Bangalore District Court
The State Of Karnataka vs ) Vinod Kumar Alias Vinoda on 27 February, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 27th DAY OF FEBRUARY 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO.141 / 2014 & 114 / 2014
COMPLAINANT : The State of Karnataka
by Indiranagara Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED 1) Vinod Kumar alias Vinoda
in Spl.CC S/o. Raja 22 years, residing
141/2014 near Mini Taj Mahal in graveyard
of Vijinapura, Ramamurthy Nagara,
Bengaluru.
2) Arun Xavier alais Arun
S/o. Christy Ganesh,
25 years, Residing at No.85,
2nd cross, Gajendra Nagar,
Byappanahalli, Bengaluru.
Accused in 3) Rakesh alias Rocky S/o. Subramani,
Spl.CC 20 years, residing at No.533,
114/2014 15th block, Housing board quarters,
2nd floor, Ramaswamy playa,
Kammanahalli Ward, Bengaluru.
[A1 by Sri K. Ramsingh, Advocate,
A2 and 3 by Sri D.G. Srinivasakumar, Advocate]
/2/ Spl.C.C.No. 141 / 2014
& 114 / 2014
COMMON JUDGMENT
These cases arise out of the same Crime Number.
Spl.CC No.114/2014 against accused No.3 is the
split up case. Spl.CC.141/2014 against accused
No.1 and 2 is the original case. Hence Spl.CC
114/2014 has been clubbed with Spl.CC.141/2014
for recording of common evidence, arguments and
also to pass common judgment. Hence both cases
are taken together to pass common judgment.
2. Indiranagara Police, Bangalore City have
charge sheeted accused No.1 to 3 for the offences
punishable under Section 366 and 376 of I.P.C
3. The case of the prosecution in both the
cases, in brief, is as under :
CW2 Nalini was of 16 years in the year 2011.
She discontinued her studies in 8th standard. Due
to poverty she started working in Reliance Fresh
Shopping Mall in Thippasandra. While she was
going from Udayanagar to Thippasandra by bus
accused No.1 along with accused No.2 and 3 and
/3/ Spl.C.C.No. 141 / 2014
& 114 / 2014
others were following, persuaded her to love him and
marry him. On being refused he used to give threat
to kidnap and kill her. On 19.8.2011 at about 2.30
p.m., after her duty while she was coming back
home in front of Sameetha Plaza, 80 Ft. Road, within
the jurisdiction of Indiranagara Police Station,
accused No.1 to 3 along with other two persons
kidnapped CW2 in a Car and accused No.1
wrongfully confined her in the house of accused No.3
from 20.08.2011 to 30.09.2011. After she was
confined in that house, accused No.1 only was with
her, the other accused vanished. When she refused
to marry accused No.2, he forcibly tied sacred thread
to her on 20.08.2011 and during the period of her
confinement he had forcible sexual intercourse with
her against her will. On 30.09.2011 at about 9.00
p.m she escaped and had been to her friend's
house. On 2.10.2011 she reported to the
Ramamurthy Nagara Police about kidnapping and
rape against accused No.1 to 3 and others. In the
meanwhile CW1 Mani, mother of the victim girl had
/4/ Spl.C.C.No. 141 / 2014
& 114 / 2014
lodged missing complaint on 30.08.2011. Thereafter
the case was transferred to Mahadevapura Police
Station and ultimately transferred to Indiranagara
Police Station on the point of jurisdiction. The
statement of prosecutrix had been recorded. The
statement of the other prosecution witnesses were
also recorded. Accused No.1 to 3 were apprehended
and accused No.1 was sent to hospital for medical
examination. The Investigating Officer drew
necessary Mahazars, by completing the investigation
he submitted the Charge Sheet to the Court for the
aforesaid offences.
4. The charge sheet was submitted to X
ACMM Court and learned Magistrate after taking
cognizance, committed this case to the Court of
Sessions for trial. After committal this case was
registered in SC No.401/2012 and made over to
FTC-IV. Accused No.3 was absconded. Case against
accused No.3 was ordered to be split up. After
following the procedure laid down under law then
/5/ Spl.C.C.No. 141 / 2014
& 114 / 2014
Presiding Officer of FTC-IV had framed charge
against accused No.1 & 2 for the offence punishable
under sections 366 and 376 of IPC and read over to
the accused. Accused No.1 and 2 have pleaded not
guilty and claimed to be tried. Hence, posted for
evidence on prosecution side. On prosecution side
got examined as many as 7 witnesses as PW1 to 7.
After recording of the evidence of PW1 to 7 on the
point of jurisdiction, Original case and split up case
were transferred to this court and registered in
separate Spl.CC. After securing accused No.3 Charge
against accused No.3 for offence under Section 114
R/w. Sec. 34 of IPC has been framed. He has
pleaded not guilty and claimed to be tried.
Subsequently witnesses were got recalled. To record
common evidence split up case has been clubbed
with original case. 11 witnesses out of 21 charge
sheet witnesses were examined and got marked
documents at Ex.P.1 to Ex.P15 the details of which
are given in the annexure of this Judgment. On
closure of evidence on prosecution side, it was
/6/ Spl.C.C.No. 141 / 2014
& 114 / 2014
posted for accused statement. Accused statement
under Section 313 Cr.P.C has been recorded against
accused 1 to 3. Accused No.1 to 3 have denied the
whole incriminating evidence against them and they
have not chosen to lead evidence on their side. It
was posted for arguments.
5. Heard the arguments on both sides.
Perused and posted for Judgment.
