Karnataka High Court
Pardani S/O Sharanappa Honagunti vs The State Of Karnataka on 15 November, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL No.200124/2014
BETWEEN:
1. PARDANI,
S/O SHARANAPPA HONAGUNTI,
AGE: 21 YEARS,
OCC: COOLIE,
R/O INGALAGI,
TQ: CHITTAPUR, DIST: GULBARGA.
2. MONAPPA,
S/O SIDDAPPA TALAKERI,
AGE: 20 YEARS,
OCC: DRIVER OF TRACTOR,
R/O INGALAGI,
TQ. CHITTAPUR, DIST: GULBARGA. ...APPELLANTS
(BY SRI M.A. JAGIRADAR AND SRI G.B. YADAV, ADVOCATES)
AND:
THE STATE OF KARNATAKA
THROUGH WADI P.S.,
TQ. CHITTAPUR, DIST: GULBARGA. ...RESPONDENT
(BY SRI SHARANABASAPPA M. PATIL, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING THIS COURT TO SET ASIDE THE
JUDGMENT OF CONVICTION PASSED BY THE V ADDL.
SESSIONS / SPL JUDGE AT GULBARGA IN S.C.NO.404/2012
2
FOR THE OFFENCES UNDER SECTIONS 366 AND 366(A) OF
IPC AND THE APPELLANTS BE ACQUITTED, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and the learned High Court Government Pleader appearing for the State.
2. The factual matrix of the case is that when P.W.5 victim girl went to attend the nature call, she was kidnapped by these accused persons and the victim girl was aged about 17 years 10 months at the time of kidnap and these petitioners knowing fully well that she is a minor, subjected her for sexual act and committed the offence. The further allegation is that with an intention of illegally committing the sexual intercourse on her, grabbed her mouth and kidnapped her from the lawful custody and thus committed the offence punishable under Sections 366 and 366A of IPC and also charge was framed for the offence punishable under Section 376 of IPC. The accused did not plead guilty and hence the prosecution examined 3 P.W.1 to P.W.20 in order to substantiate their case and also got marked the documents at Exs.P.1 to 34 and no M.Os. are marked. The Trial Court after recording the evidence, recorded the statement of the accused persons and thereafter accused have not led any defence evidence. Having heard the respective learned counsel, the Trial Court convicted the accused for the offences punishable under Sections 366 and 366A of IPC and acquitted the accused for the offence punishable under Section 376 of IPC on the ground that there is no evidence and the victim girl herself not supported the case for invoking Section 376 of IPC. Hence, the present appeal is filed before this Court.
3. The main grounds urged in the appeal is that the Trial Court committed an error in relying upon the evidence of P.W.5 victim girl. P.W.6, P.W.7 and P.W.17 are mother, brother and sister, respectively of P.W.5 and those witnesses are family members and their evidence does not inspire the confidence of the Court to invoke the offence under Sections 366 and 366A of IPC. 4
4. The learned counsel for the petitioners would vehemently contend that the very judgment of conviction is not sustainable in the eye of law. The victim being minor was procured for the purpose of seducing for sexual intercourse with other persons i.e., ingredients in respect of Section 366A of IPC and in the case on hand, the victim says that she was not subjected to sexual act. When such being the facts, the Trial Court ought not to have invoked Section 366A of IPC and also the ingredients of Section 363 of IPC has not been complied and hence Section 366 of IPC cannot be invoked. Though the prosecution claims that P.W.11 and P.W.13 are the eye witnesses, they have not supported the case of the prosecution. P.W.17 is the sister of P.W.5, who is a hearsay witness and P.W.8 and P.W.12 being panch witnesses, have not supported the case of the prosecution. The prosecution mainly relies upon the evidence of P.Ws.5, 6, 7 and 17. The learned counsel brought to the notice of this Court the evidence of P.Ws.5, 6, 7 and 17 and the learned counsel submits that the evidence of these witnesses does not attract the 5 ingredients of Section 366 and 366A of IPC to convict the accused persons.
