Dismissed

Somashekhar @ Somesh v. the Station House Officer

Karnataka HC11 May 2023CRL.A/830/2011

Case brief

AI extract

What is this about?

The Criminal Appeal challenging conviction for kidnapping under Section 363 IPC was dismissed. The High Court held that the victim's testimony, corroborated by partial eye-witnesses and material objects, proved the kidnapping beyond reasonable doubt, despite the victim's age proving untenable for Section 366.

What did the court decide?

The Criminal Appeal was dismissed and the judgment of conviction and sentence under Section 363 IPC was confirmed. The fine is to be paid as compensation to the victim.

Somashekhar @ Somesh Vs the Station House Officer — Criminal Trial and Appeal | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T

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CRIMINAL APPEAL NO.830 of 2011

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BETWEEN:

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SOMASHEKAR @ SOMESH, S/o. RAMAIAH, AGED 35 YEARS, ERANNANAPETE, BELAGODU HOBLI, SAKALESHPURA TALUK, HASSAN DISTRICT.

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MALLESHA, S/o. LATE JAVARAYYA, AGED 34 YEARS, HOSAPETE, BELAGODI HOBLI, SAKALESHPURA TALUK.

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TAMMAYYA @ CHANDRA, S/o. ERAIAH, AGED 35 YEARS, HOSAPETE, BELAGODU HOBLI, SAKALESHPURA TALUK, HASSAN DISTRICT.

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…APPELLANTS

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[BY SRI MOHAN BHAT, ADVOCATE (VC)]

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AND:

THE STATION HOUSE OFFICER, SAKALESHPURA POLICE STATION, SAKALESHPURA, HASSAN DISTRICT.

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…RESPONDENT

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[BY SRI VINAYAKA, H.C.G.P.]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTECNCE DATED 27.06.2011 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE AND FAST TRACK COURT, HASSAN, IN S.C.No.160/2003 C/W S.C.No.21/2008, IN THE INTEREST OF JUSTICE.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 24.2.2023, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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Appellant Nos.1 to 3/Accused Nos.1 to 3 have filed

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this appeal praying to set aside the judgment and order of conviction and sentence dated 27.06.2011 passed by the learned Additional Sessions Judge and Fast Track Court, Hassan, in S.C.No.160/2003 c/w. S.C.No.21/2008 wherein

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the learned Sessions Judge has convicted the appellants for

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the offence punishable under Section 363 read with Section 34 of IPC and sentencing them to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/- each and in default, they shall undergo rigorous imprisonment for a period of six months.

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I - Facts of the case

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It is the case of the prosecution that, on 5-2-2003 at about 5.30 P.M., Accused No.1-Somashekhar @ Somesh along with other accused viz. Accused No.2-Mallesha, Accused No.3-Tammayya @ Chandra, with a common intention, have kidnapped P.W.15-victim forcibly, while she was coming back from the school, near the Coffee plantation belonging to one Sri Narayanamurthy, situated in Eshwarahalli, Belagodu Road and on the same day, during night, Accused No.1 committed rape on the victim and on the next day i.e., on 6-2-2003, she was kept in the house of one Angadi Devaraj-PW14 of Doddahalli, Arakalgudu

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Taluk and there again, Accused No.1 committed rape on the victim. Hence, PW.1 Smt. E. V. Jayamma, mother of the victim, lodged complaint (Ex.P1) on 6.2.2003 at about 2.00 P.M. before the respondent-Police. Thereafter, PW.11 Puttarajappa registered the case in Crime No.21/2003 for the offences punishable under Sections 366 and 376 read with Section 34 of the Indian Penal Code as per Ex.P.14 FIR. Later, the Investigating Officer visited the spot and drew panchanama, recorded the statements of the witnesses and also of the victim, completed investigation and issued charge sheet against accused Nos.1 to 3.

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The matter was committed to the Court of Sessions and the learned Sessions Judge framed charge against the accused persons for the offences punishable under Sections 366, 366A and 376 read with Section 34 of IPC. In turn, the accused pleaded not guilty and claimed to be tried.

