Karnataka High Court
B S Santhosh vs State Of Karnataka on 11 March, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
BEFORE:
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.1034 OF 2012
BETWEEN:
1. B.S. SANTHOSH,
S/O. SHEKHARAPPA,
AGED ABOUT 21 YEARS,
RESIDENT OF K. GOLLARAHATTI VILLAGE,
TARIKERE TALUK.
2. S.G. SHIVAPPA,
S/O. GOVINDAPPA,
AGED ABOUT 28 YEARS,
R/O. JODI BOKIKERE VILLAGE,
TARIKERE TALUK.
3. G.H. DEVARAJ,
S/O. HANUMANTHAPPA,
AGED ABOUT 23 YEARS,
R/O. K. GOLLARAHATTI VILLAGE,
TARIKERE TALUK.
4. SEENA @ SRINIVASA,
S/O. NAGARAJAPPA,
AGED ABOUT 22 YEARS,
R/O. SHIVAPURA VILLAGE,
TARIKERE TALUK.
5. VENKATESH,
S/O. GOVINDAPPA,
AGED ABOUT 21 YEARS,
R/O. YEREHALLI VILLAGE,
TARIKERE TALUK.
6. MANJA @ VISHWANATH,
S/O. NAGARAJAPPA,
AGED ABOUT 23 YEARS,
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R/O. SHIVAPURA VILLAGE,
TARIKERE TALUK - 577 882. ... APPELLANTS
(BY SRI. A.H. BHAGAVAN, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KADUR POLICE,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE - 560 001. ... RESPONDENT
(BY SRI. R.D. RENUKARADHYA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE PRINCIPAL
SESSIONS JUDGE, CHICKMAGALUR IN S.C. NO.127/2009 DATED
5-6/09/2012-CONVICTING THE RESPONDENTS/ACCUSED Nos.1, 2,
4 TO 7 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 341
AND 366A READ WITH SECTION 34 OF IPC AND
RESPONDENTS/ACCUSED Nos.1, 2, 4 TO 7 ARE SENTENCED EACH
TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE
MONTH AND TO PAY A FINE OF Rs.500/-, IN DEFAULT TO PAY
FINE, TO UNDERGO FURTHER IMPRISONMENT FOR A PERIOD OF 7
DAYS, FOR THE OFFENCE PUNISHABLE UNDER SECTION 341 READ
WITH SECTION 34 OF IPC AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is preferred against the judgment and order dated 05.09.2012 passed by the Court of the Principal Sessions Judge at Chickmagaluru in Sessions Case No.127/2009, convicting and sentencing the appellants for offences punishable under Sections 341 and 366A r/w 34 of IPC.
2. Heard the learned counsel for appellants and learned HCGP for respondent-State and perused the material on record.
3. The case of the prosecution in a nutshell is that, on 11.06.2009 at about 4.30 p.m. on a road leading to N.G.Kopplu near veda river, the accused persons restrained the minor victim girl (PW.5), who was proceeding to her house after attending her school and forcibly took her in a TATA ACE vehicle bearing Regn.No.KA-18/A-2988 to Hosalli Palya village of Huliyar Hobli in Chikkanayakanahalli Taluk, with an intention to 4 perform her marriage with accused No.3 and knowing that she may be forced or seduced to illicit intercourse with the said accused and thereby committed offences punishable under sections 341, 366A r/w 34 IPC.
4. The complaint is lodged by PW.1 namely the father of the victim girl (PW.5). Complaint is marked as Ex.P1, wherein it is stated that his daughter is aged about 16 years and she is studying in 10th standard. On 11.06.2009, one Malleshappa-PW.6 came and informed him that at about 4.30 p.m. when the victim was returning from her school, about five persons forcibly kidnapped her in a TATA ACE vehicle and further informed that the said vehicle belong to accused No.1-Santhosh. Suspecting the role of accused Nos.1 and 2, a complaint was lodged at Kadur Police Station against accused Nos.1 and 2 and others.
5. PW.16 is the PSI of Kadur police station. He has deposed in his evidence that at about 9.30 p.m. on 5 11.6.2009 he received the complaint from PW.1 which is marked as Ex.P1 and issued FIR-Ex.P7 to the Jurisdictional Court. On the next day i.e., about 12 Noon he visited the place from where the victim was kidnapped and conducted spot mahazar-Ex.P2 in the presence of panch witnesses. Thereafter, on the same day along with PW.1 he went to Hosalli Palya where the victim (PW.5) was detained by the accused and brought her back and recorded her statement as well as the statement of other witnesses.
6. PW.1 is not a an eyewitness to the incident of kidnapping. In Ex.P1, he has stated that he was informed by one Malleshappa i.e., PW.6 about kidnapping of his daughter. PW.1, in his evidence, has reiterated the complaint averments. As he was unable to mention as to in whose house his daughter was detained, he was treated hostile. In his cross-examination conducted by the Public Prosecutor, he has stated that CW.10 and CW.3 i.e., PWs.6 and 7 have informed him that accused 6 Nos.1 to 3 and three more persons have kidnapped his daughter. Further, he has stated that after kidnapping his daughter she was kept in the House of CWs.6 and 7 namely PWs.10 and 11.
