State Of Karnataka vs Bharamappa S/O Nagappa
2021 Latest Caselaw 3245 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 30TH DAY OF AUGUST, 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

          CRIMINAL APPEAL NO.100172 OF 2014

BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE POLICE SUB INSPECTOR
GANGAVATHI RURAL POLICE STATION,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD.
                                            ...APPELLANT

(BY SRI. RAMESH B CHIGARI, HCGP)

AND
BHARAMAPPA S/O NAGAPPA
AGE: 22 YEARS, OCC: AUTO COOLIE,
R/O. AGALAKERA HALIVASTI HEBBAL,
TQ: GANGAVATHI, DIST:KOPPAL
                                           ...RESPONDENT

(BY SRI. SANTOSH B MALAGOUDAR, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
30.04.2014 PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
KOPPAL IN POSCO S.C.NO.6/2013 AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 30.04.2014
PASSED BY THE PRL. DIST. & SESSIONS JUDGE, KOPPAL IN
POSCO       S.C.NO.6/2013     AND     CONVICT       THE
RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 363, 366 OF
IPC AND U/S 8 OF THE POSCO ACT, 2012.
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      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
16.08.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is filed by the State under section 378(1)

and (3) of Cr.P.C., challenging the judgment of acquittal

dated 30.04.2014 passed by the Principal District and

Sessions Judge, Koppal in POCSO S.C.No.6/2013 and

prayed for setting aside the judgment of acquittal by

convicting the respondent-accused.

2. For the sake of convenience, parties herein are

referred as per the original ranks occupied by them before

the Trial Court.

3. The case of the prosecution is that the accused

was staying in the house of his uncle, i.e. CW12 since six

months by running an auto on hire basis and the said

house is near the house of the complainant. That the

complainant had a minor daughter aged about 15 years

and accused used to follow her whenever she used to go to

bring water and he also used to molest her by holding her

hands and touching her chin. When the victim brought it to

the notice of the complainant, the complainant warned the

accused in this regard on 2 to 3 occasions. In spite of the

same, the accused continued his attitude. That on

13.09.2013, in Hebbal village, the victim was alone in the

house and all other family members went to see Ganesh

festival, then the accused came to the house of the

complainant and asked the victim to join him so that they

can marry each other but the victim denied. Then, the

accused threatened her that if she does not accompany

him, he is going to die. Then, the victim joined him and

accused took her in auto bearing No.KA-37/A2260 and

they went to Ayodhya cross and from there they went to

Bengaluru. In the meanwhile, the complainant has lodged

a complaint after coming to know that the accused took his

daughter with him in auto and after getting the knowledge

of the same, the accused brought the victim back from

Bangalore to Hospete and on 15.09.2013, the accused was

apprehended in Hospete bus stand along with victim girl.

The investigating officer has subjected both of them to

medical examination and submitted charge sheet against

the accused for the offence punishable under Sections 363,

366 of IPC and Section 8 of the POCSO Act. It is the

specific allegation of the prosecution that the accused

kidnapped a minor victim girl from the lawful guardianship

of complainant against the consent of complainant/

guardian, inducing the victim girl to go with him under the

pretext of marrying her, that too having knowledge of she

being minor aged about 14 years only.

4. On the basis of submission of charge sheet,

the learned Sessions Judge has taken cognizance of the

offence and the presence of the accused was secured. The

accusation under Section 363, 366 of IPC and Section 8 of

the POCSO Act was framed against the accused and same

was read over and explained to him. Accused pleaded not

guilty and claimed to be tried. To prove the guilt of the

accused, the prosecution has examined in all 14 witnesses

as PW1 to PW14 and placed reliance on 11 documents

marked at Ex.P1 to Ex.P11 and also one material object

marked at M.O.1. After conclusion of the evidence of

prosecution, the statement of the accused under Section

313 of Cr.P.C. was recorded to enable the accused to

explain the incriminating evidence appeared against him in

the case of the prosecution. The case of the accused is of

total denial and he did not choose to lead any defence

evidence. Having heard the arguments, the learned

Sessions Judge has framed the following points for

consideration.