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In order to prove its case, the prosecution examined 18 witnesses as PWs.1 to 18, got marked documents as Exs.P1 to P30 and material objects as MOs 1 to 11 and on behalf of the defence, Ex.D1 came to be marked. After completion of the evidence, on behalf of the prosecution, the statements of accused Nos.1 to 3 under Section 313 Cr.P.C. were recorded by explaining the incriminating evidence appearing in the prosecution case. The case of the accused was of total denial and accused have not led any evidence.

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II. Findings recorded by the learned Sessions Judge

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The learned Sessions Judge considering both oral

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and documentary evidence on record has recorded a finding that, the prosecution has proved beyond all reasonable doubt that, on 5-2-2003 at about 5.30 P.M., accused No.1Somashekhara @ Somesh along with other accused viz. accused No.2-Mallesha and accused No.3-Tammayya @

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Chandra, with a common intention of kidnapping PW.15victim, have kidnapped her forcibly, while she was coming back from the school, near the Coffee plantation belonging to one Sri. Narayanamurthy, situated in Eshwarahalli, Belagodu Road.

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The trial Court recorded a finding that, the prosecution failed to prove that on the same day, during night, accused No.1 committed rape on the victim (PW-15) and on the next day i.e., on 6-2-2003, the victim was kept in the house of one Angadi Devaraj-PW14 of Doddahalli, Arakalgudu Taluk and there again, accused No.1 committed rape on the victim. Accordingly, the trial Court acquitted accused Nos.1 to 3 for the offence punishable under Section 366A, 366 and 376 of IPC.

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The learned Sessions Judge convicted accused Nos.1 to 3 for the offence punishable under Section 363 read with Section 34 of IPC.

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Aggrieved by the judgment of conviction and order

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of sentence passed by the Trial court, accused 1 to 3 have preferred this appeal.

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Heard the learned counsel for the

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appellants/accused Nos.1 to 3 and the learned HCGP .

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III ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANTS

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Sri Mohan Bhat, learned counsel for the

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appellants, has contended that, the impugned judgment and order of conviction and sentence passed by the learned Trial Judge is highly erroneous and hence, the same is liable to be set-aside as the same is against the established principle of law; the learned Trial Judge has gravely erred in coming to the conclusion that the appellants have committed the offence defined under Section 361 of Indian Penal Code, solely on the basis of assumption that the victim was below the age of 18 years as on the date of

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alleged offence. He further submits that when the learned Trial Judge acquitted the appellants under Section 366 of the Indian Penal Code, the question of appellants committing the offence punishable under Section 363 of the IPC does not arise at all; however, the learned Trial Judge has failed to appreciate this material fact and has passed the judgment of conviction and order on sentence and hence, the same is liable to be set aside; the learned Trial Judge placed much reliance on the evidence of P.W.15-victim and did not consider the material contradictions; PW.2-Asha, classmate of the victim, who was alleged to be with PW15 on the date of incident, did not support the case of the prosecution; there are no other witnesses, who spoke about the appellants taking the victim along with them. He further submits that, if the finding of the learned Trial Judge is carefully referred, the very fact that the victim was kidnapped itself was not proved before the Trial Court and therefore, question of convicting the

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appellants under Section 363 of Indian Penal Code does not arise. However, the learned Trial Judge has gravely erred in convicting the appellants under Section 363 of Indian Penal Code and hence, the judgment of conviction and sentence imposed by the learned trial Judge is liable to be set aside; the learned Trial Judge has lost sight of the material fact that when the Court has acquitted the appellants for the offences punishable under Section 376 and 366, the age of the prosecutrix cannot be assured to be less than 18 years by ignoring the evidence of brother of the prosecutrix-PW5 who has deposed that her age at that time was above 18 years for the purpose of Section 361 and consequently, the conviction under Section 363 of I.P.C is unsustainable and hence the same is liable to be set aside.

