Karnataka High Court
State Of Karnataka vs Sharukhkan Moulanaik Patil on 4 July, 2023
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B. PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE C.M. JOSHI
CRIMINAL APPEAL NO.100164/2018
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
ANKALAGI POLICE STATION,
ANKALAGI.
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI V.S. KALSURMATH, HCGP)
AND
1. SHARUKHKAN MOULANAIK PATIL,
AGE: 19 YEARS,
OCC: DRIVER,
R/O: MUSALMARI,
TAL: GOKAK.
2. SIDDAPPA @ SHIDARAI SATTEPPA,
KARIKATTI,
AGE: 24 YEARS,
OCC: DISMISSED CRPF POLICE,
R/O: MARKANDEYANAGAR,
2
TAL: BELAGAVI,
DISTRICT: BELAGAVI.
3. GANGAPPA SANNATAMMA MYAKALI,
AGE: 45 YEARS,
OCC: COOLIE,
R/O. MUSALMARI,
TAL: GOKAK,
DISTRICT: BELAGAVI.
4. SMT. SIDDAVVA GANGAPPA MYAKALI,
AGE: 37 YEARS,
OCC: COOLIE, R/O: MUSALMARI,
TAL: GOKAK, DISTRICT: BELAGAVI.
5. LAXMI W/O KUMAR KARIKATTI,
AGE:28 YEARS, OCC: HOUSEHOLD,
R/O: GUJANAL, TAL: GOKAK,
DISTRICT: BELAGAVI.
...RESPONDENTS
(BY SMT. GEETHA.K.M, ADVOCATE FOR R1 AND R5,
SMT. ANURADHA DESHPANDE, AMICUS CURIAE FOR R3 & R4,
APPEAL AGAINST R2 ABATED V/O DATED 11/03/2019)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 8-9-2017 PASSED
IN SC NO.42/2015 AND TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 08.09.2017 PASSED BY THE III ADDL.
DISTRICT AND SESSION JUDGE & SPECIAL COURT, POCSO ACT &
SC & ST (POA) BELAGAVI IN SC. NO. 42/2015 AND TO CONVICT
AND RESPONDENT/ACCUSED FOR THE OFFECES PUNISHABLE
UNDER SECTIONS 344, 363, 376 R/W SEC.34 OF IPC AND SECTION
3 AND 4 OF THE POCSO ACT AND SEC. 3(2) (V) OF THE SC AND ST
(POA) ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 08.02.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT BENGALURU, THIS
DAY, C. M. JOSHI, J., DELIVERED THE FOLLOWING:
3
JUDGMENT
Aggrieved by the judgment of acquittal in SC No.42/2015 passed by the III Additional District and Sessions Judge and the Special Court, Belagavi, dated 08-09-2017, the State is in appeal before this Court.
2. The brief facts are as below:
PW3- Gadeppa Gangappa, the father of the victim girl, lodged a complaint before Ankalagi Police on 17-11-2014 alleging that the victim girl, his daughter was not found in their house from 8.00 p.m. on 13-11-2014 and she was aged 17 years. It was stated that when he and his wife returned from the agricultural work in the evening, the victim girl was at his house and at about 8.00 p.m. she went out for the nature call and thereafter, she did not return. It was stated that even after search in the villages of his relatives, she was not traced and therefore, suspecting that somebody might have kidnapped her from his village, which he also came to 4 know on 13-11-2014, requested the police to search for her.
3. The said complaint was registered in Crime No.76/2014 of Ankalagi Police Station for the offence punishable under Section 363 of IPC.
4. During the investigation, the Investigating Officer (PW12) proceeded to the house of the victim, conducted the spot mahazar and recorded the statement of the witnesses. On 1-12-2014, he came to know from PW3- complainant that the victim and PW3 were belonging to scheduled tribe and therefore, invoked the provisions of SC and ST (POA) Act, and a requisition was sent to the Court to include those offences and transfer the FIR to the Special Court. The investigation was taken over by Dy.SP, PW-13. During investigation, he came to know that the accused Nos. 1 and 2 were seen to be taking away the victim girl on the date of her disappearance towards the house of accused Nos. 3 and 4 5 and therefore, he enquired the accused Nos. 1, 3 and 4 and ultimately, traced the victim girl at Goa along with accused No.2 and they were brought to the police station on 4-12-2014. When the victim girl was enquired, she disclosed about the forcible sexual intercourse committed on her and therefore, the offence under Section 376 of IPC and under Sections 3 and 4 of POCSO Act, were also included. The victim girl and the accused were subjected to medical examination. The Investigating Officer visited the spots shown by the victim girl and conducted mahazars of the places where the victim was kept by the accused Nos. 1 and 2. Thereafter, he secured the necessary documents regarding the date of birth of the victim, caste certificate, FSL report and recorded the statement of the witnesses. Also, a statement of the victim under Section 164(5) of Cr.P.C. was recorded before the Magistrate. It was alleged that accused Nos. 3, 4 and 5 had assisted the accused Nos. 1 and 2 in taking the victim girl to Goa. Accused Nos.1 to 5 were arrested 6 during the investigation and after completion of investigation the chargesheet was filed against the accused for the offences punishable under Sections 344, 363, 376 read with Section 34 of IPC, under Sections 3(i),(xi) 3(2)(v) of SC and ST (POA) Act, 1989 and under Sections 3 and 4 of the Prevention of Children from Sexual Offences Act, 2012. The accused were enlarged on bail.
5. The Special Court took cognizance of the aforesaid offences and registered the case in SC No.42/2015. Having found prima facie material against the accused, the charges for the aforesaid offences were framed, when read over, the accused claimed to be tried.
6. In order to bring home the guilt of the accused, the prosecution examined 13 witnesses as PWs 1 to 13 and Exs.P1 to P38 and MO 1 to 21 were marked in evidence. After recording the statements of the accused under Section 313 of Cr.P.C., the arguments were heard 7 by the Special Court. By impugned judgment, the Special Court acquitted the accused. In the process, the Special Court has framed the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 13.04.2014 at about 8.00 p.m., at Musalmari village, when the victim girl has gone to attend the nature call, accused No.1 and 22, with common intention, have kidnapped her and took her along with them and thereby committed the offence punishable under Sec. 363 R/w Sec. 34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, after kidnapping the victim girl from the above said place, accused No.1 and 2 took the victim girl to the house of accused No.3 and 4 and thereafter took her to the house of accused No. 5 and with the help of accused No. 3 to 5, accused N.1 and 2 have wrongfully confined the victim girl in their house and there after accused No.2 took the victim girl to Goa and wrongfully confined her in a shed at Goa and thereby the accused No.1 and 2 have committed the offence punishable under Sec. 344 R/w Sec. 34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that accused No. 1 and 2, after kidnapping the victim girl and wrongfully confining her in the above said places, knowing very well that she is minor, committed forcible sexual intercourse with her and made penetrative sexual assault on her and thereby committed the offence punishable under Sec. 376 of IPC and Sec. 3 and 4 of POCSO Act?8
4. Whether the prosecution proves beyond all reasonable doubt that accused No.1, inspite of knowing very well that the victim girl belonged to the schedule tribe, has committed the offences against her, which is punishable with imprisonment up to 10 years or more and thereby committed the offences punishable under Sec. 392) (v) of SC & ST (POA) Act?
