Karnataka High Court

B S Santhosh vs State Of Karnataka on 11 March, 2022

Bench: Mohammad Nawaz

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF MARCH, 2022

                        BEFORE:

      THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.1034 OF 2012

BETWEEN:

1.   B.S. SANTHOSH,
     S/O. SHEKHARAPPA,
     AGED ABOUT 21 YEARS,
     RESIDENT OF K. GOLLARAHATTI VILLAGE,
     TARIKERE TALUK.

2.   S.G. SHIVAPPA,
     S/O. GOVINDAPPA,
     AGED ABOUT 28 YEARS,
     R/O. JODI BOKIKERE VILLAGE,
     TARIKERE TALUK.

3.   G.H. DEVARAJ,
     S/O. HANUMANTHAPPA,
     AGED ABOUT 23 YEARS,
     R/O. K. GOLLARAHATTI VILLAGE,
     TARIKERE TALUK.

4.   SEENA @ SRINIVASA,
     S/O. NAGARAJAPPA,
     AGED ABOUT 22 YEARS,
     R/O. SHIVAPURA VILLAGE,
     TARIKERE TALUK.

5.   VENKATESH,
     S/O. GOVINDAPPA,
     AGED ABOUT 21 YEARS,
     R/O. YEREHALLI VILLAGE,
     TARIKERE TALUK.

6.   MANJA @ VISHWANATH,
     S/O. NAGARAJAPPA,
     AGED ABOUT 23 YEARS,
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       R/O. SHIVAPURA VILLAGE,
       TARIKERE TALUK - 577 882.                        ... APPELLANTS

(BY SRI. A.H. BHAGAVAN, ADVOCATE)

AND:

STATE OF KARNATAKA
BY KADUR POLICE,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE - 560 001.                                    ... RESPONDENT

(BY SRI. R.D. RENUKARADHYA, HCGP)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF    CR.P.C.,    PRAYING    TO    SET    ASIDE   THE    JUDGMENT    OF
CONVICTION        AND    SENTENCE        PASSED   BY    THE   PRINCIPAL
SESSIONS JUDGE, CHICKMAGALUR IN S.C. NO.127/2009 DATED
5-6/09/2012-CONVICTING THE RESPONDENTS/ACCUSED Nos.1, 2,
4 TO 7 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 341
AND     366A      READ      WITH    SECTION       34    OF    IPC   AND
RESPONDENTS/ACCUSED Nos.1, 2, 4 TO 7 ARE SENTENCED EACH
TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE
MONTH AND TO PAY A FINE OF Rs.500/-, IN DEFAULT TO PAY
FINE, TO UNDERGO FURTHER IMPRISONMENT FOR A PERIOD OF 7
DAYS, FOR THE OFFENCE PUNISHABLE UNDER SECTION 341 READ
WITH SECTION 34 OF IPC AND ETC.


       THIS      CRIMINAL    APPEAL      COMING   ON    FOR   HEARING,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                             JUDGMENT

This appeal is preferred against the judgment

and order dated 05.09.2012 passed by the Court of

the Principal Sessions Judge at Chickmagaluru in

Sessions Case No.127/2009, convicting and

sentencing the appellants for offences punishable

under Sections 341 and 366A r/w 34 of IPC.

2. Heard the learned counsel for appellants

and learned HCGP for respondent-State and perused

the material on record.

3. The case of the prosecution in a nutshell is

that, on 11.06.2009 at about 4.30 p.m. on a road

leading to N.G.Kopplu near veda river, the accused

persons restrained the minor victim girl (PW.5), who was

proceeding to her house after attending her school and

forcibly took her in a TATA ACE vehicle bearing

Regn.No.KA-18/A-2988 to Hosalli Palya village of Huliyar

Hobli in Chikkanayakanahalli Taluk, with an intention to

perform her marriage with accused No.3 and knowing

that she may be forced or seduced to illicit intercourse

with the said accused and thereby committed offences

punishable under sections 341, 366A r/w 34 IPC.

4. The complaint is lodged by PW.1 namely the

father of the victim girl (PW.5). Complaint is marked as

Ex.P1, wherein it is stated that his daughter is aged

about 16 years and she is studying in

10th standard. On 11.06.2009, one Malleshappa-PW.6

came and informed him that at about 4.30 p.m. when

the victim was returning from her school, about five

persons forcibly kidnapped her in a TATA ACE vehicle and

further informed that the said vehicle belong to accused

No.1-Santhosh. Suspecting the role of accused Nos.1

and 2, a complaint was lodged at Kadur Police Station

against accused Nos.1 and 2 and others.

5. PW.16 is the PSI of Kadur police station. He

has deposed in his evidence that at about 9.30 p.m. on

11.6.2009 he received the complaint from PW.1 which is

marked as Ex.P1 and issued FIR-Ex.P7 to the

Jurisdictional Court. On the next day i.e., about

12 Noon he visited the place from where the victim was

kidnapped and conducted spot mahazar-Ex.P2 in the

presence of panch witnesses. Thereafter, on the same

day along with PW.1 he went to Hosalli Palya where the

victim (PW.5) was detained by the accused and brought

her back and recorded her statement as well as the

statement of other witnesses.

