Karnataka High Court
Mahantesh S/O Venaktesh vs The State Of Karnataka on 22 July, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JULY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200029/2014
BETWEEN:
MAHANTESH
S/O. VENKATESH
AGE: 22 YEARS
OCC: AGRICULTURIST
R/O. NAKKUNDI VILLAGE
MANVI TALUK, RAICHUR DISTRICT
... APPELLANT
(BY SRI MAHANTESH PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
THROUGH SINDHNOOR RURAL
POLICE STATION, SINDHNOOR
... RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT, ORDER AND SENTENCE DATED 01.02.2014
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PASSED BY THE LEARNED PRINCIPAL SESSIONS JUDGE,
RAICHUR IN S.C.NO.142/2012 AND ACQUIT THE
APPELLANT FROM THE ABOVE CASE.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 15.07.2021, COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has filed this appeal under Section 374(2) of Cr.P.C. challenging the judgment of conviction dated 01.02.2014 and order of sentence dated 03.02.2014 passed by the Principal Sessions Judge, Raichur in Sessions Case No.142/2012, whereby the learned Sessions Judge has convicted and sentenced the appellant/accused for the offences punishable under Sections 366, 344 and 506 of the Indian Penal Code, 1860 (for short 'IPC').
2. For the sake of convenience, the parties herein are referred with their original ranks occupied by them before the trial Court.
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3. The brief facts leading to the case are as under:
The accused and the daughter of the complainant were studying in degree college at Sindhanur. On 21.05.2012, the complainant -
Veeranagouda filed a complaint alleging that on 11.05.2012, his daughter Netravati had been to college at 8.00 a.m. and normally she used to return by 5.00 p.m., but, on that day, she did not return. Therefore, he went to college and found that it was closed and he telephoned his relatives and enquired in various places, but, he could not get any information and his daughter was not traced. Hence, he lodged a missing complaint and the police have registered it in Crime No.148/2012. It is further case of the prosecution that the accused on 11.05.2012, abducted the daughter of the complainant by threatening her from college and took her to Bengaluru insisting her to 4 marry him and he kept her for 11 days in Sarapalya Tanisandra area in Bengaluru and subsequently, the police on the basis of the information given by PW.3, went there and secured the victim girl. She narrated that the accused had abducted her by threatening her and hence, a missing complaint has taken a different turn and the accused was arrested and was also produced before the Court and initially remanded to judicial custody. The investigating officer has recovered the mobile phone used by the accused by drawing a mahazar. He also drawn the spot panchanama, wherein, the victim girl was abducted and also drawn a mahazar at the place where the victim girl was kept. He has also recorded the statement of the material witnesses and found that there is sufficient material evidence as against the accused. Hence, after completion of the investigation, he has submitted the charge sheet against the 5 accused for the offences punishable under Sections 366, 344, 346 and 506 of IPC.
4. After submission of the charge sheet, the learned Magistrate has taken cognizance of the alleged offences and in the mean while, the accused was enlarged on bail. The learned Magistrate has also furnished the copies of the prosecution papers to the learned defence counsel as contemplated under Section 207 of Cr.P.C. As the offence under Section 366 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate has committed the matter under Section 209 of Cr.P.C. to the Sessions Court. Hence, the matter was placed before the learned Principal Sessions Judge and he has secured the presence of the accused. After hearing both the parties, the learned Sessions Judge has framed the charges against the accused for the offences punishable under Sections 366, 344, 346 and 506 of 6 IPC. The same was read over and explained to the accused and he pleaded not guilty.
5. To prove the guilt of the accused, the prosecution has examined in all thirteen witnesses as PWs.1 to 13 and thirteen documents were marked as Exs.P1 to P13. The prosecution has also got marked one material object i.e., mobile phone said to have been used by the accused.
6. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against him. The case of the accused is of total denial and he has stated that the victim girl was in love with him and she was a major and having knowledge of this aspect, this false complaint came to be lodged. However, he did not choose to lead any 7 defence evidence in support of his contention. After hearing the arguments advanced by the learned Public Prosecutor and defence counsel, the learned Sessions Judge has framed the following points.