5. Whether the prosecution proves beyond all reasonable doubt that accused No.3 to 4, inspite of knowing very well that the victim girl is a minor, have abetted the accused No.1 and 2 to kidnap the victim girl and to wrongfully confine her and to make forcible sexual inter course with her and to commit the above said acts against the victim girl and thereby committed the offences punishable under Sec. 109 of IPC and Sec. 17 of the POCSO Act?
6. What order?
7. Aggrieved by the said judgment, the State is in appeal before this Court contending that the impugned judgment is contrary to law, facts and evidence on record, besides being arbitrary. It is contended that the Special Court ought to have convicted the accused when PW1, the victim girl, PW3, father of the victim, PW4 mother of the victim, PW7, the relative of the victim and PW11-the medical officer had supported the prosecution 9 case and had categorically stated that the accused have committed the offences alleged. It is contended that PW7 had specifically stated that he had seen the victim with accused Nos. 1 and 2 on the night of her disappearance.
It is contended that the evidence of PW1 alone is sufficient enough to prove the guilt and the Special Court should have considered the same with the proper prospective. It is contended that the delay in filing the complaint was sufficiently explained and therefore, the Special Court has erred in acquitting the accused.
8. On issuance of notice, it was reported that the accused No.2/respondent No.2 had died and therefore, the appeal against accused No.2/respondent No.2 abated as noted by this Court in the order dated 11-3-2019. The accused Nos.3 and 4 were reported to be in judicial custody in some other case and therefore, the notice was issued through the Jail Superintendent. After service of the notice, accused Nos. 1 and 5 have appeared through 10 their counsel. Accused Nos.3 and 4 did not appear and therefore, by order dated 03-01-2023, learned counsel Smt. Anuradha Deshpande, was appointed as Amicus Curiae for respondent Nos. 3 and 4/accused Nos. 3 and 4. The appeal was admitted and the Special Court records were secured.
9. Since the appeal is in respect of the offences under the provisions of SC and ST (POA) Act, as well as POCSO Act, notice was issued to the victim as well as to the complainant i.e., PWs 1 and 3. They also did not appear despite service of notice.
10. The arguments by learned High Court Government Pleader appearing for the State and the learned counsel for accused Nos. 1 and 5 and the learned Amicus Curiae for respondent Nos. 3 and 4/accused Nos. 3 and 4 were heard.
11. After hearing the arguments, the points that arise for our consideration are:
11
(i) Whether the prosecution has proved that the accused No. 1 and 2 kidnapped the minor victim PW1 from the lawful custody of her father and with the aid of accused No.3 to 5 took her to the houses of accused Nos. 3 to 5 and then to Goa and committed rape on her after wrongfully confining her for more than 10 days?
(ii) What order?
12. We are aware that while hearing an appeal against the acquittal, the Appellate Court should be more cautious. Before venturing into the factual aspects of the case on hand, it is necessary to note that the law relating to an appeal in acquittal is settled. The latest decision of the Apex Court in the case of Ravi Sharma vs. State (Government of NCT of Delhi) and Another1 chronicles the consistent stand taken by the Apex Court over a long period of time. It is relevant to note that the decision in the case of Chandrappa vs. State of 1 (2022) 8 SCC 536 12 Karnataka2 in para No.42 lays down the following principles.
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under 2 (2007) 4 SCC 415 13 the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
13. Thereafter, the Apex Court in the case of Jafrudheen vs. State of Kerala3 in para 25 held as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."3
(2022) 8 SCC 440 14
14. All the above decisions along with many other precedents have been considered elaborately by the Apex Court in Ravi Sharma's case and it has reiterated those principles. The reason behind the principle is that the accused has the benefit of innocence as a basic principle of a criminal jurisprudence. Certainly, the accused has the benefit of acquittal by the trial Court which had the occasion to peruse and observe the demeanor of the witnesses and the manner in which they had spoken before the Court. The confidence of the trial Court arises on the basis of the deposition of the witnesses who physically appeared before it. That advantage is not before the Appellate Court and therefore, keeping in view these principles, the case on hand needs to be appreciated by this Court.
15. The case of the prosecution as it unfolds from the chargesheet papers are that, PW1 was missing from her house since 8.00 p.m. on 13-11-2014. She went out 15 to answer nature call and did not return. After searching for her for several days, her father, PW3 lodged a complaint on 17-11-2014 suspecting that somebody have kidnapped her and stating that he had the knowledge of such kidnapping on 13-11-2014 itself. The said complaint was registered by the police and the Investigating Officer, PW12 along with the panchas, i.e. PW2-Basavaraj and PW5-Dundappa, went to the house of PW3 and conducted the mahazar as per Ex.P8. Nothing transpired till 1-12-2014. On 1-12-2014, PW3 gave a statement to PW12 and informed that he belongs to scheduled tribe and that he came to know from PW7 and CW-13, that PW1 was seen in the company of the accused Nos. 1 and 2 on the evening of 13-11-2014 and they were going towards the house of the accused Nos. 3 and 4. Therefore, PW12, Investigating Officer, invoked the provisions of Sections 3 (2)(v) of SC and SC (POA) Act, and sent the requisition to Magistrate to include those offences in Crime No.76/2014 and transfer entire 16 records to the Special Court. Thereafter, he handed over the further investigation to PW13.
