Bangalore District Court
The State Of Karnataka vs Syed Sameer Pasha Alias Sameer on 1 August, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU
DATED THIS THE 1st Day of August 2016
- : PRESENT: -
SMT. VINEETHA P. SHETTY B.Sc., M.A., LL.M.
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
SPECIAL C. NO.235/2015
COMPLAINANT:
The State of Karnataka,
By Wilson Garden Police Station,
Bengaluru.
[Rep. Public Prosecutor-Bengaluru.]
/ VERSUS /
ACCUSED:
Syed Sameer Pasha alias Sameer,
S/o. Allabaksh, 26years,
R/at No.11/1, 2nd Floor, 3rd Cross,
Lalbagh Fort Road,
Bengaluru.
[Rep.Sri.P.M.Chengappa/
N.Muddukrishna]
1 Date of commission of offence 20-03-2014
2 Date of report of occurrence 20-03-2014
3 Date of arrest of Accused 03-05-2014
Date of release of Accused 03-05-2014
Period undergone in custody NIL
by Accused
2 Spl.C.No.235/2015
4 Date of commencement of 25-11-2015
evidence
5 Date of closing of evidence 03-02-2016
6 Name of the complainant Kamalesh Bansali
7 Offences complained of Sec.366 IPC
8 Opinion of the Judge Accused is
acquitted
9 Order of Sentence As per the final
order
***
JUDGMENT
The Sub-Inspector of Police attached to the Wilson Garden Police Station, Bengaluru City, has filed this charge sheet against the accused for the offence punishable under Section 366 of I.P.C.
2. The case of the prosecution in brief is that Cw.3-the prosecutrix was aged 16years in the year 2014, preparing for her supplementary examination. The accused was known to her through his sister and brother-in-law, who were the friends of her father. That the accused expressed his love and intention to marry the prosecutrix, but the same was not accepted by her. On 20-03-2014 at 03.15p.m., when she was near 1st 3 Spl.C.No.235/2015 cross of Annipura Main Road, the accused informed her that her father was waiting near the main road, and succeeded in kidnapping her in an autorikshaw. He forcibly took her to the K.S.R.T.C. bus stand and made her to board a bus to reach Chikkamagalur.
3. That on 20-03-2014 at 08.00p.m., Cw.1/Pw.4 the father of the victim lodged a complaint before the Wilson Garden Police Station, complaining the kidnapping of his daughter by the accused and others. That the accused took the victim to his uncle's house at Mavalli, and the elders of the family of the accused had handed over the victim to Pw.4.
4. After submission of charge sheet before VI ACMM, cognizance was taken and he committed this case to the Court of Sessions for trial. After committal this case was made over to this Court and registered in Special Criminal Case. Accused is on bail. He engaged a counsel for his defence. The copies of the charge sheet were furnished to him. After hearing both sides charge 4 Spl.C.No.235/2015 for the above offence was framed, read over and explained to the accused by my learned predecessor in office, for which the accused pleaded not guilty and claimed to be tried.
5. On behalf of the prosecution Pw.1 to Pw.8 are examined and Ex.P1 to Ex.P9, Ex.P3(a), Ex.P4(a), Ex.P4(b), Ex.P5(a), Ex.P5(b), Ex.P5(c), Ex.P6(c), Ex.P7(a), Ex.P8(a) and MO.1 to MO.5 are marked. Thereafter, the accused is examined under Section 313 of Cr.P.C. He denied the evidence, which appeared against him and he has not chosen to lead evidence on his side.
6. Perused the records and heard the arguments.
7. The facts and the evidence on record guided me to formulate the following points for consideration:
1) Whether the prosecution has proved beyond reasonable doubt that accused had kidnapped Cw.3 minor daughter of Cw.1-
Kamalesh Bansali on 20-03-2014 at 03.15p.m., near 1st cross, Annipura Main Road, within the jurisdiction of the Wilson Garden Police Station, with an intent to compel her to marry him forcibly and 5 Spl.C.No.235/2015 thereby committed the offence punishable under Section 366 of I.P.C ?
2) What order?
8. My findings on the above points are as under:-
Point No.1 In the Negative.
