Karnataka High Court
Mallikarjun@Mallappa S/O ... vs The State Of Karnataka on 18 April, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.200118/2020
BETWEEN:
Mallikarjun @ Mallappa
S/o Siddamalappa Nimbarga,
Age: 21 years, Occ: Tum-Tum Driver,
R/o Bhairamadagi Village, Tq. Afzalpur,
Dist. Kalaburagi-585 265.
... Appellant
(By Sri Santosh Patil, Advocate)
AND:
The State of Karnataka,
Through Revoor Police Station,
Tq. Afzalpur, Dist. Kalaburagi
(Represented by Addl. S.P.P.,
High Court of Karnataka,
Kalaburagi Bench-585 105).
... Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
This Criminal Appeal is filed under Section 374(2) of Code
of Criminal Procedure, praying to allow the appeal and set aside
the impugned judgment and order of conviction and sentence
dated 19.09.2020 convicting the accused for the offence
CRL.A.No.200118/2020
2
punishable U/Sec. 363 of I.P.C. and the appellant has been
sentenced for the offence punishable U/Sec. 363 of I.P.C. for a
period of 07 years of rigorous imprisonment and to pay a fine of
Rs.50,000/- in default to pay fine, he shall undergo simple
imprisonment for a period of 02 years, by the learned II Addl.
Sessions Court at Kalaburagi, in Spl. Case (POCSO)
No.34/2019.
This criminal appeal coming on for Final Hearing through
Physical Hearing/Video Conference, this day the Court delivered
the following:
JUDGMENT
The appellant, who was the accused before the learned II Additional Sessions Judge, Kalaburagi (hereinafter for brevity referred to as 'Special Court') in Special Case (POCSO) No.34/2019 has challenged the judgment of conviction and order on sentence dated 19.09.2020 passed by the Special Court, convicting him for the offence punishable under Section 363 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') and sentencing him accordingly.
2. The summary of the case of the prosecution is that, on 20.12.2018 at about 2.00 p.m. when PW.1/CW.2, CRL.A.No.200118/2020 3 the alleged victim who is said to be a minor girl in her age was alone in her house at Bhairamadagi village, the accused went in front of her house driving a tum-tum motor three wheeler vehicle bearing Reg.
No.KA.32/D.3216 and started blowing horn loudly. The victim girl came out of the house to see as to who is doing it. The accused asked her to accompany him and to go along with him. Though the girl refused to go with him and attempted to scream, however, the accused held her tightly, shut her mouth and threatened her of killing her, if she screams. He took her in his tum-tum vehicle thus kidnapped her from the lawful guardianship of her parents. The accused took her towards Bhairamadagi - Gobbur road and parking the tum-tum vehicle on the side of the road, took the girl behind the bushes in a stream and committed rape on her against her will. Thereafter, he took her to Kalaburagi City in the same vehicle and after leaving the vehicle there itself, he took her to Bengaluru by train. In Bengaluru, during day time both of them wandered to Temples and Park, during night he committed rape on her CRL.A.No.200118/2020 4 where they were sleeping. On 14.01.2019 in the morning, he took her to Kalaburagi Bus-stand and on the pretext of bringing some money, he left her there itself. Based upon the complaint about missing of his daughter by CW-1 (PW-2) - Mallappa, the father of the victim girl, the police registered a case against the suspected accused and traced the girl. They conducted investigation and filed charge sheet against the accused for the offences punishable under Sections 366(A), 506, 376(2)(i) & (n) of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as 'POCSO Act').
Charges were framed against the accused for the offences punishable under Sections 366(A), 376(2)(i)& (n), 506 of IPC and Section 6 of the POCSO Act. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, prosecution examined fifteen witnesses from PW-1 to PW-15 and got marked documents from Ex.P-1 to Ex.P-25. CRL.A.No.200118/2020 5 On behalf of the accused, neither any witnesses were examined, nor any documents were marked as exhibits.
3. After hearing both side, the Special Court, by its impugned judgment of conviction and order on sentence dated 19.09.2020, convicted the accused for the offence punishable under Section 363 of IPC and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of `50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two years. For the offences punishable under Sections 366(A), 376(2)(i) & (n), 506 of IPC and Section 6 of the POCSO Act, the accused was acquitted. It is challenging the said judgment of conviction for the offence punishable under Section 363 of IPC and upon the order on sentence, the appellant has preferred this appeal.
