Karnataka High Court
K. Prakash S/O Krishnappa, vs State Of Karnataka, on 6 June, 2019
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IN THE HIGH COURT OF K ARNAT AKA
DHARWAD BENCH
DATED THIS THE 06 DAY OF June 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNK E A .S.
CRL.A.NO.100002/2018
C/W
CRL.A.NO.100201/2016
IN CRL.A.NO.100002/2018
BETWEEN:
MANJUNATH @ SA NJU
S/O IRA PPA BOOD I,
AGE : 25 YEARS, OCC-A UTO D RIVER,
R/O NEAR SAVADA TTI ROAD,
MURUGAMATH, DHARWAD.
... A PPELLANT
(BY SRI R.H.AN GADI, ADV OCATE.)
AND:
THE STATE OF KARNATAKA,
(SUB-URBAN POLI CE STATION ,
DHARWAD) R/BY I TS S.P.P.,
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH.
... RES POND ENT
(BY SRI V .M.BANA KAR, ADDL. S.P.P)
THIS CRIMINAL APPEAL IS F ILED UNDER
SECTION 374( 2) OF THE CRIMINAL PROCEDURE COD E
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 27.05.2016, PASS ED I N
SPECIA L S.C.NO.20/2014, BY THE JUDGE & SPECIAL
JUDGE, FOR THE OFFENCE PUNISHABLE UNDER
2
SECTION 344, 366 OF IPC AND SECTION 6 OF POSCO
ACT, BY ALLOWI NG THIS CRIMINAL APPEAL, AND
CONSEQUENTLY A CQUIT THE APPELLANT IN THE ENDS
OF J USTICE.
IN CRL.A.NO.100201/2016
BETWEEN :
1. K.PRAKASH S/O K RISHNAPPA ,
AGE : 44 YEARS, OCC: KSRTC COND UCTOR,
R/O NEAR SOUND ATTI ROAD,
MURUGAMATH, DHARWAD.
DIST: DHARWAD.
2. SMT.PRATIBHA W/O K .PRAKASH,
AGE : 28 YEARS, OCC: HOUSE WIFE,
R/O NEAR SOUND ATTI ROAD,
MURUGAMATH, DHARWAD,
DIST: DHARWAD.
... A PPELLANTS
(BY SRI V.G.BHAT , ADV OCATE)
AND :
THE STATE OF KARNATAKA,
THROUGH PI D HARWAD SUB- URBAN P.S .
R/BY SPP HC D HA RWAD, BENCH.
... RES POND ENT
(BY SRI V .M.BANA KAR, ADDL. S.P.P)
THIS CRIMINAL APPEAL IS F ILED UNDER
SECTION 374( 2) OF THE CRIMINAL PROCEDURE COD E
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTI ON, DATED 27.05.2016, PASSED IN
SPECIA L S.C.NO.20/2014, BY THE JUDGE & SPECIAL
JUDGE, DHARWAD FOR THE OFFEN CES PUNIS HABLE
UNDER SECTIONS 344, 366 READ WITH SECTION 34
OF I PC.
RESERVED FOR JUDGMENT ON : 11.04.2019
JUDGMENT PRON OUNCED ON : 06.06.2019
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THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT , COMING ON F OR
PRON OUNCEMENT OF J UDGMENT, THIS DAY, THE
COURT DELIV ERED THE F OLLOWING:
JUDGMENT
These two appeals in Crl.A.No.100002/2018 and Crl.A.No.100201/2016 have been filed by accused No.1 and accused No.4 and 5 respectively against the judgment and order of conviction and sentence dated 27.05.2016 passed by the II Additional District and Sessions & Special Judge, at Dharwad in Spl.S.C.No.20/2014.
2. Accused No.1 is sentenced to undergo simple imprisonment for 10 years for the offence punishable under section 6 of the Protection of Children from Sexual Offences Act and to pay fine of Rs.10,000/- in default to undergo simple imprisonment for one year, sentenced to undergo simple imprisonment for two years for the offence punishable under Section 344 of IPC and to pay 4 fine of Rs.2,000/- in default, to undergo simple imprisonment for one month and further sentenced to undergo simple imprisonment for 5 years for the offence punishable under Section 366 of IPC and to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment for 6 months.
3. Accused Nos.4 and 5 are sentenced to undergo simple imprisonment for one year for the offence punishable under Section 344 of IPC and shall pay fine of Rs.2,000/- each, in default, to undergo simple imprisonment for one month and further sentenced to undergo simple imprisonment for two years for the offence punishable under section 366 of IPC and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for two months.
4. Brief facts for the purpose of these two appeals are as under:
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The victim girl - PW.2 is the daughter of complainant PW.1. According to the PW1-the complainant, that on 08.05.2014 at 7.30 p.m., her daughter had gone to a shop to bring chips and milk from nearby shop, but she did not return to house for about half an hour. Therefore, the complainant came out of the house to search her daughter. At that time some boys told her that her daughter went in an Auto Rickshaw. In-spite of enquiry in the said locality her daughter was not traced. According to PW.1 - the complainant, prior to the said incident accused No.1 who is residing near the house of the complainant was having love on PW.2 - victim girl and he insisting that he was asking the complainant to perform her marriage with him. But the complainant told that, she is not marriageable age and after attaining marriageable age she will consider his request. Therefore the complainant - PW.1 suspected on accused No.1 and she lodged a complaint before the 6 jurisdictional police immediately next day of the incident i.e., on 09.04.2014 at Ex.P.1. On the basis of the said complaint, the crime came to be register for the offence punishable under Section 366 of IPC. FIR came to be prepared at Ex.P.24, spot panchanama has been conducted as per Ex.P2 and sketch of scene of offence was also drawn.