7. PW.6, in his evidence, has stated that while he was working in his field near Veda river on 11.6.2009, he saw three persons alighting from a Tata ACE vehicle at about 4.40 p.m. and at that time PW.5 and CW.3 (PW.7) were coming on a bicycle from the school. Five persons who were near the said vehicle kidnapped PW.5 by pushing the bicycle and dragging her inside their vehicle. He noticed the registration number of the vehicle. He has further stated that out of five persons, he knew two persons, i.e., accused Nos.2 and 3. Thereafter, he went to the house of PW.1 and informed the matter to him.
8. PW.7 has deposed that on the date of incident he was returning from the school along with PW.5-victim 7 girl. PW.5 was proceeding ahead and he saw four persons who were near the TATA ACE vehicle kidnapping her in the said vehicle. Further, he has stated that he did not identify those four persons as they were covered with blankets, but he saw the registration number of the vehicle. PW.7 is also one of the signatory to Ex.P2-spot mahazar. He has been treated hostile by the prosecution and in the cross-examination conducted by the public prosecutor he denied having identified accused Nos.1 to 3.
9. The victim girl is examined as PW.5. She has stated that at the time of incident she was studying in S.S.L.C. and she was aged about 14 years. On 11.6.2009, at about 4.00 p.m., she was returning from her school and when she reached near Veda river she saw a TATA ACE vehicle and 4-5 persons standing near the said vehicle. The said persons immediately closed her eyes and mouth with veil which she was wearing and took her in the said vehicle. She noticed accused Nos.1, 8 2, 3, 5 and others were there. On the way one of the accused alighted from the said vehicle but, she could not see as to who was that person. After proceeding further the vehicle was stopped and the veil covering her eyes and mouth was removed and she could notice that except accused No.3 all other accused were there.
10. A careful perusal of the evidence of PW.5 would reveal that she has identified accused Nos.1, 2, 3 and 5 as the persons who kidnapped her. Insofar as other accused are concerned, she has not whispered that they have also kidnapped her. Nothing is elicited from her cross-examination, to disbelieve her evidence that she was kidnapped in a TATA ACE vehicle bearing registration No.KA-18/A-2988. According to her, accused No.2 told her that they have kidnapped her because accused No.3 liked her and they wanted to get her married with him.
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11. It is the case of prosecution that after the victim girl was kidnapped by the accused she was taken to the house of PW.10, wherein she spent a night in the said house and on the next day the police rescued her. PW.10 has stated that accused No.5 and 4-5 five others came to his house along with PW.5 i.e., the victim girl. On that night, PW.5 slept near his mother i.e., PW.11. In the morning, PW.5 told his mother that she has been kidnapped. The said evidence of PW.10 is corroborated by the evidence of PW.11. PW.11 has stated that she was in a hurry to take food to her husband who was working in the field and therefore, she left PW.5 in the house of CW.8 (PW.12). PW.12 has stated that PW.11 brought and left PW.5 in her house and on the same day the police and PW.1 came and took her.
12. Though PW.6 has stated that he saw about five persons kidnapping the victim, he has identified only accused Nos.2 and 3. Whereas, PW.7 has stated that he saw four persons kidnapping the victim girl. In the 10 cross-examination conducted by the prosecutor he has denied having noticed accused Nos.1 to 3 standing near the TATA ACE vehicle and having seen them kidnapping PW.5 in the said vehicle. He has not identified those persons as they were covered with blankets. Even according to PW.8, about four persons kidnapped PW.5 in the vehicle. However, he has failed to identify them.
13. The evidence of PWs.6 to 8 is therefore not consistent and corroborated with each other. Hence, taking into consideration the evidence of PW.5-victim herself, it can be safely held that it was accused Nos.1, 2, 3 and 5 who kidnapped her. Though she has stated that there were other accused persons, she has not identified or named them. Hence, it is difficult to hold that the prosecution has been able to establish the guilt of the accused Nos.4, 6 and 7 beyond reasonable doubt.
14. According to prosecution, the victim was a minor, aged below 18 years at the time of incident in 11 question. The defence has not seriously disputed the age of the victim girl. The prosecution has got examined PW.4-Head Master of the school, where the victim was studying. Her age certificate issued by PW.4 is marked as Ex.P3, wherein, her Date of Birth is shown as 09.01.1995. Hence, as on the date of incident, PW.5 was a minor aged below 18 years.
