Karnataka High Court
Sri Anthony Das vs State Of Karnataka on 20 September, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20 T H DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.435 OF 2018
BETWEEN:
Sri Anthony Das
S/o. Late Nallathambi
Aged about 42 years
R/at No.91, Rag hvendra Colony
Vid yaranyapura
Beng aluru-560097.
...Appellant
(By Sri Veeranna G. Tig ad i, Advocate)
AND:
State of Karnataka
By Ulsoor Gate Police Station
Beng aluru.
...Respondent
(By Sri K. Rahul Rai, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. praying to set asid e the judgment of
conviction d ated 28.10.2017 and sentence dated
03.11.2017 p assed by the L Additional City Civil and
Sessions Judge, Beng aluru in Spl.C.C. No.184/2014 -
convicting the appellant/accused for the offence
:: 2 ::
punishab le und er Sections 366 and 376 of IPC and
Section 5(l) and 6 of POCSO Act.
This Criminal Ap peal coming on for final hearing
this d ay, the Court d elivered the following:
JUDGMENT
This appeal is by the accused in Special C.C.No.184/2014 on the file of L Additional City Civil and Sessions Judge, Bengaluru.
2. The prosecution case is that the accused enticed PW10 and kidnapped her on 27.11.2013 at 10.30 AM when she came in front of the book depot of Bengaluru University and took her to Tirupati and from there to Vishakapatnam, for the purpose of seducing her to sexual intercourse. PW2, the mother of PW10 made a missing complaint in the first instance at Kolar Town Police Station on 29.11.2013. Later on the case was transferred to Ulsoor Gate Police Station, Bengaluru. The investigation led to filing of charge sheet for the offences under sections 366A, :: 3 ::
376 IPC and section 4 of the Protection of Children from Sexual Offences Act (for short 'the POCSO Act').
3. The prosecution in all examined 18 witnesses and got marked 36 documents as per Exs. P1 to P36 for establishing its case. It also got marked the material objects as per MOs 1 to
10. After conclusion of trial, the trial court, having found the accused guilty of the offences under sections 376 and 366 IPC, and section 6 of POCSO Act, sentenced him to rigorous imprisonment for a period of ten years and fine of Rs.10,000/- with default sentence of three months for the offence under section 376 IPC, simple imprisonment for a period of one year and fine of Rs.1,000/- with default sentence of two months for the offence under section 366 IPC and rigorous imprisonment for a period of ten years and fine of :: 4 ::
Rs.10,000/- with default sentence of three months for the offence under section 6 of the POSCO Act.
4. Assailing the findings of the trial court, Sri V.G.Tigadi, learned counsel for the accused/appellant, argued that the trial court has grossly erred in convicting the accused though there is no legal evidence on record. Elaborating his argument, he submitted that PW10, did not support the prosecution. The Public Prosecutor while cross-examining treating her a hostile witness did not draw her attention to the statement given by her. Factual suggestions were not given to her in the cross-examination by the public prosecutor. Therefore the Public Prosecutor himself failed to cross-examine her effectively.
The trial court should not have marked the statement of the victim girl under section 161 Cr.P.C as Ex.P7 when the contradiction was not brought on record. The trial court has wrongly :: 5 ::
placed reliance on Ex.P7 to hold that the prosecution case has stood established. 4.1. The trial court has wrongly appreciated the medical evidence. PW12 was the doctor who examined PW10. Merely noticing rupture of hymen, PW12 came to an opinion that PW10 might have been subjected to intercourse. When PW10 herself says that the accused did not have sexual intercourse with her, importance should not have been given to the testimony of PW12. The trial court also wrongly placed reliance on Ex.P12, the statement given by the girl under section 164 Cr.P.C. It is not a substantive piece of evidence.
It can be used only for the purpose of finding corroboration and nothing more. Therefore the accused ought to have been acquitted. In this view, the judgment of the trial court needs to be set aside, and accused acquitted.
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5. Learned Government Pleader argued that actually PW10 has not fully turned hostile, she admits to have given statement under section 164 Cr.P.C as per Ex.P12. In this view, even though she did not support the prosecution case as regards the sexual intercourse committed by the accused, an inference can clearly be drawn that she was subjected to intercourse. Ex.P12 and the evidence of PW12, if read together, a clear conclusion can be drawn that PW10 was kidnapped by the accused for the purpose of seducing her to intercourse. She was a minor at the time of incident. The trial court is therefore justified in convicting the accused.
6. The trial court held that the prosecution was able to prove its case beyond reasonable doubt. Its findings are that even though PW10, the victim girl does not appear to have fully supported the prosecution case, if Ex.P7 is :: 7 ::
considered it can be said that the accused took PW10 to Tirupati and from there to Vishakapatnam. She also gave statement before the Magistrate regarding the incident. This being the situation, if she half heartedly supported the prosecution while giving evidence as a witness, it cannot be considered. She admits her signature on Ex.P12, the statement given before the Magistrate. Therefore her statement under section 164 Cr.P.C can also be acted upon. Evidence of PW12, the doctor who examined PW10 supports the prosecution case. The statement recorded by the Magistrate and the statement recorded by the police indicate the same facts. This being the case, the accused kidnapped PW10, a minor girl, for inducing her to sexual intercourse with him.
Accused failed to produce oral and documentary evidence by way of defence evidence. Section 29 provides for drawing presumption. In this view, the accused can be found guilty.