5. During the course of investigation it was revealed that, accused No.1 with the help of other accused Nos.2, 4, 5, 8 and 9 had conspired together and kidnapped minor girl PW.2 in a car brought by accused No.4 and 5. All the accused i.e., accused Nos.1, 2, 4, 5, 8 and 9 took her to Vishwanathhalli of Holalkere Taluk and kept her in a rented house of one Shanmukhappa. Minor girl was confined in the said house. Accused No.1 and victim girl were stayed together for more than one month in the said house. Accused No.1 committed rape and aggravated penetrative sexual assault on 7 the victim girl, in-spite of her resistance. Accused No.2 also committed sexual assault on the victim girl by touching her body and kissing her. All these acts were done by the accused with a common intention to grab the property of the complainant. Therefore, they kidnapped the victim girl seduced and committed sexual assault on her. All these facts were discovered after tracing of the victim girl and as well as accused No.1. During investigation, the investigation officer collected information regarding stay of victim girl and accused Nos.1 and 2 at Vishwanathahalli. Thereafter the accused were also arrested during the course of the investigation. Spot panchanama of the place where the victim girl kept was done. The victim girl and accused were got examined by the medical officers. The victim girl was found to be a minor as on the date of incident. Material objects i.e., Auto Rickshaw and car used for kidnapping were seized during the course of 8 investigation. After completing the investigation, the Investigating Officer filed charge sheet against the accused persons before the trial Court for the offences punishable under sections 120(B), 143, 147, 366, 344, 376 and 506 read with section 149 of IPC and Sections 6 and 8 of the Protection of Children from Sexual Offences Act. Since accused No.3 absconded, case against him has been split up.
6. The learned Sessions Judge took cognizance of the offence alleged against the accused persons and registered the case in Spl.S.C.No.20/2014. Presence of the accused was secured. After hearing both the sides the learned judge framed charge against the accused for the above said offences. Accused pleaded not guilty and claimed to be tried.
7. The Trial Court held trial of the case and on the basis of evidence on record, learned 9 sessions judge found accused No.1 guilty of the offences punishable under sections 344 and 366 of IPC and Section 6 of Protection of Children from Sexual Offences Act and found accused Nos.4 and 5 guilty of the offences punishable under Sections 344 and 366 of IPC read with section 34 of IPC and sentenced them as stated above.
8. Accused No.1 has challenged the said judgment and order of conviction and sentence imposed against him on the following grounds:
Accused No.1 has stated in his appeal grounds that, the order of conviction passed by the trial court is not only erroneous, but also perverse, capricious and contrary to the settled principles. The Trial court has not at all observed the oral evidence on record in proper perspective. The evidence of PW.2 did not inspire any confidence to hold that she had been forcibly kidnapped or abducted by accused No.1. She had 10 boarded the Auto Rickshaw at her own will and never objected at any point of time and stayed with more than one month along with accused No.1. At no point of time she raised her little finger against her abduction though she was moved from one place to another place. Therefore, it is a cock and bull story set up by victim girl about alleged kidnap and other offences. There is no direct evidence to prove the fact of kidnap. It was impossible to kidnap a girl from a busy street which is thickly populated with houses. No independent witnesses from Vishwanathahalli where the girl was alleged to have been kept have been examined by the prosecution. There is no medical evidence about sexual assault or rape on the victim is concerned. According to case sheet maintained by the District Hospital, Dharwad, the incident is said to have taken place on 24.05.2014 whereas the complainant filed her complainant alleging that her daughter has been kidnapped on 11 08.05.2014. The contradiction is not properly appreciated by the Trial Court. The driver of the Car who is said to have taken the victim girl and other accused persons to Vishwanathahalli has not identified the accused or the victim. The said evidence is contrary to the evidence of PW.2 who has stated that they had tied her hands and her mouth was closed when she boarded the car.
Investigating Officer has not at all recorded the statement of any neighboring persons, where the girl was detained. The person who brought the accused and the victim in a private car has not been arrayed as an accused. The Trial Court has failed to scrutinize the evidence of PW.2 in a perspective manner. The appreciation of evidence is not in accordance with law. The judgment passed by the trial court is erroneous, capricious and it is based full of surmises and conjunctures. Therefore, accused No.1 prayed to allow the 12 appeal and set aside the judgment and order of the trial court.