16. At the directions of PW13, PW12 searched for the accused Nos.1 and 2. The accused No.1 was found and he was apprehended and produced before PW13. The accused No.1 was arrested by PW13, his voluntary statement was recorded as per Ex.P23 and was sent for medical examination to PW10- Dr.Girish, who gave report as per Ex.P15. Then, on 4-12-2014, PW1 and accused No.2 were traced at Mirashi, Goa. The manner in which they were traced is not available in the records. The accused No. 2 and PW1 were brought to Ankalagi Police Station, where PW1 disclosed about the offences under Section 376 of IPC and under Sections 3 and 4 of POCSO Act, committed by the accused Nos. 1 and 2 on her. The accused No.2 was arrested and he was sent to medical examination. The clothes worn by the accused No.2 were seized under a mahazar as per Ex.P11 in the presence of PW5-Dundappa. Then on 5-12-2014, 17 mahazars were conducted by the Investigating Officer in respect of the places shown by PW1. Those places were the places from where the accused kidnapped PW1, the residence of the accused Nos. 3 and 4 where she was taken after the kidnapping, the residence of accused No.5 where the accused and PW1 stayed and the accused No.1 committed the offence. Those mahazars are at Exs.P9 and P10 and they were in the presence of PW5-Dundappa.
17. On 6-12-2014, PW1 led the Investigating Officer and Panchas to Mirashi, Goa, where, the accused No.2 committed the offence on PW1 and a mahazar was drawn as per Ex.P7 in the presence of PW2-Basavaraj. Accused Nos.3, 4 and 5 were arrested by the Investigating Officer and they were also produced before the Court. PW1 appeared before the learned Magistrate, Gokak, on 23-12-2014 and gave a statement under Section 164(5) of Cr.P.C. as per Ex.P1. The clothes worn 18 by the accused No.2, PW1, the rug seized at the house of accused No.5, at the shed at Mirashi Goa and the biological samples collected by the Medical Officer, PW11 Dr. Gopal Ramu Vaghamode, were sent to FSL and a report was obtained by the Investigating Officer, as per Ex.P18. The Investigating Officer, PW13 also collected the caste certificate of the accused and the complainant which disclosed that the accused Nos.2 to 5 and PW3 were belonging to the same caste. He also collected the birth certificate of the victim from the Principal of the school where she studied. Thus, the Investigating Officer completed the investigation and filed the chargesheet against the accused persons.
18. It is relevant to note that the date on which the offences under Section 376 of IPC and under Sections 3 and 4 of POCSO Act, were invoked were not available on record. Thus, the prosecution contends that accused Nos.1 and 2 have committed the offence of kidnapping 19 punishable under Section 363 of IPC and the accused Nos.1 to 5 committed the offence under Section 344 read with Section 34 of IPC by wrongfully confining PW1 for more than ten days and the accused No.1 knowing fully well that PW1 is a minor and belongs to scheduled tribe has committed the offences under the SC and ST (POA) Act. It is alleged that the accused Nos. 1 and 2 have also committed the offence under Section 376 of IPC and under Sections 3 and 4 of POCSO Act. ARGUMENTS
19. Learned High Court Government Pleader appearing for the State/appellant has submitted as below:
(a) PW1, the victim, in her statement made under Section 164(5) of Cr.P.C., stated that accused had forcibly taken her when she had gone out for the nature call. He submits that the statement of PW1 made by her under Section 164(5) Cr.P.C. is in consonance with her 20 evidence before the Court. Therefore, there is no reason as to why the evidence of PW1 should be discarded. He points out that there is clear narration by her in respect of abduction by accused Nos. 1 and 2 by force, keeping her in the house of accused No.3 for a while and thereafter, taking her to the house of accused No.5 with the help of accused Nos. 3 and 4. He submits that, accused Nos. 1 and 2 on the next day morning have taken PW1 to Goa. At Belagavi Railway station accused No.1 has left them due to some exigencies that his father was ill. It is submitted that PW1 has clearly stated that accused No.1 had sexual intercourse with her in the house of accused No.5 and later, at Mirashi, accused No.2 had sexual intercourse with her for all the fifteen days against her wish and under threat.
(b) He contended that, PW3, the father of PW1-
victim, though was treated hostile by prosecution, has stated that he lodged the complaint as per Ex.P14. He states that he searched for PW1 among the relatives and 21 when he could not trace then he lodged the complaint. Therefore, he submitted that there is sufficient explanation given by PW3 for delay in filing the complaint. It is submitted that, it is quite natural that the parents of girl child, would search for her and only as a last resort, they would approach the police. He submits that PW3 said that he was informed by PW7 that he had seen the accused Nos. 1 and 2 taking away PW1. He submitted that the evidence of PW7 clearly establish that accused Nos. 1 and 2 were seen in the company of PW1 at about 8.30 p.m. on 13-11-2014. Therefore, it was incumbent upon the accused to explain as to why they were at the company of PW1.
(c) He submits that the offence under Section 363 of IPC has been established by the prosecution through the evidence of PW7, PW3 and PW1. He submitted that the say of the victim that the accused have committed the offences and that the accused Nos. 1 and 2 knew that she belongs to the scheduled tribe and therefore, if 22 the accused Nos. 1 and 2 had enticed away PW1 from the lawful custody of PW3, it amounts to an offence under Section 363 of IPC. Therefore, he contends that the evidence of PWs-1, 3 and 7 sufficiently establish that the prosecution has proved the guilt of the accused. It was also submitted that the cross- examination of PW1 clearly elicit that she was put under threat by accused Nos. 1 and 2 not to disclose that she has been abducted by them. He also submits that the accused had kept PW1 in wrongful confinement for about 15 days and therefore, the offence under Section 344 IPC is made out.
(d) He further submits that the Investigating Officer has obtained Birth Certificate of the victim from the educational institution, wherein, it is mentioned that the date of birth of PW1 is '2-1-1998'. He submits that though the certificate at Ex.P28 is marked through PW13, the Investigating Officer, the date of birth has been elicited by the accused in the cross-examination of PW1 and she has stated that it was '1-2-1998'. This 23 elicitation in the cross-examination establish that she is a minor and there is no denial of the said date of birth stated by PW1 by the accused and therefore, it has to be accepted that PW1 was minor as on the date of the incident i.e. 13-11-2014. In whatever circumstance, she is a minor. In addition to that, the evidence of the Medical Officer who had subjected her to examination by the Dentist shows that she was aged about 17 years as on the date of examination. Hence, he vehemently submits that the prosecution has proved the guilt of the accused for the offence punishable under Sections 363 and 344 of IPC.
(e) Further it was submitted that PW1 says that there was forcible sexual intercourse on her and therefore, the offence under Section 376 of IPC and under Sections 3 and 4 of POCSO Act, are made out. He submits that the evidence of PW1 is believable and there is no reason to discard her evidence. He further contends that the Medical Officer, PW11 says that PW1 had 24 undergone the sexual intercourse but it was not recent. This shows that PW1 was subjected to sexual intercourse and when PW1 says that it was accused Nos. 1 and 2, there is no reason to discard the same.