5. Per contra, High Court Government Pleader appearing for the State would submit that admittedly P.W.5 is a minor girl aged about 17 years 10 months and the evidence of P.W.5 is clear that when she went to attend the nature call, by that time, these accused persons have kidnapped her with an intention to subject her for sexual act. Hence, the Trial Court has rightly come to the conclusion that the offences under Section 366 and 366A of IPC are proved.
6. Having heard the learned counsel for the appellants and the learned High Court Government Pleader appearing for the State and also on perusal of the records, the points that arise for the consideration of this Court are:
(i) Whether the Trial Court has committed an error in convicting the accused for the offences punishable under Sections 366 and 366A of IPC and whether it requires interference of this Court?6
(ii) What order?
Point No.(i):
7. Having heard the respective learned counsel and also on perusal of the material available on record, no doubt, 20 witnesses are examined before the Trial Court. Out of that, P.W.1 is the medical officer and his evidence is with regard to the capability of the accused in sexual act. P.W.2 is the P.C., who took the victim girl for medical examination. P.W.3 is the KPTCL Engineer and he speaks with regard to the electricity supply. P.W.4 is the P.C., who took the seized articles to the Court. These witnesses are all formal witnesses.
8. The material witness is P.W.5 victim girl and she reiterates that when she went to attend the nature call, by that time, both the accused persons came and held her and dragged her near the agricultural land and she lost conscious and she was taken in the train to Bengaluru. There they were there for 2-3 days and searched for a job, but they did not get any job. Hence, they took her to Gokak and in Gokak they were arrested by the police. She 7 says that she was not subjected to sexual act, but an attempt was made and she did not allow them to subject her for sexual act. It is her evidence that they boarded the train at Nalawara railway station. She claims that when she was dragged, she cried and the accused slapped her.
9. In the cross-examination of P.W.5, it is elicited that there are 5-6 houses near her house and the distance between her house and the place where they attend nature call is about 200 feet and the same is visible from their house. It is elicited that if any incident is taken place, they can hear the sound from their house, but they took her for about 15 minutes from the place where she was attending nature call. It is elicited that Moulasab's agricultural land is outside the village, but no one was there when she went to attend nature call and no one met them when they were going to Moulasab's agricultural land. It is elicited that in order to go to the land of Moulasab, by walk it takes about half an hour. She claims that her mouth was closed when she was taken. She admits that till next day night 8.00 8 p.m., they were there in Moulasab's land and thereafter she was taken to the railway station and they were there in the said land from 11.00 p.m. till next day 8.00 p.m. and no talks were held between her and the accused. It is elicited that from the land of Moulasab, railway station is about 15-20 kms. and while going to Nalawara railway station, they found one Village but she cannot tell the name of the village and also found the public in the said road but she did not tell anything to the said villagers. It is also her evidence that there were 200 persons in the railway station and she did not make any attempt to tell anyone. She claims that the accused persons threatened her. It is her evidence that she called her brother and informed that she was taken to Gokak and police came and apprehended the accused. It is elicited that her statement was not recorded before the learned Magistrate and also she admits that her marriage was fixed with one Mallikarjuna, who is her neighbour.
10. The mother of the victim girl has been examined as P.W.6 and she claims that her daughter went 9 to attend the nature call and she did not come back. Even after the search, they did not find her and came to know that she was taken to Bengaluru and her son went and brought her back. On enquiry, P.W.5 reveals that the accused persons took her and not subjected to any sexual act. She was treated as hostile and the learned counsel for the accused has not cross-examined this witness.
11. P.W.7 is the brother of P.W.5 and he also was treated as hostile. P.W.17 is the sister of the victim girl and she also reiterated the evidence of P.W.6 and P.W.7 and she also turned hostile and all the witnesses are cross- examined by the Public Prosecutor and not by the learned counsel for the accused and the accused counsel examined P.W.5.