Point No.2 As per final orders for the following REASONS
9. Point No.1:- It is the case of the prosecution that the accused had intention to marry Pw.3-minor- prosecutrix against her will and with that intention he had enticed her away from the house of her parents situated at Annipura, 1st Cross on 20-03-2014 at 03.15p.m., and kidnapped her. According to the prosecution she was aged 16years as on the date of the incident.
10. In order to prove the age of the prosecutrix the prosecution has produced the true copy of the study certificate at Ex.P9 issued by the Principal & Correspondent, Mitralaya Girls High School, where the 6 Spl.C.No.235/2015 prosecutrix had studied last. Ex.P9 has been issued on the basis of the school records. According to Ex.P9 the date of birth of the prosecutrix is 04-11-1998 and there is no denial of this aspect on defence side. Therefore as on the date of the alleged incident she was a minor.
11. According to the prosecution the prosecutrix who had failed in 10th Standard was preparing for supplementary examination at the relevant time. The accused was known to her through her father's friend. Though the accused had expressed his love and intention to marry the prosecutrix, she has not accepted the same. On 20-03-2014 at 03.15p.m., the accused arrived near her house and informed that her father was waiting for her near the main road, and succeeded in kidnapping her in an autorikshaw. He forcibly took her to the K.S.R.T.C. bus stand and made her to board a bus to reach Chikkamagalur. It is further alleged that the accused took the victim to his uncle's house at Mavalli, from where the elders of the family of the accused had 7 Spl.C.No.235/2015 informed the father of victim and handed over the victim to him.
12. The charge against the accused is for offence under Section 366 of IPC. On plain reading of Section 366 IPC it applies in case of major as well as minor girls. Enticing or taking away the minor girl is the essential ingredient of offence of kidnapping under Section 363 IPC and if it is coupled with the intent to compel the girl to marry against her will or to seduce her to illicit intercourse against her will, then only offence under Section 366 of IPC is attracted. Keeping in mind these essentials ingredients, the evidence on record is to be appreciated.
13. In order to prove the charge against the accused, the prosecution has examined, Pw.1- Dr.Chandrashekar and Pw.2-Dr.Krishnaveni-the Medical Officers who have spoken about the medical examination conducted on the victim, collection of the material objects, submitted to Forensic Laboratory and issuance 8 Spl.C.No.235/2015 of medical report in this regard as per Ex.P2. Pw.3 is the victim, Pw.4-Kamalesh Bansali is the complainant/the father of the victim and Pw.6-Pinkey Bansali is the mother. Pw.5-Bharath Sanghvi is the witness to the spot mahazar at Ex.P5, Pw.7-Hiteesh J. Jain is the eye- witness and Pw.8-Praveen.K.Y., the P.S.I attached to the Wilson Garden Police Station, is the Investigating Officer.
14. Pw.1-Dr.Chandrashekar has deposed that on 26-03-2014 the P.I., attached to the Wilson Garden Police Station, had sent five material objects i.e., (1) under wear, (2) nail clippings, (3) pubic hairs, (4)vaginal swab and (5) vaginal smear for chemical examination in a sealed condition through a lady Police Constable namely Shashikala. He subjected these material objects to chemical examination and confirmed the absence of the seminal stains and spermatozoa. His report in this regard is as per Ex.P1. The material objects examined by him are marked as M.O.1 to M.O.5.
9 Spl.C.No.235/2015
15. Pw.2-Dr.N.Krishnaveni, the Assistant Professor attached to Vani Villas Hospital, has deposed that she examined the victim on 22-03-2014 as she was brought by the Wilson Garden Police, with a history of kidnapping. She found that there was no external injuries on the body of the victim and confirmed that the hymen was intact. She is the one who collected the nail clippings, pubic hair, vaginal swab, vaginal smear and underwear pertaining to the victim and sent to Pw.1 for F.S.L.Report. After the receipt of F.S.L. report, she issued Ex.P3 opinion report, opining that the victim was not used for any sexual act.
16. Pw.3 is the victim. She has deposed that in the year 2014 they had their residential house at Annipura and she was preparing for her SSLC exams. That on 20- 03-2014 at about 03.00p.m., while she was playing in front of her house, the accused who is the relative of wife of her father's friend-Rehamath, arrived there and induced her to accompany him. He took her to his house at Mavalli and assured of marrying her.