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The learned counsel further submits that, the Trial Judge has not considered the other evidence available on record. Merely because the appellants are charged for

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having committed the offence under Section 366 of Indian Penal Code, they cannot be convicted for the offence punishable under Section 363 of Indian Penal Code unless and until the commission of the said offence is proved beyond all reasonable doubt. The finding of the learned Trial Judge in paragraph No.49 of the Judgment clearly provides that the appellants have not committed offence punishable under Section 363 of the Indian Penal Code. Therefore, the Judgment of conviction and sentence passed by the learned Trial Judge is liable to be set aside.

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The learned counsel further submits that, the learned Trial Judge has erred in proceeding on the basis that the appellants have understood the charge under Section 363 of Indian Penal Code merely because they were read over the charge under Section 366 of the Indian Penal Code. There is no specific charge under Section 363 of I.P.C. against the appellants and therefore, the accused could not have been convicted under the said provision.

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Therefore, the impugned Judgment of conviction and sentence is liable to be set aside;

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The learned counsel further submits that, the learned Trial Judge has gravely erred in accepting the evidence regarding identification of the property seized in spite of contradictory evidence on record. Therefore, the impugned Judgment, order of conviction and sentence is liable to be set aside; the learned Trial Judge has also erred in considering the case while imposing the sentence. The sentence imposed by the learned Trial Judge is contrary to the facts and circumstances of the case and the evidence on record; Therefore, viewed from any angle, the Judgment and order of conviction passed by the learned Trial Judge is liable to be set aside as the one being highly erroneous and opposed to law, facts and circumstances of cases.

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IV ARGUMENTS ADVANCED BY THE LEARNED HIGH COURT GOVERNMENT PLEADER

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Per Contra , Sri Abhijith, learned HCGP for the respondent State, while justifying the impugned judgment of conviction and order on sentence, contended that, the learned Sessions Judge, considering the material available on record, has rightly convicted the appellants for the offence punishable under Section 363 of IPC.

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In view of the rival contentions urged by the learned counsel for both parties, the point that arises for Court consideration in the present appeal is:

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"Whether accused Nos.1 to 3/appellant Nos.1 to 3 have made out any case for interference with the impugned judgment of conviction and sentencing them for a period of 3 years for the offence punishable under Section 363 of IPC and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months, in the facts and circumstances of the case?"

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I have given my anxious consideration to the

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arguments advanced by the learned counsel for the parties and perused the entire material including original record carefully.

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In order to re-appreciate the oral and

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documentary evidence on record, it is relevant to consider the evidence of the prosecution witnesses and documents relied upon.

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V. WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION

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a. PW.1 E. V. Jayamma is the mother of the victim.

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She has deposed that on 05.02.2003 at about 8.00 or 8.30 a.m. her daughter had been to school, but she did not return to her house. Therefore, herself and her son Guruprasad (PW.5) searched her daughter, but could not trace. Therefore, on the following day i.e., on 06-02-2003 at 12.00 p.m., she went to Sakaleshapura Rural Police

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Station and lodged missing complaint (Ex.P.1.) and on the same day, her husband Veerabhadregowda committed suicide by consuming poison. She further deposed that, on 08.02.2003 she received phone call from Sakaleshpura Rural Police about tracing of her daughter. Hence, she and her son visited the Police Station and saw her daughter. She made enquiry with her daughter and she revealed that, the accused persons took her in their car to the house at Bhuvanahalli Village and later, on the next day they took her from Bhuvanahalli Village to Dadadahalli Village to the house of Devaraju and Lalithamma and her daughter said that Accused No.1 committed rape on her. In the crossexamination, nothing has been elicited to disbelieve her evidence.