9. The other accused Nos.4 and 5 have challenged the above said judgment and order of conviction and sentence on the following grounds:
These appellants - accused Nos.4 and 5 were convicted for the offences punishable under Sections 344 and 366 of IPC and acquitted all other offences alleged against them. It is contended that the appellants are the tenants residing in the house of accused No.1. They were no way connected to the crime in question. The conviction of these appellants was on the basis of presumption and assumption drawn by the Trial Judge. There is no link between the Crime alleged and the acts alleged against the appellants. The appellants were not present at the time of kidnapping of the victim girl. There is no evidence to show that, on the call made by accused No.1, 13 the appellants/accused Nos.4 & 5 provided car and shelter to the accused No.1 and the victim girl at their friend's house at Vishwanathhalli. The prosecution has failed to prove PW5 is the friend of appellants. PW.6 has not identified accused No.1 and also the victim who are allegedly said to have traveled in a car taken on rent by the appellants. Even according to PW6, the victim girl traveled without any objections. The names of these appellants were not mentioned in the FIR. There is no mens-rea. The charge sheet is not under Section 34 of IPC. All the accused have been convicted under section 34 of IPC therefore the appellants have prayed to allow the appeal and acquitted them by setting aside the judgment and order of conviction and sentence imposed by the trial Court.
10. The learned counsel for appellant in Criminal Appeal No.100002/2018 submitted that 14 kidnapping of victim could not have taken place near a shop which is a busy place. The second place of incident is said to be taken place at Nuggikere, but no panchanama was conducted there. Accused No.1 has been prosecuted only on suspicion. The evidence of PWs.1 and 2 is not at all believable referring to paragraph No.17 of the judgment the doctor PW4 evidence. The learned counsel submitted that the prosecution has failed to prove the guilt of accused No.1. Hence he prayed to allow the appeal by setting aside the judgment and order of conviction imposed by the trial court.
11. The learned counsel for accused No.4 and 5 in Criminal Appeal No.100201/2016 submitted that these accused were not at all concerned to the incident in question. They are not relative of Accused No.1. They were only tenants in the house of Accused No.6 and 7. They 15 have no criminal background. PW5 has not supported the case of the prosecution and had not identified these accused persons. The car belongs to PW.6 who has partially supported the case of prosecution. He has not identified accused Nos.4 and 5 and so also accused No.1. PW.6 has also not stated on what rent he took the accused persons in the car. Names of accused Nos.4 and 5 was not at all mentioned in the complaint. The evidence of PWs.2 and 6 is contrary to each other. It is only on the statement of victim, accused Nos.4 and 5 have been convicted. Panch witnesses have not supported to the case of the prosecution. Place of incident and time of abduction is not proved. The offences punishable under Sections 344 and 366 of IPC are not at all applicable to the case on hand against accused Nos.4 and 5. The other accused persons i.e., accused Nos.2, 3 and 6 have been acquitted by the trial court. There is a delay in filing the complaint. Age of the victim is not 16 proved to be below 18 years. The victim and accused No.1 were loving each other. The mother also admits that the victim was loving accused No.1. There is no medical evidence of recent sexual intercourse. The mother did not want to marry her daughter with accused No.1. Therefore a false case has been filed. The date of incident is also wrongly mentioned in the case sheet. Accused No.1 has been already spent five years in custody. Alternatively, the learned counsel has prayed to give set off of the period of detention already undergone. Hence he has prayed to allow the appeal.
12. The learned High Court Government Pleader argued that PW.2 has clearly spoken about the acts of kidnap and rape committed by the accused. Accused No.1, 4 and 5 kidnapped the victim girl and she was wrongly confined. There are no reasons to disbelieve the evidence of PW.2. 17 The victim is proved to be a minor girl of below 18 years. Therefore, he has prayed to dismiss the appeal.
13. On the basis of the above said facts and arguments addressed by both the counsel, the following points that would arise for my consideration:
Point No.1: Whether the prosecution had proved before the trial court beyond any reasonable doubt that on 08.05.2014 at about 7.30 p.m., at More plot, Mrutyunjaya Nagar, Dharwad accused Nos.1, 4 and 5 under common intention had kidnapped minor victim girl Kumari Kaveri in an Auto Rickshaw and car and took her to Vishwanathhalli Village in Holalkere taluk with intention to compel or seduce her to illicit intercourse with accused No.1 and thereby had 18 committed offence punishable under section 366 of the Indian Penal Code?
Point No.2: Whether the prosecution had proved before the trial court beyond any reasonable doubt that after kidnapping the minor girl on 08.05.2014 at about 7.30 p.m., at More plot, Mrutyunjaya Nagar, Dharwad accused Nos.1, 4 and 5 under common intention wrongly confined the minor girl in the house of one Shanmukappa at Vishwanathhalli village for one month and thereby committed offence punishable under section 344 of the Indian Penal Code?
Point No.3: Whether the prosecution had
proved before the trial court
beyond any reasonable doubt
that after kidnapping the
minor girl on 08.05.2014 at
about 7.30 p.m., at More plot,
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Mrutyunjaya Nagar, Dharwad
that accused after having
kidnapped and wrongfully
confined the victim girl in the
house at Vishwanathhalli,
accused No.1 committed
aggravated penetrative sexual
assault on minor victim girl
and thereby committed offence
punishable under section 6 of
POCSO Act?
Point No.4 : Whether the appellants prove that the judgment and order of conviction and sentence imposed against accused Nos.1, 4 and 5 by the trial court for the afore said offences is perverse, capricious, against the evidence on record and the law applicable, therefore it is liable to be set aside?
Point No.5 : What Order?