(f) He further submits that accused No.1 is from Muslim community and PW1 belonged to scheduled caste and therefore, the provisions of SC and ST (POA)Act, are attracted. Ex.P14-caste certificate shows that accused No.2 and others are from the same caste and therefore, the provisions of the 3(2)(v) of SC and ST (POA) Act, are not applicable to accused Nos. 2 to 5.
(g) It was further submitted that the Special Court acquitted the accused on the ground that there was a delay in filing the complaint and that the said delay was not properly explained by PW3. The second ground was that, PW1 was seen to be going with the accused voluntarily and therefore, the Special Court has held that it was not a forcible abduction. He submitted that PW-3 25 has sufficiently explained the delay and the Special Court erred in appreciating the circumstances and evidence.
(h) It is argued by him that since PW1 is a minor, whether she went with accused Nos. 1 and 2 voluntarily with consent was irrelevant. It is submitted that the Special Court has erroneously come to the conclusion that the date of birth of PW1 is not established and had not bestowed its attention to the fact that the date of birth of PW1 was elicited in the cross- examination by the accused, but such elicitation is not denied by accused. It is submitted that Ex.P28 issued by the Principal of the High School show that, it is an extract from the General Register of school and therefore, there was no reason for the Special Court to discard the same. He also submits that though the clothes of the accused as well as PW1 victim were seized, the report of FSL has not yielded any result, but the evidence available on record is sufficient enough to prove the guilt of the 26 accused. It is contended that even though there is no charge framed for the offence under Section 109 of IPC , a point is framed by the Special Court and ultimately, it came to the conclusion that the said offence is also not proved. The complicity of accused Nos. 3, 4 and 5 is also established by the evidence of PW1 which is trustworthy and reliable.
20. Per contra, learned counsel appearing for accused Nos. 1 and 5 submits that PW1 has admitted that she knew the accused Nos. 1 and 2 much prior to the incident. It is contended that even though she claims that she has screamed, shouted and cried, it cannot be believed since there was no resistance of any sort by PW1. It is submitted that all along the journey to Goa, PW1 could have raised alarm in public places. It is not the case of the prosecution that PW1 was taken in a private vehicle to Goa and she was kept secluded and insulated from public. The cross-examination of PW1 27 shows that they went by public transport and there was lot of access to PW1 to escape or to inform the others that she is forcibly taken by accused Nos. 1 and 2. Therefore, the evidence of PW1 that she has screamed, shouted etc., cannot be accepted and her evidence do not inspire the confidence to place any reliance. It is also submitted that the medical report of PW1 shows that there was no recent sexual intercourse and therefore, she has justified the acquittal of the accused.
21. The learned Amicus Curiae appearing for accused Nos.3 and 4 has submitted that accused Nos. 3 and 4 had no role in commission of the offence. She submits that PW1 says that PW7 and CW13 had informed him about the kidnapping, but PW7 says that he never said that victim was taken to the house of accused No.3. Therefore, the fact that the accused Nos. 3 and 4 had allowed the wrongful confinement is not at all established by the prosecution. She also points out that the charge against the accused Nos.3 and 4 is only in respect of 28 Section 344 of IPC but not under any other offences. It is also pointed out that PW1 nowhere explained the role of accused No.3. She also points out that PW1 was traced and brought to the police station on 4-12-2014, but her statement under Section 164(5) of Cr.P.C. was recorded on 23-12-2014. This delay renders her statement unreliable and susceptible for tutoring. She contends that there was a civil dispute between PW3 and the accused No.3 and therefore, the accused Nos. 3 and 4 have been falsely implicated in the matter. She points out that though a point has been framed by the Special Court in respect of the offence under Section 109 of IPC and there is no charge framed against the accused for abatement of any crime. Hence, she submits that the acquittal of the accused Nos. 3 and 4 was proper. THE EVIDENCE:
22. PW1, victim states in her evidence that she completed her SSLC in the year 2013 and on 13-11-2014 29 at about 8.30 p.m. she had gone out for answering nature call and on the way, the accused Nos. 1 and 2 met her and asked her to accompany them. She states that even when she opposed, they kidnapped her and took her to the house of the accused No.3. Then with the help of accused Nos. 3 and 4, they took her to the house of accused No.5 at Gujanal, which is about 8 kilometers from the village of PW1 on a motor cycle. She states that accused No.2 lied before the accused No.5 Lakshmi, that PW1 is aged more than 18 years. The accused No.5 arranged for the stay during night; the accused No.1 had committed forcible sexual intercourse on her. She states that accused No.1 had threatened that she would not be spared with life, if she discloses the act committed by him to anybody.
She states that on the next day, the accused Nos. 1 and 2 took her to Belagavi Railway Station at about 10.00 a.m. and then the accused No.1 went away from the spot. The accused No.2 took her to Panaji, Goa, by 30 train and then to Mirashi. There he had contracted a masonary work at a construction site and he made PW1 to stay in a shed. She states that they stayed in the said shed for about 15 days, during which time, the accused No.2 used to have forcible sexual intercourse on her and had also threatened that she would be killed if she discloses the same. She states that after 15 days, the police came to the said shed and took her and the accused No.2 to Ankalagi Police station, where she has given the statement. She also states that she was subjected to medical examination and then she gave a statement before the Gokak Court and also that she had showed the places where she stayed and mahazars were conducted by the police. Her clothes are identified by her at MO 1 to 4.
In the cross-examination, which is elaborate, it is elicited that her date of birth is '1-2-1998' and she do not know whether there exists a birth certificate. The cross- examination traverses the places stated by her in her 31 examination-in-chief. She states that she knew the accused Nos. 1 and 2 even prior to the incident of alleged kidnapping. She states that accused had closed her mouth and holding her both hands while she was being taken to the house of accused No.3. It is elicited that there are no houses surrounding the house of accused No.3. It is also elicited that she had cried and shouted when she was taken to the house of accused No.3 and kept in the house of accused No.3. She also states that she had cried and shouted when she was taken to the house of the accused No.5 at Gujanal. It is elicited that it was about 10.00 p.m. and accused No.5 and her three children were in the house and she did not have any food during night and on the next day morning, she had not shouted and had not made any effort to call anybody else. She states that she did not shout at the Railway Station, Belagavi, as the accused had threatened her. Though she states that when accused No.1 committed sexual intercourse on her at Gujanal and when she resisted the accused No.1, her 32 clothes were not torn. It is elicited that accused No.5 did not come to her help.