1) DgÉÆæ ¢£ÁAPÀ 13.09.2013 gÀAzÀÄ C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¨Á¢üvÀ¼À£ÀÄß ¥ÀĸÀ¯Á¬Ä¹ ªÀÄzÀĪÉAiÀiÁUÀĪÀ D«ÄµÀ vÉÆÃj¹ vÀ£ÉÆßA¢UÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV C¥ÀºÀgÀt ªÀiÁr ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 363, 366 gÀr zÀAqÀ¤ÃAiÀÄ C¥ÀgÁzsÀªÉ¸ÀVzÁÝ£ÉAzÀÄ C©üAiÉÆÃd£É ¸ÀA±ÁAiÀÄwÃvÀªÁV ¹zÀÝ¥Àr¸ÀÄvÀÛzÉAiÉÄÃ?

2) F ªÉÆzÀ®Ä ¨Á¢üvÀ¼ÀÄ ¤ÃgÀÄ vÀgÀ®Ä ºÉÆÃzÁUÀ, QgÁt ¸ÁªÀiÁ£ÀÄ vÀgÀ®Ä ºÉÆÃzÁUÀ CªÀ¼À ªÉÄÊ PÉÊ, UÀ®è ªÀÄÄnÖ DgÉÆæAiÀÄÄ PÀ®A 8 ¯ÉÊAVPÀ ºÀ¯ÉèUÀ½AzÀ aPÀÌ ªÀÄPÀ̼À gÀPÀëuÉ PÁ£ÀÆ£ÀÄ 2012 gÀr zÀAqÀ¤ÃAiÀÄ C¥ÀgÁzsÀªÉ¸ÀVzÁÝ£ÉAzÀÄ C©üAiÉÆÃd£É ¸ÀA±ÁAiÀÄwÃvÀªÁV ¹zÀÝ¥Àr¸ÀÄvÀÛzÉAiÉÄÃ?

5. Then, after appreciating the arguments and

perusing the oral and documentary evidence, he has

acquitted the accused from the alleged charges by

extending the benefit of doubt. Being aggrieved by this

judgment of acquittal, the state has preferred this appeal.

6. Heard the arguments advanced by the learned

HCGP and the learned counsel for respondent-accused.

The records of the Trial Court are also secured and I have

perused the records in detail.

7. The learned HCGP has argued that all the

material witnesses including complainant, victim girl and

eyewitnesses have supported the case of the prosecution

and the Trial Court has failed to appreciate the evidence.

He would also contend that the medical evidence would

clarify that the victim was aged about 15 to 16 years only

at the time of the incident, and on the contrary the

unchallenged document discloses that she was aged about

14 years, but however the learned Sessions Judge has

come to a wrong conclusion that there is discrepancy in

the evidence and extended the benefit in favour of the

accused. Though the evidence is clear regarding the age of

the victim, he has failed to appreciate the evidence of PW8

and there is no material placed by the accused to show

that the victim was aged more than 18 years at the time of

the alleged incident and under such circumstances the

observation of the learned Sessions Judge that the victim

was matured and capable of understanding, holds no

water. Hence, he would contend that the judgment of the

Trial Court is illegal, erroneous and capricious, and as

such, calls for interference. Hence, he would seek for

allowing the appeal.

8. Learned counsel for respondent-accused has

contended that there is no evidence to prove the offence

under Section 8 of the POCSO Act as ingredients are not

attracted. He would also contend that the victim had

followed the accused all along and she did not raise any

objections all along. He would contend that considering the

age of the victim, she was capable of understanding the

things and hence, he would submit that the learned

Sessions Judge is justified in extending the benefit of

doubt to the accused. Hence, he would seek for dismissal

of the appeal.

9. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration.

"Whether the Trial Court has committed an error in acquitting the accused-respondent and the judgment suffers from infirmity and illegality so as to call for interference?"

