Karnataka High Court
The State Of Karnataka vs J.S.Chethan on 15 June, 2020
Bench: B.Veerappa, Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2020
PRESENT
THE HON'BLE Mr. JUSTICE B.VEERAPPA
AND
THE HON'BLE Mr. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL No.678 OF 2014
BETWEEN:
THE STATE OF KARNATAKA
BY HALASURU GATE POLICE
BENGALURU- 560 001 ... APPELLANT
(BY SRI VIJAYKUMAR MAJAGE, ADVOCATE)
AND:
J.S.CHETHAN,
S/O.SANNAIAH,
AGED ABOUT 30 YEARS
R/AT KAMAKSHI STREET
1ST CROSS, NEAR KSRTC BUS STAND
SHIVAMOGGA - 577 201 .... RESPONDENT
(BY SRI UMESH P.B.FOR
SRI R.B.DESHPANDE, ADVOCATES)
*****
THIS APPEAL IS FILED UNDER SECTIONS 378 (1) & (3)
OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGEMENT AND ORDER DATED 05.12.2013
PASSED BY XLV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU IN S.C.NO.19/2010 ACQUITTING THE
RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 366A, 342 AND 376 OF IPC AND ETC.
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THIS APPEAL COMING ON FOR HEARING THIS DAY,
B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful State Government/prosecution has filed the present appeal against the judgment and order of acquittal of the accused for the offences punishable under Sections 366A, 342 and 376 of IPC.
2. The factual matrix of the case is as under:
It is the case of the prosecution that on 13.04.2009 in the morning at 10.00 a.m. CW-2, the prosecutrix had gone from her house to the house of CW-5, to see him and his family situated at Cholurpalya, Magadi Road. After visiting them, while coming back to her house along with CW-4 Divya, near City Railway Station at 3.30 p.m., the accused stopped the prosecutrix and with an intention to induce her to have sexual intercourse with him, knowing that prosecutrix is a minor girl, stated that even though he is working as a driver, he has got more properties at Shivamogga and he would look after her luxuriously and induced her to accompany him, when the prosecutrix did not heed to the demand of the accused, he threatened her with dire consequences and kidnapped her in a KSRTC Bus -: 3 :- to Haveri and Byadgi and kept the prosecutrix unlawfully in the house of CW-17 Smt.Lalithamma. On 19.04.2009 in the limits of Byadgi Police Station at Sibara temple situated at Kakolu Road, the accused has tied mangalasuthra to the prosecutrix and took her home and forcibly committed rape on her against her will.
3. On the basis of the complaint lodged by PW.1-the mother of PW.2, the jurisdictional Police registered a case in Crime No.199/2009 for the offence punishable under Section 366A of IPC. The Police Inspector- Investigating Officer, after completion of the investigation, filed the chargesheet against the accused.
4. In order to prove its case, the prosecution has examined in all 25 witnesses, PWs.1 to 25 and got marked the documents - Exs.P1 to P27 and Material Objects - M.Os.1 to 25.
5. After completion of the evidence on the prosecution side, the statement of the accused under Section 313 of the Code of Criminal Procedure has been recorded and he has denied all the incriminating -: 4 :- circumstantial evidence appeared against him in the prosecution evidence.
6. Though, the defence has not adduced evidence, but marked the documents - Exs.D1 and D2.
7. The learned Sessions Judge considering both oral and documentary evidence on record, has recorded the finding that the prosecution failed to prove beyond all reasonable doubt that on 13.04.2009 at 3.30 p.m., near City Railway Station, the accused restrained the prosecutrix, knowing that prosecutrix is a minor girl, with an intention to induce her to have sexual intercourse with him, stated that even though he is working as a driver, he has got more properties at Shivamogga and he would look after her luxuriously and induced her to accompany him, when the prosecutrix did not heed to the demand of the accused, he threatened her with dire consequences and kidnapped her in a KSRTC Bus to Haveri and Byadgi and thereby, the accused has committed an offence punishable under Section 336A of IPC.
8. The Sessions Judge further held that the prosecution has failed to prove beyond all reasonable -: 5 :- doubt that on the above date, time and place, after kidnapping the prosecutrix, the accused took her to Haveri and Byadgi and wrongfully confined her in the house of CW-17 Smt.Lalithamma and thereby, the accused has committed an offence punishable under Section 342 of IPC.