In the cross-examination by learned counsel for accused No.5, she states that she has not seen the accused No.5 earlier and she do not know to whom the house belongs to. It is elicited that police had never shown the accused No.5 to her after the date of incident. She states that the name of accused No.5 was known to her only when the accused No.2 had called the accused No.5 at her house. She has admitted the suggestions that the accused No.2, 3 and 5 are the relatives. She has denied the remaining suggestions made by the counsel for the accused. It was also elicited that she had cried and shouted at Goa, but none had come to her help. She denies the suggestions that there are civil dispute between her family and accused No.3.
23. PW3-Gadeppa is the complainant and his evidence appears to be half hearted testimony. He states 33 in his examination in chief that when the PW1 was brought from Goa, she did not tell anything. He states that after PW1 went missing, he had lodged a complaint to the police as per Ex.P14. He was treated hostile by the prosecution and in the cross-examination; he admits that PW7 and CW13 had informed him about the kidnapping by accused Nos. 1 and 2. The prosecution version was suggested and he has admitted the same. He states that he had given further statement to the police.
In the cross- examination by the defence, he admits that PW7-Chandrappa and PW8- Basavant are his sisters' sons. Though nothing was elicited by the prosecution regarding the age of the victim, in the cross-examination, it was suggested that she was aged more than 20 years which is denied by him. He volunteered to state that she was aged 15 years at the time of the incident. He states that complaint Ex.P14 was written by PW8 and whatever he had stated was written by him. In the cross- examination, it is elicited that after four days of lodging 34 the complaint, PW1 was traced and the police had brought her to the police station and he met her. He states that PW1 had disclosed the incident, but police had not taken the statement. He denies the suggestion that accused Nos. 1 and 2 had not committed any offence.
This evidence of PW-3 is of significance in view of the invoking of the provisions of Sections 3 and 4 of POCSO Act, as he categorically and confidently speak about the age of PW1.
24. PW4-Nagawwa, happens to be the mother of PW1 and wife of PW3. She states about the incident when PW1 went missing and she was traced after eight days at Goa along with accused Nos.1 and 2. She pleads ignorance about her caste and role of other accused and therefore, she was treated hostile.
In the cross-examination by the prosecution, she admits that accused Nos. 1 and 2 had taken PW1 to the 35 house of accused No.5 and then they have taken her to Mirashi, at Goa.
In the cross-examination by the defence only denials are elicited.
25. PW6-Sujatha, who is the wife of PW7- Chandrappa states that PW1 had gone missing and PW3 and his family members have searched and she do not know what happened later. Therefore, she was treated as hostile and the cross-examination by the prosecution has not yielded any result.
26. PW7-Chandrappa, happens to be the sister's son of PW3. In his short deposition, he states that in the year 2014, he and CW13 were coming towards the village at about 8.30 p.m. and he saw the accused Nos. 1,2 and PW1. On questioning as to where they were going, they did not reply. He states that on the next morning, PW3-Gadeppa informed that his daughter is 36 missing and then PW7 and CW13 had informed that accused Nos. 1 and 2 had taken PW1 with them.
In the cross-examination, it is elicited that he had talked to accused Nos. 1, 2 and PW1 from a distance of 10 feet and he did not enquire as to why they were moving during night. He categorically states that accused Nos. 1 and 2 and PW1 were seen in the light of a torch, which he held. The suggestion that they had not seen accused Nos. 1, 2 and PW1 is denied by him.
27. PW8-Basavant, happens to be the son of another sister of PW3. He states that he wrote Ex.P14 complaint and has signed it as scribe. He states that about 7-8 days earlier to the filing of the complaint, PW3 Gadeppa had informed him that the accused Nos. 1 and 2 had kidnapped PW1. He states that regarding it, he had written the complaint as stated by PW3.
In the cross- examination, it is elicited that he and PW3 alone were present in the police station while the 37 complaint was lodged and PSI was present in the police station. The suggestion that the complaint Ex.P14 was not written as stated by PW3 is denied by him. However, it is evident that the name of accused No. 1 and 2 was not disclosed in the complaint.
28. PW9-Holewwa, happens to be the daughter-in- law of PW3. She states that PW1 did not return after going out for nature call and the search did not yield any result and later, she was traced by the police. She is a hearsay witness regarding the incident and therefore, much importance cannot be given to her say.
29. PW10-Dr.Girish Bhimappa Yadur, happens to be the Medical Officer of BIMS Hospital, Belagavi, and he states that he examined accused No.1 on 1-12-2014 and gave medical certificate as per Ex.P15. It is relevant to note that Ex.P15 mentions that accused No.1 was alleged with the offences punishable under Section 376 of IPC 38 and under Sections 3 and 4 of POCSO Act also along with other offences. Ex.P15 mention that accused No.1 is capable of having sexual intercourse. His evidence gains importance as the Investigating Officer, PW-13 do not disclose when he came to know of the commission of the offence under Sections 376 of IPC and Sections 3 & 4 of POCSO Act.
30. PW11-Dr.Gopal, had examined PW1, victim as well as accused No.2 on 4-12-2014. He states that PW1 may be aged about 16 to 17 years as per the opinion of the Dentist and he examined PW1 and came to the conclusion that though she is accustomed to sexual intercourse, but there were no signs of recent sexual intercourse.
31. PW2- Basavaraj, happens to be the pancha for the mahazars at Exs. P7 and P8 which were drawn at Mirashi, Goa, on 6-12-2014 and at the house of PW3 on 39 17-11-2014 respectively. He has identified the rug MO5 which was seized at the spot at Mirashi.
32. PW5-Dundappa, is the pancha for the mahazars at Exs.P 8, 9, 10 and 11. Ex.P9 is in respect of the spot from where PW1 was kidnapped and the house of accused Nos. 3 and 4. It is mentioned in the Ex.P9 that there are no houses nearby the house of accused Nos. 3 and 4. Ex.P10, is the mahazar in the house of accused No.5 at Gujnal. A rug MO19 was also seized in the house but the witness was shown MO5. He was also the pancha for the seizure of the clothes of accused No.1 and he did not support the prosecution case in examination-in- chief, but in the cross-examination by the public prosecutor he admits that the clothes of accused No1. were seized by investigating officer under a mahazar as per Ex.P11.
40
In the cross-examination, he denies that he is a relative of PW3. Nothing worth is elicited in the cross- examination which would discredit his testimony.
33. PW12-Pramod Chidambar Yaligar and PW13- Shekhar Arjunappa Agadi are the Investigating Officers. PW-13 had sent the clothes of the accused 1 and 2, PW- 1, the rugs seized at the house of accused No. 5 and at Mirashi, Goa, along with the biological samples of the victim to the FSL. The FSL report at Ex P 18 was marked through him. It discloses that one of clothes of victim (top) had a few blood stains. None of the other articles disclosed the blood, spermatozoa or semen stains on them.