1. Whether the prosecution has proved beyond reasonable doubt that on 11.05.2012 at about 12:30 PM in Sindhanur on Kushtagi road, accused has induced CW-2 Netravati D/o:
Veeranagouda, aged 20 years girl and kidnapped her from Sindhanur with intent to have illicit intercourse with her and thereby accused has committed an offence punishable u/sec.366 of IPC?
2. Whether the prosecution has proved beyond reasonable doubt that accused wrongfully confined the said CW-2 Netravati in Sarapalya Tanisandra area at Bangalore for 11 days and thereby accused has committed an offence punishable u/sec.344 of IPC?8
3. Whether the prosecution has proved beyond reasonable doubt that accused wrongfully confined the said CW-2 Netravati in Sarapalya Tanisandra area at Bangalore for 11 days with intent the said confinement of said woman may not be known to any person interested and thereby accused has committed an offence punishable u/sec.346 IPC?
4. Whether the prosecution has proved beyond reasonable doubt that accused by wrongfully confining the said woman had threatened her with dire consequences to her life and thereby accused has committed an offence punishable u/sec.506 IPC?
5. What order?
7. Then, by the impugned judgment of conviction dated 01.02.2014, he answered point Nos.1, 2 and 4 in the affirmative while point No.3 in the negative and he has convicted the accused for the 9 offences punishable under Sections 366, 344 and 506 of IPC. However, he has acquitted the accused for the offence punishable under Section 346 of IPC. After hearing on the sentence, he imposed sentence of rigorous imprisonment for a period of three years with fine of Rs.5,000/- with default clause for the offence under Section 366 of IPC. Further, for the offence punishable under Section 344 of IPC, he imposed rigorous imprisonment for a period of one year with fine of Rs.2,000/- with default clause and accordingly, for the offence punishable under Section 504 of IPC, he imposed rigorous imprisonment for a period six months on accused. He has also given benefit of Section 428 of Cr.P.C. and further ordered that all the sentences shall run concurrently.
8. Being aggrieved by this judgment of conviction and order of sentence, the appellant/accused has filed this appeal. 10
9. The learned counsel for the appellant would contend that the impugned judgment of conviction and order of sentence are contrary to the materials on record and are against the well established principles of law. He would further argue that the complainant and victim girl have deposed completely contrary in the evidence and there are lot of contradictions and improvements in their evidence, which were not properly explained. He has also contended that the learned Sessions Judge has ignored that the victim girl has brought forward a total different case, which was created for the purpose of false implication. Further, the learned Sessions Judge has failed to appreciate the evidence of the victim girl that she voluntarily accompanied the accused and she stayed there in the shed voluntarily and there was no resistance and the learned Sessions Judge has also failed to consider the evidence PWs.4, 7 and 8, which disclose that both the 11 victim girl and accused went to Bengaluru voluntarily and stayed and moved around and they were happy.
Further, the learned Sessions Judge has ignored the contradictions regarding presence of the accused at the spot and he has also ignored the fact that the investigating officer has not recorded the statement of the residents in Bengaluru, wherein, the spot mahazar was drawn and nothing was seized form the spot. There is no application of judicious mind and the learned Sessions Judge has also failed to note that the investigation itself is tainted and there is no material corroborating the case of the prosecution and the learned Sessions Judge has not properly appreciated the evidence so as to satisfy the ingredients of Sections 362 and 366 of IPC. Hence, for these amongst other grounds, the learned counsel would submit that the evidence clearly establish that the victim girl has voluntarily accompanied the accused 12 and there is no material regarding abduction, threatening, confinement and he would seek for allowing the appeal by acquitting the accused of the charges alleged against him.