9. The Sessions Judge further held that the prosecution has failed to prove beyond all reasonable doubt that on the above date, time and place, after kidnapping the prosecutrix from Bengaluru to Haveri and Byadgi, the accused wrongfully confined her in the house of CW-17 Smt.Lalithamma and on 19.04.2009, he tied mangalsuthra to the prosecutrix near Sibara temple at Byadgi and took the prosecutrix to the house of CW-17 and forcibly committed rape on her against her will and thereby, the accused has committed an offence punishable under Section 376 of IPC.
10. The learned Sessions Judge after recording the above finding based on the oral and documentary evidence, by the impugned judgment and order of acquittal dated 05.12.2013 has acquitted the accused for -: 6 :- the offences punishable under Sections 366A, 342 and 376 of IPC. Hence, the present appeal is filed by the State/ prosecution.
11. We have heard the learned counsel for the parties to the lis.
12. Sri Vijaykumar Majage, learned Additional SPP for the State vehemently contended that the impugned judgment and order of acquittal passed by the learned Sessions Judge is erroneous and contrary to the material on record and the same is liable to be set aside. He further contended that the reasons assigned by the learned Sessions Judge while passing the impugned judgment and order of acquittal are erroneous. Thereby, he has come to a wrong conclusion, which has resulted substantial miscarriage of justice. He would further contend that the learned Sessions Judge has failed to appreciate the evidence of the complainant/PW.1-S.Shobha (mother of the victim). She has clearly narrated that the accused was known to the victim as the victim was the School going child and the accused was working as driver in the School -: 7 :- van and had kidnapped the victim which attracted the provisions of Section 366A of IPC.
13. The learned Additional SPP has contended that the evidence of PW.2-victim Rekha supported the prosecution case to prove that the accused has committed the offence punishable under Section 366A of IPC and the evidence of PW.25-A.R.O. who issued Ex.P23-birth certificate clearly indicates that the victim was aged about 13 years 08 months as on the date of the incident. The said material evidence has not been considered by the learned Sessions Judge. He would further contend that PW.16-Dr.Pramod R.K. examined the accused and issued medical certificate as per Ex.P14. PW.17-Dr.Veena K. examined the victim/PW.2 and issued medical report- Ex.P15 and final opinion-Ex.P16. PW.24- PSI/Investigating Officer submitted the final report has not been considered by the Sessions Judge and has proceed to pass the impugned order, which is erroneous and the same cannot be sustained.
14. He would further contend that the learned Sessions Judge failed to appreciate the evidence of PW.1- mother, PW.2-victim and PW.3-P.Shankar-the father of -: 8 :- PWs.2. PW.5 is the well wisher of both the parties, who held panchayat and advised the parties to live amicably and the same has not been considered. He would further contend that the learned Sessions Judge failed to appreciate the evidence of mahazar witnesses- PWs.4, 6, 7, 8, 9 and 10. Therefore, he sought to allow the appeal filed by the State.
15. Per contra, Sri Umesh P.B., learned counsel for the accused while justifying the impugned judgment and order of acquittal passed by the learned Sessions Judge, contended that there is a delay in filing the complaint. Admittedly, the incident occurred on 13.04.2009 and the complaint was filed only on 15.05.2009 as per Ex.P1 by PW.1 i.e. after a lapse of 01 month 02 days and the prosecution has not explained the delay properly. Therefore, he submits that the appeal is liable to be dismissed. He would further contend that the medical report-Ex.P16 has not supported the case of the prosecution as the Doctor opined that the victim is used to the act like that of sexual intercourse and there is no recent evidence of the Act. He further contended that PW.17 has issued FSL report as per Ex.P17 wherein it is -: 9 :- pointed that "presence of seminal stains were not detected in items 3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20, 21 & 22 and the presence of spermatozoa was not detected in Article Nos.1 and 2".
16. He further contended that the prosecution has not produced any document to prove that PW.2 was minor as on the date of incident. Ex.P23-birth certificate has been produced by the prosecution after the completion of evidence of PWs.1 to 24. For the first time, the prosecution has produced Ex.P23 at the time of evidence of PW.25, the same was disputed by the accused. The said certificate was not confronted to PW.1-mother, PW.2-victim and PW.3-father and the same came to be issued only in the year 2010. The Investigating Officer before filing the chargesheet has not made any efforts to produce the birth certificate, thereby the provisions of Section 366A of IPC would not be attracted. He would further contend that according to the victim, the incident took place in the presence of CW.4-Divya, the cousin sister, who is the material witness and she has not been examined. On that ground also, the impugned judgment and order of acquittal is liable to be confirmed.