4. The respondent is being represented by learned High Court Government Pleader.
CRL.A.No.200118/20206
5. The records from the Court below were called for and the same are placed before this Court.
6. Heard the arguments from both side and perused the materials placed before this Court including the memorandum of appeal and records from the Court below.
7. For the sake of convenience, the parties would be referred to as per their ranks before the Special Court.
8. The learned counsel for the appellant/accused, in his argument, submitted that when the alleged victim girl herself has eloped with the accused in pursuance of their love affair, the same cannot be called as a kidnap, as at the time of the alleged incident, the girl was 17 years 6 months old. Learned counsel further submitted that both the alleged victim girl (PW-1) and the accused are married to each other a year back and they are leading happy married life. With these, he prayed for acquittal of the accused from the alleged offence.
CRL.A.No.200118/20207
9. Learned High Court Government Pleader, in his argument, submitted that the very fact that the victim girl was below the age of 18 years is established by the evidence of non else than the girl herself joined by the evidence of the Head Master of the School. Their un-denied evidence go to show that the girl was below the age of 18 years as on the date of incident. Therefore, her alleged consent to go with the accused is not a consent in the eye of law. Thus, the offence punishable under Section 363 of IPC has stood proved. He further submitted that the alleged subsequent marriage of the victim with the accused also cannot be a ground either to acquit the accused from the alleged offence or for reducing the sentence.
10. Among the 15 witnesses examined by the prosecution, the material witnesses are the alleged victim girl, who was examined as PW-1 (CW-2), her parents, who were examined as PW-2 (CW-1) and PW-3 (CW-4), her CRL.A.No.200118/2020 8 brother as PW-4 (CW-5) and the medical evidence by PW- 11 (CW-13), the doctor.
11. PW-1, the alleged victim, in her evidence has stated that she knows the accused, who is resident of her village Bhairamadagi. She has studied up to 10th Standard and her date of birth is 04.06.2001. After discontinuing her studies about two years back, she was doing tailoring work in her house. She stated that accused was not forcing her to marry, but she herself liked the accused and asked him to marry her. The accused also expressed that he too likes her. About six months prior to her evidence, she herself telephoned to the accused, called him to Kalaburagi bus stand and both of them went to Bengaluru, where they were staying in Electronic City and accused was working there. The witness further stated that accused had taken her to his grand mother's house, from where the police took herself and accused to Police Station. She categorically stated that accused has not committed rape upon her. However, the police had taken her to Hospital at CRL.A.No.200118/2020 9 Afzalpur and Kalaburagi and also to the Court. Even after treating her as hostile, the prosecution could not get any support for the alleged act of rape. Thus, the evidence of the victim that her date of birth is 04.06.2001 and that she has studied up to 10th Standard and after that she and accused jointly went to Bengaluru and were staying for sometime together have all remained un-denied in her single sentence cross-examination from the accused side.
12. The evidence of PW-2 - Mallappa, the father of the victim girl and PW-3 - Ningamma, the mother of the victim girl also shows that their daughter (the alleged victim) had studied up to 10th Standard and was aged about 17 years as on the date of incident. About the incident, both the parents have stated that on the date of incident, while they were leaving their home for coolie work in their fields, their daughter (PW-1) was at home, but however, when they returned after coolie work, they noticed that their daughter (PW-1) was not found in the house. By enquiry, CRL.A.No.200118/2020 10 they came to know that it was the accused, who had taken their daughter with him. Thus, suspecting the accused of kidnapping their daughter, PW-2 lodged a complaint with the police. After about 20 days, the police informed that the victim girl was traced. Both PW-2 and PW-3 went to the Police Station and found the victim girl and the accused in the Police Station.
However, with respect to the alleged incident of rape, both the witnesses have stated that their daughter had not stated anything about the rape committed upon her by the accused. The evidence of both these witnesses were not denied in the cross-examination, more particularly, with respect to their suspicion that the accused had taken their daughter with him and that their daughter was aged about 17 years on the date of incident.
13. PW-4 - Sharanu, who is son of PW-2 and PW-3 as well the elder brother of PW-1 has stated that about the incident of accused kidnapping his sister, he came to know from his father.