10. Per contra, the learned High Court Government Pleader would submit that the evidence of PWs.1, 2, 4, 7 and 8 along with the evidence of police officer clearly establish that the victim girl was abducted by the accused by threatening her in order to compel her to marry him and he has illegally confined her for 11 days in Bengaluru. He would further submit that there is material evidence and the accused himself has taken inconsistent stands and as such, he would submit that the learned Sessions Judge is justified in convicting the accused and imposing a reasonable sentence and sought for dismissal of the appeal.
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11. Having heard the arguments and after perusing the entire records of the trial Court, now the following point would arise for my consideration:
"Whether the judgment of conviction and order of sentence passed by the learned Principal Sessions Judge, Raichur in Sessions Case No.142/2012 dated 01.02.2014 and 03.02.2014 is unsustainable and calls for any interference by this Court?"
12. It is to be noted here that the learned Sessions Judge has acquitted the accused for the offence punishable under Section 346 of IPC and this finding of the learned Sessions Judge is not challenged by the State. It is also important to note here that the heavy burden is casted on the prosecution to prove the guilt of the accused beyond all reasonable doubts. The weaknesses of the accused is in nowhere helpful to the prosecution in proving its case and 14 merely because the accused has taken inconsistent stands, the Court cannot draw presumption in favour of the prosecution in respect of proving the guilt of the accused beyond all reasonable doubts. The prosecution is required to prove the guilt of the accused beyond all reasonable doubts on the basis of the evidence placed by the prosecution on record and not otherwise. In the light of this, I have to consider the case of the prosecution.
13. To prove the guilt of the accused, the prosecution has examined in all 13 witnesses. PW.1 is the complainant and he has simply set the law in motion by lodging a complaint in respect of missing of his daughter i.e., victim. PW.2 is the victim girl and she deposed in favour of the prosecution. PW.3 - Manjunath is the classmate of accused and victim girl and he has turned hostile to some extent, but, however, he has supported the case of the 15 prosecution regarding accompanying the police and securing the victim girl from Bengaluru. PW.4 - Kariveerappa is the relative of the complainant and victim girl and he deposed regarding accompanying the police to Bengaluru and securing the victim girl. PW.5 - Sharanegouda is mahazar witness while PW.6
- Siddanagouda is another mahazar witness and he deposed regarding seizure of mobile phone from the custody of the accused. PW.7 - Bolaredeppa has deposed regarding accompanying the police to Bengaluru and a mahazar being drawn as per Ex.P8, wherein, it is alleged that accused had illegally confined the victim. PW.8 - Basavaraj is the friend of accused and he has partially turned hostile to the case of the prosecution. PW.9 - Venkatesh is the another friend of the accused and he has also partially turned hostile to the case of the prosecution. PW.10 - Gangappa is a police constable and he deposed 16 regarding visiting Bengaluru and securing the victim girl and production of the victim girl before the investigating officer. PW.11 - Prahalad is the principal of the college and he deposed regarding furnishing particulars of the victim girl as per Ex.P12. PW.12 - J. Karunesh is the investigating officer and PW.13 - Yellappa is the ASI and he has also deposed regarding visiting Bengaluru and drawing mahazar etc.
14. Ex.P1 is the complaint while Exs.P2, P3 and P4 are the portions of the statement said to have been given by PW.3 before the investigating officer. Ex.P5 is the spot panchanama dated 21.05.2012 while Ex.P6 is the spot panchanama dated 24.05.2012. Ex.P7 is the mobile seizure panchanama and Ex.P8 is the spot panchanama dated 30.05.2012. Exs.P9 and P10 are the portion of the statements said to have been given by PW.9 before the investigating officer. Ex.P11 is the report submitted by PW.10. Ex.P12 is the letter 17 issued by PW.11 and Ex.P13 is the FIR. MO.1 is carbon company mobile phone alleged to have been seized from the custody of the accused.