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17. He further contended that the prosecution failed to conduct radiology and dental tests to prove that PW.2 was minor as on the date of the incident. He would further contend that the Investigating Officer has not produced two missing complaints alleged to have been filed by PWs.1 and 3 on earlier occasion as alleged by PWs.1, 2 and 3. PWs.5 to 15 turned hostile with regard to the provisions of Sections 366A and 376 of IPC. Therefore, he sought to dismiss the appeal.
18. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present appeal is that-
"Whether the State-appellant has made out a case to interfere with the impugned judgment and order of acquittal passed by the learned Sessions Judge acquitting the accused for the offences punishable under Sections 366A, 342 and 376 of IPC in the facts and circumstances of the present case?"
19. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
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20. In order to appreciate the judgment and order of acquittal passed by the Sessions Court, we would like to consider the evidence of the prosecution witnesses and the material documents of the parties to the lis.
21. PW.1-S.Shobha, who is the mother of the victim-PW.2 has deposed that she knows the accused- Chetan. The accused used to take her daughter to the School in Omni van. She knew the accused through her daughter. The accused was also close to her daughter. She has instructed the accused not to develop close friendship with her daughter; in that regard, for sometime, the accused has not talked to her daughter. After some days, the accused has left all the students to their house and then, he has taken her daughter to his sister's house to Bilekahalli. His sister has abused the accused and brought her daughter to their house. Then the accused has left the driving work in Omni vehicle. They have sent her daughter to the school regularly. The accused has come near the school of her daughter and he has taken her daughter to Shivamogga; in that regard, she has lodged a missing complaint. When the accused has taken her daughter to Shivamogga, her daughter has refused to go -: 12 :- along with the accused. The accused has threatened her daughter and threatened to kill her entire family members, if she has not accompanied him. The accused has kept her daughter in his friend's house; then he has left her daughter near Shivamogga Police Station and given Rs.100/- to her. The Police have registered a missing complaint; then her daughter was not attending to the School and taken examination by studying in the house. On 13.04.2009, her daughter has gone to her uncle's house along with one Divya. At 3.30 p.m. when they were returning to the house near Majestic KSRTC bus-stand, the accused and his friends came on the way and asked the victim girl to come along with him, otherwise they would kidnap her and he has threatened her daughter; and then the accused has taken her daughter to Shivamogga and Haveri and kept for two days, then he has kept her daughter in Kummur and then he has taken her daughter to Byadgi. On 19.05.2009 at Chamundeshwari temple at Byadgi, he has forcibly married her daughter and then the accused has taken a house in the said village. When his daughter has refused for sexual intercourse, he has forcibly committed rape against her will. -: 13 :-
In the cross-examination, she has admitted that her daughter has gone to the School in the Auto of the accused. It has been written in the missing complaint. At the time of lodging the complaint, she has stated that her daughter was going to the School in the van. Further, she has deposed that she does not know the contents of the complaint. The accused counsel has suggested that on the date of writing the complaint, the Police have not read over the complaint, she has admitted that she does not know the contents of complaint. She does not know the contents of the mahazar. As per the direction of the Police, she has put her signature on the mahazar. She further admitted that she has stated the name of the accused Chetan in the missing complaint. She does not know on which date, they have given missing complaint. After kidnapping her daughter, they have informed to the School Authority. When the suggestion made, she has admitted that she does not know the contents of the complaint and further statement given before the Police. She has deposed that the entire complaint was given to the Police orally, but they have not given written complaint to the Police and the Police have not registered the -: 14 :- complaint. They have registered the missing complaint. She has further admitted that her daughter Rekha was born in Ideal Nursing Home. They have not given address of the said hospital at the time of lodging the complaint. They have not given any documents with regard to the birth of the victim girl. This suggestion is denied by the witness. She has admitted that her husband has obtained the birth certificate of her daughter on 23.07.1995.
22. PW.2-prosecutrix/victim has deposed that she has studied at Nirmala Girls High School. Everyday, she used to go to the School by Maruti van. The said van was driven by the accused. She was acquainted with the accused. The accused used to talk to the other girl friends. The accused has left all the girls to their house and he has taken her to his aunt's house. It has been stated that her parents have advised the accused and warned him not to take her to any place in future, thereafter, her parents have given complaint against the accused. After coming to know the complaint lodged by her parents, the sister of the accused brought her and left near her house. Due to her future education, the said case was not continued. The accused also left the work of driving of the said van. One -: 15 :- day, she had gone to school. In the morning, when she got down from the van, the accused has not allowed her to go to the School. He has taken her along with him. He has also threatened when she refused to go along with him, due to that, she has gone along with the accused to Shivamogga. After some days on 13.04.2009, she has gone to Cholurpalya to her uncle's house. When she and her sister were returning to their house, near Majestic Railway Station, the accused has followed her and has called her to come along with him. He has removed the mobile phone from her hands and switched off the same. Then, he has taken her in a KSRTC bus towards Haveri. He has kept her in his friend's house for three days. Then he has taken her to Kammur and Byadgi. He has forcibly committed rape against her will.