CRL.A.No.200118/202011
14. PW-11 - Dr. Bhuvaneshwari has stated that as a Specialist Medical Officer in Government General Hospital, Afzalpura, she has examined the victim girl on 15.01.2019 at 11.00 a.m. at the request of the respondent-police. The witness stated that the victim informed her that she was having a love affair with the accused since six years and on 21.12.2018 both of them eloped and they were brought back on 13.01.2019. The doctor has also stated that according to the Dentist and Radiologist, the age of the victim was les than 18 years. According to the victim, she was 17 years old. After giving details of the medical examination she conducted on the girl, the doctor stated that she secured Forensic Science Laboratory Report according to which, there was no evidence of recent sexual intercourse except hymen tear. Accordingly, she has issued a certificate as per Ex.P-16.
15. PW-12 (CW-15) - Jayavanth, Head Master of the Government Modern Primary School, Bhairamadagi has stated that victim girl has studied in their School from 1st CRL.A.No.200118/2020 12 Standard to 8th Standard. As per the request of the Investigating Officer in this matter, he has issued a date of birth confirmation certificate of the victim, which date of birth was 04.06.2001. He has marked the said certificate at Ex-P18. He also stated that along with Ex-P18, he has also issued the admission register extract as per Ex.P-19. This witness was not cross-examined from the accused side.
16. The above evidence of victim, her parents, medical evidence and the evidence of the Head Master clearly establishes that the date of birth of the victim girl was 04.06.2001. The evidence to that effect given by none else than the victim girl has not been denied in her cross- examination. Further, the evidence of PW-2 and PW-3 that their daughter's age was about 17 years as on the date of incident also has not been denied in their cross- examination. The medical evidence of PW-11 that the girl was aged less than 18 years and according to girl she was 17 years of age has also not been denied in her cross- CRL.A.No.200118/2020 13 examination. Most importantly, the evidence of the Head Master that the school records and admission register extract shows the date of birth of the girl as 04.06.2001 has not been denied from the accused side. The Date of Birth Confirmation Certificate at Ex.P-18 and Admission Register Extract at Ex.P-19 have remained as undisputed documents. Therefore, it is proved beyond reasonable doubt that the date of birth of the alleged victim is 04.06.2001. The alleged incident of kidnapping is said to have been taken place on 20.12.2018. Thus, on the date of incident, the age of PW.1 (victim girl) was 17 years 6 months.
17. The next question is as to whether the prosecution has proved that the accused had kidnapped PW-1 from the lawful guardianship of her parents. In that regard, the prosecution examined PW-6 (CW-3) - Biranna as an eyewitness. However, the said evidence has not supported the case of the prosecution. He has categorically stated that he has not seen the accused taking the victim CRL.A.No.200118/2020 14 girl with him on the alleged date of incident. However, the alleged victim girl (PW-1) herself has stated that on the said date i.e., on 20.12.2018, she joined by the accused went to Bengaluru together and they were staying together in Electronic City at Bengaluru for sometime. She also stated that later on the accused took her to his grand- mother's house, where they were staying and the police had taken both of them from there. Thus, the victim girl herself has stated that it was with the accused she had been to different places including to Bengaluru.
Even PW-11, the doctor has also stated that when the victim girl was brought before her for her medical examination, the said girl informed that she was in love with the accused since six years and both of them had eloped to Bengaluru together. Thus, even the information given to the doctor by none else than the victim girl go to show that the victim girl had accompanied the accused to different places including Bengaluru. Therefore, from the evidence it is clear that the victim girl herself had joined CRL.A.No.200118/2020 15 the accused to leave her parents' home and proceeded with him to different places including Bengaluru.
18. The next question that arises is, whether the alleged victim girl willingly going along with the accused would result in an act of kidnapping. Section 359 of IPC defines kidnapping stating that kidnapping is of two kinds:
kidnapping from India and kidnapping from lawful guardianship. Section 361 of IPC reads as below:
"361. Kidnapping from lawful guardianship.-Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardianship of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
19. A careful reading of the above Section go to show that if a girl, who is under the age of 18 years is either taken or enticed out of the keeping of the lawful CRL.A.No.200118/2020 16 guardian of such minor without the consent of such guardian, the act results in an offence called kidnapping.
