Karnataka High Court
Parashuram Ningappa Naik @ ... vs The State Of Karnataka on 25 July, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 25TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL APPEAL No.2895/2011
BETWEEN:
Parashuram Ningappa Naik @ Bangennavar
Age 23 years
Occ: Mason
R/a: Vithaldev Galli, Hangara
Taluk & District: Belgaum. ...Appellant
(By Sri M.L.Vanti, Advocate for Sri V.M.Sheelvant, Advocate)
AND:
The State of Karnataka
By Belgaum (Rural) Police Station
Rep. by its State Public Prosecutor
High Court of Karnataka Circuit Bench
Dharwad. ...Respondent
(By Sri A.A.Pathan, Addl.Government Advocate)
This appeal is filed under section 374(2) Cr.P.C.,
praying to set aside the judgment dated 23.09.2011 in
S.C.No.59/2009, on the file of V Addl. Sessions Judge at
Belgaum & etc.
This appeal coming on for final hearing this day, the
court delivered the following:
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JUDGMENT
The appellant (hereinafter referred to as 'accused') was tried, convicted and sentenced for offences punishable under sections 366A, 344 & 376 IPC.
2. I have heard Sri M.L.Vanti, learned counsel for accused and Sri A.A.Pathan, learned Addl.Government Advocate for State.
3. It is the case of prosecution that accused kidnapped PW1 victim and a minor girl from lawful custody of her parents and married her. The accused kept the victim girl in a rented jopadi at Pune and committed rape on her. The parents of victim had lodged a missing complaint. The victim and accused were traced in a rented jopadi at Dhankawadi, Pune and they were brought to jurisdictional police station. The victim was subjected to medical examination and later she was given to the custody of her parents. The accused was also subjected to medical examination. The Investigating Officer conducted spot mahazar and recorded statements of 3 victim and other witnesses. After investigation, final report was filed against accused for aforestated offences.
4. As could be seen from cross-examination of victim and her parents (PW3 & PW5) and statement of accused when he was examined under section 313 Cr.P.C. and documents relied upon by accused, accused had sought to establish that victim (PW1) and accused had fallen in love; victim had left her house on her volition to join the accused. They married in Vittal Temple at Pune. Thereafter, they were living as husband and wife. PW1 is a Hindu Caste and accused belongs to Schedule Caste. Therefore, parents of victim had refused to perform the marriage of victim with accused. They had foisted a false case against accused.
5. The case of prosecution that victim was a minor on the date of incident finds support from her school certificate marked as Ex.P.18. The contents of Ex.P.18 would reveal that as on the date of incident, victim was studying in IX standard in Mandoli High School, Mandoli, Taluk & District: 4
Belgaum. The victim was born on 23.08.1992. Thus, on the date of incident (10.09.2008) victim was aged about 16 years and 18 days. The victim was a minor. The evidence of victim reveals that she was induced by the accused. The victim had accompanied accused to Pune. The accused had taken her to Pune. The accused had kept her in a jopadi room belonging to CW13-Digambar Kamble. The accused had committed rape on the victim. The victim had conceived. The parents of victim lodged a missing complaint. The Investigating Officer traced accused and victim in a jopadi at Pune and they were brought to jurisdictional police station. The victim was subjected to medical examination. The victim was carrying pregnancy of 6-8 weeks. Her pregnancy was terminated.
During cross-examination, it was suggested to PW1 that she had fallen in love with accused and she had taken accused to Dhagadushet Ganapathi Temple; she had also taken accused to Vittal Rukmayi Temple at Pandarapura. The accused and victim married on 14.09.2008. Thereafter, they were living as husband and wife. The victim had 5 conceived. Therefore, contention of accused that he had not induced victim and he had not kidnapped the victim cannot be accepted. The accused has contended that, victim and accused had fallen in love. The victim on her volition left her house and joined accused and insisted him to marry her. Therefore, they got married in Vittal-Rukmayi Temple at Alandi.
6. PW3-Rama Laxman Patil is the father of victim. PW3 has deposed; victim was missing from 10.09.2008. PW3 searched for victim in different places and lodged first information. PW3 had received a missed call to his mobile phone. PW3 has given the number to jurisdictional police. The Investigating Officer traced accused and victim in a Jopadi in Pune and brought them to jurisdictional police station.