Further, PW-13 had also collected the certificate from the school of the victim, which is at Ex.P28, property extracts of the house of the accused No. 5 as per Ex-P26, 27 before he filed the chargesheet. 41 ANALYSIS AND CONCLUSIONS:
34. The State contends that the accused Nos. 1 and 2 forcibly took PW1 from the lawful custody of PW3 her father, on the night of 13-11-2014 and therefore, they have committed the offence punishable under Section 363 of IPC. It is contended that PW1 was a minor and therefore, the provisions of the POCSO Act are attracted. It is contended that the accused Nos. 3,4 and 5 assisted the accused Nos. 1 and 2 in wrongfully confining PW1 for more than ten days and therefore, an offence under Section 344 of IPC is committed by them. The Special Court has framed charge for the offences under Sections 363, 376 of IPC and Sections 3 and 4 of POCSO Act and under Section 3(2)(v) of SC and ST (POA) Act, as against accused Nos. 1 and 2. It has framed charges for the offence under Section 344 of IPC as against all the accused Nos. 1 to 5. Therefore, our endeavor would be to examine whether these charges have been proved by the prosecution or not.
42
35. As per the testimony of PW12 -Investigating Officer, PW3 had informed him on 1-12-2014 that he belongs to schedule tribe and therefore, he invoked the provisions of SC and ST(POA) Act. Nowhere, PW12 states that PW3 had informed him that he has any knowledge about the commission of the offence under Section 376 of IPC and Sections 3 and 4 of POCSO Act. After invoking the provisions of SC and ST (POA) Act, he handed over the investigation to PW13. Then, at the instructions of PW13, the accused No.1 was searched and apprehended. PW13 do not say that accused No.1 had informed about the commission of the offence under Section 376 of IPC and Sections 3 and 4 of POCSO Act. However, after the arrest of the accused No.1, PW-13 invoked the provisions of Sections 3 and 4 of the POCSO Act and Section 376 of IPC on the bases of the disclosures made by accused No.
1. The medical examination report of the accused No. 1 clearly shows that he was alleged with the above offences. Thereafter, PW 12 was informed to search for 43 the accused No.1 and PW1 and they were traced at Goa and they were brought to the police station on 4-12-2014. Thus, the say of PW3 that the victim was traced after 4 days of filing the complaint cannot have any major impact on the case of the prosecution.
36. The first aspect to be considered is regarding the age of PW1, victim. The prosecution rely on Ex.P28, the certificate issued by Adavi Siddeshwara Composite College, Ankalagi, wherein, the date of birth is stated to be '2-1-1998'. It is issued by the Vice Principal of the College and states that PW1 had passed SSLC during April 2014. It also mentions the registration number of SSLC examination and the General register number. The defence contends that this document is not proved as required under law by examining the author; the Vice Principal of the College is not examined by the prosecution and Ex.P28 not being a public document, 44 cannot be said to be proved. This contention of the defence was upheld by the Special Court.
37. We are unable to accede to the above contention of the defence and the view taken by the Trial court. It is to be noted that even though the Principal of the College is not examined by the prosecution, the date of birth of the petitioner is elicited in the cross- examination of PW1. She has stated that her date of birth is, 1-2-1998 and this aspect is not denied by the defence. In addition to the testimony of PW1, PW3 and his wife PW4 have also stated that PW1 was a minor. Coupled with this, the medical report of PW1 produced at Ex.P16 show that she was aged about 17 years.
38. The law relating to determination of the age of a minor victim is laid down by the Apex Court in the case 45 of Jarnail Singh v. State of Haryana4. In the said decision, it was held as below:
"23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a 4 (2013) 7 SCC 263 46 certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion."
39. By following the steps prescribed in the above decision, the first document that would be relevant is, SSLC or 12th grade certificate. In the absence of it, the school records would be relevant. In the absence of school records, the Birth Certificate and in the absence of Birth Certificate, the report of the Medical Officer would be relevant. The Special Court has followed this decision but it held that the Ex.P28 is not proved and therefore, by giving margin of two years to the report of the Medical Officer, it held that PW1 may be aged more than 18 years.
40. It is relevant to note that, the Special Court has not bestowed its attention on the elicitations in the cross examination of PW1. The evidence of PW1 coupled with 47 the evidence of PWs 3 and 4 show that PW1 was born in the year 1998, (though there is discrepancy of 1-2-1998 and 2-1-1998). In fact, Ex.P28 corroborated with the elicitations in the cross-examination of PW1 regarding the year of birth. Such year of birth elicited in the cross- examination was not denied. Therefore, we hold that the prosecution had established the age of the PW1 to be 16 years as on the date of incident.
41. The next aspect which needs to be considered is, about the proof regarding the offences under the POCSO Act and Section 376 of IPC. At the outset, it would be proper to note that the voluntary statement of the accused No. 1 recorded by the Investigating Officer is not admissible in evidence unless it leads to discovery of a fact, which is governed by Section 27 of the Evidence Act. No such discovery is established by the State. The alleged statement of the accused No. 1 being self incriminatory and being made before the police 48 officer, it cannot be admitted in evidence. The Trial Court has, not only let in such evidence, but also discussed about it, only to reject it.
It is the case of the prosecution that accused Nos. 1 and 2 took PW1 to the house of accused Nos. 3 and 5 forcibly and then they took her to the house of accused No.5. On the night of 13-11-2014, the accused No.1 committed rape on her and on the next morning, they took her to Belagavi from where they parted their ways. It was only accused No.2 who took the victim to Panaji by Train and kept the PW1 at Mirashi till 4-12-2014.
42. This takes us to the evidence of PW1 and the medical evidence. PW11-Dr. Gopal, states that he examined PW1 on 4-12-2014 and did not find any recent signs of sexual intercourse. However, he stated that PW1 was used to the sexual intercourse. This evidence shows that the victim had undergone sexual intercourse but it 49 was not recent. As per the say of PW1 she was subjected to sexual intercourse from the day of her abduction.
43. This leads us to examine the believability of the evidence of PW1. As noted supra, the statement of PW1 under Section 164(5) of Cr.P.C. which is at Ex.P1 and her testimony before the Special Court discloses that she had not raised any voice either when PW7 and CW13 had seen her in the company of accused Nos. 1 and 2 or on her way to Goa. Though she states that she had shouted and screamed on the way to the house of accused Nos. 3 and 5, and then to Goa, it remains to be a statement which is not supported by any other evidence. Moreover, PW1 states that she stayed at Mirashi, Goa, in a shed. It was a shed adjacent to a construction site and she states that there were many other people and during day time the accused No.2 used to go to work.