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b. PW.2 Asha is the friend of victim. She has deposed that, on 05.02.2003 in the morning, she and victim went to the school and at 4.30 p.m. they left the school and went to tuition and at 5.30 p.m. they left tuition and proceeded

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towards house. After one hour of her arrival, the mother of victim (PW.1) and her brother (PW.5) came to her house and enquired about the victim, then, she said that, they both proceeded towards Erannakoppalu Cross and then, she went to her house and victim went towards Eshwarahalli Cross and some persons were following the victim. Hence, PW.2 turned hostile to the case of prosecution and in the cross examination, she has completely denied the suggestions made by the learned Public Prosecutor.

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c. PW.3 Thammanagowda @ Mogannagowda has deposed that, he is resident of Erannakoppalu Village, he knows PW.1-Jayamma and her husband Veerabhadregowda, but he does not know the victim. According to this witness, he has been grazing cattles in the vicinity of Edehalli Hillock, as such, on 05.02.2003 at 6.30 p.m. he had been to Edehalli Hillock in order to bring his cattles, at that time, he heard the voice of girl, who was raising hue and cry, hence, he went to the said place and

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saw a girl who was crying, at the same time, accused No.1 came to said place, held her hand and proceeded ahead, hence, PW.3 enquired about girl, then, accused No.1 told him that, she is his relative. He further deposed that, on 09.02.2003 at 2.30 p.m. when he was proceeding towards Beluru-Chikkodu Road, Police came to Edehalli Hillock, where the Police prepared mahazar (Ex.P.3) in his presence, seized school bag, lunch box and spoon (MO.1 to MO.3). In the cross examination, he has categorically stated that, on the day of incident, he was not aware about the name of the victim, but he came to know about the name of the victim on 07.02.2003. He further stated that, victim shown MO.1 to MO.3, which was lying on the fence. He admits that, he is uncle of PW.2 Asha and everyday victim and Asha were going to School and they were studying in same class and rest of the suggestions was denied by this witness.

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d. PW.4 Vishwanath - witness to mahazar (Ex.P.4),

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has stated that, Police have conducted mahazar in the place, where the victim was kidnapped.

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e. PW.5 Guruprasad, the brother of victim and son of PW.1, deposed in line with PW.1.

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f. PW.6 Udayashankar, resident of Menasinamakki

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Village, deposed that, on the day of incident at 6.00 p.m. he had been to Belagodu for purchase of thread for housewarming ceremony of his friend Devaraju, when he was returning on his motorcycle on Belagodu-Eshwarahalli Village, a person forcibly took a girl towards the land of one Narayanamurthy, hence, he saw accused No.1 Somesha, accused No.2 Mallesha, accused No.3 Tammayya and victim. He has also seen other three persons, who took victim to the land of Narayanamurthy, as he was alone, he went to the house of Devaraju and returned to the land of Narayanamurthy with his friends and searched for accused

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and victim, but nobody was there. Hence, PW.6 was about to return towards house, he saw PW.1 and PW.5, who were searching for victim, hence, he informed both of them that, victim was in the company of accused persons. He further deposed that, on 06.02.2003 at 4.30 p.m., Police came to the spot where PW.6 shown the spot and hence, Police prepared spot mahazar (Ex.P.4). He further deposed that, on 07.02.2003 he came to know about tracing of victim girl. He has identified accused No.1 before the Court. Nothing has been elicited to discredit his testimony in the cross examination.

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g. PW.7 Dr. Poornima in her evidence deposed that, on 08.02.2003, at 12.45 noon, she examined victim as per request of Investigating Officer. According to this witness, she enquired with victim. Hence, she revealed that, on 07.02.2003, she was subjected to sexual harassment twice by accused No.1 Somesha. Hence, she examined victim, but no external injuries were found on her. She also

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examined the private part of victim and came to know that, no external injuries or mark found on her, hymen was not ruptured and victim was aged about 16 years. According to her, she collected seminal stains and sent to FSL. Based on the report of FSL and the examination done by her, she issued report (Ex.P.6).

