Bangalore District Court
State Of Karnataka By vs Yogesh on 30 November, 2015
IN THE COURT OF LXII ADDL.CITY CIVIL&
SESSIONS JUDGE, (CCH-63), BANGALORE CITY.
Dated this the 30th day of November, 2015
Present : Sri.S.Shantaveer,
B.A.,LL.B.(Spl),
LXII Addl.City Civil & Sessions Judge,
Bengaluru
Sessions Case No.646/ 2014
COMPLAINANT:- State of Karnataka by
Yelahanka Upanagara
Police Station,
Bangalore City.
(Rep by Public Prosecutor)
:VS:
ACCUSED :- Yogesh,
S/o Dhanjaya Reddy,
Aged about 21 years,
Residing at No.18/1, 9th main,
4th cross, Mohankumar Nagara,
Mattikere, Yeshwanthapura,
Bengaluru.
(By Sri.T.K.S-Advocate)
1.Date of Commission of offence : 08.03.2013
2. Date of report of offence : 08.03.2013
3. Arrest of the accused : 09.03.2013
2 SC. No.646 /2014
4. Name of the complainant :S.R.Suresh Murthy
5. Date of commencement
of recording of Evidence : 8.12.2014
6. Date of closing of evidence : 17.10.2015
7. Offences complained of : U/s.366 & 366-A IPC
8. Opinion of the Judge : As per final order
(S.Shantaveer)
LXII Addl.City Civil &
Sessions Judge, Bengaluru.
JUDGMENT
This is a charge sheet filed by the PSI of Yelahanka New Town Police Station, Bengaluru against the accused for the offences punishable under Sections 366, 366(A) of Indian Penal Code.
2. Brief facts are as under:-
On 08.03.2013 at about 11.00 a.m., the complainant - Suresh Murthy returned to his house 3 SC. No.646 /2014 and found his daughter was not in the house. He made efforts to trace her. But he could not find her. Hence he gave a missing complaint before the Yelahanka New Town Police Station that his daughter Priyadarshini is missing from his house at Chikkabommasandra, 2nd main road, Bengaluru. The complainant had also averred in the complaint that he is having suspicion regarding missing of his daughter on the above named accused, as he has advised him not to date his daughter when he found the accused with his daughter in Mantri Mahal, Malleswaram, Benglauru. The police registered the same to PS Crime No.46/2013 and took up investigation.
The police have traced the kidnapped victim girl and on conclusion of investigation, filed charge sheet against the above named accused for the offences punishable under Sections 366 and 366(A) of IPC. 4 SC. No.646 /2014
3. On perusal of the charge-sheet the committal magistrate has taken cognizance of the offence against the accused person and registered a case against the accused in C.C.No.13815/2013 in Reg.No.III. The copies of the prosecution papers were furnished to the accused. As the case was exclusively triable by the Court of Sessions, the learned committal Magistrate has committed the case to Hon'ble Prl. City Civil & Sessions Judge, Bangalore under Section 209 of Cr.P.C. Thereafter it was made over to this court for trial in accordance with law. On service of summons the accused appeared before the Court and he was enlarged on bail.
4. Heard on charge. The Ld. Advocate for the accused submitted as charge may be framed. A charge was framed, read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. Hence case was posted for trial. 5 SC. No.646 /2014
5. In order to bring home the guilt of the accused, the prosecution examined in all 6 witnesses as PW.1 to 6 and got marked documents at Ex.P1 to
11. After closure of the side of the prosecution, Statement of the accused U/s.313 of Cr.P.C was recorded. Accused had denied the incriminating evidence that was read over to him. The accused has not stated anything in his defence. The accused has not chosen to lead any defence evidence.
6. Ld. Public Prosecutor for the State and learned advocate for the accused advanced their oral arguments.
7. On the above facts, the points that arise for consideration and determination of the court are as under: -
-: POINTS :-
1) Whether the prosecution proves beyond all reasonable doubt that, on 08.03.2013 the accused induced the minor victim girl Cw.2 that he will marry her and kidnapped on Motorcycle bearing regn.No.KA-04-H-9939 and thereby 6 SC. No.646 /2014 committed the offences punishable under Sections 366 and 366-A of IPC?
2) What Order?