6. The points that arise for my consideration
are as under :
In Spl.CC No.141/2014:-
1) Whether the prosecution has
proved beyond reasonable doubt
that accused No.1 with assistance
of accused No.2 and 3 in
furtherance of common intention
had kidnapped CW2 Kum. Nalini
minor daughter of CW1-Smt. Mani
on 19.08.2011 at about 2.30 p.m.,
while she was returning by walk
in front of Sameetha Plaza, within
the limits of Indiranagara Police
Station, Bengaluru with intent to
/7/ Spl.C.C.No. 141 / 2014
& 114 / 2014
compel her to marry accused No.1
or seduce her to illicit intercourse
punishable under Section 366
R/w. Sec.34 of I.P.C?
2) Whether the prosecution has
proved beyond reasonable doubt
that accused No.2 alongwith
accused No.3 in furtherance of
common intention had abetted
accused No.1 Vinod Kumar in
kidnapping CW2-Kum. Nalini on
19.08.2011 at about 2.30 p.m.,
punishable under Section 114
R/w. Sec. 34 of I.P.C?
3) Whether the prosecution has
proved beyond reasonable doubt
that accused No.1 had committed
rape on CW2-Kum. Nalini in the
house of accused No.3 Rakesh,
bearing house No.533, situated in
Ramaswamy Palya, during the
period between 20.08.2011 and
30.09.2011 punishable under
Section 376 of I.P.C?
4) What order?
/8/ Spl.C.C.No. 141 / 2014
& 114 / 2014
In Spl.CC No.114/2014:-
1) Whether the prosecution has
proved beyond reasonable doubt
that accused No.2 alongwith
accused No.3 in furtherance of
common intention have abetted
accused No.1 Vinod Kumar in
kidnapping CW2-Kum. Nalini on
19.08.2011 at about 2.30 p.m.,
punishable under Section 114 R/w.
Sec. 34 of I.P.C?
2) What order?
7. My findings on the above points are as
under:-
In Spl.CC No.141/2014:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the negative
Point No.4 : As per final orders
In Spl.CC No.114/2014:-
Point No.1 : In the negative
Point No.2 : As per final orders
for the following:
/9/ Spl.C.C.No. 141 / 2014
& 114 / 2014
REASONS
8. Point No.1 & 2 in Spl.CC 141/2014 and
Point No.1 in Spl.CC 114/2014:- The prosecution
has made serious allegations against accused No.1
that he with the assistance of accused No.2 and 3
had kidnapped CW2-Kum. Nalini-the minor
daughter of PW4-Mani on 19.08.2011 at about 2.30
p.m., while she was coming back home from her
duty in front of Sameetha Plaza, within the
jurisdiction Indiranagara Police Station. The
incident took place prior to commencement of
Protection of Children from Sexual Offences Act,
2012. Hence the said Act is not applicable to the
present case. It is the specific case of the prosecution
that CW2-Kum. Nalini-prosecutrix was minor as on
the date of the alleged incident. There is also
allegation made against accused No.1 that he had
committed rape on her. Therefore, age of the
prosecutrix as on the date of alleged incident shall
have to be looked into at the first instance.
/ 10 / Spl.C.C.No. 141 / 2014
& 114 / 2014
9. According to prosecution CW2-
prosecutrix was under the age of 18 years. She
studied up to 8th standard. When she was in 8th
standard she discontinued her education. She was
working in Reliance Fresh in Thippasandra. Ex.P3 is
the complaint lodged by PW4-Smt. Mani-mother of
prosecutrix on 30.8.2011 mentioning the age of her
daughter as 18 years as on that date. She has three
daughters, prosecutrix is the 3rd daughter, first and
second daughters are married. First daughter has
been residing with her parents due to some
difference between herself and her husband, second
daughter is residing in her husband's house. At the
time of lodging complaint PW4 had given the age of
prosecutrix as 18 years as on that date. During the
course of investigation PW11 D. Kumar, then PI of
Indiranagara Police Station, who partly investigated
the present case had collected Ex.P15 from the
school in which prosecutrix was studying in 8th
standard. Ex.P15 is the particulars given by the
school authorities with respect to her education,
/ 11 / Spl.C.C.No. 141 / 2014
& 114 / 2014
date of birth. She had joined the 8th standard in
Government School. Based on T.C they had issued
particulars as per Ex.P15, accordingly her date of
birth is 16.08.1996. Whereas according to Ex.P3 the
complaint lodged by mother of the victim girl herself
she was of 18 years as on that date. Bearing this in
mind on going through the medical evidence, PW7
Dr. B.M. Nagaraj who had assessed her age based on
her physical development and dental test, her age
was from 15-16 years. It is pertinent to note in view
of the medical jurisprudence margin of two years
plus or minus whichever beneficial shall be given to
the accused. On prosecution side not produced the
birth certificate in the present case. When there is
inconsistency found on record as to age of the
prosecutrix the birth certificate is essential to arrive
at just conclusion about the age of the prosecutrix.
In the charge sheet Investigating Officer mentioned
that prosecutrix was of 16 years. It appears that
based on Ex.P4 medical report as assessed by PW7
Dr. B.M. Nagaraj, he might have mentioned the said
/ 12 / Spl.C.C.No. 141 / 2014
& 114 / 2014
age. But due to the reasons assigned in supra age of
the prosecutrix cannot be concluded that she was
under 18 years as on that date. The author of
Ex.P15 has not been cited as a witness in the
charge sheet and there is no evidence of author of
Ex.P15 to show on what basis the date of birth has
been mentioned in the school records in the high
school. In the absence of conclusive proof the
prosecutrix cannot be held to be under 18 years as
on the date of the alleged incident. Merely because
based on the oral version that prosecutrix
discontinued her education when she was studying
in 8th standard, inference cannot be drawn that she
must be under 18 years at that time. What
prevented the Investigating Officer to collect the
conclusive proof or to cite/examine the author of
document at Ex.P15 is not known. Therefore non
examination of author of Ex.P15 and non
production of birth certificate of prosecutrix is fatal
to the prosecution case.