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h. PW.8 Dr. Manuprasad, who examined Accused No.1, has stated that on 08.02.2003 at 12.45 noon, accused No.1 Somesha brought before him along with one Head Constable. Thus, he conducted general physical examination, genital examination and he did not find any abnormality. According to him, there is nothing to suggest that accused is incapable of performing sexual intercourse. Hence, he issued report as per Ex.P8.

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j. PW.9 Abdul Khadar, Driver of car, who took accused

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persons and victim in his car, turned hostile to the case of the prosecution.

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k. PW.10 B. T. Krishnamurthy, Head Master of School,

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has stated that, he has issued Date of Birth Certificate of victim as per Ex.P.13 and as per Ex.P.13 the date of birth of victim is 29.10.1987.

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l. PW.11 Puttarajappa, ASI, has stated that, on 06.02.2003 at 2.00 p.m., PW.1 came to Police Station and lodged complaint (Ex.P.1). Hence, he registered the case in Crime 21/2003 and sent FIR (Ex.P.14) to the Court. He further stated that, on the same day at 4.00 p.m., he visited the spot i.e., in the Coffee Estate of one Narayanamurthy resident of Erannanapete, where he drew spot panchanama (Ex.P.4).

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m. PW.12 Balakrishna, Police Constable, who was deputed to trace the accused.

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n. PW.13 Lalithamma, who had kept accused and victim in her house on 05.02.2003, turned hostile to the case of the prosecution.

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o. PW.14 Devaraju who had kept accused and victim in his house, turned hostile to the case of the prosecution.

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p. PW.15 - victim, has stated that, she knows accused persons. PW.1 and PW.5 are her mother and brother respectively. PW.2 is her friend and during 2003, both of them were studying in S.S.L.C., in Government High School, Belagodu Village. During this period, she was with her parents. On 05.02.2003 at 9.30 a.m., she went to school at Belagodu and at 4.30 p.m. she returned from her school and went to tuition till 5.30 p.m. After completion of tuition, herself and PW.2 Asha returned towards Eshwarahalli. As PW.2 Asha hails from Erannanakoppalu Village, both of them went towards Eshwarahalli and in the cross, PW.2 went towards Erannanakoppalu and she went

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towards Eshwarahalli. At about 5.45 p.m., when she was proceeding in front of the house of Abhan Beli, accused No.1 Somesh called her, but she did not stop and told him that, she wants to go house. Immediately, accused No.1 came and caught hold her right hand, at that time, accused No.2 and 3 were present, accused No.3 closed her mouth with his hand and accused No.2 Mallesh caught her hands and all of them took her to Coffee Estate of Narayanaswamy, for almost half kilometer, where accused No.3 Tammayya shown knife to her for not to raise hue and cry and later, they took her to Edehalli Hillock, where she cried saying that, she lost her education and at the same time, accused No.1 thrown her school bag on fence, accused No.3 Tammayya hid behind shrubs, accused No.2 Mallesh went to his village and during dark night a person came to the said place holding gun and enquired accused No.1 and he also enquired about her with accused No.1. After sometime, Tammayya (accused No.3), Seena

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(accused No.4), brother of accused No.1 by name Chandra (accused No.5), Lohitha (accused No.6) and later, they took victim in ambassador car and went towards Bhuvanahalli Village and they took her to a house where accused No.1 and victim were there throughout night and accused No.1 had sex with her and on the following day, accused No.2 and 3 went to their house. On the following day also, accused No.1 had sex with her.

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She further stated that, on 07.02.2003, accused No.1 Somesha assured her that, he would take her to Eshwarahalli Village, but he took her to Dadadahalli near Arakalagudu, and had sex with her and on the following day, after 6.00 a.m., Police came, hence, Police took Somesha (accused No.1) and her to Sakaleshpura Police Station and later, Police took her to Sakaleshpura Government Hospital, where she gave her statement. On the following day, Police took her to Bhuvanahalli, where Police prepared mahazar (Ex.P.19) and later, they took her

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to Edehalli Hillock, where Police conducted mahazar (Ex.P.3) and with the help of one Krishnegowda removed school bag containing MO.1 to MO.3. She identified Ex.P.21 to P.26 (photos of accused No.1 and her). According to her, accused No.1 sexually assaulted her against her will.