10 Spl.C.No.235/2015
17. It is the evidence of Pw.3 that though she has not agreed for the proposal, the accused persuaded her to accompany him and therefore they went to a village at Bengaluru at the first instance, and thereafter to Tamil Nadu. At that time the accused asked her for the physical contact with him, but she has not accepted the same. The relevant portion in her evidence during her examination in chief itself reads as:
"C°è DgÉÆæAiÀÄÄ zÉÊ»PÀ ¸ÀA¥ÀPÀð ºÉÆAzÀ®Ä PÉýzÀ£ÀÄ £Á£ÀÄ M¥Àà°®è."
This portion of her evidence when appreciated along with the evidence of the medical officers coupled with medical report makes it very clear that there was no physical contact between the victim and the accused.
18. Pw.3 has further stated that on 21-03-2014 they returned to Bengaluru and the accused took her to the house of his uncle. Her father came there and took her back with him and in the evening her father also took her to the Wilson Garden Police Station. It is her 11 Spl.C.No.235/2015 evidence that the police sent her for medical examination. She identified her underwear as M.O.1.
19. During cross-examination she denied the suggestion that she was in love with the accused and was in continuous telephonic conversation with the accused, persuading him to marry her. Further suggestion that on 20-03-2014 she herself quarreled with her parents and left the house, is also specifically denied by her. It was also suggested that a false complaint was given by her father to separate her from the accused and the said suggestion is also categorically denied by her.
20. Pw.4-Kamalesh Bansali is the father of the victim. It is in his evidence that the accused being the brother-in-law of his friend-Rehamath, used to visit his house frequently. He deposed that his wife informed him over the telephone that the accused had taken the victim along with him. Pw.4 lodged the complaint as per Ex.P4. According to Pw.4, his friend informed him of the 12 Spl.C.No.235/2015 presence of the accused and the victim in the house of relative of the accused and upon such information he went there to bring the victim back. He was informed by the victim that the accused enticed and took her away by promising the marriage.
21. During cross-examination Pw.4 denied that his daughter and the accused were in love with each other. Further suggestion that the victim expressed her desire to marry the accused, but however Pw.4 and his wife had not agreed for the same is also denied by him. It is elicited from Pw.4 that his wife had not seen the accused taking away the victim. The relevant portion in the evidence of Pw.4 during cross-examination on behalf of the accused reads as:
" ¤ªÀÄä ¥ÀwßAiÉÄãÀÆ £ÉÆÃr®è JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ £ÉÆÃr®è JAzÀÄ ºÉýgÀÄvÁÛgÉ."
Though Pw.4 has attempted to claim that there were some persons who had seen the accused taking away the victim, he has clearly admitted that the names of such 13 Spl.C.No.235/2015 persons have not been mentioned in the complaint. His evidence in this regard reads as:
"DgÉÄÁæAiÀÄÄ £ÉÆAzÀ ¨Á®QAiÀÄ£ÀÄß PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀzÀÝ£ÀÄß ¤ªÀÄä ªÀÄ£É §½ AiÀiÁgÀÄ £ÉÆÃr®è JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ £ÉÆAzÀ ¨Á®Q ºÉÆgÀUÉ DqÀÄwÛzÀݼÀÄ, CgÉÆæAiÀÄÄ ¸Àé®à ¨Á E°è JAzÀÄ PÀgÉ¢zÁÝ£É CzÀ£ÀÄß ºÉÆgÀUÀqÉ C°è EzÀݪÀgÀÄ £ÉÆÃrzÁÝgÉ JAzÀÄ ºÉýgÀÄvÁÛg.É CzÀ£ÀÄß AiÀiÁgÀÄ £ÉÆÃrzÀgÀÄ JAzÀÄ ¥ÉÇð¸ÀgÀ ªÀÄÄAzÉ £Á£ÀÄ ºÉý®è C£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. AiÀiÁgÀÄ £ÉÆÃrzÀgÀÄ J£ÀÄߪÀ §UÉÎ CªÀgÀ ºÉ¸ÀgÀÄUÀ¼À£ÀÄß zÀÆj£À°è PÁtô¹®è CAzÀgÉ ¸Àj."
Suggestion that to prevent his daughter from marrying the accused who belonged to a different religion, a false complaint was given by him, is also denied by Pw.4.