8. The findings of the court on the above points are as under : -
Point No.1 - Partly in the Affirmative & Partly in the Negative Point No.2 - As per final order for the following:-
REASONS
9. POINT No.1: - The evidence in brief of the witnesses is as under:
Pw.1- Suresh Murthy is the complainant and father of victim girl. He has deposed that his daughter Priyadarshini, aged about 18 years was studying in 2nd PUC at Nagarjuna College, Bengaluru. On 8.3.2013 at about 11.00 a.m., he returned after his work and found his daughter was missing and he searched for his daughter. As he could not trace her daughter he filed a complaint before the police in the evening as 7 SC. No.646 /2014 per Ex.P.1. He has also stated in the complaint that he having suspicion on the accused and mentioned his phone number.
At about 11.00 p.m., police called him and informed that the cell phone of the accused is being used in Andhra Pradesh. Then he along with police went to Andhra Pradesh Chitoor in a private vehicle and found accused and his daughter near Kanipakam High Way on Motorcycle. Then himself and police stopped the accused and took the accused in their possession along with Motorcycle and returned to police station. On enquiry his daughter replied that accused induced her to go with him promising her to marry. On the next day police have drawn spot of offence mahazar in his presence as per Ex.P.2. PW.1 also deposed that his daughter was aged about 17 years at the time of commission of offence and not completed 18 years.8 SC. No.646 /2014
PW.2- Priyadarshini is the victim girl. She has deposed that she got acquainted with the accused through face book. In the year 2013 she was studying in 2nd PUC and her date of birth is 19.11.1995. Accused used to meet her near college and bus stop. One day himself and accused were in Mantri Mall her father saw them and cautioned her not to move with the accused. After that for few days she had no communication with the accused. Then the Accused gave Mobile phone to PW.2 and they were talking with each other through mobile phone. The accused used to insist PW.2 to talk with him for long hours.
On 08.03.2013 at about 8.00 a.m., accused telephoned her to asked her come with him. At about 11.00 a.m., she came out of the house after receiving of phone call from the accused. Accused had come on Yellow colour Pulsar Motorbike. The accused called her to go some where. But she declined to go with him. 9 SC. No.646 /2014
After persuasion by the accused, they went to Mantri Mall and after that to house of the accused. After that they went to Andhra Pradesh at Chitoor on Motorcycle. From there they went to Ganesh temple, at Kanipakam where police and her father came and rescued her and they returned to Bengaluru.
PW.2 further deposed that her advised her that character of the accused is not proper and he has stolen Motorbike. In that regard she gave statement before the police and she has also shown from where she was taken by the accused. The police have drawn mahazar in her presence as per Ex.P.2. She identified the Motorcycle on which accused has taken her to Andhra Pradesh bearing regn.No.KA-04-MH-9939 from the photographs as per Ex.P.3 and Ex.P.4.
Pw.3- Bharath is attestor of spot of offence mahazar. He has deposed that on 10.03.2013 the police have drawn spot of offence mahazar as shown 10 SC. No.646 /2014 by PW.1 in his presence and he put his signature to the same at the spot itself.
PW.4- Shivanna is alleged to be the attestor of recovery mahazar but he has turned hostile and has not supported the case of the prosecution. He denied that police have recovered Motorcycle bearing regn.No.KA-04-MH-9939 in his presence under mahazer.
Pw.5- Harish is friend of the accused and material witness to the accused. He has deposed that he is acquainted with the accused. Motorcycle bearing regn.No.KA-04-HM-9939 belongs to his elder brother Yoganarasimha. About two years back accused had taken motor cycle for bringing medicine. But he has not returned the vehicle on the same day. He tried to contact the accused over telephone, but he received response in Telugu that Mobile phone of accused is switched off. Hence he went to Yeshwanthapura police 11 SC. No.646 /2014 station to file complaint. But the police informed him that accused had abducted a girl of Yelahanka and case is pending before Yelahanka Police. Hence on the next day, he went to Yelahanka Police Station, where he saw his motorcycle in the premises of station and he also found the accused in lock up. Later on he got released the vehicle from the police.
PW.6- C.E. Anand Nayak is the Investigating Officer. He deposed that on 8.3.2013 at about 6.00 p.m., the complainant came to police station and filed a complaint which is registered to PS Crime No.46/2013 and submitted FIR to the Court. He deputed his staff members for tracing out the missing girl and accused. On 9.3.2013 at about 5.30 p.m., his staff produced the accused and missing girl before him along with Motorcycle. He has recorded the statement of missing victim girl/CW.4 and sent the accused and victim girl for medical examination to Ambedkar 12 SC. No.646 /2014 Medical College. He also recorded further statement of CW.1 and seized Motorcycle bearing regn.No.KA- 04-HM-9939 in the presence of police under mahazar at Ex.P.5. He also recorded the statements of CW.7, 10 and 11 and also conducted spot of offence mahazar as shown by PW.2. He received medical report from the medical officer as per Ex.P.6 and 7. He sent requisition to the Principal of Nagarjuna college as per Ex.P.10 to furnish records regarding date of birth of victim girl. On 26.4.2013 he received reply regarding the same as per Ex.P.11. After conclusion of the investigation, he filed charge sheet against the accused. PW.6 further deposed that on the basis of call detail records, they found out the whereabouts of the accused and the victim girl and arrested them.
