Ningaraju @ Madu Vs State of Karnataka

THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 24.4.2014 AND SENTENCE DATED 24.4.2014 PASSES IN S.C.NO. 889/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT - 8, BANGALORE - CONVICTING THE APPELLANT/ ACCUSED FOR OFFENCE P/U/S.366 OF IPC. AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR ONE YEAR AND TO PAY A FINE OF RS.30,000/- IN DEFAULT OF PAYMENT OF FINE SUFFER IMPRISONMENT FOR PERIOD OF THREE MONTHS. FOR THE OFFENCE P/U/S.366 OF IPC.

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NC: 2025:KHC:10607 CRL.A No. 407 of 2014

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL JUDGMENT

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This appeal is directed against the judgment of conviction and order of sentence dated 24^th April 2014 passed in Sessions Case No.889/2012 passed by the Presiding Officer, FTC-VIII, Bengaluru, wherein the accused was convicted and sentenced for the offence punishable under Section 366 of IPC as under:

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" The accused is sentenced to undergo R.I for one year and to pay a fine of Rs.30,000/-, in default of payment of fine suffer imprisonment for period of three months.

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If the fine amount is paid, Rs.25,000/shall be paid as compensation to the victim girl under Section 357 of Cr.P.C.

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The accused is entitled for benefit under Section 428 of Cr.P.C.

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Office is hereby directed to furnish free copy of this judgment to the accused immediately."

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The accused was tried for the following

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charge:

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" ¢£ÁAPÀ 22-01-2012 gÀAzÀÄ ªÀÄzÁåºÀß 12-00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ®° ¸ÁQë- 2 gÀªÀgÀÄ PÉ.¦.CUÀæºÁgÀ ¥ÉÆ°Ã¸ï oÁuÁ ¸ÀgÀºÀ¢Ý£À ¨sÀÄªÀ£ÉÃ±Àéj£ÀUÀgÀ, PÀqÀ¥À¸Áé«Ä ªÀÄoÀzÀ ªÀÄÄA¨sÁUÀzÀ DmÉÆÃ ¤.ÁÝtzÀ §½ £ÀqÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÁÝUÀ zÉÆÃµÁgÉÆÃt ¥ÀnÖ PÁ®A £ÀA- 4 gÀ°è £ÀªÀÄÆ¢¹gÀÄªÀ DgÉÆÃ¦AiÀÄÄ d£À¸ÀAzÀtÂ PÀrªÉÄ EzÁÝUÀ, ¸ÁQë- 2 gÀªÀjUÉ ¨sÀAiÀÄ ºÀÄnÖ¹, §®ªÀAvÀªÁV DmÉÆÃjPÁëzÀ°è PÀÄ¼Àîj¹PÉÆAqÀÄ C¥ÀºÀgÀt ªÀiÁrPÉÆAqÀÄ ºÉÆÃVzÀÄÝ, £ÀAvÀgÀ DgÉÆÃ¦AiÀÄÄ ¸ÁQë- 3 gÀªÀgÀ ªÀÄ£É £ÀA. 339 (©), ªÀÄAUÀ® UÁæªÀÄ, ¸ÀAvÉ ªÀiÁgÀ£ÀºÀ½î vÁ®ÆèPï, ZÁªÀÄgÁd£ÀUÀgÀ f.Éè E°è ¸ÁQë-2gÀ gÀªÀgÀ£ÀÄß Ej¹zÀÄÝ, £ÀAvÀgÀ ¸ÁQë- 1 gÀªÀgÀÄ ¸ÁQë- 9 gÀªÀgÉÆA¢UÉ ªÀÄAUÀ® UÁæªÀÄPÉÌ ºÉÆÃV ¸ÁQë- 2 ªÀÄvÀÄÛ DgÉÆÃ¦AiÀÄ£ÀÄß PÀgÉvÀA¢gÀÄªÀÅzÁVgÀÄvÀÛzÉ. DzÀÝjAzÀ DgÉÆÃ¦AiÀÄ£ÀÄß PÀgÉvÀA¢gÀÄªÀÅzÁVgÀÄvÀÛzÉ. DzÀÝjAzÀ DgÉÆÃ¦AiÀÄÄ ªÉÄÃ®ÌAqÀ PÀ®A C£ÀéAiÀÄ ²PÁëºÀð C¥ÀgÁzÀ J¸ÀVgÀÄªÀÅzÀÄ vÀ¤SÉAiÀÄ°è zÀÈqsÀ¥ÀnÖgÀÄvÀÛzÉ.