10. This is a state appeal against the acquittal. The

offences alleged are punishable under Section 363, 366 of

IPC and Section 8 of the POCSO Act. The alleged date of

incident is 13.09.2013 at around 8.30 p.m. and complaint

came to be lodged on 14.09.2013 at 9.00 p.m. The

accused and victim were apprehended on 15.09.2013 at

6.45 a.m., in Hospete bus station. The prosecution has

examined in all 14 witnesses but is relying mainly on the

evidence of PW1, PW3-victim girl and PW4. Further, the

prosecution has also relied on the evidence of PW8, who

issued Ex.P2 and Ex.P6. The complainant is examined as

PW1 and he is father of the victim girl. He has specifically

deposed that his daughter (victim girl) is aged about 14

years and studying in higher secondary school at

Dhanapur. He further deposed that the accused used to

chase his daughter regularly and when it was brought to

his notice by the victim, he had warned the accused. His

further evidence discloses that on 13.09.2013, they had

been to Ganesh festival in the night and when he returned,

his daughter was not found in the house as she was left

alone in the house. He has also deposed that he searched

her everywhere and on the next day he enquired with

PW4, who disclosed that he had seen the victim girl

proceeding with accused in auto on earlier night. Hence,

he claims that he lodged the complaint as per Ex.P1. His

further evidence discloses that thereafter, police brought

his daughter and accused and his daughter disclosed that

accused took her by threatening that he is going to die if

she doesn't accompany him. Though this witness was

cross-examined at length, nothing was elicited so as to

impeach his evidence.

11. PW2 is the spot mahazar witness and he has

deposed regarding drawing of spot mahazar in his

presence.

12. PW3 is the victim girl and she deposed that

she is studying in 9th standard in Danapur Higher

secondary school and her primary education was

completed in Hebbal government school. She has also

deposed that the accused was residing in a nearby house

and he used to drive auto of one Dyamappa. She has also

deposed that the accused used to tease her, follow her and

molest her asserting that he wants to marry her on the

ground that he loves her. She has further deposed that

she brought it to the notice of her father (complainant)

and her father warned the accused twice. She has also

deposed that thereafter, four months prior to she giving

her evidence, night at 8.30 p.m., she was alone in house

since all the family members went for Ganesh procession

and at that time, accused came there and asked her to

accompany him so that they can run away and marry each

other, but she denied it. She further deposed that then the

accused threatened her that if she doesn't accompany him,

he is going to die and hence, she accompanied him in auto

and from there they went to Ayodhya Cross, and then

Kampli and Hospete and went to Bengaluru. She further

deposed that after having knowledge of lodging complaint,

the accused brought her morning at 6.00 a.m. to Hospete

wherein police have taken them into custody. She has also

identified the auto wherein she was taken by the accused.

This witness was cross examined at length but nothing was

elicited. A suggestion was made to this witness that

whether the fact of accused loving her was brought to the

notice of her friends and others, she claimed that she had

brought it to the notice of her father. Interestingly, during

the course of cross-examination, a suggestion was made

on behalf of the accused that the accused was warned by

her father, she has admitted the said suggestion and it is

the case of the prosecution that when she brought the

incident to the notice of her father, he has warned the

accused. Further, it is elicited in the cross-examination

that she has not raised any objection while she was

accompanying the accused and she did not make hue and

cry or galata and did not complain to the passengers, co-

passengers etc.,

13. PW4 Gangappa has also deposed that on

13.09.2013 at 9.00 p.m. in the night, he was returning to

Hebbal from Gangavathi and near Hebbal he has seen the

accused and victim girl traveling in auto and on the next

day evening when complainant enquired about whether he

has seen his daughter, he disclosed that he had seen the

accused and victim traveling in auto. He has also identified

the auto and in the cross-examination he has specifically

stated that he has seen them when the auto came from

opposite direction since both the vehicles were moving

slowly, and his evidence disclose that he has seen the

accused and victim from a distance of 50 ft. Except formal

denial, his evidence is not impeached.

14. PW5 and PW6 have deposed regarding seizure

of the auto.

15. PW7 is the owner of the auto and he has

turned hostile but he never denied that the accused was

staying in his house.

16. PW8-Shivamma has deposed regarding issuing

of Ex.P2. In the cross examination of this witness, it is

elicited that she does not have personal knowledge about

the contents of Ex.P2 and a suggestion was made that

Ex.P2 was recently fabricated, but she denied the said

suggestion.

17. PW9 is a dentist. He deposed regarding he

examining the victim.