/ 13 / Spl.C.C.No. 141 / 2014
& 114 / 2014
10. Now the question arises whether accused
No.1 with assistance of accused No.2 and 3 had
kidnapped CW2-Kum. Nalini-prosecutrix on
19.8.2011 while she was coming in front of
Sameetha Plaza. According to the prosecution
case accused No.1 along with accused No.2 and 3
had kidnapped her in a car and confined her in the
house of accused No.3 bearing House No.533,
Ramaswamy Palya till 30.09.2011. Accused No.2
and 3 vanished after they made arrangement for
accused No.1 and victim girl to stay in the house of
accused No.3. During that period accused No.1 had
forced her to marry him, when she did not agree, he
had committed rape on her. On 30.08.2011 PW4
had lodged a missing complaint before K.R. Puram
Police. The case was registered in Cr.No.336/2011
for offence punishable under Section 363 of IPC.
PW9-G.P. Eshwarachari, then ASI had visited the
house of complainant on 31.8.2011. Thereafter on
the point of jurisdiction transferred the case to
Mahadevapura Police Station. PW10-Ariyappa, then
/ 14 / Spl.C.C.No. 141 / 2014
& 114 / 2014
PSI in Mahadevapura P.S. on receiving the case file
from K.R. Puram P.S. on 16.9.2011 had registered
the case in Cr.No.448/11 for the offence punishable
under Section 363 of IPC. On 3.10.2011 the
prosecutrix with her parents had come to the
Mahadevapura P.S. by stating that they were sent by
Ramamurthynagara Police, prosecutrix had given
statement before PW10 Ariyappa-PSI that accused
No.1 with the assistance of accused No.2 and
accused No.3 had kidnapped her in Car while she
was coming in front of Sameetha Plaza on
19.08.2011 at about 2.30 p.m. and also further
revealed the whole incident till she escaped from the
house of accused No.3. She had also stated before
him that on 30.09.2011 at about 9.00 p.m. she
escaped from that house and had gone to his friend
Sudha's house. On 1.10.2011 she had approached
parents of accused No.1 where they had scolded her
and also assaulted her, again she had come back to
her friend's house. She had rest on that day and on
2.10.2011 returned to her house. On 3.10.2011 she
/ 15 / Spl.C.C.No. 141 / 2014
& 114 / 2014
was brought by her parents to the Police Station.
Thus she had given statement on 3.10.2011 before
PW10. On the basis of this statement of the victim
girl in the above Cr.No.448/11, sought permission
on 04.10.2011 from the Court to invoke provisions
under Section 342, 366 and 376 of IPC as per
Ex.P11. At the same time Mahadevaura Police also
sought for permission to transfer the case to
Indiranagara Police as per Ex.P12 dated 4.10.2011.
Before that PW10 PSI had drawn mahazar in the
place of kidnapping as per Ex.P1 in the presence of
Panchas PW1 Manjunatha and PW2 Sadananda, as
shown by victim girl. On receiving the case file by
Indiranagara Police PW11-D. Kumar, then Police
Inspector registered the case in Cr.No.369/2011 on
5.10.2011 for the offence punishable under Section
342, 363 and 376 of IPC. He received report as per
Ex.P8 from Mahadevapura Police. He had
dispatched the FIR as per Ex.P9 on 5.10.2011.
Accused No.2 had been apprehended on 15.10.2011
and accused No.3 had been apprehended on
/ 16 / Spl.C.C.No. 141 / 2014
& 114 / 2014
16.10.2011, they had given voluntary statement as
per Ex.P13 and 14 respectively on the respective
dates before PW11. Based on the information given
by accused No.2 and 3, Ex.P2 spot mahazar had
been drawn by PW11 in the presence of panchas
PW3 Naveen and CW6 Murthy on 16.10.2011 as
shown by accused No.2 and 3 that it was the place
where accused No.1 had confined her. Then PW11
got the victim girl to the place of said occurrence,
she had shown that was the place of rape occurred
on her. Accordingly the mahazar as per Ex.P2 had
been drawn by PW11. He also apprehended accused
No.1 Vinod Kumar on 16.11.2011 from behind Tin
Factory, Udayanagara main road, K.R. Puram. He
had also given voluntary statement that he would
show the place of kidnapping and the place of rape.
The prosecutrix was sent to hospital for medical
examination on 4.10.2011 itself. She disclosed
before the PW7 doctor that her last menstrual period
was 1.8.2011, he suggested to go for pregnancy test.
Accused No.1 had also been subjected to medical
/ 17 / Spl.C.C.No. 141 / 2014
& 114 / 2014
examination on 17.11.2011. PW8 Dr. Suresh had
issued medical report as per Ex.P6 that there is
nothing to suggest that accused No.1 is incapable of
having sexual intercourse. PW7 had issued medical
report as per Ex.P4 that hymen of victim girl is torn,
there were no signs of recent sexual intercourse, but
there were signs that she had frequent sex prior to
that period. As per the report at Ex.P5 by pathology
department, there is no evidence of spermatozoa.
The Investigating Officer had also enquired other
material witnesses i.e., CW9-Bharathi, CW10-
Kuppamma and CW11-Girija, who are residing in
the locality of the house of accused No.3 and who
had seen accused No.1 and victim girl in the house
of accused No.3. Based on all these materials PW11-
Police Inspector had finally submitted Charge Sheet
for the offence under Section 366 and 376 of IPC.
This is the case of the prosecution.
