Karnataka High Court
Mr. Nanjunda vs State Of Karnataka on 11 June, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:20449
CRL.A No. 956 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 956 OF 2013
BETWEEN:
MR. NANJUNDA
S/O CHIKKANANJAPPA
AGED ABOUT 28 YEARS
RESIDENT OF YEDAHALLI
VILLAGE, JAYAPURA HOBLI
MYSORE TALUK
MYSORE-570004
Digitally signed by ...APPELLANT
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH (BY SRI. THONTADHARYA R K, ADVOCATE)
COURT OF
KARNATAKA
AND:
STATE OF KARNATAKA
REP BY STATE PUBLIC
PROSECUTOR
HULLAHALLI POLICE
...RESPONDENT
(BY SRI. HCGP.,ADVOCATE)
THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:30/31.08.2013 PASSED BY THE
II ADDL. S.J., MYSORE IN S.C.NO.79/2011 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 366(A) OF IPC.
AND THE APPELLANT/ACCUSED NO.2 IS SENTNCED TO
UNDERGO S.I FOR 2 YEARS AND TO PAY FINE OF RS.5000/-,
IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR 4
MONTHS FOR THE OFFENCES P/U/S 366(A) OF IPC. THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQITTED.
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NC: 2024:KHC:20449
CRL.A No. 956 of 2013
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by appellant -accused No.2 praying to set aside the judgment of conviction and order of sentence dated 30.08.2013 passed in S.C.No.79/2011 by the II Additional District and Sessions Judge, Mysore under which the appellant -accused No.2 has been convicted for the offence punishable under Section 366A of Indian Penal Code (herein after referred as 'IPC' for brevity) and sentenced to undergo simple imprisonment for a period of two years and pay fine of Rs.5,000/- in default to undergo simple imprisonment for a period of 04 months.
2. The factual matrix of the prosecution case is that the complainant-father of the victim (P.W.2) and accused No.1 were acquainted with each other. Accused No.1 being interest in marrying the victim-P.W.2 requested for matrimonial alliance through P.W.4. The parents of P.W.2 refused matrimonial alliance. Therefore, -3- NC: 2024:KHC:20449 CRL.A No. 956 of 2013 accused No.1 grudge against the victim, P.W.4 and family members. On 16.09.2010 when P.W.2-victim was in Mallahalli village that is her grand parents house and she went out of house along with Mamata-P.W.3 to attend nature's call, at that time accused No.1 accosted victim girl and induced her to accompany with him. When she refused, he threaten to kill her and her father. Therefore, the victim girl accompanied with accused No.1 on motor bike and accused No.2 who is appellant herein was also traveled with them in the same motor vehicle. The family members of the victim-P.W.2 on coming to know the same came near petrol bunk in Kullahalli village. There, accused Nos.1, 2 and victim were present in the petrol bunk. The father of the victim girl refused to take her back to his residence because the panchayath was inconclusive. Therefore, she resided in Sri Mahadevaswami's house. During that night i.e. on 16.09.2010 accused No.1 committed forcible sexual intercourse on the victim girl. The father of the victim girl has filed the complaint and case came to be registered against accused No.1 and -4- NC: 2024:KHC:20449 CRL.A No. 956 of 2013 appellant -accused No.2 for offence punishable under Sections 366A and 506 of IPC. After investigation charge sheet came to be filed against this appellant -accused No.2 and accused No.1 for offence punishable under Sections 366A, 376, 506 and 114 read with Section 34 of IPC.
3. The Sessions Court after receipt of records from the committal Court framed charges for the said offences. The prosecution in order to prove the charges examined witnesses as P.W.1 to P.W.27 and got marked Ex.P1 to P30 and M.O.1 to 13. The statement of accused came to be recorded under Section 313 of Cr.P.C. The application by the prosecution for altering the charge came to allowed and charge for offence punishable under Section 366A of IPC framed against accused No.1 and came to be amended. Amended charge has been framed against accused No.1 for offence punishable under Section 366 of IPC. The trial Court after hearing arguments on both sides has convicted the accused No.1 for offence punishable under Section 366, 376, 506 of IPC and -5- NC: 2024:KHC:20449 CRL.A No. 956 of 2013 appellant -accused No.2 for offence punishable under Section 366A of IPC. The said judgment of conviction has been challenged in this appeal.
4. Heard learned counsel for appellant - accused No.2 and learned High Court Government Pleader for the respondent-State.