14. First of all it has to be decided as to whether the victim girl was a minor as on the date 20 of incident. The prosecution has produced Exs.P.25 and 27 issued by the Vice-Principal, Pre-University College, Vidyaranya Samyukta Padavipoorva College. In the said documents, the date of birth of the victim girl is shown to be 07.11.1998. According to the said certificates, the girl had appeared for SSLC examination. Even the mother
- PW.1 has also deposed very same date of birth of the victim. The victim has also affirmed that she was a minor. In the explanation given under Section 313 of Cr.P.C., accused No.1 answered that he do not know the date of birth of the victim. The date of birth as deposed by PW.16, the principal of the said school is 07.11.1998. In addition to that there is medical evidence on record by the doctor - PW.4. The age of the victim according to her own statement is 16 years. According to the medical, dental and radiologist examination, the age of the victim girl was between 15 and 16 years as on the date of 21 incident. The doctor categorically denied that the victim was more than 18 years old even by physical appearance etc. Even in the examination of the victim - PW2 nothing is elicited on record to show that, she was more than 18 years old. Even in the examination of PW.1 also nothing is elicited or suggested to the effect that the victim was more than 18 years old as on the date of incident. Even during the course of arguments also no material discrepancies in the evidence of witnesses and the documents pointed out to show that the victim girl was more than 18 years old as on the date of incident. No where it is suggested or denied in the evidence of prosecution witnesses that the victim was not a minor and she was more than 18 years old. An attempt was also made by confronting some of the letters alleged to have been written by the victim girl.
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15. Therefore, on careful perusal of both the oral and documentary evidence on record, this court find that, the victim was below 18 years as on the date of alleged incident. Therefore, the finding of the trial court that, the victim was below 18 years is liable to be affirmed.
16. Now, I shall deal with the charge of kidnapping or abduction of the minor girl. Except accused No.9 all other accused persons are known to the complainant-PW.1 and as well as the victim PW.2. They are not strangers to each other.
17. PW.1 has categorically stated in her statement that on 08.05.2014 at about 7.30 P.M while she was in her house, the victim girl PW.2 went outside to bring milk and chips, she did not return back even after half an hour. There was raining on that day. Therefore she came out of the house and search for her daughter. The small children informed her that, her daughter was 23 taken in an auto rickshaw. She called on her daughter's mobile phone, but it was switched off. Therefore, she searched here and there and on the next day morning she filed a complaint. She suspected that accused No.1 might have kidnapped the minor girl. The spot was inspected by the Investigating Officer and Mahazar was drawn at Ex.P.2. Missing of a girl from her house can be proved only by the evidence of mother or father who had seen the girl going out from their house for the last time. Therefore to that extent the evidence of PW.1 cannot be disbelieved. But the question would be whether that the missing of the girl was on account of kidnap or abduction by the accused persons. Subsequently, PW.1 called to the police station on 14.05.2014 where the police has traced the missing girl and brought her to police station and then they came to know about further incident that took place after kidnapping the girl. The defence that is made out in the 24 cross-examination of PW.1 is that she has illicit relationship with her maternal uncle's son one Manjunath Hulikatti on account of that her daughter got depressed and had gone away from the house of the complainant on many occasions and therefore the accused wants to believe that the missing of the girl from the house of the complainant is on account of the above said reason. Even if the suggestion is accepted as it is, it does not falsify the evidence of PW.1 regarding missing of the girl from the house. If the girl where to go out of the house on account of such depression, she would go to some other relatives' house or to her friends' house. More over, in this case the police who traced the victim girl and the accused at the place, which does not belong to the complainant or to the accused.
18. In the further cross-examination PW.1, it is admitted by the complainant that she had 25 stated that her daughter was being loved by accused No.1. But she has not stated that her daughter is minor and therefore she had asked the accused to learn how to earn etc. Accused No.1 has not come to the house of the complainant and kidnapped the victim girl. That is not the case made out by the prosecution also. Since she is not an actual eye-witness for the kidnapping incident, her evidence is relevant with regard to missing of girl from her house. She further admitted that at about 8.00 P.M., accused No.2 had come to the house and told her that accused No.1 who kidnapped the girl by closing her mouth by tying with cloth. She had already suspected accused No.1 himself might have kidnapped. In paragraph Nos.16 and 18 of evidence of the PW.1 are as follows:
"16. £À £ À ß ªÀ Ä UÀ ¼ ÁzÀ PÁªÉ à j DgÉ Æ Ã¦ 1
ªÀ Ä AdÄ£ÁxÀ gÀ ª À g À £ À Ä ß ¦æ à w ªÀ i ÁqÀ Ä ªÀ «µÀ A iÀ Ä £À £ À U É UÉ Æ wÛ z À Ý gÀ Æ ¸À º À DgÉ Æ Ã¦ 1 PÉ Ã ªÀ ® DmÉ Æ Ã ZÁ®£É ªÀ i Ár 26 fêÀ £ À ªÀ i ÁqÀ Ä wÛ z À Ý jAzÀ ªÀ Ä vÀ Ä Û £À ª À Ä QÌAvÀ PÉ ¼ À ª À Ä lÖ z À ° è g À Ä ªÀ Å zÀ j AzÀ ªÀ Ä vÀ Ä Û £ÁªÀ Å D¹Û ¬ ÄAzÀ ²æ à ªÀ Ä AvÀ g À Ä EzÀ Ä ÝzÀ j AzÀ ¸À A §Azs À ©r¸À ® Ä F jÃw ¸À Ä ¼À Ä î zÀ Æ gÀ Ä PÉ Æ lÄÖ ¸À Ä ¼À Ä î ¸ÁQë ºÉ Ã ¼À Ä wÛ z É Ý £É JAzÀ g É ¸À j AiÀ Ä ®è .