In the cross-examination, she has deposed that she is unable to say the number of the van in which she was traveling. She is also having one neighbouring girl friend by name Bhavya, who was studying in the same School since LKG. When she was studying in 8th standard in the said School, the accused was working as a Driver in the said School. Further, she has admitted that first time, she -: 16 :- has not opposed to go with the accused, but second time, she has opposed and the same has been stated before the Police. Her parents have not given any missing complaint against the accused. She has tried to rescue from the hands of the accused, but the accused has not left the hands. She has not made any hue and cry. This suggestion is admitted by the witness. She has also admitted that so many persons had gathered in the bus stand. She has never asked any persons to help her and she has never disclosed to other persons about the incident. She has never stated anything before the driver and conductor of the said bus. She has also not given any complaint against the accused. Further, she has admitted that near the Railway Station, she and her sister were present. Further, she has admitted that the accused has not assaulted her. The brother-in-law of the accused has not permitted her sister to help her. They have not given any complaint in Majestic Police Station after the incident. Further the accused counsel has suggested that "£ÀªÀÄä ¨sÁªÀ¤UÉ DgÉÆæ ¨sÁªÀ CqÀØ ºÁQzÁÝ£ÉAzÀÄ £Á£ÀÄ ¥ÉÆðøÀjUÉ ºÉýPÉ PÉÆqÀĪÁUÀ ºÉý®è J£ÀÄߪÀÅzÀÄ ¸Àj. £Á£ÀÄ ºÁªÉÃjUÉ §¹ì£À°è ºÉÆÃUÀ¨ÉÃPÁzÀgÉ DgÉÆæ £À£ÀߣÀÄß ºÉzÀj¹zÀ, £À£ÀUÉ ºÉÆqÉ¢®è." It is also deposed by her that they -: 17 :- were residing together at Byadgi for one month in a rented house. The accused had gone outside the house. She has never stated to neighbouring persons. She has never stated to other persons with regard to the accused asking her to love. When the accused has left her near Doddapet Police Station, Shivamogga, she has never called her parents. She has gone to the Police Station. On 01.06.2009, the Police have recorded her statement. She does not know the contents of the statement. The Police have stated for recording the statement. She has admitted that she has never stated before the Police that at the time of incident, the brother-in-law of the accused was present. She further stated that day-by-day, the accused has forcibly committed rape on her. Due to fear of her parents, she is deposing falsely before this Court. The said suggestion is denied by the witness.
23. PW.3-P.Shankar, father of the prosecutrix-PW.2 has deposed that his daughter was born on 21.07.1995 and he has reiterated the examination-in-chief of his wife- PW.1. He further stated that after some days of the incident, his daughter has gone to his brother's house at Cholurpalya. When she was returning to the house near -: 18 :- Railway Station, the accused has followed his daughter, threatened her to accompany him, due to fear of the accused, his daughter has gone along with the accused to Shivamogga, Haveri and Byadgi. The accused has taken his daughter to Chamundeshwari temple at Byadgi and married her. Four boys were present at the time of marriage of his daughter with the accused. Thereafter, the accused has committed rape against the will of his daughter.
