Karnataka High Court
Vinayak Ashok Hosure vs The State Of Karnataka on 13 April, 2023
Bench: Rajesh Rai K
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF APRIL 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRL.A. NO.100225 OF 2014
BETWEEN
1. VINAYAK ASHOK HOSURE
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O. SHIRGUPPI, TQ: CHIKODI
DIST BELGAUM
...APPELLANT
(BY SRI. M J PEERJADE, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH NIPPANI TOWN PS
R/BY ADDL.STATE P.P
HIGH COURT OF KARNATAKA
DHARWAD
...RESPONDENT
(BY SRI.V.S.KALASUMATH, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
PRAYING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE FOR THE OFFENCE
UNDER SECTION 366(A) OF THE INDIAN PENAL CODE, 1860
DATED 25.11.2014 PASSED IN S.C.NO.8/2013 BY THE LEARNED
VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELGAVI
BY ACQUITTING THE APPELLANT FOR ALL THE CHARGES.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
24.03.2023 FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, RAJESH RAI K., J. DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of
conviction and order of sentence dated 25.11.2014 passed
in SC No.8/2013 by VIII Addl. District and Sessions Judge,
Belagavi (hereinafter for short 'Trial Court'). The appellant-
accused is convicted by the trial Court for the offence
punishable under Section 366A of IPC and sentenced to
undergo simple imprisonment for 5 years and fine of
Rs.10,000/- in default to pay fine amount, simple
imprisonment for 3 months. Being aggrieved by the said
judgment, the appellant/accused preferred the present
appeal.
2. Factual matrix of the case are that on 28.03.2012 at
about 11 p.m. appellant/ accused forcibly took victim-
PW.8, aged about 16 years from the lawful guardian by
giving false assurance of marring her. It is further case of
the prosecution that accused/appellant wrongfully confined
her in the house of CW.12 examined as PW.3 from
01.04.2012 to 13.04.2012 and thereby committed forcible
sexual intercourse on her. Hence, PW.1-father of the
victim girl lodged a complaint before the respondent-Police
on 04.04.2012 about missing of his daughter. FIR came to
be registered to that effect in Crime No.39/2012 dated
04.04.2012. The respondent-Police investigated the matter
and arrested the appellant/accused and nine others and
registered further FIR in Crime No.39/2012 against nine
accused persons for the offence punishable under Section
363, 109 r/w 149 of IPC alleging that accused Nos.2 to 9
have instigated accused No.1 to kidnap the minor girl i.e.
the daughter of PW.1-complainant. After registering of the
said FIR, respondent-Police continued the investigation and
charge sheet has been filed for the offence punishable
under Sections 376, 366A and 344 of IPC against the
accused No.1 i.e. appellant herein. Accordingly, the case
committed to the VIII Addl. District and Sessions Judge,
Belagavi. The trial Court framed the charges against the
accused No.1 for the offence punishable under Section
344, 366A and 376 of IPC. However, accused pleaded not
guilty and claimed to be tried.
3. Before the trial Court in order to prove the charges
leveled against the accused, the prosecution in totally
examined 14 witnesses as PW.1 to PW.14 and got marked
27 documents as per Ex.P.1 to P.27 and produced 10
material objects as M.O.Nos.1 to 10. However, the accused
neither examined any witness on his behalf nor produced
any documents. After conclusion of trial, based on the
arguments of the learned counsel for the parties and
assessment of the oral and documentary evidence, learned
trial Judge acquitted the accused for the offence
punishable under Sections 344 and 376 of IPC. However,
convicted him for the offence punishable under Section
366A of IPC as stated supra. Aggrieved by the said
judgment of conviction and order of sentence,
appellant/accused preferred the present appeal to set
aside the impugned judgment and to acquit him from the
charges leveled against him.
4. I Have heard Sri.M.J.Peerjade, learned counsel for
appellant and Sri.V.S.Kalasurmath, learned HCGP for
respondent-State and perused the material available on
records.
5. The learned counsel for the appellant vehemently
contended that the judgment passed by the trial Court
suffers from illegality and perversity and the same is
contrary to the evidence on record. He would further
contended that the learned trial Judge though acquitted
the accused for the offence punishable under Sections 376
and 344 of IPC wrongly convicted him for the offence
punishable under Section 366A of IPC. According to him
once, the accused is acquitted for the offence punishable
under Section 376 then there is no question of convicting
the accused for offence under Section 366A of IPC i.e.
procuring minor girl for forcible sexual act. As such, he
submits that impugned judgment is liable to be set aside.
6. He would further contend that there is no such
evidence of the independent witness to prove the
allegations leveled against accused. PW.3 the owner of the
house where the victim allegedly confined turned hostile to
the prosecution case. The evidence of the victim also
cannot be relied since the Sessions Judge disbelieved her
evidence partially in respect of alleged offence of rape and
believed in respect of kidnap is totally contradictory. The
learned counsel would further contend that, though the
PW.1-father of the victim girl i.e. complainant deposed
about lodging of complaint, but he is not an eye witness to
the incident of alleged kidnap and by perusal of his
evidence, he categorically admitted that on 13.04.2012,
the Police called him to the police station and he saw his
daughter there and she informed him that the accused
kidnapped her. As such, he being hears say witness to the
incident his version cannot be believed for any purpose. He
would further contend that the victim girl PW.8 clearly
deposed in her evidence that there was a fair in the
Khaleshwar village and there were entertainment
programs and victim had been to there on the date of
incident and after the entertainment programs, the victim
went along with the accused with an assurance that he
would marry her. During that time, victim's engagement
was already held with one Surje Rao Tanaji Pawar. Inspite
of that, victim girl went along with the accused on her own
will to Khaleshwar village from there to Hukkeri village to
the house of PW.3 and there they stayed for a period of 8
days. This evidence of victim girl-PW.8 clearly depicts that
there was no inducement by the appellant/accused and
procuring the victim girl or forced her to illicit sexual
intercourse as contemplated under the provisions of 366A.