Pw.6 further deposed that, the call detail records are also filed along with charge sheet, but as the call detail records being extract of the electronic evidence 13 SC. No.646 /2014 and not accompanied with a Certificate U/s.65(B) of Indian Evidence Act and said document is not marked.
10. The Ld. Public Prosecutor has argued contending that the prosecution has proved the guilt of the accused beyond all reasonable doubt. PW.1 / Suresh Murthy, the father of the accused, PW.2/Priyadarshini the victim girl have corroborated the story of the prosecution regarding abduction of PW.2 by the accused. Further PW.5 - Harish the person who had lent the motorcycle to the accused has also corroborated the story of the prosecution, that the accused borrowed his motorcycle and induced PW.2 to accompany him for the purpose of marrying her, as such sought for convicting the accused.
11. The Ld. Advocate for the accused argued contending that the accused has not committed any offence as alleged. PW.2 in her chief as well as cross- examination has categorically admitted that, she was 14 SC. No.646 /2014 in love with the accused. She got acquainted with the accused through the "face book". When the accused called her out of the house for the purpose of marrying her, she accompanied him on her own will. Hence there is no question of inducement or abduction as defined U/s.366 and 366-A of IPC. Moreover, father of the victim girl was against the friendship of the accused with PW.2, hence he had filed a false complaint of theft of motorcycle against the accused. Hence this complaint is also filed only to brake up the love affair between accused and PW.2. Hence prosecution has failed to prove the guilt of the accused and sought for acquitting the accused by extending benefit of doubt.
12. In this case, PW.1 and 2 the complainant and victim girl have deposed corroborating the story of the prosecution. PW.1 in his chief-examination as well in his complaint has categorically contended that, 15 SC. No.646 /2014 accused and his daughter were friends. He had found the accused and PW.2 in Mantri Mall and advised them not to move closely. Hence PW.2 stopped moving with the accused. But PW.2 deposed that accused gave mobile phone to her and he used to insist PW.2 to talk with him hours together. On 8.3.2013 PW.1 found his daughter missing form the house. On inducement of the accused PW.2 left the house and accompanied the accused on the Motorcycle and went to Mantri Mall. After that they went to the native place of accused at Chittoor and were roaming around at Kanipakam. After that police and her father came and rescued PW.2.
13. Nothing much is elicited in the cross- examination of PW.1 and 2. Except making suggestion that PW.1 had filed a false complaint against the accused regarding theft of bike. On the other hand the accused has categorically admitted in the cross- 16 SC. No.646 /2014 examination of PW.1 and 2 that accused and PW.2 were in love with each other. Father of PW.2 was against the said love affair between accused and PW.2. He has advised the accused not to have any contact with PW.2, but it cannot be a ground to believe the version of the accused that false complaint is filed regarding the offence U/s.366 and 366(A) of IPC.
14. The date of birth of PW.2 is 19.11.1995 as per Ex.P.6 the letter issued by Nagarjuna Pre- University College. The date of offence is 8.3.2013. This itself goes to show that as on the date of offence, PW.2 had not attained the age of 18 years i.e., majority and she was a minor as on that date. Section 366 IPC prescribes sentence for abducting a person in order to marry her and compelled her to marry a person against her wish. If at all PW.2 had intention to marry the accused she could have denied 17 SC. No.646 /2014 whole story of the prosecution. But she has supported the case of the prosecution. Hence the Court is of the opinion that, prosecution has proved that accused has abducted or kidnapped PW.2 in order to marry her and thereby committed the offence punishable U/s.366 of IPC.
15. Though the Ld. Advocate for the accused argued contending that PW.1 and 2 are father and daughter and interested in the case of the prosecution. But PW.5 an independent witness has corroborated the story of the prosecution that on 8.3.2013 the accused borrowed his Motorcycle bearing regn.No.KA-04-MH-9939, under the pretext of bringing medicine. But he has not returned the said motorcycle. Subsequently he came to know that his motorcycle was used for kidnapping of PW.2 to accompany him for the purpose of marriage. Nothing much is elicited in the cross-examination of PW.5 18 SC. No.646 /2014 regarding any enmity or ill will between accused and PW.5 to depose falsehood against him. Considering the same, the court is of the opinion that prosecution has proved that accused has committed the offence punishable U/s.366 of IPC.