22. Pw.5-Bharath Sanghvi is a spot mahazar witness, who signed Ex.P5-mahazar on 21-03-2014 as per Ex.P5(a). He has denied the suggestion that he signed the mahazar in the Police Station and that no such mahazar was conducted in the house of Pw.4.
23. Pw.6-Pinky Bansali is the wife of Pw.4. She deposed that on 20-03-2014 at 03.00p.m., the victim was playing near the house and at that time the accused 14 Spl.C.No.235/2015 arrived there and took her along with him by walk till the Double road and thereafter in an Auto. She informed the same to Cw.4-Hitesh and others namely Sanjay Bansali, Ajay Sharma, Bharath who are the friends of her husband working in a office situated adjacent to their house. They told her to inform her husband immediately and accordingly she called her husband over the phone and informed the incident to him. Her husband lodged the police complaint.
24. According to Pw.6 the accused and the victim were at Chikkamagalur at the relevant time and on hearing about the complaint, the accused brought the victim back to Bengaluru. Thereafter the friends of Pw.6's husband brought the victim back from the house of the accused situated at Mavalli. The relevant portion in her evidence reads as:
" aPÀ̪ÀÄAUÀ¼ÀÆj£À°è EzÀÝgÀÄ. ¥ÉÇð¸ÀjUÉ zÀÆgÀ£ÀÄß PÉÆqÀ¯ÁVzÉ JAzÀÄ «µÀAiÀÄ w½zÀÄ CgÉÆæAiÀÄÄ £ÉÆAzÀ ¨Á®QAiÀÄ£ÀÄß ¨ÉAUÀ¼ÀÆjUÉ ªÁ¥À¸ÀÄì PÀgÉvÀAzÀ£ÀÄ. ªÀiÁªÀ½îAiÀÄ°è EgÀĪÀ DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ°è EzÀÝ 15 Spl.C.No.235/2015 £ÉÆAzÀ ¨Á®QAiÀÄ£ÀÄß £À£Àß ¥ÀwAiÀÄ ¸ÉßûvÀgÀÄ PÀgÉ vÀAzÀgÀÄ. "
25. It is relevant to note that as per the evidence of Pw.4-Kamalesh Bansali, he was informed by his friends that the victim was in the house of relative of the accused and he himself has brought her back, whereas according to his wife-Pw.6-Pinky Bansali, the victim was in the house of the accused at Mavalli and the friends of Pw.4 brought her back. It is relevant to reproduce the evidence of Pw.4 in this regard. It reads as:
" ªÀiÁgÀ£ÉÀà ¢£À ªÀÄzsÁåºÀß 12 UÀAmÉUÉ £À£Àß ¸ÉßûvÀ PÀgÉ ªÀiÁr DgÉÆævÀgÀ ¸ÀA§A¢üPÀgÀ ªÀÄ£ÉAiÀÄ°è CgÉÆæAiÀÄÄ ªÀÄvÀÄÛ £ÉÆAzÀ ¨Á®Q EzÀÝgÀÄ JAzÀÄ ºÉýzÀgÀÄ. §AzÀÄ ¤ªÀÄä ºÀÄqÀÄVAiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV vÀ¥ÁàVzÉ JAzÀÄ ºÉýzÀgÀÄ. £Á£ÀÄ ºÉÆÃV £ÉÆAzÀ ¨Á®QAiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ £ÀAvÀgÀ ¥Éǰøï oÁuÉUÉ ºÉÆÃzÉ£ÀÄ. "
26. During cross-examination it is elicited that there were two other girls playing with the victim at the relevant time, one is Pooja and the name of the other is not known to Pw.6. It is found in the evidence of Pw.6 that she was informed by one of the friends of the victim that some body took away the victim and therefore she 16 Spl.C.No.235/2015 came out of the house. According to her she had seen the accused in the autorikshaw, and the accused was forcibly pulling the victim inside the autorikshaw, which is quite contrary to the evidence of her husband-Pw.4 according to whom his wife has not seen the accused at the relevant time.
27. It is denied by Pw.6 that the accused and the victim used to engage themselves in mutual telephonic conversation, but she has admitted that the accused had gifted a mobile phone to her daughter and the same was with the victim herself. The relevant portion reads as:
"DgÉÆæAiÀÄÄ £ÉÆAzÀ ¨Á®QUÉ ¥sÉÆãï PÉÆr¹zÀÝ£ÀÄ. CzÀÄ £À£Àß ªÀÄUÀ¼À §½AiÉÄà EvÀÄÛ."