During cross-examination of PW3, accused had sought to establish that victim had left her house on her volition. The victim had married accused in Vittal-Rukmayi Temple at 6 Alandi. PW3 is a Caste Hindu and he was opposed to give his daughter (victim) in marriage to accused, who belongs to Scheduled Caste.
7. PW5-Avalatai Rama Patil is the mother of victim. Her evidence is similar to the evidence of her husband (PW3).
During cross-examination, it was suggested to PW5 that victim had left her house on her volition and she had married accused. PW3 & PW5 were against in giving victim in marriage to accused. The accused had not committed rape on victim, on the other hand, they were living as husband and wife.
8. From the medical evidence given by PW11-Dr.Shanta N.Acharya, it is established that accused was aged about 21 years at the time of incident and he was capable of performing sexual intercourse.
9. The prosecution has relied on the contents of Ex.P.19, which would reveal that victim had been subjected to sexual 7 intercourse and she had conceived. The victim was carrying pregnancy of 6-8 weeks.
10. The learned trial Judge has held that accused had wrongfully confined the victim; accused had committed rape on her; accused had kidnapped victim and married her.
11. The evidence of victim, the medical records and the contents of school certificate would indicate that victim was aged more than 16 years of age. In order to hold accused guilty of an offence punishable under section 376 IPC, prosecution has to prove that accused has committed rape on victim without her consent, as the victim was aged about 16 years of age on the date of incident. The evidence of victim is not consistent with her conduct. If accused had committed rape on victim, without her consent, she would have made attempts to escape from the clutches of accused. The victim would have informed CW13, who had let out a room to accused.
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12. As per the evidence of victim, she had travelled from Mandoli village, Taluk & District Belgaum to Pune. She had several opportunities to raise hue and cry to escape from clutches of accused. Therefore, prosecution has failed to prove that accused has committed sexual intercourse on PW1, without her consent. The prosecution has alleged that victim was wrongfully confined by accused. The evidence on record would disclose that accused had taken a room from CW13 in Pune and he was living with victim. The evidence on record does not disclose that accused had restrained victim from proceeding beyond certain limits. Therefore, accused cannot be held guilty of an offence punishable under section 344 IPC.
13. It is established from evidence on record that accused had induced victim (minor) to leave her house by holding a promise to marry her. The accused took the victim to Vittal- Rukmayi Temple at Alandi near Pune and married her, knowing that victim was a minor. The prosecution has 9 proved that victim was aged about 16 years 18 days at the time of incident.
Thus, the prosecution has proved that accused had induced and kidnapped victim and compelled her to marry him and accordingly married her in Vittal-Rukmayi Temple at Alandi near Pune. The accused has committed an offence punishable under section 366 IPC.
14. The learned trial Judge, without noticing essential ingredients of offences punishable under sections 375, 344 & 366A IPC has wrongly convicted accused for aforestated offences. Therefore, the impugned judgment requires modification.
15. The accused has committed an offence punishable under section 366 IPC. The victim had conceived and she was carrying pregnancy of 6-8 weeks, which was later terminated. An offence under section 366 IPC is punishable with imprisonment, which may extend up to 10 years and liable to pay fine.
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16. The accused was aged about 21 years at the time of incident. The accused had kidnapped and married victim, who has not attained the age of majority. The accused was under the impression that parents of victim were opposed to marriage and therefore he committed the offence. The accused does not bear criminal antecedents. The accused has chances to reform himself as a law abiding citizen. Therefore, I deem it proper to sentence the accused to undergo simple imprisonment for a period of five years and pay fine of Rs.15,000/- for an offence punishable under section 366 IPC.
17. In the result, I pass the following:-
ORDER The appeal is accepted in part. The impugned judgment is modified. The impugned judgment as it relates to conviction and sentence of accused for offences punishable under sections 344, 366A & 376 IPC is set aside. The accused is acquitted of offences punishable under 11 sections 344, 366A & 376 IPC. The accused is convicted for an offence punishable under section 366 IPC. The accused is sentenced to undergo simple imprisonment for a period of five years and pay fine of Rs.15,000/-, in default to undergo simple imprisonment for a period of six months for an offence punishable under section 366 IPC. Out of the fine amount, a sum of Rs.10,000/- shall be paid as compensation to PW1. The period of detention undergone by accused during trial and post-conviction stage is given set off as provided under section 428 Cr.P.C. Office is directed to send back records along with a copy of this judgment to trial court to secure the accused to implement the sentence in terms of this judgment.
SD/-
JUDGE SNN