18. PW10/Dr.Jubed Ahmed deposed that the

accused is capable of participating in sexual activities.

19. PW11 has deposed regarding submitting of FIR

to the Court.

20. PW12/Dr.Sujata has deposed regarding she

examining the victim, while PW13 has deposed about

apprehending the accused and the victim on 15.09.2013

morning at 6.00 a.m. when they alighted from bus.

21. PW14 is the investigating officer and he

deposed regarding the investigation done by him.

22. On perusal of entire evidence, it is to be noted

here that the evidence of PW1, PW3 and PW4 is consistent

and it discloses that the accused had took away the victim

girl along with him by inducing her. Now the defence

counsel has raised certain concern only about exact date of

birth. Ex.P2 is an application submitted by the complainant

when the victim was being admitted to school. It is dated

17.06.2005. The date of birth of the victim was declared as

01.06.1999. Ex.P6 is the certificate issued on the basis of

school records and it also discloses that the date of birth of

the victim as 01.06.1999.

23. The argument of the learned counsel for

respondent-accused is that the dentist/PW9, who

examined the victim has issued Ex.P8 and he was unable

to identify the age of the victim. On perusal of Ex.P8, it is

evident that the medical officer has stated that the victim

is aged more than 14 years but exact date cannot be

estimated as the third molar teeth are missing. On the

basis of this document, the age is attacked. It is to be

noted here that the victim was studying in 9th standard

and her date of birth was entered in 2005 itself. The date

of birth was entered well prior to the alleged date of

incident and there is no other material to show that the

victim is aged more than 18 years. Section 361 of IPC

deals with kidnap from legal guardianship, which reads as

under:

361. Kidnapping from lawful 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.

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

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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

24. Hence, as per Section 361 of IPC, a girl below

age of 18 years if taken away from the lawful guardianship

without consent by any person, is said to have kidnapped.

The penal Section is 363 of IPC.

25. It is also important to note here that there is

no material evidence to show that the victim is more than

18 years. The medical evidence simply disclose that she is

above 14 years but the school documents disclose that she

is aged about 14 years as her date of birth disclosed as

01.06.1999. These documents came into existence on

undisputed point of time and under Section 35 of the

Evidence Act, they have got relevancy. Unless the contrary

document is produced by the accused, this material

evidence cannot be ignored. Interestingly, the accused has

nowhere specifically denied the age of the victim. During

the cross-examination, no specific denial is forthcoming on

the part of the accused. A simple assertion is being made

but no contrary documents are produced by the accused.

Even there is no suggestion made to complainant that his

daughter is aged more than 18 years. This material

suggestion is also missing. The learned Sessions Judge

ignored all these aspects, especially Ex.P2 and Ex.P6

coupled with non-denial of the age and has presumed that

the victim is aged about 18 years and voluntarily went with

accused. This observation of the learned Sessions Judge is

unfounded. The evidence on record clearly establishes that

victim was a minor girl. The documents support this

aspect. When victim was minor, her consent does not have

relevancy and the specific allegation is that the accused

under the pretext of marriage by inducing the victim, who

was minor, took her away from the custody of lawful

guardian. Hence, the ingredients of Section 361 are

directly applicable to the case in hand.

26. The prosecution has also prosecuted the

accused for the offence punishable under Section 366 of

IPC. But the provisions of Section 366 of IPC cannot be

made applicable as there is no forceful act to take away

the victim, but she was induced. However, she was minor

and as such, the provisions of Section 366 of IPC cannot

be made applicable and the provisions of Section 363 are

applicable to the case in hand.

27. Further, the evidence of the prosecution itself

establishes that accused has not at all committed any

sexual assault on the victim girl. The medical evidence of

PW12 further discloses that there were no marks of any

injury on her body and hymen was intact. Hence, there

was no sexual assault. The prosecution has prosecuted the

accused for the offence punishable under Section 8 of the

POCSO Act. Section 8 of the POCSO Act deals with

reference to sexual assault and sexual assault itself is

depending on section 7 of the Act, which reads as under:

"7. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

28. In the instant case, no such case is made out

regarding sexual assault and as such, question of

punishing the accused under Section 8 of the Act, does not

arise at all.