The reasons as to why the parents of the victim allowed her to keep the mobile phone gifted by the accused is also remained unexplained. The suggestion that to avoid the marriage between the victim and the accused, a false complaint was lodged against the accused is denied by Pw.6.
17 Spl.C.No.235/2015
28. Pw.7-Hitesh Jatin Jain is the alleged eye- witness. He has stated that on 20-03-2014 he was requested by Pw.4-Kamalesh Bansali to visit his house stating that there was some quarrel in the house. Accordingly when Pw.7 reached the house of Pw.4, Pinky Bansali, the wife of Pw.4 was rushing in the road and on enquiry she informed that her daughter was kidnapped. Immediately he reached the Double Road by his bike, and found that the victim was forcibly taken away by the accused in an auto. Thereafter he went to Police Station along with Pw.4 and others namely Sanjay Bansali and Bharath, and Pw.4 had lodged the complaint with the police. During cross-examination Pw.7 pleaded ignorance over a suggestion that the accused used to visit the house of Pw.4 and that the victim and the accused were in love with each other. He has not denied the suggestions of love affair between the victim and the accused.
29. According to him, the victim was traced and 18 Spl.C.No.235/2015 handed over to Pw.4 by the police, which is again totally a different version from that of Pw.4 and Pw.6 as they have not stated anything about the police tracing and handing over the victim to Pw.4. As already stated the version of Pw.4, Pw.6 and Pw.7 touching the tracing of the victim from the company of accused varied from each other, since Pw.4 has stated that he himself brought the victim from the house of relative of the accused, Pw.6 has stated that friends of Pw.4 brought the victim from the house of friend of Pw.4, and Pw.7 has stated that the victim was handed over to Pw.4 by the police.
30. Pw.8-Praveen.K.Y., is the P.S.I., attached to the Wilson Garden Police Station. He has spoken about the receipt of Ex.P4-complaint, submission of FIR as per Ex.P6, appointing of his staff for tracing the accused, conducting the mahazar as per Ex.P5 in the presence of Pw.5-Bharath and Cw.6. It is in his evidence that on 21- 03-2014 he recorded the statements of the victim and her parents, and sent the victim for medical examination on 22-03-2014. He received the report of his lady staff 19 Spl.C.No.235/2015 as per Ex.P7 in the matter of medical examination of the victim. On 24-03-2014 he received five sealed objects which are sent for FSL as per the acknowledgement at Ex.P8 and received the FSL report as per Ex.P1. On 04- 05-2014 he recorded the voluntary statement of the accused and received the birth certificate of the victim. According to him the date of birth of the victim is 04-11- 1998. Pw.8 filed the charge sheet after completion of the investigation.
31. During cross-examination of Pw.8 it is elicited that there is a mention in the complaint that about 4-5 persons had taken away the victim. He has not made any enquiries about these persons. The relevant portion in his evidence reads as:
"zÀÆj£À°è 4-5d£À vÀªÀÄä ªÀÄUÀ¼À£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÁÝgÉ JAzÀÄ PÁtô¸À¯ÁVzÉ. F ªÀåQÛUÀ¼À §UÉUÉ K£ÁzÀgÀÆ «ZÁj¹¢gÁ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ «ZÁj¹®è JAzÀÄ ºÉýgÀÄvÁÛgÉ."
Nothing is found in his evidence that he has secured the victim during investigation. On the other hand his 20 Spl.C.No.235/2015 evidence would disclose that the victim was brought by her parents themselves and others namely Pw.7-Hitesh and Cw.5-Ajay Sharma. Hence evidence of Pw.7 that the victim was traced and handed over to her father by the police, cannot be believed.
