefit of the same shall be given to accused. Hence, I hold point No.1 in the Negative.
20. Point No.2: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for 20 Spl.CC.No. 236/2015 the offence punishable under Section 366 of I.P.C.
(Dictated to the Judgment Writer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 29th day of March, 2016.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Prosecutrix PW 2 Sarojamma PW 3 Manohar Lalji PW 4 Swarna Gowri PW 5 B.M. Nagaraju PW 6 Ananda Nayak LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Mahazar Ex.P 1(a) Signature of PW1 Ex.P 1(b) Signature of PW6 Ex.P 2 Spot Mahazar Ex.P 2(a) Signature of PW2 Ex.P 2(b) Signature of PW6 21 Spl.CC.No. 236/2015 Ex.P 3 Complaint Ex.P 3(a) Signature of PW2 Ex.P 3(b) Signature of PW6 Ex.P 4 covering letter from school Ex.P 4(a) Signature of PW3 Ex.P 5 SSLC Marks card Ex.P 5(a) Signature of PW3 Ex.P 6 Medical Report of victim girl Ex.P 6(a) Signature of PW5 Ex.P 6(b) Signature of PW6 Ex.P 7 Medical report of accused Ex.P 7(a) Signature of PW5 Ex.P 7(b) Signature of PW6 Ex.P 8 FIR Ex.P 8(a) Signature of PW6 Ex.P 9 Report of PC 8319 Ex.P 9(a) Signature of PW6 LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore 22 Spl.CC.No. 236/2015 29.03.2016 State by Public Prosecutor Accused on bail by Sri NSD For Judgment Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Section 366 of I.P.C.
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.