29. Mere following a minor girl does not fall under

the definition of Section 7 of the Act and it also falls short

of sexual harassment as defined under Section 11 of the

Act. Under such circumstances, the prosecution has failed

to prove the guilt of the accused beyond all reasonable

doubt for the offence punishable under Section 8 of the

POCSO Act, as victim was not subjected to any sexual

assault by the accused. Further, the intention of the

accused as can be evidenced that he never took the victim

with sexual intention and he did not touch her private

parts at any point of time by taking advantage of her

position, even though he induced her away. Hence, it is

evident that the first intention of the accused was to marry

her but since she was minor, he did commit serious

blunder in this regard. Under such circumstances, the

ingredients of offence punishable under section 8 of the

POCSO Act are not attracted. Further, the offence under

Section 366 of IPC is also not attracted. However, the

evidence on record clearly establishes that the offence

under Section 363 of IPC is attracted. The learned

Sessions Judge is justified in acquitting the accused for the

offences punishable under Sections 366 of IPC and Section

8 of the POCSO Act, though he has not given any

convincing reasons in this regard. However, the reasons

offered by him in acquitting the accused for the offence

punishable under Section 363 of IPC are not worthy of

appreciation. The learned Sessions Judge committed an

error in acquitting the accused for the offence punishable

under Section 363 of IPC. The judgment in this regard is

erroneous and illegal and suffers from infirmity. Hence, the

accused needs to be convicted for the offence punishable

under Section 363 of IPC. Accordingly, I answer the point

under consideration partly in affirmative and accused is

required to be convicted for the offence punishable under

Section 363 of IPC. The offence under Section 363 of IPC

is punishable with imprisonment for a term which may

extend to seven years and shall also be liable to fine and it

is necessary to hear on sentence. Accordingly, I proceed to

pass the following:

ORDER

The appeal is allowed in part.

The judgment of acquittal dated 30.04.2014 passed by the Principal District and Sessions Judge, Koppal in POCSO S.C.No.6/2013 so far as it relates to offences under Section 366 of IPC and under section 8 of the POCSO Act is confirmed.

However, the judgment of acquittal dated 30.04.2014 passed by the Principal District and Sessions Judge, Koppal in POCSO S.C.No.6/2013 insofar as it relates to Section 363 of IPC is set aside and the accused is found guilty of the offence punishable under Section 363 of IPC and accordingly, he is convicted for the said offence.

To hear on sentence.

(RAJENDRA BADAMIKAR) JUDGE

yan

ORDER ON SENTENCE

Heard the learned HCGP and the leaned counsel

appearing for respondent-accused on sentence.

Learned counsel for respondent-accused submits

that the period of imprisonment undergone by the accused

may be set off as against the proposed sentence.

Learned HCGP would submit that considering the

gravity of the offence, the minimum sentence of three

years of imprisonment with fine may be imposed.

The offence under Section 363 of IPC is punishable

with imprisonment for a term which may extend to seven

years and also fine. Hence, sentence of imprisonment

along with fine is mandatory and there is no minimum

sentence or fine prescribed for offence under Section 363

of IPC. However, maximum sentence is seven years. The

accused had enticed the minor victim girl and took away

her from the legal guardianship of the complainant and

thereby committed offence under Section 363 of IPC.

However, the evidence does establish that he had not

committed any sexual assault on victim girl and

immediately brought her back to the place. Looking to

these facts and circumstances, in my considered opinion,

the period of custody undergone by the accused can be set

off as against the proposed sentence of imprisonment.

However, as regards fine is concerned, in my considered

opinion, the accused/respondent herein can be imposed

fine of Rs.10,000/-. Hence, I proceed to pass the

following:

ORDER

The accused is convicted for the offence punishable under Section 363 of IPC and sentenced for imprisonment for a period of detention in judicial custody, which he has already undergone and also to pay a fine of Rs.10,000/- for the offence punishable under Section 363 of IPC and in default to pay the said fine amount, he shall undergo simple imprisonment for a period of three months.

The Trial Court shall secure the accused and collect the fine.

Sd/-

JUDGE

yan