18. £À £ À ß ªÀ Ä UÀ ¼ À Ä ªÀ Ä vÀ Ä Û DgÉ Æ Ã¦ 1 gÀ ª À g À ªÀ Ä zÀ å Cwà ªÀ Ä zs À Ä gÀ ª ÁzÀ A vÀ º À ¦æ à w DxÀ ª Á ¥É æ à ªÀ Ä EvÀ Ä Û CzÀ £ À Ä ß ºÉ à UÁzÀ g À Æ ªÀ i Ár ©r¸À ® Ä ¥À æ A iÀ Ä vÀ ß ªÀ i Ár F ªÉ Æ zÀ ® Ä ¸À Ä ¼À Ä î PÉ Ã ¸À Ä PÉ Æ nÖ z É Ý £À Ä ªÀ Ä vÀ Ä Û 2£É à ¸Áj ¸À Ä ¼À Ä î zÀ Æ gÀ Ä PÉ Æ nÖ z É Ý Ã£É C£À Ä ßªÀ Å zÀ Ä ¸À j AiÀ Ä ®è . DgÉ Æ Ã¦ 1 ªÀ Ä AdÄ£ÁxÀ £À £ À ß ªÀ Ä UÀ ½ UÉ ¨Á¬Ä PÀ n Ö DmÉ Æ ÃzÀ ° è ºÁQPÉ Æ AqÀ Ä C¥À º À j ¹PÉ Æ AqÀ Ä ºÉ Æ ÃVzÁÝ£É A zÀ Ä ¸À Ä ¼À Ä î ºÉ Ã ¼À Ä wÛ z É Ý Ã£É JAzÀ g É ¸À j AiÀ Ä ®è . DgÉ Æ Ã¦ 1 ªÀ Ä AdÄ£ÁxÀ £À ª À Ä ä D¹Û ºÉ Æ qÉ z À Ä PÉ Æ ¼À î ®Ä £À £ À U À Æ ªÀ Ä vÀ Ä Û £À £ À ß ªÀ Ä UÀ ¤ UÉ PÉ Æ ¯É ªÀ i ÁqÀ Ä ªÀ ºÉ Æ AZÀ Ä ºÁQzÀ Ý £À Ä JAzÀ Ä ¸À Ä ¼À Ä î ºÉ Ã ¼À Ä wÛ z É Ý £É JAzÀ g É ¸À j AiÀ Ä ®è . £Á£À Ä ºÉ à ½zÀ A vÉ WÀ l £É AiÀ i ÁªÀ v À Æ Û £À q É ¢ ®è C£À Ä ßªÀ Å zÀ Ä ¸À j AiÀ Ä ®è . FUÀ vÉ Æ Ãj¹zÀ 6 ¥À v À æ U À ¼ À PÉ Ê §gÀ º À £À £ À ß ªÀ Ä UÀ ¼ À z À Ä CAvÁ £À £ À U É UÉ Æ wÛ z À Ý gÀ Æ ¸À º À UÀ Ä gÀ Ä w¸À ¯ ÁUÀ Ä ªÀ Å ¢®è JAzÀ Ä ¸À Ä ¼À Ä î ºÉ Ã ¼À Ä wÛ z É Ý Ã£É JAzÀ g É ¸À j AiÀ Ä ®è . "
19. On perusal of the above said suggestions in the cross-examination and the defence made out therein, it is crystal clear that it 27 is accused No.1 who must have taken away the girl and none else. Even if the accused had not taken away the girl by tying her mouth by the help of cloth, then also he would be liable to explain for having taken the minor girl, it could be by way of seduction by inducement. Therefore, the accused cannot escape from his liability on the ground that he was in intimate relation with the victim and therefore it does not amount to kidnap.
20. PW.2 is the victim. She has stated in her evidence that the accused used to tell her while she was going to school that he loves her and he was bringing an auto rickshaw and he was threatening her. She had informed the same to her mother. Accused No.1 was called and advised. In-
spite of that, he was continuing the same. Earlier also a case was registered against the accused on the complaint filed by the complainant side. When the case was going on, the victim deposed that on 28 account of threat given by the accused, they gave hostile evidence and therefore the accused was acquitted. These facts and suggestion of the accused that, himself and the victim were loving each other would only go to show that, the accused want to take advantage of the fact that he had intimate relationship with the victim. This fact would not in any way help the defence of the accused, because the victim is proved to be below 18 years. Therefore, the defence of the accused that there was consent on the part of the victim for going with him from place to place or to have sexual intercourse with her is of no assistance.
21. Though the victim had stated in her evidence that she was forcibly kidnapped by accused No.1 and accused No.2 by holding her hands, legs and closing her mouth then carrying her in an auto rickshaw to Nuggikeri, only proves that the accused and the victim moved from their 29 lawful guardianship that is from PW.1 either by force or by seduction.