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7. Now, the re-analysis of the evidence shows that except PW10 nobody else can establish the prosecution case. As has been observed by the trial court she has not supported the prosecution case. Her evidence is that in November 2013, she did not attend the college for about 15 days and she went to the house of her friend Poojitha at Yelahanka without informing her mother. It is also stated by her that when she stayed with the accused, for about 15 to 20 days, there was no intercourse between them. Because she did not fully support the prosecution case she was treated hostile and, cross-examined. She admitted that she did not know the contents of Ex.P7. In regard to Ex.P12 she admitted her signature and stated further that she just did nothing except putting her signature on the statement.
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8. PW2, being the mother of PW10, has given evidence about what she came to know from her daughter and making a complaint to the police.
PW3 is the neighbour of PW2 and he has given evidence that the accused lured PW10 that he would buy a laptop and a phone for her and took her to Tirupati and Vishakapatnam. PW4 has also stated that the accused had taken PW10 with him but she did not know the reason. PW7, Sudhakar Reddy's evidence shows that on 10.1.2014 at 8.00 PM police constable Sri Shivakumar and another brought PW10 and the accused from Vishakapatnam. These are the main witnesses.
9. Since it is a case of kidnapping, PW10 alone should state whether she was forcibly taken by the accused or she was enticed to go with him. The evidence of other witnesses is of no significance because what they have deposed is what they might have come to know from the :: 10 ::
police after the tracing of PW10 and the accused. If the testimony of PW10 is scrutinized, it becomes very clear that she does not establish the prosecution case. She was a minor at the time of incident. Her date of birth is 5.5.1996 as per Ex.P30, the SSLC marks card. In order to hold offence under section 366 of IPC is committed, the prosecution must essentially establish that the woman was kidnapped or abducted with an intention to compel her or seducing her to illicit sexual intercourse or to marry any person against her will. Even for 366A IPC, inducement of a minor girl under the age of 18 years for forcing or seducing her to illicit intercourse must be established. In this case, PW10 has not stated that she was forced or compelled by the accused to have intercourse with him. Her clear evidence is that nothing of that sort took place. Though in the examination-in-chief she admitted to have given statement before the Magistrate as per :: 11 ::
Ex.P12, in the cross-examination she stated that she did not know the contents of Ex.P12. Merely on the basis of the doctor's evidence, no inference can be drawn that PW10 was subjected to intercourse. The tearing of hymen might take place for many reasons. It appears that PW12 has opined about possibility of PW10 being subjected to intercourse noticing the tearing of hymen. In this view, a doubt arises in the entire case of prosecution. The trial court has placed reliance on Ex.P7 and P12. Ex.P7 is the statement of PW10 under section 161 Cr.P.C. Her entire statement was marked which was not permitted. Ex.P12 is the statement under section 164 Cr.P.C. Though it has got a sanctity as it is made before the Magistrate, unless the prosecutrix testifies the prosecution case, sole reliance on section 164 statement is not safe and moreover the Supreme Court in the case of State of Karnataka vs P.Ravikumar and Others [(2018) 9 SCC 614] :: 12 ::
has held that statement under section 164 cannot be considered as a substantive evidence to base conviction. Therefore the judgment of the trial court to arrive at a conclusion against the accused referring to Ex.P7 and P12 does not appear to be correct.
10. PW10 has stated in her evidence that when she gave statement before the Magistrate, she stated that the accused took her to Tirupati from Bengaluru and from there to Vishakapatnam. Therefore it was the argument of the Government Pleader that at least to this extent the evidence of PW10 finds corroboration from Ex.P12. Of course this argument is plausible, but the materials available on record indicate that when there is no positive evidence for taking PW10 from Bengaluru to Tirupati to Vishakapatnam for compelling her seducing her to sexual intercourse, obviously offence under section 366 IPC does not get :: 13 ::
established. For the reason that she has stated that she was taken to Tirupati and Vishakapatnam, examined whether it falls within the ambit of section 366 of IPC, even then it can be stated that, that offence also cannot be applied. The basic requirement of kidnapping from lawful guardianship is that a minor should be taken out of the keeping of his or her legal guardian. The consent of guardian is important, the consent of the minor is of no consequence. Analyzing the scope of section 361 of IPC, the Supreme Court in the case of Thakorlal D Vadgama vs The State of Gujarat [(1973) 2 SCC 413] has held in para 10 :-
"10. ...... The two words "takes" and "entices', as used in s. 361 I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour ,and content from the other. The statutory language suggests that if the minor leaves her parental :: 14 ::
home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in s. 361 I.P.C.
But if the guilty party has laid a
foundation by inducement, allurement
or threat, etc. and if this can be
considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him...."
11. In the case on hand the prosecution case is that PW10 was enticed by the accused that he would secure a seat for C.A course and lured to go with him. The evidence of PW10 does not disclose that she was enticed or lured. If she went with the accused without being influenced or without any enticement, as has been held by the Supreme Court in the above case, the offence :: 15 ::
under section 361 IPC cannot also be invoked against him.
12. Thus looked, the judgment of the trial court cannot be sustained. It has to be reversed recording acquittal of the accused and ordered accordingly.
The accused is said to be in custody. In view of the reversal of the judgment of the trial court, he shall be set at liberty immediately if his presence is not required in any other case.
Sd/-
JUDGE ckl/-