15. The complainant - PW.1/Veeranagouda is the father of the victim girl. He has deposed that on 11.05.2012, his daughter did not return to the house from college and he searched her for two or three days and lodged a complaint as per Ex.P1 regarding missing of his daughter. It is important to note here that his daughter was missing from 11.05.2012, but, the complaint was lodged on 21.05.2012. There is a delay of 11 days in lodging the complaint. The complainant claims that he had searched everywhere for her daughter, but, it is hard to accept his contention that there was such an inordinate delay in lodging the complaint. The reason regarding his silence initially for 10 to 11 days for non-lodging the complaint is not explained. He did not refer any 18 reasons in this regard for not taking steps for 11 days and it is little concerning. His evidence further disclose that on 23.05.2012, he had been to police station, wherein, his daughter was there and she disclosed the factual aspects regarding accused threatening her to marry him, taking her to Bellary from Sindhanur and from Bellary to Bengaluru by threatening her. However, regarding abduction and other things, he is a hearsay witness and his further cross examination discloses that the police have brought the accused along with his daughter from Bengaluru and he has seen the accused in the police station on that day. But, as per the case of the prosecution, the accused was not apprehended in Bengaluru and subsequently he was arrested. He has also admitted that daughter of Sharanappa by name Amaramma is the classmate of his daughter, but, he claimed that on her enquiry she did not answer. 19
16. The victim girl is examined as PW.2. In her evidence, she deposed that accused was her classmate and in the month of April or May, 2012 during last examination, she was going by walk to Sindhanur bus stand and she reached the bus stand at about 2.00 p.m. and accused came there, threatened that if she did not love him, he would kill her and her parents and took her in a KSRTC bus and later she got knowledge that he had taken her to Bengaluru. She further deposed that the accused kept her there for seven days and there he used to threaten her to marry him and later on CWs.4, 5 and 8 came there along with police and she was brought to the police station. It is important to note here that her examination in chief is completely contrary to her statement. In her evidence, she denied having love affair with accused and all along asserted that accused expressed his love, but, she declined it. But, 20 statement given by her before police speaks a different version that she only asked him that if this issue is brought to the notice of her family members, she would not be allowed to attend the college and she is interested in studying. In her statement, she never denied that she had love affair with the accused. In the cross examination, she admitted that in the bus stand, she was alone, sitting near telephone booth and she further admitted that there is a ladies waiting room in Sindhanur bus stand. In her further cross examination, she is unable to disclose the fact that after threatening her by accused how much time she was there in the bus stand. Then certain questions were posed as to till what time, she was there in the bus stand and in which bus they boarded etc. and whether she has brought it to the notice of the co-passengers, but interestingly her simple answer is that she did not remember anything. This 21 attitude creates a doubt about the conduct of the victim girl. Her further cross examination discloses that in Sindhanur bus stand, they boarded a bus to Bellary. She has not raised any objection and she has not reported anybody either in the bus or in the bus stand at Sindhanur or Bellary. Further, she claimed that from Bengaluru in an auto, they went to the house, but, she has not even raised any objection while proceeding in auto. This clearly discloses that she was a consenting party and she has voluntarily accompanied the accused. She is avoiding to answer certain material questions. Even in the cross examination, she has admitted that after getting down from the bus at Bellary, the accused went and brought meals to her and she also took the meals. But, very interestingly, she did not attempt to escape from the place when the accused had gone to bring meals. Further, she claims that after meals, she attempted to 22 run away and accused slapped her. It is important to note here that when she was in Bellary bus stand, which is a crowded place she did not made any attempt all along to escape or raise alarm. She tried to avoid answering the questions on the ground that she was not in a position to know anything or she do not remember. Her cross examination specifically reveal that even at the time of getting auto in Bengaluru bus stand, she has not made any Galata while boarding the auto or when she travelling in the auto. In her further cross examination, she tried to improve her conduct by stating that in Bengaluru when she tried to make Galata, the accused slapped her and therefore, she did not raise any objection, but, in her statement under Section 161 of Cr.P.C, no such statement is forthcoming. If she had made any Galata in the bus stand at Bengaluru, which is one of the busiest bus stand in the Karnataka, in that event, 23 co-passengers would have attended her or there are police officials on patrolling duty in the central bus stand, who could have attended her. But things speak different story and it is evident that she did not made any Galata as claimed. Interestingly, her cross examination reveals that the accused is belonging to Kuruba community and she is belonging to Lingayat community. She has admitted that the elders in the family do not endorse such inter-caste marriage. She has admitted in her cross examination that in Bengaluru, the accused kept her in a shed consisting of a room and kitchen. In her evidence, she disclosed that there was a toilet and bathroom. But, as per the case of the prosecution, there was no toilet and bathroom and as per the evidence of PW.13, toilet and bathroom were common to all the sheds.