11. Accused No.2 and 3 are on bail, accused
No.1 is in J.C. In order to prove its case the
/ 18 / Spl.C.C.No. 141 / 2014
& 114 / 2014
prosecution has got examined as many as 11
witnesses. PW4 Mani-complainant as well as mother
of prosecutrix, PW1 to 3 Panchas, PW5-
Varalakshmi-sister of victim girl, PW6 Gajendra-
father of victim girl, PW9-G.P. Eshwarachari-ASI in
K.R. Puram P.S, PW10-Ariyappa-then PSI, who
partly investigated so far as offence under Section
366 of IPC is concerned. In spite of issue of NBW
number of times, prosecution was unable to secure
CW2-victim girl. As a last resort proclamation was
also issued, then also on prosecution side failed to
secure CW2. However, complainant, sister and
father of prosecutrix have been examined on
prosecution side. This is not a case based on eye
witness with respect to offence of kidnapping.
However there are independent witnesses who had
seen the accused No.1 with victim girl in the house
of accused No.3 in Ramaswamy playa during the
period from 28.8.2011 to 30.09.2011. In the
absence of evidence of the prosecutrix the evidence
of PW4-mother, PW5-Varalakshmi-sister, PW6
/ 19 / Spl.C.C.No. 141 / 2014
& 114 / 2014
Gajendra-father of victim girl shall have to be
scrutinized with utmost care, is there any
satisfactory and reliable evidence to connect the
accused No.1 to 3 with alleged offences of
kidnapping. I have already discussed in supra
according to prosecution case how Accused No.1 to 3
had kidnapped and their intention. On going
through the whole evidence on prosecution side,
there is no corroborative evidence to believe the case
of the prosecution. Of course PW4, 5 and 6 have
partly supported the prosecution case, but that is
also misshaped in the cross examination. The
learned Public Prosecutor has argued that these
witnesses were won over by other side. Hence they
have not supported in cross examination. On going
through the cross examination of PW4 to 6 they do
not appear to have been won over by other side. If
that were to be case, they would have completely
resiled from their version in the Chief examination.
But that is not so here. On going through the Chief
/ 20 / Spl.C.C.No. 141 / 2014
& 114 / 2014
and cross examination of these witnesses their
evidence do not appear to be natural and truthful.
12. PW4 Mani is the complainant. She had
lodged a complaint as per Ex.P3 on 30.08.2011
reporting missing of her daughter on 19.8.2011 as
per Ex.P3 complaint. Her daughter was aged about
18 years as on that date, she was working in
Reliance Fresh in Thippasandra, she was in the
habit of leaving the house without informing the
family members and used to stay in her senior
uncle's house in Bangarapet. After 2-3 days again
she used to return home. This was her regular
routine when she was scolded or assailed at home.
Ex.P3 is not the original complaint. At the time of
recording evidence then Presiding officer of 54th
Addl.City Civil and Sessions Court marked this
document as Ex.P3. After transferring of this case to
this court though it was brought to the notice of the
Public Prosecutor, futile attempt has been made and
the original complaint has not been produced before
/ 21 / Spl.C.C.No. 141 / 2014
& 114 / 2014
the Court. Under the circumstances it is very
difficult to find out the truth what actually
happened. As already discussed in supra, there is
inconsistent evidence with respect to age of the
prosecutrix. Though it is the specific case of the
prosecution that prosecutrix had been kidnapped
by accused No.1 with the assistance of accused No.2
and 3 in a car, that car has not been seized. Even
registration number of the vehicle is not found on
record. As per the prosecution, the prosecutrix had
given such statement before IO, whereas as per the
voluntary statement given by accused No.1 both of
them were loving each other, he persuaded her to
join him on the pretext of marriage, thereafter both
of them left the place in front of Sameetha Plaza, on
19.8.2011 thereafter they did not know where to
stay, he contacted his friend accused No.2 and 3
then they made an arrangement for their stay in the
house of accused No.3 where the parents of accused
No.3 were also residing. On coming to know this
fact parents of accused No.3 protested, then accused
/ 22 / Spl.C.C.No. 141 / 2014
& 114 / 2014
No.1 tied sacred thread in front of them. Then they
persuaded them to allow them to stay in the house
till the alternate arrangement was made. Therefore,
accused No.1 with victim girl stayed in the house of
accused No.3. It is pertinent to note the relevant
portion of statement accused No.2 and 3 only were
marked with respect of discovery of facts i.e.,
location of house of accused No.3 where prosecutrix
was kept. Under the circumstance on going through
the entire evidence placed on prosecution side, very
particularly the evidence of mother, sister and father
of prosecutrix, their evidence are suffering from
material contradictions. Therefore, it is hazardous
to place reliance on such inconsistent evidence to
link accused No.1 to 3 with alleged offence of
kidnapping.
13. On going though the oral testimony of
PW4-Mani she used to come home late when she
was questioned she used to leave the house and stay
in her uncle's house up to eight days. Her daughter
/ 23 / Spl.C.C.No. 141 / 2014
& 114 / 2014
disappeared from 19.8.2011 in spite of search did
not trace out and ultimately lodged complaint before
the K.R. Puram Police Station. She has further
stated that one day prosecutrix had been to
Ramamurthy Nagar Police Station, then
Mahadevapura Police had called her that her
daughter was traced, she rushed to Mahadevapura
Police Station, where she found the prosecutrix.
This evidence of PW4 is very much contradictory to
the case of the prosecution. According to
prosecution it is the parents who took her to
Mahadevapura Police Station by stating that
prosecutrix had been to Ramamurthynagara P.S.
who called the parents of the prosecutrix, thereafter
sent them to Mahadevapura P.S. But nothing on
record to show that prosecutrix had approached
Ramamurthy Nagara Police and thereafter her
parents were called by Ramamurthynagara P.S. and
sent her with her parents. There is only bare version
on this aspect. Apart from that PW4 has come up
with a different version as mentioned in supra.