32. Ex.P4 is the complaint dated 20-04-2014. It is in the complaint that on 20-03-2014 when Pw.4 came near his house, found his wife in tears and on enquiry she informed her husband that the accused and his fellow members had forcibly kidnapped their daughter. It is relevant to encerpt the portion of complaint which reads as:
"F ¢£À ¢£ÁAPÀB20-03-2014gÀAzÀÄ ¸ÀĪÀiÁgÀÄ 3.15gÀ ¸ÀªÀÄAiÀÄzÀ°è ªÀÄ£ÉAiÀÄ §½ §AzÁUÀ ªÀÄ£ÉAiÀÄ ªÀÄÄAzÉ ºÉAqÀwAiÀĪÀgÀÄ D¼ÀÄvÁÛ ¤AwzÀÄÝ «ZÁj¸À¯ÁV FUÀµÉÖ £ÀªÀÄä ªÀÄUÀ¼À£ÀÄß £ÀªÀÄä ªÀÄ£ÉAiÀÄ gÀ¸ÉÛAiÀÄ ªÀÄÄAzÉ ¸À«ÄÃgï ºÁUÀÆ DvÀ£À ¸ÀAUÀrUÀgÀÄ AiÀiÁªÀÅzÉÆà GzÉÃÝ ±ÀPÉÌ §®ªÀAvÀªÁV QqÀß¥ï ªÀiÁrPÉÆAqÀÄ ºÉÆÃzÀgÉAzÀÄ w½¹zÀgÀÄ. "
33. The Investigating Officer has not made any enquiry about the aforesaid other persons mentioned in the complaint, who allegedly came near the house of 21 Spl.C.No.235/2015 victim along with accused. As already stated according to Pw.4 his wife has not seen the accused taking away the victim. Pw.6-wife of Pw.4 has stated that accused was all alone in the auto and one Pooja and another friend of her daughter have seen the accused taking away the victim and according to the eye-witness-Pw.7, when he reached the spot only the accused took away the victim. It is relevant to note that none of them have stated anything about the persons who accompanied the accused at the relevant time as mentioned in the complaint.
34. Thus there appears divergent versions with regard to the acts on the part of the accused in taking away of the victim as well as about the fact of tracing of the victim from the company of the accused. The alleged sexual harassment is denied even in the evidence of victim herself. Admittedly the victim was not traced from the company of accused by the Investigation Officer. Though Pw.7, the eye-witness has attempted to claim that the victim was traced by the police, there is 22 Spl.C.No.235/2015 nothing in the evidence of the Investigation Officer from where the victim was brought back. On the other hand his evidence would reveal that the parents of the victim themselves brought the victim to the police station. The relevant portion in the evidence of Pw.8/Investigating Officer reads:
" ¢£ÁAPÀB21-03-2014gÀAzÀÄ gÁwæ 8 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è £ÉÆAzÀ ¨Á®QAiÉÆA¢UÉ CPÉAiÀÄ ¥ÉÇõÀPÀgÀÄ oÁuÉUÉ ºÁdgÁzÀgÀÄ."
35. Apart from this Pw.4-the father of the victim has also stated that he himself has brought the victim back from house of his friend, while Pw.6-the mother of the victim has stated that her husband's friend brought the victim back from the house of the accused. These divergent versions of the victim, her parents, the eye- witness and the I.O., throw serious doubt in the mind of the court touching the alleged act of the accused in taking away the victim and also about the tracing of the victim from the company of the accused.
23 Spl.C.No.235/2015
36. This Court would have agreed with the vehement argument canvassed by the prosecution that circumstantial evidence is in favour of the prosecution and it is to be believed, but it is certainly so and to be considered only if and when no one had witnessed the criminal incident. However, in the case on hand, the complainant himself asserted that there were some persons who had seen the accused taking away the victim, but it is strange that he chose not to name any one of them or to examine them from prosecution side. Further it is found in the evidence of Pw.6-the mother of the victim that one Pooja and another friend of her daughter were present at the relevant time, but the said friends of victim have not been examined on behalf of the prosecution. Non-examination of these witnesses is also a draw back to the case of prosecution.
37. Though the prosecution case is that the accused forcibly took the victim to the K.S.R.T.C. bus stand in an auto and made her to board a bus to Chikkamagalur, there is no whisper about the said fact 24 Spl.C.No.235/2015 in the complaint. According to Pw.6, the mother of the victim, the accused and the victim were at Chikkamagalur at the relevant time and on hearing about the complaint, the accused brought the victim back to Bengaluru. Pw.4 has not stated anything about the accused taking the victim to Chikkamagalur and even the evidence of Pw.8-I.O. is silent about this aspect.