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In the cross examination, she has stated that, when accused persons took her to the land of Narayanaswamy, there was movement of vehicles and she did not see any person who were acquainted to her. She further stated that, the moment accused No.1 hold her hand, she raised hue and cry, but nobody came to the spot. She admits that, as soon as accused No.1 was following her, when she was in the company of PW.2 Asha, she was aware that, he was following her, but she did not doubt him. She further stated that, she cried to escape from the clutches of accused persons, but could not. She further stated that, since it was late night, she pleads ignorance to inform the villagers. She further stated that, accused No.1 had sexual

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assault on her in Bhuvanahalli Village and Dadadahalli Village and she informed said aspect to an aged lady at Bhuvanahalli Village. She further stated that, at the time of alleged offence, she was aged about 15 years. Hence, she has categorically stated that, accused No.1, along with other accused persons kidnapped her and took her to the house of PW.13 Lalithamma and PW.14 Devaraju, where accused No.1 had sexual assault on her and rest of the suggestions have been denied by her.

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q. PW.16 Manjunath, PSI of Sakaleshpura Police Station. In his evidence, he has stated that, on 07.02.2003 PW.17 Panchaksharappa (CPI) deputed him to trace accused No.1 Somesh and accused No.2 Mallesh. Accordingly, he went to trace accused persons along with his staff and secured accused No.1 and the victim from the house of PW.14 Devaraju, at Dadadahalli Village, at 6.00 am on 08.02.2003 and produced them before PW.17 and submitted his report as per Ex.P.27. In the cross

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examination, he has denied all the suggestions made by the learned counsel for accused.

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r. PW.17- H. N. Panchaksharappa-CPI, in his evidence,

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he has deposed that, on 07.02.2003, he received further investigation of this case from PW.11 (Puttarajappa), perused the investigation so far done by him, on the same day, he recorded the statement of PW.6 Udayashankar and PW.2 Asha. He further stated that, on 08.02.2003, PW.16 Manjunath and his sub-staff produced accused No.1 and victim before him, along with report (Ex.P.27) of PW.16, hence, he recorded statement of the victim and he came to know that, accused No.1 had sexual assault 2-3 times with victim and he came to know that, victim was minor and hence, he arrested accused No.1, and made requisition to Court to include Section 376 of IPC. On the same day, he sent victim and accused No.1 to Government Hospital, Sakaleshpura for Medical examination. He further stated

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that, after medical examination, he produced accused No.1 before the Court, and sent victim along with her mother.

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He has further deposed that, on 09.02.2003, PW.15 victim shown the spot, where she was subjected to sexual assault. Hence, he prepared spot panchanama (Ex.P.19), in the house of Smt. Lalithamma (PW.13) and Sri Devaraju (PW.14). He has further stated that, on the same day, victim took him to the place where she was kidnapped. Hence, he prepared spot mahazar Ex.P.3 and seized School bag, lunch box and spoon (MO.1 to MO.3) and on the same day, he recorded the statement of Guruprasad (PW.5) and Thammana Gowda alias Moggannagowda (PW.3). He has further stated that, after securing Medical Reports, FSL Report, Date of Birth certificate of victim, photos, he filed charge sheet against accused persons.

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s. PW.18 M. P. Krishnegowda, member of

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Devaladakere Grama Panchayath, has stated that, PW.17

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Police Inspector conducted mahazar in his presence as per Ex.P.19 in a house situated at Bhuvanahalli Village and also conducted spot mahazar (Ex.P.3) near Edehalli hillock and seized MO.1 to MO.3 and MO.7.