Interestingly, she was secured on 23.05.2012 and her marriage was performed on 29.06.2012 with her 24 maternal uncle. Hence, it is evident that now she being a married woman and in order to save her married life, she is denying her love affair with the accused by victimising him. She has also claimed that she has reported regarding the accused threatening her to one Amaramma, but, the investigating officer has not recorded the statement of Amaramma and she was also not examined. The entire conduct of the victim is against the human conduct and she is a major and studying in a college. She alleged that accused abducted her by threatening to kill her and her parents if she did not marry him. But, there is no evidence to reveal that she was really under apprehension of threat to her life, as no such instances have taken place earlier. Apart from that, in natural course, she would have brought it to the notice of the neighbours in Bengaluru. Further, she had lot of opportunities to make Galata in Sindhanur 25 bus stand, Bellary bus stand and Bengaluru bus stand. But, she silently accompanied the accused, which disclose that she has voluntarily went with the accused. Further, when her evidence is assessed with the evidence of PW.1, who do not take steps for 11 days in lodging the complaint, it clearly establish that the prosecution has not brought the real story before the Court.
17. PW.3 - Manjunath is the friend of the accused and he has turned hostile to the case of the prosecution. However, his evidence discloses that he accompanied the police to Bengaluru, wherein, the victim girl has alleged to be confined and she was being traced. The learned Sessions Judge has highlighted cross examination by way of defence regarding denial of accused staying in Bengaluru and his evidence creates a doubt as to whether the accused has abducted the victim girl. His evidence 26 further discloses that the victim girl and accused were in talking terms and they together without any objection boarded the bus, which was proceeding to Bellary.
18. PW.4 - Kariveerappa is a witness, who has simply deposed regarding accompanying the police and securing the victim girl from Bengaluru. He is the nearest relative of the victim girl. His evidence discloses that when they had been to spot, the accused fled from the spot. But, as per the evidence of PW.1, the accused was brought by the police.
19. PW.5 - Sharanegouda has deposed regarding drawing mahazar as per Exs.P5 and P6. PW.6 - Siddanagouda has deposed regarding drawing mahazar as per Exs.P6 and P7 and regarding seizure of the mobile phone from the custody of the accused. 27
20. PW.7 - Bolredeppa has deposed regarding he accompanying the police on 29.05.2012 to Bengaluru and drawing a mahazar as per Ex.P8. His cross-examination reveals that he had been to a place where many number of persons are living. But, very interestingly, the investigating officer has not recorded the statements of any of the witnesses who were residing in the adjoining sheds.
21. PW.8 - Basavaraj is another student studying in the same college and he has also deposed regarding the police visiting to Bengaluru and securing the victim girl. He was staying there itself and his evidence discloses that the accused came along with victim girl and he accommodated them in the adjoining shed. A suggestion was made to this witness that when the police came there, the accused was escaped, but, he denied the same. But, the case of the prosecution is entirely different. Admittedly, he 28 is residing in the adjoining shed and his cross examination reveals that there were common bathrooms for all the sheds and his cross examination further reveals that accused and the victim girl were moving out when they were staying there and they were working in Shoba Garment Factory. He has also specifically deposed that PW.2 has told before him that she and accused had come together to Bengaluru and they were staying cordially. This statement clearly demolish the entire case of the prosecution as the victim girl claims that in the shed, wherein, she was staying was consisting of bathroom and toilet, but, the evidence of this witness as well as the police officer gives a different story. Further, she has not raised objection in the shed also and there are number of sheds adjoining each other having common bathroom and toilet. Hence, it is evident that when she was silent all along since from moving from 29 Sindhanur up to police securing them, she has not made any attempt to escape or raise alarm to any other person. Hence, it is evident that she is consenting party and she eloped with the accused voluntarily and it is not the case of abduction as alleged by the prosecution.