22. PW.1 further stated that at Nuggikeri Petrol Bunk, accused No.1 called the tenants residing in their house namely accused No.5 and her husband accused No.4 to bring a car. Accused Nos.4 and 5 brought a car between 9.00 and 10.00 p.m., with the help of a driver, all of them took her in the said car to Vishwanathalli. In the said car accused No.1, accused 4 and 5 and a driver of the car were traveled. After going to the said house, accused Nos.4 and 5 returned back to Dharwad in the said car. Accused No.1 and the victim girl remained in the said house and there accused No.1 alleged to have committed aggravated sexual assault on the victim girl and used to have sexual intercourse with the victim for about 7-8 times in a day.
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23. PW.1 further stated that on receiving the information that, the police would come to the said place, accused Nos.1 and 2 had also taken her to Raichur and had kept her in a forest and thereafter brought back and remained in the said Vishwanathhalli. At that time on 14.06.2014 the police came to the said place and took her to the police station. Her mother came and identified the victim and then all of them subjected to medical examination. Victim statement was also recorded before the learned Magistrate as per Ex.P.4. She has identified the place where she was kept. She has also identified the car in which she was taken. The photographs are Exs.P.10 to 13. The driver of the car also identified. The clothes worn by the victim girl were identified.
24. The place of first kidnap admittedly is a busy place. Since the accused was insisting therefore she knew him. Victim also claims to have 31 lost her consciousness for some time. She claims to have screamed, but nobody came to her rescue. Her mouth was not closed when she got down from the car at Vishwanathhalli. Accused No.1 had held only her hand and mouth was not closed. She tried to inform the owners of the house Shri Shanmukhappa and his wife Vimala. When she tried to cry, the accused beat her and made her to sleep. They were fed by the owner of the house. She also deposed that while they were walking in the railway station at Raichur and Ballari the accused used to close her mouth. When she was kept in the jungle, she tried to trace etc., all these facts would only go to show that the girl has avoid to say that she has gone with the accused voluntarily. It is suggested at paragraph No.19 of evidence of the PW.2 the same reads as follows;
"19. DgÉ Æ Ã¦ 1 ªÀ Ä vÀ Ä Û £À £ À ß ªÀ Ä zs À å UÁqs À ª ÁzÀ ¦æ à w EvÀ Ä Û DUÀ DgÉ Æ Ã¦ 1 £À £ À ß £À Ä ß ªÀ Ä zÀ Ä ªÉ DUÀ ® Ä £À ª À Ä ä vÁ¬ÄUÉ «£À A w¹zÀ Ý £À Ä C£À Ä ßªÀ Å zÀ Ä ¸À j AiÀ Ä ®è . F ªÉ Æ zÀ ® Ä 32 DzÀ PÉ Ã ¸À £ À ° è DgÉ Æ Ã¦ 1 £À £ À ß ¸ÁQë ¸À ª À Ä AiÀ Ä zÀ ° è £ÁåAiÀ i ÁAUÀ §Azs À £ À z À ° è z À Ý £À Ä C£À Ä ßªÀ Å zÀ Ä ¸À j AiÀ Ä ®è . ¸ÁQë ¸À é v À B ºÉ à ½zÉ Ý Ã£É A zÀ g É ¨É à ¯ï ªÉ Ä Ã¯É ºÉ Æ gÀ U É EzÀ Ý £À Ä . CAzÀ Ä £Á£À Ä F ªÉ Æ zÀ ® Ä £ÁåAiÀ i Á®AiÀ Ä zÀ ° è ¸ÁQë ºÉ Ã ¼À Ä ªÁUÀ DgÉ Æ Ã¦ eÉ Ê °£À ° è z À Ä Ý £Á£À Ä ºÉ à ½zÀ A vÉ AiÀ i ÁªÀ Å zÉ Ã jÃw ºÉ z À j ¹®è C£À Ä ßªÀ Å zÀ Ä ¸À j AiÀ Ä ®è . DgÉ Æ Ã¦ 1 ªÀ Ä vÀ Ä Û £À £ À ß ªÀ Ä zÀ å CAzÀ g É DgÉ Æ Ã¦ 1 £À £ À ß eÉ Æ vÉ ªÀ Ä zÀ Ä ªÉ ªÀ i ÁrPÉ Æ ¼À Ä îªÀ EZÉ Ò EvÀ Ä Û CzÀ £ À Ä ß vÀ ¦ à¸À ® Ä £À ª À Ä ä vÁ¬Ä ¥À æ A iÀ Ä vÀ ß ªÀ i ÁrzÀ ¼ À Ä C£À Ä ßªÀ Å zÀ Ä ¸À j AiÀ Ä ®è . DgÉ Æ Ã¦ «gÀ Ä zÀ Þ ¸À Ä ¼À Ä î ¸ÁQë ºÉ Ã ¼À Ä wÛ z É Ý £É JAzÀ g É ¸À j AiÀ Ä ®è . "
25. Therefore that fact would only go to show that the girl must have been taken from the lawful guardianship of PW.1 by seduction. The evidence that is elicited in the cross-examination of PW.2 suggested to have not been stated before the police. It is important to note that the victim statement that was given before the Court, if not stated before the investigating officer, that can be questioned. The rest of the cross-examination is only testing the veracity of the witness. By accepting the defence of the accused, it can be 33 concluded that the accused No.1 himself must have taken the victim from the guardianship of PW.1.