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Except PW.2 Asha - friend of victim, PW.9 Abdul Khadar - the driver of Ambassador car, PW.13 – Lalithamma and PW.14 Devaraju, rest of the witnesses have clearly stated about the manner of incident. PW.2, PW.9, PW.13 and PW.14 have turned hostile to the case of the prosecution. Based on the aforesaid evidence, the Trial Court has proceeded to convict accused No.1 to 3 for the offence punishable under Section 363 read with 34 of IPC and sentenced them to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.10,000/- each and in default to pay fine amount, they shall further undergo rigorous imprisonment for a period of 6 months. On the other hand, the Trial Court acquitted accused No.4 to 6 for the offences punishable under Sections 366, 366(A) and

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376 of IPC. The Trial Court also acquitted accused No.1 for the offence punishable under Section 376 of IPC.

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Having re-appreciated the entire oral and documentary evidence on record, it is clear that, on 05.02.2003 at 5.30 p.m., accused No.1 to 3 kidnapped PW.15 victim on Eshwarahalli Belagodu Road and took her to the land of one Narayanaswamy.

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Though the learned counsel for accused has taken contention that, as on the date of alleged offence, victim was more than 18 years and when the learned Trial Judge acquitted the accused persons under Section 366 of IPC, the question of accused persons committing an offence under Section 363 of IPC does not arise. The learned counsel further submits that, the Trial Judge placed much reliance on the evidence of PW.15 – victim and did not consider the material contradictions. In fact, PW.2 Asha who was alleged to be with victim on the date of incident,

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did not support the case of the prosecution and no other witnesses have spoken about the appellants taking the victim along with them. Hence, the very fact that, victim was kidnapped itself was not proved, but the Trial Court has convicted the accused persons under Section 363 of IPC. The learned counsel further submits that, the Trial Court on one hand acquitted the accused persons for the offences punishable under Sections 376 and 366 of IPC, therefore, the conviction of accused persons under Section 363 of IPC is not sustainable as the age of victim was more than 18 years as on the date of alleged incident and hence, the accused persons could not have been convicted for offence under Section 363 of IPC.

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In view of the submissions made by the learned Special Public Prosecutor and the learned counsel for the accused, it is pertinent to mention the provisions of the alleged offence punishable under Sections 361 of I.P.C.

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“ 361 -Kidnapping from lawful

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guardianship-Whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.”

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Explanation-the words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

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Exception: This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."

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“ 366 -Kidnapping, abducting or inducing woman to compel her marriage, etc.Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."

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A perusal of Section 361 of IPC provides that, it is necessary that there be an act of enticing or taking, in addition to establishing the child’s minority (being 16 for boys and 18 for girls) and care/keep of a lawful guardian. Such “enticement” need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove the incident of removal was committed by or at the instigation of the accused, it would be merely impossible to bring the guilt home.

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Adverting to the facts of the present case, PW.15 - victim has categorically stated the manner of kidnap made by accused No.1 to 3. Besides this, the victim being recovered from custody of accused No.1. As per the

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34 Crl.A 830/2011

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victim's deposition, she was forcefully removed from the custody of her parents.

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In view of the aforesaid provisions of law, let me analyze whether the aforesaid Section is attracted or not in the present case. On perusal of the evidence of victim, i.e., P.W.15, she has categorically stated that on 05.02.2003 at 9.30 a.m., she went to school at Belagodu and at 4.30 p.m.

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she returned from her school and went to tuition till 5.30 p.m., after completion of tuition, both PW.15 victim and PW.2 Asha returned towards Eshwarahalli. At about 5.45 p.m., when PW.15 proceeding in front of the house of Abhan Beli, accused No.1 Somesh called her, but she did

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not stop and told him that, she wants to go house. Immediately, accused No.1 caught hold her right hand, at that time, accused No.2 and 3 were present. Accused No.3 closed her mouth with his hand and accused No.2 Mallesh caught her hands and all of them took her to Coffee Estate of Narayanaswamy, for almost half kilometer, where

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accused No.3 Tammayya shown knife to her for not to raise hue and cry and later, they took her to Edehalli Hillock.