16. Further, though the charge sheet is filed alleging offence U/s.366-A of IPC against the accused. But evidence of PW.1 and 2 regarding threat of life or imminent danger to PW.2 by the accused is not proved by the prosecution by leading cogent corroborative evidence. Hence offence U/s.366-A of IPC is not made out. Hence for the aforesaid reasons Point No.1 is answered partly in the Affirmative and Partly in the negative.
17.POINT NO.2: - In view of the reasons discussed as above the following:-
19 SC. No.646 /2014
ORDER Acting u/s 235 (2) Cr.P.C, accused is convicted for an offence punishable under Section 366 of Indian Penal Code.
Acting u/s 235(1) Cr.P.C., accused is acquitted of the offence punishable under Section 366-A of Indian Penal Code.
To hear regarding sentence (Dictated to the Judgment Writer, transcribed and computerised by her, corrected and then pronounced by me in the open court this the 30th day of November, 2015) (S.Shantaveer) LXII Addl.City Civil & Sessions Judge, Bengaluru 20 SC. No.646 /2014 Heard the Accused & the Ld .Public Prosecutor on sentence.
The Ld.Public Prosecutor contended that, accused does not deserve leniency and sought for imposition of maximum sentence on the accused, as he has abducted minor girl inducing her to marry her.
Accused contended that himself and victim girl were love in with each other and the victim girl accompanied him on her own free will. The accused has lost his father; he has to take care of his aged mother. There are no other person to take care of his mother in the family. Hence sought for leniency in imposing sentence.
The Court is of the opinion that, accused is young age person. At the time of commission of offence he was aged about 20 years. Considering the circumstances in which offence is committed i.e., love between accused and PW.2/ victim girl. The Court is 21 SC. No.646 /2014 of the opinion that, accused deserves for leniency in imposition of sentence. The accused has explained the mitigating circumstances in committing the offence. Moreover, accused is the only person to take care of his mother in the family. As such this court is of the opinion that ends of justice will be met, if the accused is sentenced to undergo S.I for 6 months and to pay fine of Rs.10,000/-, in default undergo S.I for 2 months. Hence the following:
ORDER The accused is sentenced to undergo S.I for 6 months and to pay a fine of Rs.10,000/-, in default of payment of fine, suffers simple imprisonment for 2 months for the offence under Section 366 of Indian Penal Code.
Accused is entitled for benefit under Section 428 of Cr.P.C.
The interim order of releasing the Motorcycle bearing regn.No.KA-04-H-9939 to the 22 SC. No.646 /2014 interim custody of R.C.Holder is made absolute after expiry of appeal period.
Office is hereby directed to furnish a free copy of this Judgment to the accused.
(Dictated to the Judgment Writer, transcribed and computerised by her, corrected and then pronounced by me in the open court this the 30th day of November, 2015) (S.Shantaveer) Presiding Officer, FTC-8, Bangalore ANNEXURE I. List of witnesses examined on behalf of the Prosecution side:-
PW.1 Suresh Murthy
PW.2 Priyadarshini
PW.3 Bharath
PW.4 Shivanna
PW.5 Harish
PW.6 Anand Nayak.C.E
II. For Defence Side:
-NIL-
23 SC. No.646 /2014
III. List of exhibits marked on behalf of the Prosecution Side:-
Ex.P.1 Complaint
Ex.P.1(a) Signature of Pw.1
Ex.P.2 Spot Mahazar
Ex.P.2(a) Signature of Pw.1
Ex.P.2(b) Signature of Pw.2
Ex.P.3© Signature of Pw.3
Ex.P.3,4 Motor bike photos.
Ex.P.5 Mahazar
Ex.P.5(a) Signature of Pw.6
Ex.P.6,7 Medical reports of victim girl
And accused
Ex.P.8,10 Letter regarding date of birth of
victim girl from Nagarjuna College Ex.P.9 Transfer Certificate Ex.P.10(a) Signature of Pw.6 Ex.P.11 Report from Pre-university College IV. For Defence Side:-
-NIL-
IV. List of material objects:
-NIL
(S.Shantaveer)
LXII Addl.City Civil &
Sessions Judge, Bangalore
24 SC. No.646 /2014