15. It is vehemently contended by the learned counsel for the appellants that the Trial Court has erroneously convicted the accused for the offence punishable under section 366-A of IPC as the ingredients of the said offence are not made out. He would contend that, at the most, the prosecution has established that it is a case of kidnapping, but there is no evidence to show that the accused kidnapped the victim knowing that she is likely to be forced or seduced to illicit intercourse. He would further contend that there is no evidence to show that the victim was either forced or compelled to marry accused No.3, as alleged by the prosecution. 12
16. A careful perusal of the evidence of PW.5 goes to show that while she was kidnapped in the vehicle, her eyes were closed with a veil which she was wearing. She has stated that accused No.2 told her that they have kidnapped her because accused No.3 liked her and they wanted to get her married with him. However, she has further stated that when the veil covering her face was removed, accused No.3 was not present. When she made galata, accused No.1 gave his mobile to make a call to her house. She called PW.9-Saganappa and spoke to him and she told him not to worry and that she would come back in the morning. She has stated that accused brought Puri to her and when she refused to eat, they threatened her. She has stated that she slept near CW.7 i.e., PW.11-mother of PW.10 and accused persons slept in the TATA ACE vehicle.
17. According to PWs.11 and 12, the victim-PW.5 told them that she has been kidnapped. On an overall appreciation of the evidence on record, it can be safely 13 held that, PW.5 a minor girl was kidnapped by accused Nos.1, 2 and 5. Since case against accused No.3 is split up and he is not an appellant herein, no opinion is formed against him in the appeal. The evidence and the material on record is not sufficient to come to a conclusion that the accused have kidnapped PW.5 with an intention or knowledge that she will be forced or seduced to illicit intercourse with another person. Hence, there is lack of evidence to convict the accused for the offence punishable under section 366-A of IPC.
18. It is the contention of the learned counsel for the appellants that though PW.5 has stated that accused No.2 told her they have kidnapped her because accused No.3 liked her and they wanted to get her married with accused No.3, they have not forced her to marry the said accused and further accused No.3 was also not present when the veil covering her eyes was removed. As rightly contended by the learned counsel for the appellants, there is no evidence to show that the victim girl was 14 either compelled to marry accused No.3 or the accused had any intention or knowledge that she may be forced or seduced to illicit intercourse. However, the material on record is sufficient to hold that the victim was a minor at the time of incident and she was kidnapped by the accused from her lawful guardianship and therefore, the ingredients of Section 361 which is punishable under Section 363 are made out against accused Nos.1, 2 and 5 (Case against accused No.3 is split up). The evidence on record is not sufficient to convict accused Nos.4, 6 and 7 / appellant Nos.3, 5 and 6. Hence, they are liable to be acquitted.
19. Learned counsel for the appellants submits that victim-PW.5 is none other than the cousin of accused Nos.2 and 3. Hence, they are closely related. Now, the victim is married and living separately and even the accused are also married. He submits that the accused were in judicial custody for a period of 46 days. 15 He further submits that fine amount of Rs.30,000/- imposed against the accused has been deposited.
20. The incident took place in the year 2009. Already 12 years have passed. The appellants are agriculturists. Taking into consideration that the accused have spent 46 days in custody and keeping in view the submission of the learned counsel for appellants, this Court is of the considered view that the period of imprisonment undergone by accused Nos.1, 2 and 5 can be held sufficient modifying the sentence of fine imposed by the Trial Court. Accordingly, the following:
order
i) The appeal is partly allowed.
ii) The Judgement and Order dated 05.09.2012 passed by the Principal Sessions Judge, Chickmagaluru in Sessions Case No.127/2009, convicting and sentencing the appellants-1, 2, 4 16 to 7 /accused Nos.1, 2, 4 to 7 for offences punishable under Section 366A of IPC is set aside.
iii) The conviction and sentence passed against appellants-3, 5 and 6 / accused Nos.4, 6 and 7 for the offence punishable under section 341 r/w 34 of IPC is set aside.
iv) The conviction and sentence passed against appellants-1, 2 and 4 / accused Nos.1, 2 and 5 for the offence punishable under section 341 r/w 34 of IPC is hereby confirmed.
v) The apellants-1, 2 and 4 / accused Nos.1, 2
and 5 are hereby convicted for the offence punishable under Section 363 read with 34 IPC.
vi) The appellants-1, 2 and 4/accused Nos.1, 2 and 5 are sentenced to imprisonment for the period already undergone by them, for both the offences punishable under sections 341 and 363 read with 34 IPC. They are sentenced to pay a fine of Rs.50,000/- each (Rupees fifty thousand only) and in default of payment of fine, they shall undergo simple imprisonment for a period 17 of six months for the offence punishable under section 363 read with 34 IPC.
vii) If the fine amount is deposited/realised, the entire fine amount shall be paid to PW.5-victim as compensation.
viii) The appellants-1, 2 and 4 /accused Nos.1, 2 and 5 are directed to deposit the fine amount of Rs.50,000/- each, including the amount, which is already deposited within a period of six weeks from today.
ix) The fine amount deposited by accused Nos.4, 6 and 7 / appellants-3, 5 and 6 shall be refunded to them.
Sd/-
JUDGE TL