6. PW.1 is not a an eyewitness to the incident of

kidnapping. In Ex.P1, he has stated that he was informed

by one Malleshappa i.e., PW.6 about kidnapping of his

daughter. PW.1, in his evidence, has reiterated the

complaint averments. As he was unable to mention as to

in whose house his daughter was detained, he was

treated hostile. In his cross-examination conducted by

the Public Prosecutor, he has stated that CW.10 and

CW.3 i.e., PWs.6 and 7 have informed him that accused

Nos.1 to 3 and three more persons have kidnapped his

daughter. Further, he has stated that after kidnapping

his daughter she was kept in the House of CWs.6 and 7

namely PWs.10 and 11.

7. PW.6, in his evidence, has stated that while

he was working in his field near Veda river on 11.6.2009,

he saw three persons alighting from a Tata ACE vehicle

at about 4.40 p.m. and at that time PW.5 and CW.3

(PW.7) were coming on a bicycle from the school. Five

persons who were near the said vehicle kidnapped PW.5

by pushing the bicycle and dragging her inside their

vehicle. He noticed the registration number of the

vehicle. He has further stated that out of five persons, he

knew two persons, i.e., accused Nos.2 and 3.

Thereafter, he went to the house of PW.1 and informed

the matter to him.

8. PW.7 has deposed that on the date of incident

he was returning from the school along with PW.5-victim

girl. PW.5 was proceeding ahead and he saw four

persons who were near the TATA ACE vehicle kidnapping

her in the said vehicle. Further, he has stated that he

did not identify those four persons as they were covered

with blankets, but he saw the registration number of the

vehicle. PW.7 is also one of the signatory to Ex.P2-spot

mahazar. He has been treated hostile by the prosecution

and in the cross-examination conducted by the public

prosecutor he denied having identified accused

Nos.1 to 3.

9. The victim girl is examined as PW.5. She has

stated that at the time of incident she was studying in

S.S.L.C. and she was aged about 14 years. On

11.6.2009, at about 4.00 p.m., she was returning from

her school and when she reached near Veda river she

saw a TATA ACE vehicle and 4-5 persons standing near

the said vehicle. The said persons immediately closed

her eyes and mouth with veil which she was wearing and

took her in the said vehicle. She noticed accused Nos.1,

2, 3, 5 and others were there. On the way one of the

accused alighted from the said vehicle but, she could not

see as to who was that person. After proceeding further

the vehicle was stopped and the veil covering her eyes

and mouth was removed and she could notice that

except accused No.3 all other accused were there.

10. A careful perusal of the evidence of PW.5

would reveal that she has identified accused Nos.1, 2, 3

and 5 as the persons who kidnapped her. Insofar as

other accused are concerned, she has not whispered that

they have also kidnapped her. Nothing is elicited from

her cross-examination, to disbelieve her evidence that

she was kidnapped in a TATA ACE vehicle bearing

registration No.KA-18/A-2988. According to her, accused

No.2 told her that they have kidnapped her because

accused No.3 liked her and they wanted to get her

married with him.

11. It is the case of prosecution that after the

victim girl was kidnapped by the accused she was taken

to the house of PW.10, wherein she spent a night in the

said house and on the next day the police rescued her.

PW.10 has stated that accused No.5 and 4-5 five others

came to his house along with PW.5 i.e., the victim girl.

On that night, PW.5 slept near his mother i.e., PW.11.

In the morning, PW.5 told his mother that she has been

kidnapped. The said evidence of PW.10 is corroborated

by the evidence of PW.11. PW.11 has stated that she

was in a hurry to take food to her husband who was

working in the field and therefore, she left PW.5 in the

house of CW.8 (PW.12). PW.12 has stated that PW.11

brought and left PW.5 in her house and on the same day

the police and PW.1 came and took her.

12. Though PW.6 has stated that he saw about

five persons kidnapping the victim, he has identified only

accused Nos.2 and 3. Whereas, PW.7 has stated that he

saw four persons kidnapping the victim girl. In the

cross-examination conducted by the prosecutor he has

denied having noticed accused Nos.1 to 3 standing near

the TATA ACE vehicle and having seen them kidnapping

PW.5 in the said vehicle. He has not identified those

persons as they were covered with blankets. Even

according to PW.8, about four persons kidnapped PW.5

in the vehicle. However, he has failed to identify them.

13. The evidence of PWs.6 to 8 is therefore not

consistent and corroborated with each other. Hence,

taking into consideration the evidence of PW.5-victim

herself, it can be safely held that it was accused Nos.1,

2, 3 and 5 who kidnapped her. Though she has stated

that there were other accused persons, she has not

identified or named them. Hence, it is difficult to hold

that the prosecution has been able to establish the guilt

of the accused Nos.4, 6 and 7 beyond reasonable doubt.