26. The evidence of PW.2 further proves that it is accused No.1 who had aggravated sexual intercourse with the victim. Though the medical evidence is silent with regard tracing of blood or seminal stains spermatozoa etc., would not be a ground to hold that there was no recent intercourse between accused No.1 and the victim. Because the victim and the accused No.1 were not traced out immediately after the first or last intercourse so as to find the aforesaid medical evidence.
27. The person in whose house the victim was kept at Vishwanathhalli have not supported the case of the prosecution i.e., PW.5. He denied that the police have recorded the statement as per Ex.P.17. The evidence of PW.6 goes to show that 34 accused Nos.4 and 5 and other two had hired his vehicle in order to go to Davanagere, therefore from Jubilee Circle he took accused Nos.4 and 5 in his car and went near Nuggikeri Petrol Bunk, where a boy brought a girl and boarded the car and went to a village situated after Davanagere city i.e., at about 2.30 a.m. Then next day he brought back accused Nos.4 and 5 to Dharwad. While returning, the boy and the girl did not come with him. However, he stated that he cannot recognize accused No.1. In the photograph he identified the car at Exs.P.10 to 13. Partially he treated as hostile and suggested that accused No.1 who had come in his car. He admitted that accused No.1 come in his car and stayed with the girl in the house of Shanmukhappa at Vishwanathhalli. He admitted that the girl did not shout or scream nor she was tied with cloth nor her mouth was tied with cloth. He has not observed the Mangalya in her neck. He is an 35 independent witness and a driver by profession, driving the car on hire basis, therefore the evidence of PW.1 is materially corroborated by the evidence of PW.6 with regard to the taking away the girl from Nuggikeri Petrol Bunk to Vishwanathhalli. So for as cross-examination of PW.2 by counsel for accused Nos.4 and 5 is concerned, I find that absolutely nothing is elicited so as to disbelieve the version of the PW.6 with regard to the acts committed by the accused No.4 and 5. Even they have also suggested that the girl and accused No.1 were loving each other, why accused No.4 and 5 were falsely implicated by PW.2 is not at all elicited in the cross-examination of PW.2.
28. PW.7 has not supported the case of the prosecution. PW.8 is the pancha witnesses to Ex.P.2. PW.9 has not supported the case of the prosecution. PW.10 is the pancha witness Ex.P.20. 36 PW.11 is the auto driver who had attested the mahazar Ex.P.21 but has not supported the case of the prosecution. PW.12 had attested the mahazar at Ex.P.21. PW.13 is the attester of the mahazar at Ex.P.22 and he has not supported the case of the prosecution.
29. PW.14 is the Police Officer who had registered the complaint at Ex.P.1 given by PW.1. He has conducted mahazar at Ex.P.24. The photographs taken at the time is Ex.P.3. On the same day the third accused was produced along with an auto rickshaw seized under Ex.P.19. Then they made investigation and traced the victim and accused No.1. On 14.06.2014 they received information with regard to the victim girl and accused No.1. They went to Shanmukhappa's house at Vishwanathhalli and took custody of accused No.1 and victim girl and produced them before the Investigating Officer. 37
30. In the cross-examination PW.14 admits that he has not stated in the complaint as to from which specific place victim was kidnapped. He admitted that they have not recorded the statement of neighboring persons of the house of Shanmukhappa at Vishwanathhalli, panchanama was not conducted. They had gone in a private vehicle the statement of the driver has not been recorded. He has not collected tower location of the mobile and that is not produced along with charge sheet etc. He has not collected particulars of the mobile sim. He has not taken support of the concerned police station under whose jurisdiction Vishwanathhalli is situated. The question would be whether lapses on the part of the Investigating Officer could be held beneficial to the accused. Lapses of Investigating Officer would not enure benefit to the accused. The defence of accused No.1 is that there was an intimacy between himself and the victim girl. The medical evidence 38 corroborates the fact that the victim must have undergone an act like sexual intercourse and hymen had ruptured. Taking away the victim girl from Nuggikeri Petrol Bunk in a car is materially proved by the evidence of the driver of car bearing Reg.No.KA.25-C-5295. The suggestion of the defence cannot be accepted with the Investigating Officer had not gone to Vishwanathhalli and has not traced accused No.1 and the victim etc.
31. PW.15 is the Investigation Officer who has conducted the further investigation. He got the victim examined by the Government Medical Officer. He has also produced the victim before the Court to record her statement at Ex.P.4. Articles collected by the doctors were seized under mahazar Exs.P.22 and 23 and articles MOs.1 to 15. Then along with girl and the complainant and panchas he went to Vishwanathhalli and conducted mahazar at scene of offence at Ex.P.21 and 39 sketch. The photographs of the house in question was taken Ex.P.5, the house extract is marked at Ex.P.18. The birth extract of the girl was also obtained at Ex.P.25. The car used for commission of offence was produced before him by owner and the same was seized under mahazar at Ex.P.20. The spot map of the scene of offence prepared by PWD Officer is at Ex.P.26 was collected. Further statement of the girl was also taken. After completion of the investigation, charge sheet was filed and subsequently FSL report was received and it is marked at Ex.P.15 and final opinion of the Medical Officer is also obtain at Exs.P.14 and
16.