44. It is also relevant to note that the evidence of PW1 discloses that she and the accused were known to 50 each other much prior to the incident. This evidence of PW1 explains for the silence of PW1 while she was taken to Goa. The sexual assault had commenced from the date of her abduction on 13-11-2014. Obviously, it was by consent and there could not be any recent signs of the sexual intercourse when PW 11 examined her on 4-12-2014. She being a minor, her consent is irrelevant. The plight of teen aged minor girl, who was abducted by two known persons of the same village, with threats to her and subjecting her to sexual assault need to be kept in mind while assessing the testimony of such girl.
45. The fact that accused No.1 had committed the rape on her in the house of accused No.5 and later, the accused No.2 had committed similar offences at Goa is spoken by her in unequivocal terms. Medical evidence shows that though the recent sexual intercourse is not found, but the victim was used to sexual intercourse. In other words, the offence of rape and the offence under 51 Sections 3 and 4 of POCSO Act, on the night of 13-11-2014 and for several days thereafter, is not ruled out by medical evidence.
46. There is another reason which gains attention of this Court. PW1 was secured by the investigating officer on 4-12-2014. But her statement under Section 164(5) of Cr.P.C. was recorded on 23-12-2014, which is 18 days later. She is consistent with regard to the allegations against the accused. She has reiterated what she had disclosed to the Investigating Officer on 4-12-2014. She speaks about the inducements made by the accused No. 1 and 2, to go with them to the house of the accused No. 3.
47. In the evidence of PW1, it is elicited in the cross- examination that she had cried and shouted on more than four occasions on the way to Goa. This say of PW1 appears to be unnatural as she had ample 52 opportunities to draw the attention of others. However, PW1 states that she was put under threat by the accused. She has repeatedly stated that she was under
threat. When a minor is under threat, that too by two known and acquainted persons, she raising shouts and screams appear to be not true. When her evidence is closely scrutinized, it appears that the victim girl might not have resisted of her being taken to different places by the accused No. 1 and 2 and detaining or confining her for few days at different places including Goa. The inferences that could be drawn from the facts brought before the Court indicate that she eloped with the accused at the force of the accused, passively allowed the accused to have sexual intercourse. There are no reasons to discard her evidence when the minor girl states that she was subjected to sexual intercourse without her consent. It is significant to note that she was a minor throughout the incident and as such her passive cooperation for the sexual intercourse, would not, in any 53 way, shield the accused from their alleged act of either kidnapping the victim or subjecting her to sexual intercourse. Therefore, the evidence deposed by her regarding the acts committed by the accused No. 1 is to be believed.
48. It is also to be noted that FSL report which is at Ex.P18 show that the rug which was seized from the house of accused No.5 did not contain any incriminating stains. It is difficult to accept that the there might be stains on the rug even after 20 days and the rug was not washed and remained as it is, unused. Hence, we are of the considered view that the offence under Section 376 of IPC and Sections 3 and 4 of the POCSO Act is established as against the accused No. 1.
49. The prosecution alleges that there was wrongful confinement for more than ten days and therefore, the offence under Section 344 of IPC was committed by the 54 accused. The wrongful confinement of more than ten days can only be attributed to accused No. 1 and deceased accused No.2. The accused No.1 had accompanied PW 1 and the accused No. 2 to the railway station at Belagavi and then parted the ways. Though PW13 has not spoken as how he came to know of the place of residence of the victim and the accused No. 1 at Goa, such tracing of the victim was only after the arrest of accused No. 1. Therefore, it can easily be inferred that the accused No.1 was in the knowledge of the acts done by the accused No. 2. Hence, the offence under Section 344 of IPC is established as against the accused No. 1.
50. Obviously, there are no charges for the offence under Section 109 of IPC as against the accused No. 3 to
5. There is absolutely no material on record to show that accused Nos. 3, 4 and 5 had the knowledge that accused No.2 had wrongfully confined PW1 for more than ten 55 days at Goa. Therefore, it cannot be said that the above offence can be attributed to these accused. The learned Amicus Curiae has rightly pointed out that there is no charge for the offence under Section 109 of IPC and even if there was a charge, the accused Nos. 3,4 and 5 had no knowledge of the wrongful confinement of PW1 for more than ten days. Therefore, the vital link that the accused No.3,4 and 5 had the knowledge of the place of wrongful confinement of PW1 is not established by the prosecution.
51. Sofar as the offence under Section 3(2)(v) of SC and ST (POA ) Act is concerned, the prosecution has to establish that the accused Nos. 1 and 2 had abducted PW1 for the reason that she belongs to scheduled tribe and to insult or intimidate her. Such intentional insult or intimidation for the reason that PW1 was belonging to scheduled tribe is not available on record. Moreover, the accused No.2 and the accused Nos. 3,4 and 5 also 56 belong to the scheduled tribe. Therefore, these provisions are not attracted to accused Nos. 3,4 and 5. The Ex.P19 , 20 and 21 show that PW3, accused No.2, accused No.5 belonged to scheduled tribe. The Investigating Officer has not produced the caste certificate in respect of accused Nos. 3 and 4. Therefore, it is evident that these provisions are not attracted to accused Nos. 2 and 5 and it is not proved that accused Nos. 3 and 4 belonged to some other caste. However, it is only against the accused No.1 for which the charge is maintainable. The Special Court, has rightly framed the charge under Section 3(2)(v) of the Act against accused No.1 alone, but the evidence on record does not show that he had the intention to commit the offence only because PW1 belongs to a scheduled tribe. Hence, the offence under Section 3(2)(v) of SC and ST (POA) Act, is not established.
52. This takes us to the offence under Section 363 of IPC. The evidence of PW1 that she was forcibly 57 abducted by accused No.1 and 2 gets the support from the testimony of PW7. PW7 in his evidence has stated that he and CW13 had seen the accused Nos. 1 and 2 along with PW1 were going towards the house of accused No.3. He also states that he had seen the accused Nos. 1 and 2 from a distance of 10 feet in the light of a torch. It is on the basis of the information given by PW7 that PW3 had expressed suspicion about the kidnapping. It is evident that as a father of PW1, he wanted to safeguard the interest of PW1 and therefore, did not disclose who had kidnapped PW1. His conduct in not disclosing the names of accused Nos. 1 and 2 appears to be natural and acceptable. When PW1 could not be traced for nearly four days, he ultimately, lodges the complaint on 17-11-2014 without naming the accused Nos. 1 and 2. Therefore, it cannot be said that the delay in filing the complaint is fatal to prosecution. Then again on 1-12-2014, he discloses about his caste which led PW13 to take over the investigation. Virtually, no investigation 58 was made between 17-11-2014 and 1-12-2014. Therefore, the say of PW1 that the accused Nos.1 and 2 had forcibly abducted her without her consent gets impetus from the testimony of PW7 and PW3.