12. Having considered both oral and documentary evidence available on record, no doubt P.Ws.6, 7 and 17 are the relatives of the victim girl and they deposed only with regard to P.W.5 attended nature call and thereafter she did not come back. The main witness is P.W.5. 10 Having considered the evidence of P.W.5, her evidence is that she was dragged from the place where she was attending nature call and she says that she lost conscious and thereafter she came to know that she was taken to Bengaluru. It is her evidence that they tried to search job in Bengaluru for 2-3 days and the answers elicited from the mouth of P.W.5, which I have already discussed above discloses that her marriage was fixed with one Mallikarjun and the defence of the accused is that when the marriage was fixed with Mallikarjun, the accused persons have not kidnapped her with any intention to commit any sexual act and the said suggestion was denied. She categorically admits that the place where they attend nature call can be visible from the house and if any sound occurs, that can be heard and even neighbourers also can hear the same.
13. It is important to note that they went to the land of Moulasab and they have walked from the place for about half an hour and thereafter also they were there from previous day 11.00 p.m. to next date 8.00 p.m. and no talks were held between the victim girl and the 11 accused, but she claims that they threatened and slapped her. The very conduct of P.W.5 is clear that they walked for about 15-20 kms. to Nalwara railway station and also found the people in the said village, but she has not made any attempt to inform them and if really she was under the threat, she would have informed the other villagers. She categorically admits that there were 200 people in the railway station and there also she did not reveal anything and she accompanied these accused persons to Bengaluru and stayed for a period of three days. She admits that they searched for a job in Bengaluru and thereafter only went to Gokak.
14. Having taken note of the evidence of P.W.5, the same does not inspire the confidence of the Court that these accused persons have committed the offence under Sections 366 and 366A of IPC. It is her clear evidence that she was not subjected to any sexual act and having taken note of the evidence of P.W.5 and P.W.6, who is the mother she says that accused persons took her and she accompanied the accused persons and no incriminating 12 evidence, except the hearsay evidence of P.Ws.6, 7 and 17 and the Trial Court has committed an error in coming to the conclusion that the accused persons have committed the offence. While convicting the accused for the offence, the prosecution has to prove the case beyond reasonable doubt and the Trial Court failed to take note of the evidence of P.W.5 and committed an error in considering the evidence of P.Ws.6, 7 and 17 and also P.W.11. No doubt, P.W.5 is aged about 17 years 10 months, but that itself is not enough to convict the accused for the offence under Sections 366 and 366A of IPC.
15. P.W.7, brother of the victim girl says that they heard screaming sound and when they went to the said spot, they did not find her and the same is nothing but an improvement and almost all the witnesses have turned hostile. P.W.5 also turned hostile to the little extent with regard to the sexual act is concerned and the Trial Court failed to appreciate the evidence available on record whether it inspires the confidence of the Court or not. The other witnesses speak only with regard to searching of 13 P.W.5 and only hearsay evidence that she accompanied with accused No.1. Inspite of the witnesses have turned hostile, the Trial Court comes to the conclusion that she was aged about 17 years 10 months and she was taken from lawful custody and there are no material that she was taken from lawful custody with due consent of the parents and guardians of the minor and hence convicted the accused for the offence punishable under Sections 366 and 366A of IPC. The Court fails to consider the evidence of P.W.5 and also not discussed anything about the answers elicited from the mouth of P.W.5 in the cross-examination whether it fulfils the ingredients of Sections 366 and 366A of IPC and committed an error in convicting the accused persons. Hence, I am of the opinion that the Trial Court has committed an error in convicting the accused persons mainly relying upon the evidence of P.W.5, which does not inspire the confidence of the Court and the allegations made against the accused is not proved and also the evidence of other witnesses does not corroborate with the evidence of P.W.5. It is clear that when her marriage was 14 fixed with Mallikarjuna, it appears that the victim girl herself went along with the petitioners and benefit of doubt goes in favour of the petitioners. Hence, it is a fit case to reverse the findings of the Trial Court and set aside the order of conviction and sentence.
Point No.(ii):
16. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of conviction and sentence passed in Sessions Case No.404/2012 dated 24.11.2014 is hereby set side.
Sd/-
JUDGE MD