5. Learned counsel for the appellant -
accused No.2 would contend that the accusation against this appellant -accused No.2 is giving his bike to accused No.1 and accompanied with accused No.1 and victim on motor bike from Mallhalli village to Kullahalli village. Except that there are no other allegations against this appellant -accused No.2. After amendment of the charge and framing of amended charge there is no charge against this appellant -accused No.2 for offence punishable under Section 366 of IPC. There is no allegation of abeting accused No.1 to commit offence punishable under Section 366 of IPC since charge came to be altered from Section 366A to Section 366 of IPC against accused No.1. There is no accusation of inducing the minor girl to go from -6- NC: 2024:KHC:20449 CRL.A No. 956 of 2013 Mallahalli village to Kullahalli village. The said accusation is against accused No.1. Without considering all these aspects, the learned Sessions Judge straight away considering the evidence of the victim and others erroneously convicted this appellant -accused No.2 for the offence punishable under Section 366A of IPC. With this, she prays to allow the appeal and acquit the appellant -accused No.2 for offence punishable under Section 366A of IPC.
6. Learned High Court Government Pleader for the respondent -State wound contend that evidence of P.W.1 to 3 and 5 will establish that appellant -accused No.2 was present with accused No.1 and he traveled on the motor cycle with accused No.1 and victim from Mallahalli village to Kullahalli village. More so, the bike used by accused No.1 is provided by this appellant - accused No.2 to him. The appellant -accused No.2 abeted and assisted to accused No.1 in kidnapping the victim girl from Mallahalli village to Kullahalli village. He supported the reasons assigned by the trial Court in convicting the -7- NC: 2024:KHC:20449 CRL.A No. 956 of 2013 appellant -accused No.2 for offence under Section 366A of IPC. With this, he prays for dismissal of the appeal.
7. Having heard arguments advanced and grounds raised, the following point arises for my consideration is "Whether the trial Court erred in convicting the appellant -accused No.2 for the offence punishable under Section 366A of IPC"?
My answer to the above point is in the affirmative for the following REASONS
8. The charge against this appellant -
accused No.2 is that he gave his motor cycle to accused No.1 to kidnap the P.W.2 from Mallahalli village to Kullahalli village and he being present at that time and committed offence punishable under Section 366A read with Section 34 of IPC. Charge framed against accused No.1 for offence punishable under Section 366A of IPC has been altered to offence punishable under Section 366 of IPC. There is no alteration of charge against this appellant -8- NC: 2024:KHC:20449 CRL.A No. 956 of 2013
-accused No.2. Accused No.1 has been convicted for offence punishable under Section 366 of IPC. There is no charge against this appellant -accused No.2 for having assisted and abeted accused No.1 for having committed offence punishable under Section 366 of IPC. Therefore, the conviction of appellant -accused No.2 for offence punishable under Section 366A of IPC is not sustainable in the absence of conviction of accused No.1 for offence punishable under Section 366A of IPC.
9. One of the ingredients of offence under Section 366A of IPC is inducing any minor girl to go from one place to another 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. On perusal of evidence of P.W.1 to 3 and 5 there is no evidence against this appellant -accused No.2 having induced victim girl to go from one place to another. The only accusation against this appellant -accused No.2 is that he provided his motor cycle to accused No.1 and traveled with accused No.1 and victim on motor cycle from Mallahalli village to Kullahalli -9- NC: 2024:KHC:20449 CRL.A No. 956 of 2013 village. The said act of appellant -accused No.2 does not amounts to induce any minor girl to go from one place to another. Without considering all these aspects, learned Sessions judge erroneously convicted this appellant - accused No.2 for offence punishable under Section 366A of IPC. The said conviction of this appellant -accused No.2 for the offence punishable under Section 366A is unsustainable.
In view of the above, the following
ORDER
i) The appeal is allowed.
ii) The judgment of conviction and order of
sentence passed in S.C.No.79/2011 dated 30.12.2012 is set aside so far as this appellant -accused No.2 is concerned.
iii) The appellant -accused No.2 is acquitted for offence punishable under Section 366A of IPC.
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NC: 2024:KHC:20449 CRL.A No. 956 of 2013
iv) The bail bonds and surety bonds executed by this appellant -accused No.2 before the trial Court stands cancelled.
v) Fine amount if any paid by this appellant -
accused No.2 is ordered to be refunded to him.
Sd/-
JUDGE DSP List No.: 1 Sl No.: 49