14. According to prosecution, the victim was a

minor, aged below 18 years at the time of incident in

question. The defence has not seriously disputed the age

of the victim girl. The prosecution has got examined

PW.4-Head Master of the school, where the victim was

studying. Her age certificate issued by PW.4 is marked

as Ex.P3, wherein, her Date of Birth is shown as

09.01.1995. Hence, as on the date of incident, PW.5 was

a minor aged below 18 years.

15. It is vehemently contended by the learned

counsel for the appellants that the Trial Court has

erroneously convicted the accused for the offence

punishable under section 366-A of IPC as the ingredients

of the said offence are not made out. He would contend

that, at the most, the prosecution has established that it

is a case of kidnapping, but there is no evidence to show

that the accused kidnapped the victim knowing that she

is likely to be forced or seduced to illicit intercourse. He

would further contend that there is no evidence to show

that the victim was either forced or compelled to marry

accused No.3, as alleged by the prosecution.

16. A careful perusal of the evidence of PW.5 goes

to show that while she was kidnapped in the vehicle, her

eyes were closed with a veil which she was wearing.

She has stated that accused No.2 told her that they have

kidnapped her because accused No.3 liked her and they

wanted to get her married with him. However, she has

further stated that when the veil covering her face was

removed, accused No.3 was not present. When she

made galata, accused No.1 gave his mobile to make a

call to her house. She called PW.9-Saganappa and spoke

to him and she told him not to worry and that she would

come back in the morning. She has stated that accused

brought Puri to her and when she refused to eat, they

threatened her. She has stated that she slept near CW.7

i.e., PW.11-mother of PW.10 and accused persons slept

in the TATA ACE vehicle.

17. According to PWs.11 and 12, the victim-PW.5

told them that she has been kidnapped. On an overall

appreciation of the evidence on record, it can be safely

held that, PW.5 a minor girl was kidnapped by accused

Nos.1, 2 and 5. Since case against accused No.3 is split

up and he is not an appellant herein, no opinion is

formed against him in the appeal. The evidence and the

material on record is not sufficient to come to a

conclusion that the accused have kidnapped PW.5 with

an intention or knowledge that she will be forced or

seduced to illicit intercourse with another person. Hence,

there is lack of evidence to convict the accused for the

offence punishable under section 366-A of IPC.

18. It is the contention of the learned counsel for

the appellants that though PW.5 has stated that accused

No.2 told her they have kidnapped her because accused

No.3 liked her and they wanted to get her married with

accused No.3, they have not forced her to marry the said

accused and further accused No.3 was also not present

when the veil covering her eyes was removed. As rightly

contended by the learned counsel for the appellants,

there is no evidence to show that the victim girl was

either compelled to marry accused No.3 or the accused

had any intention or knowledge that she may be forced

or seduced to illicit intercourse. However, the material on

record is sufficient to hold that the victim was a minor at

the time of incident and she was kidnapped by the

accused from her lawful guardianship and therefore, the

ingredients of Section 361 which is punishable under

Section 363 are made out against accused Nos.1, 2 and

5 (Case against accused No.3 is split up). The evidence

on record is not sufficient to convict accused Nos.4, 6

and 7 / appellant Nos.3, 5 and 6. Hence, they are liable

to be acquitted.

19. Learned counsel for the appellants submits

that victim-PW.5 is none other than the cousin of

accused Nos.2 and 3. Hence, they are closely related.

Now, the victim is married and living separately and

even the accused are also married. He submits that the

accused were in judicial custody for a period of 46 days.

He further submits that fine amount of Rs.30,000/-

imposed against the accused has been deposited.

20. The incident took place in the year 2009.

Already 12 years have passed. The appellants are

agriculturists. Taking into consideration that the accused

have spent 46 days in custody and keeping in view the

submission of the learned counsel for appellants, this

Court is of the considered view that the period of

imprisonment undergone by accused Nos.1, 2 and 5 can

be held sufficient modifying the sentence of fine imposed

by the Trial Court. Accordingly, the following:

order

i) The appeal is partly allowed.

ii) The Judgement and Order dated 05.09.2012

passed by the Principal Sessions Judge,

Chickmagaluru in Sessions Case No.127/2009,

convicting and sentencing the appellants-1, 2, 4

to 7 /accused Nos.1, 2, 4 to 7 for offences

punishable under Section 366A of IPC is set aside.

iii) The conviction and sentence passed against

appellants-3, 5 and 6 / accused Nos.4, 6 and 7 for the

offence punishable under section 341 r/w 34 of IPC is set

aside.

iv) The conviction and sentence passed against appellants-1, 2 and 4 / accused Nos.1, 2 and 5 for the offence punishable under section 341 r/w 34 of IPC is hereby confirmed.

and 5 are hereby convicted for the offence punishable

under Section 363 read with 34 IPC.

and 5 are sentenced to imprisonment for the period

already undergone by them, for both the offences

punishable under sections 341 and 363 read with 34 IPC.

They are sentenced to pay a fine of Rs.50,000/- each

(Rupees fifty thousand only) and in default of payment of

fine, they shall undergo simple imprisonment for a period

of six months for the offence punishable under section

363 read with 34 IPC.

vii) If the fine amount is deposited/realised, the

entire fine amount shall be paid to PW.5-victim as