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DzÀÝjAzÀ DgÉÆÃ¦AiÀÄ «gÀÄzÀÝ F zÉÆÃµÁgÉÆÃ¥Àt ¥ÀnÖ."

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3. The defence of the accused is one of total

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denial. On behalf of the prosecution, it examined in all 11

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witnesses and got marked Exs.P1 to P10 and closed prosecution evidence. No defence evidence is lead on behalf of the accused. The learned trial Judge, on appreciation of evidence and after hearing the counsel for the parties, convicted the accused for the aforesaid offence and sentenced him as aforesaid. This is how, now the appellant - accused is before this Court challenging the impugned judgment by preferring this appeal.

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I have heard the arguments of learned

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counsel for the appellant-accused and learned HCGP for the State. Perused the records.

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The substance of charges based upon the complaint filed by the complainant against the accused in brief are as under:

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That, complainant Sri Marigowda initially filed a complaint before the K.P.Agrahara Police Station on 22.01.2012 at 12.00 noon, alleging, that his daughter victim-girl aged about 15 years went away from the house to meet her friends. It is stated that, she did not return to the house even during midnight. Thereafter, he made all efforts to trace his daughter. On 23.01.2012 again he filed a second complaint before the same Police Station stating, that his daughter was traced out at Mangala village of Santemaranahalli Taluk, Chamarajanagar District and she was rescued by the police. Initial complaint was registered in Crime No.18/2012 and subsequent complaint

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was registered on Crime No.21/2012. It is alleged in the complaint, that the accused-appellant had kidnapped his daughter from Autorickshaw stand situated in front of Kadapaswamy Matha and abducted her to Mangala village. It is alleged, that his daughter was confined by the accused. Accordingly, based upon the second complaint, the crime was registered against the accused for the offence under Section 366-A of IPC and criminal law was set in motion.

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The IO on completion of investigation,

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filed the charge sheet against the accused for the aforesaid offence before the jurisdictional Magistrate i.e., V ACMM, Bengaluru and it was registered in C.C.No.14546/2012. On committal, this case is made over to the Trial Court.

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PW.4 is stated to be the victim girl.

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According to her evidence, on 22.01.2012 at 12 noon, when she was moving towards her friends house by

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passing through Kadapaswamy Matha, accused forcibly made her to sit in his Autorickshaw, brought her to the Bangalore bus stand. She further deposed that, from there she was taken to Mangala village near Chamarajanagar in a bus and confined her in his aunt's house in her garden land. She further deposed that, when she tried to cry for help, accused threatened to kill her by using knife. Even accused has instructed her that, she has to say before his aunt that, she is the sister of his friend. Thus, she deposed that, accused had kidnapped her.

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Further she states that, her father came to know about her abduction by the accused on 28.01.2012 at 6 pm and then her father and police came to Mangala village and brought herself and accused to the Bangalore police station. But in the cross-examination, she states that, she has not given her SSLC marks card to the police. She joined 8^th standard in the year 2008 and she had failed in her 10^th standard examination. She further states that, till the year 2012, she has not taken admission to PUC 1^st year at SBS college. According to her, on the day of her

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kidnapping, she was going towards the house of her friend by name Vidya and passing through Kadapaswamy Matha. Her friend's house is situated at Chamarajapet and she was moving by walk. According to her, her friend Vidya's house is about 4-5 k.m away from her house. She further states that, there exist a bus stand near Kadapaswamy Matha and always there is gathering of people. She saw the accused when he stopped his Autorickshaw near her and she did not know the registration number of Autorickshaw. When forcibly accused made her to sit in his Autorickshaw, she cried for help, but, accused threatened her by showing knife. None of the persons near the bus stand are cited as a witness in this case. Further she states that, when she was brought to the police station, then only, she came to know that, accused confined her in the farmhouse at Mangala village. Further she states that, she has no knowledge that, where the accused took her after getting down from the bus at Mangala village. Further she states that, when they were traveling in the bus, accused was sitting by her side.