/ 24 / Spl.C.C.No. 141 / 2014
& 114 / 2014
According to her oral testimony in chief examination
she found the victim girl in Mahadevaura P.S. only,
of which contradicts the case of the prosecution. It
is the case of the prosecution that prosecutrix
escaped from the house of accused No.3 and stayed
in her friend Sudha's House. On this aspect also
nothing is brought on record. The case of the
prosecutrix is of two things one is prosecutrix along
with accused No.1 stayed in the house of accused
No.3 where the parents of accused No.3 were also
residing therein. Another fold of the prosecution is
that the prosecutrix was kept in the house of
accused No.3, she escaped from that house on one
day i.e., on 30.9.2011. As per the case of the
prosecution that CW9 to 11 the independent
witnesses had seen the prosecutrix moving in the
house of accused No.3 and also she used to go
outside and mingle with neighbours, she and
accused No.1 were residing as husband and wife,
accused No.1 tied sacred thread to her, difference
arose between them, then victim girl left the house of
/ 25 / Spl.C.C.No. 141 / 2014
& 114 / 2014
accused No.3. Thus I do find the different folds in
the case of the prosecution . The statement stated to
have been given by prosecutrix before the
Investigating Officer does not appear to be natural.
Sudha, friend of prosecutrix has not been cited as a
witness in the charge sheet. According to
prosecutrix 161 statement before the Investigating
Officer she stayed in the house of her friend Sudha
on 30.9.2011, 1.10.2011 and 2.10.2011. She had
approached Ramamurthy Nagara P.S, thereafter she
was sent with her parents, she was taken by her
parents to Mahadevapura P.S. on 3.10.2011. Her
161 statement had been recorded on 4.10.2011. But
there is no evidence brought on record about her
stay in her friend Sudha's house from 30.9.2011 to
2.10.2011.l As already discussed supra, even there
is no evidence on record that she approached
Ramamurthy Nagara Police and her parents were
called by Ramamurthy Nagara Police and thereafter
sent her with her parents. Under the circumstances
the discrepancy found in the very chief examination
/ 26 / Spl.C.C.No. 141 / 2014
& 114 / 2014
of PW4 goes to the root of the case of the
prosecution.
14. Of course PW4 has stated in her chief
examination that prosecutrix had disclosed before
her that accused and other two persons had taken
away her in a car to Sevanagara and kept her in one
house, prior to the incident accused No.1 was
following the prosecutrix, she had scolded accused
No.1 and she came to know the overt act of accused
No.1 prior to the date of incident and she scolded
him, is not at all the case of the prosecution.
Therefore, though she has stated these aspects in
her chief examination is of no consequence. She
was further chief examined on 9.4.2015 on
prosecution side. On that day she has given a
different version "that she does not know accused
No.2 Arun and accused No.3 may be the friend of
accused No.1, accused No.2 had taken away the
prosecutrix, why he had taken the prosecutrix was
not known to her. Prosecutrix revealed before her
/ 27 / Spl.C.C.No. 141 / 2014
& 114 / 2014
that she had gone with accused No.2 Arun. She did
not say anything more, she had seen accused No.1
only before the Court, she had never seen accused
No.3." She has given this type of contradictory
statement in her further Chief examination itself.
Therefore, I do not find any force in the arguments
addressed by the learned Public Prosecutor that she
was won over by other side. Her version in the Chief
examination recorded on the first date itself is also
suffering from major contradictions of which doubts
the case of the prosecution to connect accused No.1
to 3 with alleged offence of kidnapping. Firstly there
is no conclusive proof with respect to her age under
18 years as on that date. Secondly there is no
consistent and corroborative evidence as to the case
of the prosecution so far as kidnapping is
concerned.
15. On going through the cross examination
of PW4 done on defence side she has come up with
entirely different version "that prosecutrix did not
/ 28 / Spl.C.C.No. 141 / 2014
& 114 / 2014
say anything before her, she had not given Ex.P3.
She has not given any document to police, she does
not know anything except lodging complaint. The
prosecutrix after her return to the house was
normal, she has not given any statement before the
police." She has given this type of evidence when
she was examined in chief in further on prosecution
side on 9.4.2015 itself. She was also further cross
examined on 5.10.2015, in that cross examination
she has stated "that if the children come home late,
her husband used to beat them. The prosecutrix
sometimes was coming home late, then her husband
was beating her, then she used to leave the house
and stay in the house of others. Thereafter she used
to come back on her own." She further stated "that
15 days after she lodged complaint before the police
she received phone call from the police that her
daughter had been traced. She found her daughter
in Mahadevapura Police Station." What she has
stated in Chief examination mentioned in supra
same thing is also stated in the cross examination at
/ 29 / Spl.C.C.No. 141 / 2014
& 114 / 2014
page 6 and 7 of her cross examination. She has
stated "that her daughter disclosed before her that
accused No.1 had taken her, but her daughter did
not reveal the other things to where he took her
where she was kept by him, even she did not
disclose anything before her sister PW5 Varalakshmi
and her father PW6 Gajendra." On going through
the entire evidence of PW4 the only one thing is
found that her daughter said before her, accused
No.1 took her. Another version is also found in her
examination that her daughter did not say anything
either before her or before her other family members.
She has further stated that after they took the
prosecutrix to house she stayed for 15 days only
thereafter again she left the house, she does not
know where is she and she does not know accused
No.1 also. Thus the evidence of PW4 is found to be
unreliable, the inconsistency in her evidence cannot
be based to convict the accused No.1 to 3 for the
offence of kidnapping. Though the prosecutrix has
not been secured by the prosecution, if there is any
/ 30 / Spl.C.C.No. 141 / 2014
& 114 / 2014
other reliable evidence the matter would have been
different. But the prosecution has failed to place
the trustworthy evidence to prove its case beyond
reasonable doubt. Even Inspite of issue of
proclamation as a last resort, not secured the
prosecutrix by the prosecution.
