Masthan vs The State Of Karnataka
2022 Latest Caselaw 3682 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF MARCH, 2022

                           BEFORE:

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.982 OF 2011

BETWEEN

MASTHAN,
S/O. MURASHWALLI,
AGED ABOUT 25 YEARS,
RESIDENT OF KADARIPALYA,
SIDLAGHATTA TOWN.                             ...   APPELLANT


[BY SRI. RAKSHITH JOIS, ADVOCATE APPOINTED AS
AMICUS CURIAE VIDE COURT ORDER DATED 11.01.2021]

AND

THE STATE OF KARNATAKA
BY SRINIVASAPURA POLICE STATION,
KOLAR DISTRICT.                           ...   RESPONDENT

[BY SRI. KRISHNA KUMAR K.K., HCGP]

                            ***

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
31.07.2010/02.08.2010 PASSED BY THE I ADDITIONAL SESSIONS
JUDGE,    KOLAR,     IN    S.C.NO.26/2010-CONVICTING  THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 366 OF IPC AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO S.I. FOR FIVE (5) YEARS AND DIRECTED
TO PAY A FINE OF Rs.1,000/- (RUPEES ONE THOUSAND ONLY); IN
DEFAULT HE SHALL UNDERGO S.I. FOR A PERIOD OF ONE MONTH
FOR THE OFFENCE PUNISHABLE UNDER SECTION 366 OF IPC.
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     THIS CRIMINAL APPEAL COMING ON FOR HEARING,
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal is preferred by the accused against the

judgment passed in S.C.No.26/2010 by the Court of I

Additional Sessions Judge at Kolar, convicting and

sentencing him for an offence punishable under Section

366 of IPC.

2. Heard the learned Amicus Curiae appearing

for the appellant, learned High Court Government

Pleader for respondent-State and perused the material

on record.

3. The brief facts of the prosecution case are

that on 25.06.2008 at about 10.00 a.m., while the victim

girl (PW.2), daughter of PW.1-first informant, was

traveling in a bus so as to go to her college at

Chinthamani from Srinivasapura, the accused induced

her saying that he will take her to Murugamalla Dargah

and kidnapped her with an intention to marry her and

took her to Puttardani village in Kerala State and kept

her in a house till 25.05.2009 and thereby committed an

offence punishable under Section 366-A of IPC.

4. To establish the guilt of the accused, the

prosecution got examined PWs.1 to 10 and got marked

Exs.P1 to P11. The Trial Court was of the view that the

prosecution has successfully proved the guilt of the

accused for the offence under Section 366 of IPC and

convicted him for the said offence and sentenced him to

under go S.I. for a period of five years and also to pay a

fine of Rs.1,000/- (Rupees One Thousand only); in

default of payment of fine, to undergo S.I. for a period of

one month.

5. The learned Amicus Curiae for the appellant

would vehemently contend that from the evidence of the

victim, it cannot be said that she was forcibly kidnapped

by the accused or that she was forced to marry him

against her will. He contends that the ingredients of the

offence for which now the accused is convicted has not

been made out and therefore, the trial Court was not

justified in convicting the accused for an offence

punishable under Section 366 of IPC. It is his further

contention that even according to the victim girl, she has

not resisted when she was taken by the accused and

even though it is alleged that the accused detained her

for a period of nearly one year she has not informed any

person that she was either forcibly taken or any

complaint has been lodged by her. He contends that the

witnesses for spot mahazar Exs.P2 and P3 have turned

hostile and except the evidence of PWs.1 and 2 there is

no other evidence available on record. He therefore

contends that the reasons assigned by the Trial Court for

convicting the accused for the offence punishable under

Section 366 of IPC is not in accordance with law.

Accordingly, seeks to allow the appeal.

6. Per Contra, the Learned High Court

Government Pleader has contended that the victim who

is examined as PW.2 has categorically stated that the

accused kidnapped her and took her to Kerala wherein

both of them stayed together for a period of one year

and the victim also gave birth to a baby. She has clearly

stated that the accused is responsible for the same. He

contends that in view of the evidence of PWs.1, 2, 7 and

10 the prosecution has been able to establish the guilt of

the accused beyond all reasonable doubt and therefore

contends that the Trial Court has rightly convicted and

sentenced the accused for the charged offence and seeks

dismissal of the appeal.