32. In the cross-examination of PW.15 it is suggested that he has not recorded the statement of owner of the shop by name Navalur, witnesses at the scene of offences, he has not enquired the 40 neighbours of the house situated at Vishwanathhalli.
33. Ex.D.2 was got marked with regard to the date of offence stated by the victim before the doctor as 24.05.2014 at 7.00 pm. In the examination in chief victim had stated that on 08.05.2014 at about 7.30 pm when she had gone to shop to bring some eatables, she said to have been kidnapped by accused Nos.1 and 2. The mother of the victim has also specifically stated the above said time and date as the time of incident. Thereafter the complaint at Ex.P.1 had been filed. The girl was traced by the police subsequently. Even Medical Officer PW.4 has also stated that the victim was produced before him for medical examination on 14.06.2014. PW.3 the doctor has also stated that accused No.1 was also produced before him for medical examination on 14.06.2014. Therefore the time and date that was 41 noted in the Ex.D.2 case sheet could be a wrong one or it might have been inadvertently written. Moreover that was not confronted or questioned while cross-examining the medical officer PW.4. Therefore, Ex.D2 does not in any way disprove the case of prosecution. The circumstances or the reasons to implicate accused Nos.4 and 5 falsely by the Investigating Officer are not at all elicited in the cross-examination of PW.15-Investigating Officer nor any appealable suggestions are made so as to raise a doubt that accused Nos.4 and 5 were falsely implicated in the case.
34. PW.16 is the principal of the school who had issued date of birth certificate of the victim girl at Ex.P.27. According to the said document the date of birth of the victim is 07.11.1998. That prove that she was minor i.e., below 18 years as on the date of incident and she is a child within the meaning of definition of Section 2(d) of the 42 POCSO Act. Except suggestions nothing is elicited in the cross examination.
35. Accused No.4 and 5 have given explanation that they are the tenants in a house belonging to accused Nos.6 and 7, therefore they have been falsely implicated in this case. Absolutely there is no material on record elicited in the cross-examination of the prosecution witnesses to accept explanation as probable one.
36. In the statement recorded under Section 313 of Cr.P.C, accused No.1 given an explanation that since there is a dispute regarding passage between himself and the victim and her mother and therefore a false case has been filed. Even that dispute is not even suggested specifically to the prosecution witnesses including the investigating Officers. Therefore explanation of accused No.1 is not at all accepted. 43
37. The Hon'ble Apex Court by its decision reported in (2005) 13 Supreme Court Cases (State of H.P Vs. Asha Ram and others) held as under.
"It is now a well-settled principal of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement. The courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given 44 circumstances. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
38. Therefore, on re-appreciation of the evidence on record I find that the guilt of accused No.1 for the offence punishable under Sections 6 of Protection of Children from Sexual Offices Act and offences punishable under Sections 344 and 366 of the Indian Penal Code had been proved by the prosecution before the trial court beyond any reasonable doubt. Therefore the conviction of accused No.1 for the aforesaid offences is sustainable in law facts and evidence on record.
39. As regards accused Nos.4 and 5 are concerned they are convicted for the offences punishable under Sections 344 and 366 of IPC. Accused Nos.4 and 5 being married couple provided logistic support to kidnap the girl in a car 45 they went along with accused No.1 where the victim was confined in a house at Vishwanathhalli thereby the ingredients of Sections 344 and 366 are very much proved against these accused persons, they being married couple should have been known consequence of a teen age girl being left with a young man in a house. Therefore, the overall conclusion arrived at by the trial court with regard to the guilt of accused Nos.1, 4 and 5 are concerned is sustainable in law and facts on record. The trial court has rightly relied upon the rulings in its judgment as stated below:
1. 2015 (3) KCCR 2273 (Bharathraj Gumppe Vs The State of Karnataka by Ullala Police, Mangalore and Another)
2. 2015 (3) KCCR SN 230 (SC) (Md.Ali Alias Guddu vs. State of UP.
3. 2015 SAR (Criminal) 1111 State of Madhya Pradesh Vs. Munna @ Shambhoo Nath and
4. 2015 SAR (Criminal) 1209 (State of Karnataka Vs. F.Nataraj).46
40. The trial court has rightly applied the presumption under Section 30 of the Act regarding culpable mental state of accused for commission of offence. Though the presumption under Section 29 is rebutable, the accused have not adduced any evidence to rebut such strong presumption.
Accordingly point Nos.1 to 3 are answered in the affirmative and point No.4 is answered in the negative.
Consequently appeals in Crl.A.No.100002/ 2018 and Crl.A.No.100201/2016 filed by accused No.1 and accused No.4 and 5 respectively are hereby dismissed.
The judgment and order of conviction and sentence dated 27.05.2016 passed by the II Additional District and Sessions & Special Judge, Dharwad in Spl.S.C.No.20/2014 is hereby confirmed.
47
The period of detention, if any, undergone by accused is set off.
Bail bonds shall stand cancelled in respect of accused Nos.4 and 5.
Accused Nos.4 and 5 are directed to appear before the trial court. The trial Court shall commit them to custody to undergo the rest of the period of detention as imposed in the judgment impugned.
Send back the records to the trial court along with copy of this judgment.
Sd/-
JUDGE EM