16. On going through the evidence of PW5
Varalakshmi, discrepancy is also found in her
evidence. She has also given similar statement as
that of her mother that prosecutrix was in the habit
of leaving the house when the parents scolded at
home, after 2-3 days only she used to come back. Of
course she has stated in chief examination 20 days
after missing of her sister they received phone call
from the Ramamurthy Nagara Police Station, they
all had been to the said Police Station, prosecutrix
revealed before them three persons had been forcibly
took her in van and confined in a room, accused
No.1 had forcibly tied sacred thread and confined
her in a room for one month. I have discussed in
/ 31 / Spl.C.C.No. 141 / 2014
& 114 / 2014
supra about the case of the prosecutrix of which is of
two folds. Very particularly according to prosecution
there are independent witnesses who had seen the
prosecutrix freely moving in the locality and mingling
with the neighbours in Ramaswamy Palya. Of
course those witnesses are not examined on
prosecution side. However statement of PW5 in
her Chief examination does not positively establish
the case of the prosecution beyond shadow. On
going through her cross examination found
unfavourable version "that prosecutrix was always
coming home late, her father was always beating
her. After lodging the complaint the victim girl had
been traced, but nowhere she has given any
statement before the police, what she stated in the
Chief examination has been tutored by police near
the court." Under the circumstance in the absence
of credible and corroborative evidence, it is not safe
to bring home the guilt of the accused. PW5 is the
hearsay witness. But what she has stated in the
chief examination that they found victim girl in the
/ 32 / Spl.C.C.No. 141 / 2014
& 114 / 2014
Ramamurthynagara P.S. is contradictory to the
statement of her mother PW4. This portion of her
evidence is also not supported by any piece of
evidence on prosecution side.
17. PW6 Gajendra is the father of the
prosecutrix. In the Chief examination he has stated
"that accused No.1 seen by him through V.C. at the
time of evidence, had taken away the victim girl, one
month after lodging the complaint police telephoned
him that prosecutrix was traced. Then she disclosed
accused No.1 and other two persons took her in van
to Sevanagar where she was confined in a room and
accused No.1 had forcibly tied sacred thread to her."
But in the cross examination he admits the same
thing about the conduct of the prosecutrix, "that she
used to often leave the house and stay in her
relative's house." He cannot withstand the cross
examination. He has pleaded his innocence about
the incident. He has stated in his cross examination
that after tracing the victim girl she did not say
/ 33 / Spl.C.C.No. 141 / 2014
& 114 / 2014
anything before him. There is a specific suggestion
made by the learned counsel for the accused that
prosecutrix did not reveal anything before him that
accused No.1 had forcibly taken her, forcibly tied
sacred thread and committed rape on her. Then he
pleaded his innocence by stating that she might have
told before her mother. The burden lies upon the
prosecution to establish its case beyond reasonable
doubt. But on going through the evidence of PW4 to
6 there is no enough evidence to believe the case of
the prosecution. The prosecution has failed to put
fourth corroborative and cogent evidence to prove
the offence of kidnapping by accused No.1 with the
assistance of accused No.2 and 3. It is pertinent to
note on going through the evidence of these three
witnesses, there is no reference of accused No.2 and
3. So far as concerned to accused No.2 and 3 there
is absolutely no material evidence to connect them
with alleged crime. Even so far as accused No.1 is
also concerned, there is no convincing evidence
found on record. There is no reliable attending
/ 34 / Spl.C.C.No. 141 / 2014
& 114 / 2014
circumstances to believe the case of the prosecution.
Even for a while it is taken that accused No.1 took
her away, it is evident from the case of the
prosecution itself she voluntarily joined him.
Otherwise she would not have stayed in the house
of accused No.3. As already stated in supra CW9 to
11 are the independent witnesses who had seen her
staying in the house of accused No.3 with accused
No.1 for a period of one month, since the difference
arose between both of the she left and went. That is
the case of the prosecution itself as per 161
statement of CW9 to11. Therefore, under these
circumstances it is not safe to convict the accused
for the offence of kidnapping punishable under
Section. 366 of IPC.
18. There are also other witnesses examined
on prosecution side, they are Panchas. PW1
Manjunath and PW2 Sadananda are Panchas to
Ex.P1 mahazar drawn in the place of kidnapping on
4.10.2011 by Mahadevapura Police. According to the
/ 35 / Spl.C.C.No. 141 / 2014
& 114 / 2014
prosecution this place had been shown by the
victim girl. On this aspect I do not find consistency
in the evidence of PW1 and 2. Though PW1
Manjunatha has stated that the Police had drawn
the mahazar, at that time the victim girl was on spot,
in the cross examination itself stated "that he was
not knowing the presence of the victim girl at the
time of drawing the mahazar. Later only he came to
know that." Irrespective of it, drawing of spot
mahazar by the Police alone does not prove the
prosecution case to convict for the offence of
kidnapping. His evidence is only to the effect of
drawing of mahazar by the police in front of
Sameetha Plaza. PW2 Sadananda is also another
spot Pancha to Ex.P1. But though he supported
drawing of the mahazar, only based on the evidence
of Panchas accused No.1 to 3 cannot be convicted
for the offence of kidnapping in the absence of
essential ingredients of offence of kidnapping.
/ 36 / Spl.C.C.No. 141 / 2014
& 114 / 2014
19. PW3 Naveen is one of the Pancha to Ex.P2
drawn in the house of accused No.3. According to
prosecution based on the information given by
accused No.2 and 3 as to discovery of fact this
mahazar had been drawn on 16.10.2011 by PW11
Police Inspector. The Chief examination of PW3 itself
is contradictory to the case of the prosecution. He
has stated in his Chief examination that when they
had gone to the house of accused No.3 he found the
prosecutrix with the accused in that house. He is
subjected to cross examination by the learned Public
Prosecutor. Then he went on admitting his
suggestions. But in the cross examination done on
defence side he has stated "that by the time he had
gone to that place, public gathered, since he had
acquaintance with the Police, they took his
signature, he did not say anything before the Police
that accused and victim girl were in the house
No.533 of accused No.3." The learned counsel for the
accused had put one material suggestion that it is
not the accused who had shown the place to the
/ 37 / Spl.C.C.No. 141 / 2014
& 114 / 2014
police. He pleaded his innocence. He has stated
"that he does not know. Police obtained his
signature, he had not seen victim girl in that house."