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On reading the entire text of her evidence,

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she never says that, accused forcibly kidnapped her with an intention to marry. No such ingredients are stated by her. Section 366 of IPC speaks of kidnapping, abducting or inducing women to compel her for marriage etc. The said Section reads as under:

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" 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;

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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 also be punishable as aforesaid."

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On reading the aforesaid Section 366 of

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IPC, to prove the offence under the said section, it is the

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obligation of the prosecution to prove the following ingredients:

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a. A person kidnaps or abducts any women.

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b. The act is done:-

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(i) With intent that she may be compel to marry any person against her will, or

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(ii) Knowing it to be likely that she will be so compelled, or

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(iii)In order that she may be forced or seduced to elicit intercourse, or

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(iv) Moving it to be likely that she will be so forced or seduced.

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The above ingredients are necessarily to

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be proved by the prosecution. On perusal of the first FIR so filed by PW.1- complainant, name of the accused is not mentioned. According to the evidence of PW.4, she was kidnapped near the bus stand, where always there is gathering of people. But none of them are cited as witnesses or examined by the prosecution. Section 366 of the IPC requires kidnapping or abduction of women with requisite intent as stated supra . If PW.4 leaves the house of her parents and was moving towards her friend's house,

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accompanied the accused in a bus without any objection from her side, went with him to Mangala village, resided

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there for a period of more than 6 days and she was brought to the police station. For the first time, she deposed about her abduction. When she herself accompanied the accused, it cannot be stated that, such an abduction or kidnapping offence was completed. The Hon'ble Apex Court in Thakorlal D. Vadgama v. State of

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Gujarat, (1973) 2 SCC 413 has observed that "Even if the girl below 18 years leaves her parent's house of her own accord, the accused may be guilty of he uses some inducement or compulsion". This Section is satisfied, if

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the ultimate object is seduction or marriage. These ingredients are missing in this case. That means, unless the prosecution establishes that, the abduction for the purposes stated in Section 366 of IPC, the accused cannot be convicted under Section 366 of IPC. Mere abduction by the accused does not establish charge under Section 366 of IPC as held in the Co-ordinate Division Bench decision

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of this Court in Anil Kumar and Others V/s The state

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of Karnataka reported in 2013 Crl.LJ (NOC) 119 . In the said judgment, the Co-ordinate Division Bench of this

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Court placed reliance on the decision of the Apex Court in

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( 2006) 5 SCC 740 (in the case of GABBU V/s STATE

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Of M.P) in which the Apex Court has held:

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"To constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. So far as a charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough; it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person 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. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC."

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Thus, the ingredients of kidnapping as

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stated supra are missing in this case. As per her own evidence, she has already crossed 17 years and capable of understanding the worldly affairs. Therefore, the evidence of PW.4 never helps the case of the prosecution to prove

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the guilt against the accused. However, the Trial Court believing the evidence of PW.4 has passed the impugned judgment.

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The learned counsel for the accused also

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relied upon the judgment of Apex Court in Kavita Chandrakant Lakhani V/s State of Maharashtra and Another decided on 24.04.2018 in

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Crl.A.No.459/2016 . In the said judgment also, the Apex Court has placed reliance upon the ingredient of Section 366 of IPC and has come to the conclusion that, there is no evidence with regard to forcibly taking the victim with an intention to marry. Thus, the evidence of PW.4 cannot be accepted as truthful evidence. Therefore, her testimony never helps the case of the prosecution.

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PW.1 Marigowda is the father of victim girl

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and PW.3 Shivarajamma is the mother. Though they speak about going away of their daughter from their house on 22.01.2012, but they are not the eye witnesses. PW.1

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speaks with regard to filing of two complaints, i.e., one missing compliant and another complaint of kidnapping his daughter by the accused. In a cross examination PW.1 states that, through police came to know that, PW.4, his daughter is at Mangala village and it was police who brought her to the police station. He has not seen that, where exactly, in whose house, she was confined. He has not enquired his daughter's friend. To the extent of filing complaint, his evidence is to be accepted. Though PW.3 speaks in line of the evidence of PW.1, but in the cross-examination, she states that, everyday she leaves the house at 8.30 a.m, return to the house at 7.30 p.m. She is the hearsay witness with regard to the kidnapping of her daughter by the accused. Even she does not know the friend's name of her daughter. As PW.1 and PW.3 are not the eye witnesses, therefore, their evidence cannot be accepted to believe the story of the prosecution that, accused really has kidnapped PW.4 in the manner alleged by the complainant in his complaint.