In the cross-examination, he has admitted that "£À£Àß ªÀÄUÀ¼ÀÄ JgÀqÀÄ ¢ªÀ¸À ªÀÄ£É ©lÄÖ ºÉÆÃzÁUÀ, ¦üAiÀiÁð¢ PÉÆmÁÖUÀ AiÀiÁgÀ ºÉ¸ÀgÀÆ §gÉ¢®è, £ÁªÀÅ ¦üAiÀiÁð¢ PÉÆlÖ ªÉÄÃ5É ¥ÉÆðøÀgÀÄ PÉøÀ£ÀÄß jf¸ÀÖgï ªÀiÁrgÀĪÀÅ¢®è." In the missing complaint, they have not mentioned any person's name. The owner of the vehicle has stated the name of the accused; in that regard, they have given complaint against the accused. He has also admitted that they have given complaint before the Police when his daughter was taken by the accused to Bilekahalli. He does not know whether the Police have registered the case or not. He does not know reading and writing in Kannada. They have given complaint to the Police orally, which has been written by the Police. He does not know -: 19 :- whether the Police have written in the complaint that the accused has taken his daughter to Shivamogga. He does not remember the contents of complaint. He does not know personally that his daughter was taken by the accused to Shivamogga. Further, he has admitted that the incident was stated by his brother's daughter Divya; then only, they came to know with regard to accused taking his daughter from the Railway Station, Bengaluru towards Shivamogga and other place. He further admitted that the suggestion made by the counsel for accused that "vÀ£Àß vÀªÀÄä£À ªÀÄUÀ¼ÀÄ ¢ªÀå £À£ÀUÉ «µÀAiÀÄ w½¹zÀ ªÉÄÃ5É £Á£ÀÄ ¥ÉÆÃ°Ã¸ï ¸ÉÖõÀ£ïUÉ ºÉÆÃV DgÉÆæ ZÉÃvÀ£ï ªÉÄÃ5É ¦üAiÀiÁð¢ PÉÆnÖgÀÄvÉÛãÉ." He also admitted that at the time of giving statement before the Police, he has not stated his daughter's date of birth as 21.07.1995. The said suggestion is denied by the witness. At the time of giving statement before the Police, they have not stated with regard to the birth of his daughter at Ideal Nursing Home. He has denied the suggestion that on 19.04.2009, his daughter has completed 18 years of age.
24. PW.4-G.Gireesh, a panch witness to the spot- Ex.P2-house of the complainant. In the cross-examination, -: 20 :- the counsel for the defence has suggested that he was working with the father of PW.2-Shankar. He has given false evidence against the accused. The said suggestion is denied by the witness.
25. PW.5-Srinivas H.S., a panch witness to the seizure mahazar-Ex.P4 and identified the clothes of the accused as per M.Os.1 to 4 and the clothes of the victim as per M.Os.7 to 12 and also deposed that the Police have conducted mahazar and seized the clothes of the accused and the victim girl. He has put his signature on the mahazar. The Police have also seized two mobiles i.e. M.Os.5 and 6. In the cross-examination, he has admitted that since 10-12 years, he knows Shankar. He was going to the factory of the complainant. He does not know the incident personally. He has given statement before the Police on 03.06.2009. The accused counsel has suggested that "¢£ÁAPÀ 15.10.2009 gÀAzÀÄ ±ÀAPÀgï ªÀÄvÀÄÛ CªÀgÀ ºÉAqÀw ¥ÉÆðøÀjUÉ zÀÆgÀÄ ¤ÃrgÀÄvÁÛgÉ. ©¼ÉÃPÀºÀ½î ºÁUÀÆ ²ªÀªÉÆUÀÎPÉÌ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀ §UÉÎ ¦üAiÀiÁð¢ PÉÆnÖgÀĪÀÅ¢®è." The same is denied by this witness.
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26. PW.6-Mallikarjuna, a panch witness to the mahazar-Ex.P5 has turned hostile and not supported the case of the prosecution. Though he has admitted his signature on Ex.P5 and the same is marked as Ex.P5(a), he does not know the contents of the mahazar.
27. PW.7-Jagadish, a panch witness to the mahazar- Ex.P5 and has admitted his signature on Ex.P5 and his signature is marked as Ex.P5(b). He has turned hostile and not supported the case of the prosecution.
28. PW.8-Maruti, a panch witness to the spot mahazar-Ex.P6 at Byadgi has also turned hostile and not supported the case of the prosecution.
29. PW.9-Praveen, a panch witness to the mahazar
-Ex.P7 at Haveri has also turned hostile and not supported the case of the prosecution.
30. PW.10-Maruthi, a panch witness to the mahazar-Ex.P7 has also turned hostile and not supported the case of the prosecution.
31. PW.11-Lakshman Hanumanthappa Singri, a broker at Byadgi, where the accused and the victim were -: 22 :- staying, has also turned hostile and not supported the case of the prosecution. Though he has given statement as per Ex.P9, he has denied the entire contents of Ex.P9.
32. PW.12-Lalithamma is the land owner of the house at Byadgi, where the accused and the victim were residing on rent of Rs.250/-. She has also turned hostile and not supported the case of the prosecution.
33. PW.13-Anu is the adjoining tenant at Byadgi where the accused and PW.2 was residing. She has also turned hostile and not supported the case of the prosecution.
34. PW.14-Chandrappa is another broker at Byadgi who has deposed that he knows the accused and the accused has not brought a girl along with him and he has not provided house of Lalithamma on rent. He has turned hostile and not supported the case of the prosecution and has also stated that he is not aware of the contents of Ex.P12.