Therefore the evidence of PW3 does not help the
prosecution in proving its case with respect to
discovery of facts as to where prosecutrix was kept
by accused No.1 to 3. There is no corroborative and
satisfactory evidence on this aspect. The
independent witness i.e., CW9 to 11 who are stated
to have seen her are not examined. There are no
enough materials brought on record to convict the
accused No.1 to 3 for the offence of kidnapping. Of
course there is evidence of the police officials i.e.,
PW9 to 11. I have already discussed at the first
instance itself about their part of investigation. But
that is not supported by any piece of reliable,
convincing and corroborative evidence. The
prosecution has miserably failed to put fourth
sufficient materials to prove the essential ingredient
of offence of kidnapping. In the absence of ample
and credible evidence the prosecution has failed to
/ 38 / Spl.C.C.No. 141 / 2014
& 114 / 2014
prove its case beyond reasonable doubt. The benefit
of doubt should go to the accused No.1 to 3. Hence I
hold points 1 and 2 in Spl.CC 141/2014 and Point
No.1 in Spl.CC 114/2014 in the negative.
20. Point No.3 in Spl.CC No.141/2014:-
There is charge of rape against accused No.1. It is
alleged that accused No.1 had committed rape on
CW2-Kum. Nalini-prosecutrix in the house of
accused No.3 during her stay from 20.8.2011 to
30.9.2011. In order to prove this the prosecution
has got examined PW4 to 7, PW5 Naveen-Pancha,
PW7-Dr. B.M. Nagaraj, who subjected victim girl to
medical examination, PW8 Dr. Suresh V., who had
issued medical report relating to accused No.1,
PW10 and 11 Investigating Officers, who have partly
investigated in the present case, they are the
material witnesses on this aspect. While discussing
other points pointed out that there is not only
improvement but also inconsistency in the evidence
of PW1, 4 to 6. Even concerned to offence of rape
/ 39 / Spl.C.C.No. 141 / 2014
& 114 / 2014
also their evidence does not prove the prosecution
case beyond reasonable doubt. Eye-witness may not
be available in the cases of rape. However the
circumstantial evidence which has close proximity
with the incident may be available as discussed
supra. Non examination of CW9 to 11 is fatal to the
case of the prosecution. Apart from that, PW4
Mother of the prosecutrix has given contradictory
statement. Her version is not found to be truthful.
On one breath she says that prosecutrix revealed
that accused No.1 had committed rape on her, on
other breath she has stated that victim girl did not
state this aspect before her, even not stated anything
on this aspect before PW5 Varalakshmi, PW6
Gajendra. So also same incredible evidence is found
in the oral testimony of PW5 and 6. Though PW5 has
stated that prosecutrix said before her, that accused
had committed rape on her, she escaped from him,
but in the cross examination she has given entirely
different statement that prosecutrix did not say
anything before her, what she has stated in her
/ 40 / Spl.C.C.No. 141 / 2014
& 114 / 2014
Chief examination has been tutored by the Police.
Even though PW6 has stated in his Chief
examination that his daughter had revealed that
accused had committed the rape on her. But he
blows both hot and cold at the same time. In the
cross examination he pleaded innocence on this
aspect. It is evident from his cross examination
prosecutrix did not say anything before him. Such
uncorroborative and unreliable evidence cannot be
based to convict the accused No.1 for offence of rape.
21. The prosecutrix has not been examined
due to reasons assigned in supra. Though there is
medical evidence that she had no recent sexual
intercourse but she had frequent sex before that
period. PW7 Dr. B.M. Nagaraj after subjecting the
victim girl to medical examination, had issued report
as per Ex.P4 accordingly. There is also Ex.P5 issued
by pathology department that there is no evidence of
spermatozoa. Of course PW7 Dr. B.M. Nagaraj has
corroborated Ex.P5 that hymen is torn and there
/ 41 / Spl.C.C.No. 141 / 2014
& 114 / 2014
were signs of having sexual intercourse by the victim
girl not recently but before that period. PW8 Dr.
Suresh has issued Ex.P6 the medical report relating
to accused. Ex.P6 does not speak out anything.
According to Ex.P6 there is nothing to suggest that
accused is incapable of having sexual intercourse.
But that cannot be based to hold the guilt of the
accused. There is no evidence of prosecutrix. There
is inconsistency in the evidence of PW4 to 6. Though
there is medical evidence that she had sex earlier,
whether accused No.1 had taken away victim girl
and kept in the house of accused No.3 is the first
and foremost point. The prosecution has miserably
failed to place abundant, corroborative and fruitful
evidence to prove the essential ingredients of offence
of kidnapping. Merely because PW7 Dr.B.M.
Nagaraj, has stated that there were signs that she
had sexual intercourse, prior to four days from the
date of her examination, the inference cannot be
safely drawn against accused No.1 that he had
forcible sexual intercourse with prosecutrix CW2.
/ 42 / Spl.C.C.No. 141 / 2014
& 114 / 2014
Firstly, there is no conclusive proof as to age of the
prosecutrix under 18 years. Secondly, There is no
oral testimony of the prosecutrix to prove the case of
the prosecution that there is offence of rape against
CW2-prosecutrix. Thirdly there is no convincing
evidence and attending circumstances to constitute
the offence of rape by the accused No.1. according
to prosecution case itself as in charge sheet, victim
girl was of 16 years, as per complaint she was of 18
years, as per medical evidence she was of 15-16
years. This point has been concluded that there is
no conclusive proof to show her age under 18 years.