53. It is worth to note that to constitute an offence under Section 363 of IPC, the consent of the guardian of the minor plays a vital role. There is absolutely, no material on record to show that accused Nos. 1 and 2 had taken the custody of PW1 within the knowledge of PW3. Obviously, PW3 was the guardian of PW1. The fact that PW1 was placed at Goa and that PW7 had seen the accused Nos. 1 and 2 in the company of PW1 on the night of 13-11-2014 sufficiently establish that an offence under Section 363 of IPC has been committed by the accused. Under these circumstances, it is evident that the prosecution had established that the accused Nos. 1 and 2 had abducted PW1 from the lawful custody of her guardian i.e. PW3. The accused No. 3 to 5 had no role to 59 play in the kidnapping of the PW1. Consequently, the offence under Section 363 of IPC is proved by the prosecution as against the accused No. 1.
54. The Special Court, in its impugned judgment, observes that PW-1 might have gone with the accused No. 1 and 2 voluntarily and that the version of PW7 is not believable. Obviously such conclusions are based on the fact that she was aged more than 18 years. PW-1 does not say that PW7 and CW-13 had seen her and she had raised hue and cry. But the evidence of PW7, in the circumstances of the case, appear to be acceptable, as it gets support from the complaint that PW-3 had the knowledge that somebody had kidnapped his daughter. Therefore, the conclusions reached by the Special Court are not on the basis of the inferences that could be drawn from the evidence on record. Thus, from the evidence on record it is clear that the accused No. 1 and 2 had kidnapped PW1 from the lawful custody of her 60 guardian, i.e., PW3 and took her to the house of the accused No. 3 and then to the house of accused No. 4 and 5. Thereafter, while she was taken to Goa, the accused No.1 parted the ways. He did not inform the same to PW3 and his family members, who were searching for PW1. He also connived with the accused No. 1 to take the victim to Goa. As such, the prosecution has proved the guilt for the offence under Section 363, 344 of IPC as against the accused No. 1.
55. In view of the aforesaid reasons, the accused No. 1 is to be convicted for the offence under Sections 363, 344, 376 of IPC and under Sections 3 and 4 of POCSO Act, and all other accused to be acquitted; we proceed to pass the following:
ORDER
(i) The appeal is partly allowed.
(ii) The judgment of the Special court in SC No. 42/2015 dated 8-9-2017 so far as it relates to the acquittal of accused No. 1 is set aside.61
(iii) The appeal against accused No.2 abates.
(iv) The accused No.1 is convicted for the offence punishable under Sections 344, 363, 376 of IPC and under Sections 3 and 4 of POCSO Act.
(v) The acquittal of accused No. 1 for the offence under Sec. 3(2)(v) of SC and ST (POA) Act and the acquittal of accused Nos. 3 to 5 for the offences punishable under Sections 344, 363, 376 and under Sections 3 and 4 of POCSO Act and under Sections 3(2)(v) of SC and ST (POA) Act, are confirmed.
To hear on sentence, the matter is passed over.
SD/-
JUDGE SD/-
JUDGE tsn* 62 ORDER ON SENTENCE
56. Heard the learned HCGP for appellant, learned counsel for the accused and learned amicus curiae on sentence.
57. Learned HCGP submits that, since the accused No.1 has committed an offence of kidnapping a minor girl, the maximum punishment awardable under Sections 344, 363, 376 of the Indian Penal Code, 1860 and under Sections 3 and 4 of POCSO Act be awarded to him.
58. Learned counsel for the accused No.1/respondent No.1 submitted that, the accused No.1, who is now convicted is a poor agriculturist and a married person with family, as such, a lenient view be taken.
59. The sentencing policy requires the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the 63 name-sake. It shall be commensurate with the gravity of the offence committed by the accused.
60. In the instant case, though according to the prosecution, there were more number of accused persons alleged to have been involved in the commission of the crime, however, it could able to prove the guilt only as against accused No.1- Sharukhkan Moulanaik Patil of causing the kidnapping of a minor girl, wrongfully confining her for more than 10 days, raping her despite knowing that she is a minor for the offences punishable under Sections 363, 344, 376 of IPC and under Sections 3 and 4 of the POCSO Act.
61. As such, keeping in mind the facts and circumstances of the present case and other mitigating factors canvassed by the learned counsel for accused No.1/respondent No.1, we proceed to pass the following: 64
ORDER ON SENTENCE The accused No.1/convict -Sharukhkan Moulanaik Patil, age: 19 years, Occ: Driver, r/o Musalmari, Taluk: Gokak, is sentenced to suffer punishments as below:
i. For the offence punishable under Section 363 of the Indian Penal Code, 1860, the accused No.1/convict shall undergo Simple Imprisonment for 2 years and shall also pay a fine of `10,000/- (Rupees Ten Thousand Only); in default of payment of fine, he shall undergo simple imprisonment for a period of three months;
ii. For the offence punishable under Section 344 of the Indian Penal Code, 1860, the accused No.1/convict shall undergo Simple Imprisonment for 3 years and shall also pay a fine of `05,000/- (Rupees Five Thousand Only); in default of payment of 65 fine, he shall undergo simple imprisonment for a period of three months;
iii. For the offence punishable under Section 376 of the Indian Penal Code, 1860, the accused No.1/convict shall undergo Rigorous Imprisonment for 10 years and shall also pay a fine of `10,000/- (Rupees Ten Thousand Only); in default of payment of fine, he shall undergo simple imprisonment for a period of six months; iv. For the offence punishable under Sections 3 and 4 of POCSO Act, the accused No.1/convict shall undergo Rigorous Imprisonment for 10 years and shall also pay a fine of `10,000/- (Rupees Ten Thousand Only); in default of payment of fine, he shall undergo simple imprisonment for a period of six months.
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v. All the sentences shall run concurrently and the convict is entitled for set off u/s 428 of Cr.P.C.
vi. A free copy of this judgment be furnished to the accused No.1/convict, immediately by the Registry.
Registry to transmit a copy of this judgment to the Special Court, forthwith along with its records, for doing the needful in the matter in securing the accused No.1 for serving the sentence in accordance with law.
We acknowledge the assistance rendered by the learned Amicus Curiae and fix her honorarium at `5,000/- payable by Registry.
SD/-
JUDGE SD/-
JUDGE tsn*