35. PW.15-Srikanth is the villager of Ananthapura. When the accused and the victim found and brought to -: 23 :- Bengaluru. He has also turned hostile and not supported the case of the prosecution.
36. PW.16-Dr.Pramod R.K. examined the accused and collected articles sealed and gave to the Police for chemical examination. He has identified M.O.14. He has denied the suggestion that he has not received any requisition and not examined the accused Chetan.
37. PW.17-Dr.Veena K. has deposed that on 01.06.2009, Ulsoor Gate Police Station WPC Shashikala has produced the victim along with a requisition for examining the victim. She has obtained the consent of the victim and examined her. Along with the victim, her mother complainant had also come to the hospital. As per her examination, there was no external injury on the victim's body. On the local examination of genitalia, no external injuries were found. Pubic hair well developed, hymen not intact, specimen collected. The victim had taken bath and changed her undergarments, hence not collected. The victim advised routine investigation and referred to Radiology department for her age estimation. -: 24 :-
In the cross-examination, she has admitted that the prosecutrix was examined as an out-patient. They have not mentioned the number in the out patient register. Though she has examined the prosecutrix on 01.06.2009, due to pressure of work, it has been mentioned in their report as 05.06.2009, is admitted. She has also admitted that at the time of giving report of age, they have to verify the x-ray report. But, she has not verified the x-ray report. Without seeing the x-ray report, she has given opinion regarding the age of the victim girl. She has also admitted that without examining the teeth and x-ray report, they are unable to give exact age of the victim and as per the say of the mother of the victim girl, she has mentioned the age of the victim girl as 14 years.
38. PW.18-Malathi D., Forensic Science Officer has deposed that on 02.07.2009, Ulsoor Gate Police has brought 22 seized articles through P.C.-7008 which has been obtained by their Department. After verifying the sealed articles, she has received the articles. She has examined all the articles and given her opinion. There was semen on the articles 3 to 22. There were no semen on articles 1 and 2. In the cross-examination, she has -: 25 :- admitted that she has not examined the colour of the articles. Though she has examined those articles, it has been mentioned in their official records.
39. PW.19-N.Bathiyappa, H.C. has deposed that he and ASI-Ranganna, P.C.-Manjunath, P.C.-Nagaraj were appointed for search of the victim girl and accused in a kidnap case. As per the orders of the Investigating Officer, they have gone to Haveri District, Byadgi and inquired their informer. On 29.05.2009 their informer has stated that one boy and girl were residing in the house of Shivanagouda. Then they have taken the help of Byadgi Police and went to Shivanagouda's house, inquired the neighbouring house persons. They informed that after receiving the information, they left the place. Ultimately, the victim and the accused were apprehended at Ananthapura and brought from Ananthapura to Bengaluru.
40. PW.20-Ravikumar K., Police Constable accompanied the accused to Victoria Hospital for medical examination. After the medical examination of the accused, he has brought the accused and produced before the Investigating Officer.
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41. PW.21-Shashikala H., W.P.C. has deposed that on 01.06.2009 as per the direction of the Inspector, she has taken the prosecutrix to Vani Vilas Hospital for medical examination. After examining by the Medical Officer, she has brought the victim girl to the Police Station and produced before the Investigating Officer. She has identified her report marked as per Ex.P18 and her signature as per Ex.P18(a) and another report marked as Ex.P19 and signature as per Ex.P19(a).
42. PW.22-M.Suresh, P.C. brought the report as per Ex.P20.
43. PW.23-Doddamalavaiah K., H.C. has received the complaint-Ex.P1 from PW.1 and registered FIR as per Ex.P21 and conducted the spot mahazar as per Ex.P2.
44. PW.24-C.S.Anand, Police Inspector and the Investigating Officer, after the investigation, recorded the statements of the concerned persons and filed the final report/chargesheet against the accused for the offences as stated supra.