The prosecution has also failed to establish the
offence of kidnapping beyond reasonable doubt.
Under the circumstances even for a while it is taken
that victim girl had sex during that period, there is
no believable evidence to show that prosecutrix was
under 18 years or even below 16 years. If the
accused No.1 had forcible sexual intercourse with
her she would not have kept mum for a period of
more than 1½ months. As per the case of the
/ 43 / Spl.C.C.No. 141 / 2014
& 114 / 2014
prosecutrix itself prosecutrix used to mingle with
the neighbours, she was allowed to move freely
outside in the locality. That itself suspects the
prosecution case that there was forcible sex with the
prosecutrix .
22. Even on going through the evidence of
PW3 Naveen, Pancha of Ex.P2 does not positively
establish the case of the prosecution for commission
of offence of rape. As per prosecution the place of
occurrence had been shown by accused No.2 and 3.
On the basis of the information supplied by them the
Police had drawn Ex.P2 mahazar in the presence of
PW3 Naveen and another pancha. As per the
evidence of PW3 Naveen case of the prosecution
does not fall within the ambit of Section 27 of the
Indian Evidence Act. PW3 Naveen has stated in the
Chief examination itself that it is police who took
him to the spot, there he found the victim girl and
accused which is not at all the case of the
prosecution. Therefore the ingredients of section 27
/ 44 / Spl.C.C.No. 141 / 2014
& 114 / 2014
of the Indian Evidence Act itself is not established by
the prosecution. Apart from that firstly there is no
evidence that prosecutrix is under 18 years.
Secondly even it is taken that she was used to act of
sexual intercourse it is not forceful act. In view of
sixthly of section 375 of IPC the age of consent is 16
years. Viewed from any angle it does not constitute
the offence of rape to convict the accused No.1.
PW10 and 11 have reiterated the case of the
prosecution. But discovery of the fact is not
established on prosecution side. Prosecution has
miserably failed to put fourth sufficient, truthful and
corroborative evidence to draw conviction against
accused No.1 for the offence of rape. The prosecution
has miserably failed to establish its case. Hence
point No.3 in Spl.CC.141/2014 ansered in the
negative.
23. Point No.4 in Spl.CC 141/2014 and
Point No.2 in Spl.CC 114/2014:-: In view of my
/ 45 / Spl.C.C.No. 141 / 2014
& 114 / 2014
above discussion and findings, I proceed to pass the
following:
ORDER
Acting under Section 235(1) of Cr.P.C. accused No.1 in Spl.CC.141/2014 is acquitted for offences under Section 366 R/w. Section 34 of IPC and 376 of IPC. Accused No.2 in Spl. CC 141/2014 is acquitted for offences under section 114 R/w. Sec. 34 of IPC.
Accused No.1 who is in J.C. shall be set at liberty forthwith if not required for any other cases.
Accused No.3 in Spl.CC.114/2014 is hereby acquitted for the offence punishable under Section 114 R/w. Section 34 of I.P.C.
Original common judgment shall be kept in Spl.CC 141/2014 and copy of the same be kept in split up case in Spl.CC 114/2014. (Dictated to the Judgment Writer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 27th day of February, 2016.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore / 46 / Spl.C.C.No. 141 / 2014 & 114 / 2014 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Manjunath PW 2 Sadananda PW 3 Naveen PW 4 Smt. Mani PW 5 Smt. Varalakshmi PW 6 Gajendra PW 7 Dr. B.M. Nagaraj PW 8 Dr. Suresh. V. PW 9 G.P. Eshwarachari PW 10 Ariyappa PW 11 D. Kumar LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Spot mahazar Ex.P 1(a) Signature of PW1 Ex.P 1(b) Signature of PW2 Ex.P 2 Mahazar Ex.P 2(a) Signature of PW11 Ex.P 3 Complaint (Xerox copy) Ex.P 4 Medical report Ex.P 4(a) Signature of PW7 Ex.P 4(b) Signature of victim girl Ex.P 5 Pathology report (Xerox copy) Ex.P 6 FSL report Ex.P 6(a) Signature of PW8 / 47 / Spl.C.C.No. 141 / 2014 & 114 / 2014 Ex.P 7 FIR Cr.No.448 Mahadevapura PS Ex.P 7(a) Signature of PW10 Ex.P 8 Report Ex.P 8(a) Signature of PW11 Ex.P 9 FIR Cr.No.369/11 Indiranagara PS Ex.P 9(a) Signature of PW11 Ex.P 10 FIR Cr.No.336/11 KR Puram PS Ex.P 10(a) Signature of PW9 Ex.P 11 Report in Cr.No.448/11 Ex.P 12 Report Ex.P 13 Statement of Accused No.2 Ex.P 13(a) Marked document Ex.P 14 Statement of Accused No.3 Ex.P 14(a) Marked document Ex.P 15 School certificate Ex.P 15(a) Signature of PW11 LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** / 48 / Spl.C.C.No. 141 / 2014 & 114 / 2014 27.02.2014 State by Public Prosecutor Accused No.1 in JC - PK Accused No.2 on bail -PK Accused No.1 produced through VC. Accused No.2 - Pr Common Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C. accused No.1 in Spl.CC.141/2014 is acquitted for offences under Section 366 R/w. Section 34 of IPC and 376 of IPC. Accused No.2 in Spl. CC 141/2014 is acquitted for offences under section 114 R/w. Sec. 34 of IPC.
Accused No.1 who is in J.C. shall be set at liberty forthwith if not required for any other cases.
Accused No.3 in Spl.CC.114/2014 is hereby acquitted for the offence punishable under Section 114 R/w. Section 34 of I.P.C.
Original common judgment shall be kept in Spl.CC 141/2014 and copy of the same be kept in split up case in Spl.CC 114/2014.
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.