22. PW.9 - Venkatesh is another classmate of the accused and he has also turned hostile to the case of the prosecution. But, his evidence discloses that the accused and victim girl boarded the bus which was proceeding to Bellary. His cross examination further reveals that PW.2 and accused told that they were moving to Bengaluru and all along they were talking frequently with each other. His evidence further discloses that both of them were carrying bags and they kept bags in a shop at Sindhanur bus stand. Very interestingly, the investigating officer has not made any investigation in this regard and when the 30 victim girl was secured in a shed, the evidence of the police officer is that there were number of household articles, but, none of these articles were seized and no inventory was made by the investigation officer.
23. PW.10 - Gangappa is a police constable and he has deposed regarding he visiting Bengaluru and when he had been to the spot, the accused was sitting in front of the shed and ran away. But, the evidence of the complainant and other witnesses speak different story. His cross examination discloses that suitcase and bed sheet were inside the shed and there were no toilets and bathrooms inside the shed and they were outside and were common to all sheds. This evidence clearly falsifies the evidence of PW.2, which disclose that she was required to attend the common toilets and bathrooms itself. But, she never raised any objection and has not complained before any of the neighbourers regarding her abduction. 31
24. PW.11 is the principal and his evidence is of no relevancy while PW.12 is the investigating officer.
25. It is important to note here that there is no evidence as to on what basis the investigating officer has recorded the statement of PW.3. Though he was capable of enquiring Amramma, who was from the same village in which village the victim girl resides he did not do so. Further, he claimed to have been seized mobile from the custody of the accused and he has also narrated the specific number. But, he has not obtained the call history sheet pertaining to that mobile and no documents have been produced to show that mobile - MO.1 belongs to accused. Interestingly, even he has not visited Bengaluru nor deputed any official to record the statement of the neighbouring occupants of the sheds to ascertain the 32 actual ground reality. Only on the basis of the statement of PW.2, he has booked up the accused. But, silence of PW.2 clearly establishes that she has voluntarily accompanied accused and it is not a case of abduction or kidnap. The evidence of PW.13 discloses that there were some cloths inside the shed, but, he has not seized and inside the shed, there was no toilet. Hence, on assessing the entire evidence, it is important to note here that the conduct of the victim girl itself is quite surprising and unnatural. She without any objection travelled with the accused by boarding the bus to Bellary and from there, they travelled to Bengaluru and after getting an auto, they came to the shed wherein they resided for 11 days. The evidence disclose that there were number of persons residing in adjoining sheds having common bathroom and toilet and the victim girl never raised any objection regarding accused bringing her by 33 threatening or abducting. The evidence of PW.8 further discloses that both PW.2 - victim girl and accused were moving freely and they were also working in a garment factory. None of these aspects were cross checked by the investigating officer by examining the neighbouring witnesses i.e., occupants of sheds, wherein the victim girl alleged to have been stayed. Hence, the conduct of the victim girl itself is quite surprising and it appears that it is only due to love affair, she eloped with the accused and as they belong to different castes, there was serious objection for their marriage and within one month, the marriage of the victim girl was performed with maternal uncle. Her evidence is not in consonance with her statement recorded under Section 161 of Cr.P.C. and it consists lot of improvements and contradictions, which were not explained by the investigating agency as well as PW.2 also. The evidences clearly disclose that she 34 voluntarily accompanied the accused to Bengaluru. She is a major at the time of the incident and hence, question of her abduction in this regard does not arise at all. The abduction is defined under Section 362 of Cr.P.C., which reads as under:
362. Abduction.--Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
26. Section 366 of IPC defined regarding kidnapping, abducting or inducing woman to compel her marriage, etc. In the instant case, admittedly the victim is more than 18 years old and her conduct and other evidences disclose that she voluntarily accompanied the accused. The evidence regarding she is being threatened is not at all acceptable as they all travelled in a public transport bus all along by changing the buses. Further, the accused was not 35 carrying any weapon and she had number of opportunities to escape, but, no attempts were made, which clearly establishes that she voluntarily accompanied the accused. Hence, ingredients of Sections 362 and 366 of IPC are not attracted. When the ingredients of Sections 362 and 366 of IPC are not attracted, the question of wrongfully confining her in Sarapalya Tanisandra area at Bengaluru by accused does not arise at all. The evidences disclose that she voluntarily stayed there along with accused, but, not otherwise. Further, the allegations regarding she was threatened holds no water as her conduct completely falsify her stand in this regard. She has avoided the material questions by answering that she do not remember or she is unable to recollect, which discloses that she is a consenting party and concealing material aspect before Court.