20. In the instant case, when the age of the alleged victim girl (PW-1) is established to be 17 years 6 months as on the date of the alleged offence, she still continuous to be a minor under the guardianship of her parents, who are PW-2 and PW-3. According to PW-2 and PW-3, the parents of the girl, after returning from the coolie work on the date of incident noticed that their daughter (PW-1) was found missing, as she was not in the house. By enquiry, they came to know that accused had taken their daughter with him. It is thereafter, PW-2, the father proceeded to lodge a police complaint. Thus, PW-2 and PW-3 have made it very clear that taking away or the girl leaving their house was without their consent and knowledge. As established above, even though the girl is said to have gone voluntarily with the accused, but the fact remains that accused has taken her to Bengaluru and other places including to his grand-mother's place. Thus, it CRL.A.No.200118/2020 17 stands established that the act of the accused taking the girl or enticing her to go along with him out of the guardianship of her parents was without the consent and knowledge of those parents i.e., PW-2 and PW-3. Therefore, the act of the accused taking the victim girl with him to different places though is said to be at the desire or consent of the girl, but the said girl being a minor in her age, the alleged consent would not be a consent in the eye of law. As such, the argument of the learned counsel for the appellant that since the victim girl had accompanied the accused on her own, it cannot be held that the accused had committed an offence punishable under Section 363 of IPC, is not convincing
21. The act of the accused taking the girl with him is said to be by making use of a three wheeler motor vehicle, which vehicle is something like an auto rickshaw and locally called as tum-tum vehicle. PW-10 (CW-10) - Wahidpatel has stated that said vehicle was seized in his presence by drawing a seizure panchanama as per CRL.A.No.200118/2020 18 Ex.P-14. The witness has also identified the said vehicle through its photograph at Ex.P15. Further, the evidence of PW-7 (CW-6) - Malappa S/o Nyamanna also shows that the place of alleged kidnapping, which is the house of CW-1 was visited by him and police have drawn a scene of offence panchanama in his presence as per Ex-P11, the same would go to show that the place of offence and the vehicle used for the commission of offence has also been proved by the prosecution. The evidence of PWs-1, 2, 3, 7, 11 and PW-12 corroborates the evidence of PW-15, the Head Constable, who registered a complaint as per Ex-P3 and the evidence of PW-13 and PW-14, who are Investigating Officers in the matter. Thus, the evidence of these prosecution witnesses as analysed above, have proved beyond reasonable doubt that the accused has committed an offence punishable under Section 363 of IPC. Since the Special Court after analysing the evidence placed before it in its proper perspective has arrived at a conclusion holding the accused guilty for the offence punishable under Section 363 of IPC, I do not find any reason warranting any interference in it. CRL.A.No.200118/2020 19
22. It is the sentencing policy that the sentence imposed must be proportionate to the gravity of the cruelty. In the instant case, the offence proved against the accused is the one punishable under Section 363 of IPC. The sentence awarded by the Special Court for the proven guilt is seven years rigorous imprisonment and fine of `50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two years.
23. As analysed above, though the accused was found guilty of the offence punishable under Section 363 of IPC, but the fact remains that the victim girl was in love with him. She has joined the accused while living in her parents' house. However, legally her act of going away from her house and the accused taking her to different places and making to stay her with him has resulted in an offence punishable under Section 363 of IPC. Further more, according to learned counsel for the appellant, both the accused and the victim girl have married to each other on 07.06.2021 and are leading a happy married life. He CRL.A.No.200118/2020 20 further submits that their marriage has been registered in a manner known to law. The said submission is not denied from the other side. In the said circumstances, I am of the view that the quantum of sentence of imprisonment ordered by the Special Court requires a revisit and requires in its reduction to bring it to a proportion to the gravity of the proven guilt. It is only to the said limited extent of modifying the order on sentence of imprisonment alone, the impugned judgment warrant interference, for which limited purpose, the appeal deserves to be allowed in part. Accordingly, I proceeded to pass the following:
ORDER The appeal is allowed in part.
Though the judgment of conviction holding the accused guilty for the offence punishable under Section 363 of IPC which is impugned in this appeal stands confirmed, however, the order on sentence imposing a rigorous imprisonment for seven years upon the appellant (accused) for the proven guilt punishable under Section CRL.A.No.200118/2020 21 363 of IPC is modified and reduced to a simple imprisonment for a period of five years. The order regarding the payment of fine and the default sentence remains unaltered.
Registry to transmit a copy of this judgment along with the Special Court records to the said Court, without delay.
Sd/-
JUDGE LG