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In order to corroborate the oral testimony of P.W.15, her mother PW.1 Jayamma, her brother PW.5 Guruprasad, eyewitness to the incident Sri Udayshankar (PW.6) and Sri Krishnegowda (PW.18) have clearly stated that, the victim was kidnapped on 05.02.2003 by accused persons and she was taken to the land of one Narayanaswamy and later, victim was taken to the house of Smt. Lalithamma (PW.13) and Sri Devaraju (PW.14) without the consent of the parents of victim. As victim was not major as on 05.02.2003 and the victim had completed 15 years, 3 months and 7 days vide Ex.P.13 (Date of Birth Certificate). This aspect is corroborated by the evidence of B. T. Krishnamurthy, Head Master (PW.10). The oral testimony of victim (PW.15) is corroborated by mahazar witness i.e., Thammannagowda (PW.3), Vishwanatha (PW.4) and Sri Krishnegowda (PW.18).

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The Hon’ble Supreme Court in case of Anversinh Alias Kiransinh Fatesinh Zala Vs. State of Gujarat reported in (2021) 3 SCC 12 at paragraph Nos.16 and 17 held as under:

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“16. A bare perusal of the relevant legal provision, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 IPC. Indeed, as borne out through various other provisions in IPC and other laws like the Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot be itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.

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17. Similarly, Section 366 IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.”

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A perusal of record would reveal that, the present case is based on the single testimony of P.W.15-victim. The law with regard to appreciation of evidence of solitary witness (victim-P.W.15) is no more res integra and it has been settled by catena of decisions that, to convict the accused persons of a case based on the testimony of victim alone, as her testimony has been found most reliable, truthfulness, etc., therefore, the Trial Court has rightly consider other factors pertaining to the credibility of P.W.15, such as the manner of giving evidence, surrounding circumstance, seizure of M.O.1 to M.O.3 from

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the fence, intention of accused No.1 in enticing the victim from her lawful guardian, took her to various places, with aid of accused No.2 and accused No.3. Admittedly, there are small discrepancies of a minor nature, which do not affect the core of prosecution case, may not be sufficient to reject evidence of victim. P.W.1 and P.W.5 are mother and brother respectively, they have clearly stated about the incident, their evidence, irrespective of their interestedness, kindship, found reliable and could be sufficient to bring home the guilt of the accused persons and relationship is not sufficient to discredit the evidence of P.W.1 and P.W.5, unless motive to spare the real culprit. Nothing has been brought on record by the defence that, the accused persons are innocent and have been falsely implicated.

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In view of the evidence of PW.1 that, accused No.1 to 3 kidnapped her and in view of the ratio laid down in case of Anversinh stated supra and in the light of above discussion, I am of the opinion that, prosecution has

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established the appellants guilt beyond reasonable doubt and that, no case of acquittal under Section 363 of IPC is made out. Therefore, the conviction of appellants/accused Nos.1 to 3 under the provision of Section 363 of IPC is sustainable and hence, no interference is called for.

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In view of the above, I pass the following:

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ORDER

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i) The Criminal Appeal filed by the appellants/accused Nos.1 to 3 is dismissed;

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ii) The judgment and order of conviction and sentence dated 27.06.2011 passed by the learned Additional Sessions Judge and Fast Track Court, Hassan, in S.C.No.160/2003 c/w. S.C.No.21/2008 convicting the appellants for offence punishable under Section 363 read with 34 of IPC and sentencing them to undergo three

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years rigorous imprisonment and to pay a fine of Rs.10,000/- each is hereby confirmed;

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iii) The appellants are entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure, 1973, and

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iv) The fine amount imposed on the appellants shall be paid to victim (PW.15) as compensation in terms of the provisions of Section 357(3) the Code of Criminal Procedure, 1973.

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Sd/JUDGE

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kvk / vr

Somashekhar @ Somesh v. the Station House Officer

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Somashekhar @ Somesh v. the Station House Officer

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