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PW.2 Shankar Himbegowda and PW.3 Sudhakaran are the panchas to Ex.P2. In their presence the panchanama was conducted and there is no effective cross-examination directed to PW.2 & 3. Therefore, through the evidence of this PW.2 & 3, the prosecution is able to prove the contents of Ex.P2, the panchanama. This panchas are the author of the panchanama. There is no denial in the cross-examination about the preparation of the panchanama.

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PW.5, Basavamma C.T is the Head

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Mistress of Government Senior Primary School, Magadi, wherein, at the request of police, she has issued birth information of PW.4 and her date of birth is mentioned as 01.04.1994 in her school records. She has produced Ex.P3 to that effect. If the date is reckoned from the date of abduction and the date of her birth, it shows that, she already completed 17 years 9 months. To the extent of issuing Ex.P3, the evidence of PW.5 is to be believed.

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PW.6, Latha H.S was the Woman

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Constable at the relevant time and she took the victim to the Hospital for the purpose of medical examination. This fact is not denied by the defence. Certain articles were seized and she submitted a report as per Ex.P4. To that extent, the evidence of PW.6 is to be accepted.

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PW.8, M.Shivanna was the Head Constable

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and he went to Mangala Village to trace the accused and the victim. He brought both of them to the police station on 28.01.2012 and produced before SHO and submitted

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the report as per Ex.P5. This fact is not disputed by the defense. Therefore, the evidence of PW.8 is to be accepted to the extent of tracing accused and victim and bringing them to the police station.

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PW.9, Ramesh was the Head Constable,

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who carried the FIR to the Court marked as per Ex.P6. To the extent of carrying FIR, the evidence PW.9 is to be accepted.

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PW.10, Dr.Murali Mohan M.C was the

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Doctor of Victoria Hospital at the relevant time and he medically examined the accused and submitted report as per Ex.P8. To the extent of issuing Ex.P8, his evidence is accepted.

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PW.11, H.G.Hanumantharayappa was the

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Police Sub-Inspector of K.P.Agrahara police station at the relevant time. He conducted investigation and filed charge sheet. His evidence is to the effect that, it was the Head Constable produced both accused and victim before him and he apprehended and produced him before the Court. According to him, during the course of investigation, there is no evidence collected by him that, accused has really threatened PW.4 by using knife. If that is so the very evidence spoken by PW.11 shows that, there is no proof regarding of kidnapping of PW.4 by the accused.

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On overall reading the evidence of

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prosecution witnesses, especially that of PW.4 and other

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witnesses, it do establish that, none of the ingredients of offence under Section 366 are proved by the prosecution with legal evidence. But the learned Trial Court believing the version of the PW.4, (the victim) as well as evidence of PW.1 and 3, her parents has come to a wrong conclusion that, the offence under Section 366 of IPC is duly proved in accordance with law. In the considered view of this Court, if all these factual features coupled with the contradictory evidence spoken by PW.1, 3 and 4, as well as the other evidence brought on record, the prosecution

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has utterly failed to prove the guilt of the accused beyond and reasonable doubt. She voluntarily went along with the accused and she has not cried for any help at any point of time though she speaks so many evidence. Therefore, the learned Trial Court has committed error in coming to such a conclusion that, accused is guilty of committing the offence under Section 366 of IPC. Hence, the appellant / accused has made out grounds to allow his appeal and set aside the impugned judgment.

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22. Resultantly, I pass the following:

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ORDER

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i) The Criminal Appeal is allowed .

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ii) The judgment of conviction and order of sentence dated 24.04.2014 passed in Sessions Case.No.889/2012 by the Fast Track Court-VIII at Bangalore City is hereby set-aside.

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iii) Consequentially, the accused is acquitted of the charges punishable under Section 366 of IPC.

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iv) His bail bond stands cancelled. He is set at liberty.

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v) Registry to transmit the Trial Court records along with the copy of this judgment forthwith.

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vi) The fine amount paid, if any, shall be refunded to the accused forthwith digitally.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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SK/AM/List No.: 1 Sl No.: 23

Ningaraju @ Madu v. State of Karnataka

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Ningaraju @ Madu v. State of Karnataka

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