7. The case of the prosecution is that on

25.06.2008 at about 10.00 a.m. when the victim girl was

traveling in one ATS bus so as to go to her college, the

accused who was working as a cleaner in the said bus by

saying that he will take her to Murugamalla Dargah,

kidnapped her with intent that she may be forced to illicit

intercourse and then took her to Puttardani village in

Kerala State, wherein both of them stayed in a house for

a period of nearly one year.

8. According to the prosecution, the victim was a

minor aged below 18 years at the time of incident in

question. To prove the age of the victim the prosecution

has got marked a copy of the transfer certificate - Ex.P9

through PW.10 namely, teacher of one Royal High

School. According to Ex.P9 the date of birth of the victim

is 14.01.1992 and if the same is taken into consideration

the victim was below 18 years at the time of incident in

question. It is also the case of the prosecution that till

23.05.2009, the accused and the victim girl stayed

together in a house during which time the victim became

pregnant and then gave birth to a child.

9. The charge is framed for an offence

punishable under Section 366A of IPC which reads as

under:-

"366A. Procuration of minor girl.--

Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing

that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."

10. The learned Amicus Curiae has contended that

the said Section may not attract in the present case

because it is not the case of prosecution that the accused

kidnapped the victim girl either with an intention or

knowledge that she may be forced or seduced to illicit

intercourse with another person.

11. It is pertinent to see that the Trial Court has

convicted the accused for an offence punishable under

Section 366 of IPC which is extracted hereunder:

"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]."

12. Amongst the prosecution witnesses PWs.3 to

6 and 8 have turned hostile and their evidence is not

helpful to the prosecution to prove the guilt of the

accused.

13. PW.1 is the first informant and she is victim's

mother. From her evidence it can be gathered that on

25.06.2018 regarding missing of her daughter she

lodged a complaint before the police. She has stated

that after one year the police secured her daughter as

well as the accused from Kerala. She has deposed that

the accused kidnapped her daughter by inducing that he

will take her to Murugamalla Dargah and did black magic

on her.

14. The victim girl who is examined as PW.2 has

deposed that accused was working as a cleaner in the

bus in which she was going to college and thus both of

them got acquainted with each other. On 25.06.2008, at

about 8.00 a.m. when she was traveling in the said bus,

accused by saying that he will take her to Murugamalla,

took her there and proposed for marriage and then took

her to Idigapalli village and from there to Puttardani

village in Kerala State wherein they stayed together in a

rented house for about one year. She has stated that

she became pregnant and gave birth to a child.

15. PW.2 has stated that when the accused took

her to Murugamalla and proposed for marriage, she did

not say anything and during their stay for about one year

the accused was looking after her properly. From her

evidence it cannot be said that she was either induced or

taken forcibly by the accused or she was compelled to go

along with him. She has not stated that accused did any

black magic on her. Hence, it cannot be said that the

prosecution has been able to establish the guilt of the

accused under Section 366 of IPC beyond reasonable

doubt. However, from the evidence of PWs.1, 2, 7 and

10, the prosecution has been able to establish that the

victim was kidnapped by the accused from the lawful

guardianship. Hence, there is sufficient evidence to

show that the accused has committed an offence

punishable under Section 363 of IPC. Accordingly, the

following:

ORDER

The appeal is allowed in part.

The Judgment and Order dated 31.07.2010/

02.08.2010 passed in S.C.No.26/2010 by the Court of

I Additional Sessions Judge at Kolar convicting and

sentencing the accused/appellant for the offence

punishable under Section 366 of IPC is hereby set aside.

The accused is convicted for the offence under

Section 363 of IPC and he is sentenced to undergo

simple imprisonment for a period of 3 years and to pay a

fine of Rs.1,000/- (Rupees One Thousand only). In

default of payment of fine, he shall undergo simple

imprisonment for a period of one month.

The accused is entitled to the benefit of Section

428 of Cr.P.C. The period already undergone by him in

custody during trial and post conviction, shall be given

set off.

The learned Amicus Curiae is entitled for a sum of

Rs.7,000/- (Rupees Seven Thousand only).

Sd/-

JUDGE

HB/-