38. It is very pertinent to note that Pw.3-the victim herself has not whispered anything about the alleged Chikkamagalur stay and on the contrary, she has stated that the accused took her to a village at Bengaluru at the first instance, and thereafter to Tamil Nadu. There is no material evidence collected by the I.O. in this regard nor there is any mention in the entire charge sheet submitted by the I.O., touching this aspect. Details of the stay of the victim with the accused either at Chikkamagalur or at Tamil Nadu and as to how the victim was compelled to marry the accused is also not satisfactorily brought out any where in the prosecution evidence.
25 Spl.C.No.235/2015
39. All these latches and infirmities found in the case of the prosecution lean in favour of the accused. These latches and infirmities when appreciated along with the defence taken during the cross-examination of the prosecution witnesses on behalf of the accused that since the parents of the victim did not want their daughter to marry the accused who belonged to a different religion, they foisted a false case against the accused, and as the desire of the victim to marry the accused was not fulfilled by the family members of the accused due to protest of her parents, the victim also joined in supporting the false case of her parents, in falsely implicating the accused, cannot be completely ruled out.
40. In the circumstances and in the absence of concrete evidence to conclude that the accused kidnapped the victim with intent to compel her to marry him forcibly, I hold that it is not proper to base conviction to accused relying on the prosecution evidence. Hence, I answer Point No.1 in the Negative. 26 Spl.C.No.235/2015
41. Point No.2: In the result, I proceed to pass the following:
ORDER Under Section 235(1) of Cr.P.C. the accused is acquitted of the offence punishable under Section 366 of I.P.C.
MO1 to MO5 being worthless are ordered to be destroyed. However, the order regarding disposal of MO1 to MO5 shall be given effect after the appeal period is over.
(Dictated to the Judgment Writer directly on computer typed by her, corrected and pronounced by me in the open court on this the 1st Day of August 2016.) (VINEETHA P. SHETTY) L ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Dr.Chandrashekar CW.9 25-11-2015 27 Spl.C.No.235/2015 PW 2 Dr.M.Krishnaveni CW.8 30-11-2015 PW 3 Kiran Bansali CW.3 30-12-2015 PW 4 Kamalesh Bansali CW.1 30-12-2015 PW 5 Bharath Sanghvi CW.7 30-12-2015 PW 6 Pinkey Bansali CW.2 14-01-2015 PW 7 Hiteesh Jatin Jain CW.4 14-01-2015 PW 8 Praveen K.Y. CW.11 03-02-2016 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 FSL report PW.1 25-11-2015 Ex.P 1(a) Signature of Pw.1 PW.1 25-11-2015 Ex.P 2 Request for FSL PW.2 30-12-2015 examination Ex.P 2(a) Signature of Pw.2 PW.2 30-12-2015 Ex.P 3 Opinion of Pw.2 PW.2 30-12-2015 Ex.P 3(a) Signature of Pw.2 PW.2 30-12-2015 Ex.P 4 Complaint PW.4 30-12-2015 Ex.P 4(a) Signature of Pw.4 PW.4 30-12-2015 Ex.P 4(b) Signature of Pw.8 PW.8 03-02-2016 Ex.P 5 Mahazar PW.4 30-12-2016 Ex.P 5(a) Signature of Pw.4 PW.4 30-12-2016 Ex.P 5(b) Signature of Pw.5 PW.5 30-12-2016 Ex.P 5(c) Signature of Pw.8 PW.8 03-02-2016 Ex.P 6 FIR PW.8 03-02-2016 Ex.P 6(a) Signature of PW8 PW.8 03-02-2016 Ex.P 7 Report of WPC PW.8 03-02-2016 11731 Ex.P 7(a) Signature of Pw.8 PW.8 03-02-2016 28 Spl.C.No.235/2015 Ex.P 8 FSL PW.8 03-02-2016 acknowledgement Ex.P 8(a) Signature of Pw.8 PW.8 03-02-2016 Ex.P 9 Birth Certificate of PW.8 03-02-2016 Victim LIST OF MATERIAL OBJECTS MARKED MO 1 Under Garments PW.1 25-11-2015 MO 2 Nail clippings PW.1 25-11-2015 MO 3 Pubic Hairs PW.1 25-11-2015 MO 4 Vaginal Swab PW.1 25-11-2015 MO 5 Vaginal Smear PW.1 25-11-2015 LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
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LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
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(VINEETHA P. SHETTY) L ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU *** 29 Spl.C.No.235/2015