In the cross-examination, he has admitted that on 15.05.2009, the Head Constable Doddamalavaiah has -: 27 :- received the complaint. On 01.06.2009, the second complaint was received by the Head Constable. In that complaint, they have mentioned the place and date. Further, he has deposed that they have given missing complaint; then they have given complaint with regard to kidnap before the Head Constable Doddamalavaiah. The suggestion made by the counsel for the accused that "¢£ÁAPÀ 13.04.2009 gÀAzÀÄ ±ÉÆèsÁ DUÀ°Ã, ±ÀAPÀgï DUÀ°Ã, £ÀªÀÄä oÁuÉUÉ AiÀiÁªÀÅzÉà ¦üAiÀiÁð¢ PÉÆnÖ®è J£ÀÄߪÀÅzÀÄ ¸Àj." He has not inquired with regard to delay in filing the complaint. The missing complaint is received on 16.04.2009 by ASI. It is registered in Crime No.162/2009. He has never inquired the complaint as to how many complaints were given against the accused. He has also admitted that the complainant has stated that her daughter was kidnapped near Railway Station. It is admitted that the Railway Station, KSRTC bus stand, Bengaluru does not come under his jurisdiction. They have not gone near the Railway Station and drawn the mahazar. He further admitted that they have not mentioned that her daughter has been kidnapped by the accused from their house. On the date of incident, the prosecutrix had gone to her uncle's house -: 28 :- at Cholurpalya and till she returned to her house, she was not kidnapped. He admitted that on 30.05.2009, his subordinate arrested the accused and produced before him on 01.06.2009. As per the records, their subordinates have produced the accused before him on 31.05.2009, but they have not recorded the statement of their subordinates, the dates are wrongly mentioned in the passport is admitted by the witness. The suggestion was made by the counsel for the accused that "£ÉÆAzÀ ¨Á®QAiÀÄ zÀAvÀUÀ¼À ¥ÀjÃPÉë ºÁUÀÆ PÀë-QgÀt ¥ÀjÃPÉëUÉ PÀ¼ÀÄ»¸À®Ä £Á£ÀÄ £ÀªÀÄä ¹§âA¢AiÀĪÀjUÉ ºÉýgÀĪÀÅ¢®è." He has admitted that on 01.06.2009, he has not conducted any mahazar. He has also admitted that the birth certificate of the victim girl was produced by her parents. He has not gone to the School and inquired the birth certificate of the victim girl in the said School. At the time of filing the chargesheet, he has not produced the birth certificate, but thereafter, victim's parents have produced the birth certificate before him. It clearly indicates that after completion of the investigation, the victim's parents have produced the birth certificate, before that he has not inquired regarding the birth certificate.
-: 29 :-
45. PW.25-Rajanikantha, Retired Assistant Revenue Officer who has deposed that she has issued birth certificate of the prosecutrix. As per the records, the victim was born on 21.07.1995. Ex.P23 is the birth certificate. Ex.P23(b) is the signature. In the year 2010, she has retired from service. In the cross-examination, she has admitted that her assistant has written the register of birth of the child. In the said birth register, the parents' name are mentioned, but in the certificate issued, they have not mentioned the parents' address is admitted. She has admitted that they have not mentioned the place of birth of the child in the said certificate. Column Nos.1 to 14 are mentioned in the BBMP regiser. In the said Ex.P23, some columns are still vacant is admitted by her.
46. We have reconsidered the entire material on record and perused the evidence of PWs.1 to 25 carefully. PW.1-mother lodged the complaint-Ex.P1 on 15.05.2009 stating that her daughter-PW.2 was missing from 13.04.2009. She has stated in her further statement-Ex.P3 that her daughter was kidnapped by somebody and stated the name of the accused and others. After investigation, -: 30 :- the Investigating Officer filed the final report against the accused as per the complaint and other witnesses. The victim is a minor and the accused has kidnapped the victim girl forcibly and has committed rape on her against her consent. It is relevant to state at this stage that before filing of the chargesheet, the Police have not furnished the birth certificate of the prosecutrix and only after completion of the evidence of PWs.1 to 24, the birth certificate-Ex.P23 has been produced and issued by PW.25, which does not bear the name of PW.2, her parents' address and the place, where the child was born. The prosecution has not produced the register for tallying the certificate which is disputed by the accused and some columns are unfilled in Ex.P23. Admittedly, PWs.1 and 3 have three children. PW.2-victim has studied upto 7th standard. The prosecution has not produced either the 7th marks card or cumulative record to prove the age of the victim.
47. Admittedly, according to PW.1, the incident occurred on 13.04.2009 and the complaint was lodged on 15.05.2009 i.e. after a lapse of 01 month 02 days. The delay has not been properly explained by the prosecution. -: 31 :- According to the parents-PWs.1 and 3, PW.2 was a minor girl, who was kidnapped on three occasions but they have given missing complaints and the said missing complaints if any, have not been produced by the prosecution. PW.1 stated that the mahazar has been drawn in the Police Station, but she does not know the contents of the mahazar. The owner of the van has not been examined. There are omissions and contradictions in the evidence of PWs.1 and 3.