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27. The learned counsel for the appellant in this context has placed reliance on a decision of the Hon'ble Apex Court reported in (2018) 6 SCC 664 in the case of Kavita Chandrakant Lakhani vs. State of Maharashtra and Another. The relevant portion of the said judgment reads as under:
"A. Penal Code, 1860 - S.366 -
Ingredients of - Held, mere abduction does not bring accused under ambit of S.366 - It must be proved that accused abducted woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in any order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse - Unless prosecution proves that abduction is for purposes mentioned in S.366, Court cannot hold accused guilty and punish him under S.366.37
B. Penal Code, 1860 - Sworn
statement 366, 363, 506, 342, 324, 323
and 354 - Applicability of S. 366 -
Appellant complainant alleging that
accused R-2 forcibly took her to his house with intention to marry her or to force or seduce her to illicit intercourse - Sessions Court discharged R-2 not only in respect of offence under S.366 but also under Ss. 363 and 506 Pt. II - However, charges were framed against R-2 under Ss.342, 324, 323 and 354 - Challenge to Sessions Court order by appellant was dismissed by High Court - Sustainability."
28. In the instant case, there is no material evidence that the accused has abducted PW.2 forcibly in order to marry her or he has enticed her. On the contrary, the evidence disclose that that she has voluntarily accompanied the accused. Under such circumstances, the principles enunciated in the above cited decision are directly applicable to the facts of the 38 present case and the prosecution has failed to prove the ingredients of Sections 366, 344 and 506 of IPC. The learned Sessions Judge only on trusting the evidence of PW.2 has proceeded to convict the accused, but, he has ignored the fact of unnatural conduct of the victim - PW.2. He has also not considered the unchallenged evidence of PWs.3 and 8 regarding accused and victim girl voluntarily proceeded to Bengaluru. Under these circumstances, the learned Sessions Judge has erred in convicting the accused for the offences punishable under Sections 366, 344 and 506 of IPC. The approach of the learned Sessions Judge in convicting and sentencing the accused is erroneous and it has lead to miscarriage of justice and as such, the said findings of the learned Sessions Judge calls for interference by this Court. Accordingly, I answer the point under consideration in the affirmative and proceed to pass the following: 39
ORDER The appeal is allowed by setting aside the judgment of conviction and order of sentence passed by the learned Principal Sessions Judge, Raichur in Sessions Case No.142/2012 dated 01.02.2014 and 03.02.2014 respectively. The accused/appellant stands acquitted of charges levelled against him for the offences punishable under Sections 366, 344 and 506 of IPC.
The accused/appellant is set at liberty. The bail bonds executed by accused shall stand cancelled. The fine amount if any deposited shall be refunded to the appellant/accused.
Send back the LCRs to trial Court with a copy of this judgment immediately.
Sd/-
JUDGE