48. The abduction of the victim girl was immediately brought to the notice of PW.1-mother and PW.3-father by CW.4-Divya, who is the important material witness and she has not been examined by the prosecution. There is an inordinate delay in filing the complaint. There is a serious doubt about the kidnap of PW.2 by the accused. The evidence of PW.2 depicts that she has gone to the Railway Station. The accused and the victim girl have gone to Shivamogga in a KSRTC Bus and she has not informed the general public or the conductor with regard to her forcible kidnap by the accused.
-: 32 :-
49. PWs.6 to 15 as already stated supra, have not supported the case of the prosecution and they are treated as hostile witnesses.
50. PW.2/prosecutrix has stated that the accused has taken her to his aunt's house, which was informed to her parents and her parents have adviced the accused after knowing that her parents have given complaint against the accused. She never tried to inform the conductor or general public when the accused has taken her in a KSRTC Bus to Haveri and Shivamogga. The mobile was with the victim till it was seized by the Police at Ananthapura. She never called her parents about the kidnap even after 01 month 02 days from the date of the incident.
51. It is not in dispute that Ex.P16-medical report was issued by PW.17-Dr.Veena K., Specialist Department of O.B.G., Vanivilas Hospital. Based on the physical examination and FSL report, she has opined that the victim is used to the act like that of sexual intercourse but there is no recent evidence of the act. Ex.P17 was issued by PW.18-Malathi D. She has opined that the presence of -: 33 :- seminal stains were not detected in items 3,4,5,6,7,8,9,10, 11,12,13,14,15,16,17,18,19,20,21 and 22 and the presence of spermatozoa was not detected in Article Nos.1 and 2.
52. In order to determine the age of PW.2, no radiology test or dental examination of the victim was conducted by the prosecution to prove that the victim was minor as on the date of the incident. The investigation was done in a wrong place and not at the place of the incident. The FSL report and the medical report do not support the case of the prosecution. PW.25 is an additional witness and not a chargesheet witness. She has issued Ex.P23- birth certificate. Column No.1-Name of the child, column No.4-place of birth and column No.7-Address of the parents at the time of birth of the child are left blank. In view of the assumption and contradiction of the evidence of the prosecution witnesses and there being an inordinate delay in filing the complaint, there is a doubt with regard to the accused kidnapping the victim girl and committing rape on her against her will.
-: 34 :-
53. The charge with reference to the provisions of Section 366A of IPC reads as under:
["366A. Procuration of minor girl Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extent to ten years, and shall also be liable to fine."
A careful perusal of the said provisions makes it clear that inducing of the minor to constitute an offence under Section 366A of IPC should have been with reference to an intent to force or seduce her "....to illicit intercourse with another person...." In fact, there is no mention of any other person in the sequence of allegations levelled against the accused. In the absence of any material documents produced before the Court, we are satisfied that the charge under Section 366A of IPC is not sustainable against the accused for the reason stated supra and we are of the opinion that the impugned order passed by the Sessions -: 35 :- Court acquitting the accused under Section 366A of IPC is just and proper.
54. It is well settled that in exercise of powers under Sections 378(1) and (3) of Cr.P.C., this Court will not interfere with the impugned judgment and order of acquittal passed by the Sessions Court, unless, there is any perversity in the impugned judgment, which has been passed without assigning any reasons and the same is patently illegal and unsustainable. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of KASHIRAM v. STATE OF M.P. reported in (2002)1 SCC 71 at paragraph-21, wherein it has been held as under:
"21. We find the judgment of the High Court suffering from several infirmities. The High Court was dealing with an appeal against acquittal. Though the High Court while hearing an appeal against an acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is -- if two views -: 36 :- are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would have been one of recording a conviction. It follows as a necessary corollary, as has been held by this Court in Chandu v. State of Maharashtra [(2001) 4 Scale 590] it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court."
55. When this Court based on the oral and documentary evidence and on reappreciation of the entire material on record comes to the conclusion that the prosecution has not made out any case either under Section 366A and Section 342 of IPC, the question of attracting the provisions under Section 376 of IPC for the alleged offence would not arise. The Sessions Court considering the entire material on record by the impugned judgment and order of acquittal, has rightly acquitted the accused for the offences punishable under Sections 366A, -: 37 :- 342 and 376 of IPC and the same is in accordance with law. The appellant-State has not made out any ground to interfere in exercise of power under the appellate jurisdiction.
The appeal is devoid of merits and accordingly, the same is dismissed.
Sd/-
JUDGE Sd/-
JUDGE LB