As such according to the learned counsel, trial Judge erred
by convicting the accused for the offence under Section
366A of IPC. He further argued that even otherwise, the
evidence of the doctor-PW.7 who examined the victim girl
clearly deposed that she was unable to give any opinion in
respect of the sexual intercourse to the victim girl. The
report of the doctor is placed at Ex.P.20 and the final
report after the FSL examination placed at Ex.P.21 wherein
the doctor opined that according to the FSL report, "there
may or may not be a recent sexual intercourse". As such,
counsel for the accused submits that learned trial Judge
totally erred in convicting the accused for the offence
under Section 366A of IPC, since accused has no such
intention to procure the girl for any such sexual
intercourse. Hence, he prays to allow the appeal.
7. Per contra, learned HCGP contended that judgment
under appeal does not suffer from any illegality or
perversity and the same is based on the evidence and
material placed before the trial Court. According to him,
learned trial Judge rightly convicted the appellant/accused
for the offence punishable under Section 366A, though
acquitted the accused for the offences under sections 376
and 344 of IPC. According to learned HCGP, there is no
such hard and fast rule that if the accused is acquitted for
the offence punishable under Section 376 of IPC, he
cannot be convicted for the offence under Section 366A of
IPC, since there is a specific charge framed by the trial
Court for the offence punishable under Section 366A of
IPC. According to him, when there is a clear evidence of
PW.1-father of the victim and the victim girl-PW.8 in
respect of procurement of minor girl i.e. victim by the
accused, the conviction for the offence under section 366A
of IPC sustains. According to him, prosecution proved the
age of the victim that she was a minor at the time of
incident by producing the school certificate of the victim
girl. As such, according to learned HCGP, though, the
victim girl voluntarily accompanied the accused, since she
being a minor as on the date of incident, accused is liable
to be convicted under Section 366A of IPC. As such, he
prays to dismiss the appeal.
8. I have bestowed my anxious consideration both on
the argument advanced by the counsel for the appellant
and learned HCGP and carefully perused the evidence and
materials available on record including the trial Court
record.
9. Having heard the learned counsel for the parties and
having perused the evidence available on record, the
points that would arise for my consideration are
1) Whether the judgment under appeal suffers
from any illegality or perversity?
2) Whether the learned trial Judge justified in
convicting the accused for the offence under
Section 366(a) of IPC?
10. This Court being the Appellate Court, it is essential
to re-appreciate the entire evidence on record.
11. On a cursory glance of the evidence of the witnesses
examined before the trial Court, PW.1-complainant as well
as the father of the victim has deposed in his evidence that
the victim is his daughter and was studying in 10th
standard at Nippani school and she was aged 16 years at
the time of incident. He deposed that there was a fair in
the Kaleshwar village and there were also entertainment
programs and his daughter had been to fair on the date of
incident and after completion of entertainment programs,
the victim did not returned to his house and though they
have searched, she could not be traced out. Hence, he
lodged missing complaint before the Police as per Ex.P1 on
04.04.2012. He further deposed that on 13.04.2012, Police
called him and informed him that his daughter was being
traced out. Accordingly, he had been to the Police Station,
saw his daughter and accused persons in the Police
station. After enquiry his daughter informed him that she
had been kidnapped by the accused. Accordingly, he
lodged further complaint as per Ex.P.2. Hence this witness
is hear say witness to the prosecution case.
12. PW.2 is a spot mahazar witness. According to him on
14.04.2012, Police called him near the house of one
Manohar Makale and drawn Ex.P.3. spot mahazar i.e house
where the accused and victim stayed and the accused
committed the forcible sexual intercourse with her.
13. PW.3, one Sanjay Govind Jadhav is the owner of the
house where the accused and victim were stayed. This
witness totally turned hostile.
14. PW.4 and PW.5 are the witnesses for seizure
mahazor, both were turned hostile.
15. PW.6 is the scientific officer who deposed in her
evidence that she conducted the chemical analysis
examination of 10 sealed articles brought by the Chikkodi
Police for chemical analysis. After examination she issued
report as per EX.P.19. According to her, she did not find
any seminal stains on item Nos.1, 6, 7, 8, 9 and 10.
16. PW.7-doctor who examined the victim girl and issued
the report as per Ex.P.20. According to her, there was no
sign of injuries on body and she opined that there may be
or may not be sexual intercourse and after obtaining
report from FSL, she issued her final opinion as per
Ex.P.21 that "there may or may not be recent sexual
intercourse."
17. PW.8-victim stated that the accused was doing the
work with her uncle as a tractor driver and was known to
her. On 28.03.2012 at about 11.30 p.m. in the night, she
attended a fair in Siraguppi village and after attending the
entertainment programs, accused came near to her along
with his sister and stated that she should not marry with
engaged boy and he would marry her. According to her
she was engaged with one Sarjerao Pawar. Then the
accused took her to Kolahapura, they wondered here and
there and later came to Hupri village of CW.12. They
stayed there for a period of 8 days and during that time
accused has committed sexual intercourse on her. She
further deposed that later they both had been to Nippani
at 9.30 p.m. in the night when they came near Tanaji
Chowk, Police came near to them enquired and took them
to Police station.
18. PW.9 -Mukundrao Dadasaheb Desai is the scribe of
the complaint. According to him, on 28.03.2012, the PW.1
called him to give complaint in respect of missing of his
daughter. There by, he wrote the complaint and lodged
the same.
19. PW.10 is the Police Constable who accompanied the
accused to the Hospital for medical check up.
20. PW.11 is the Woman Police Constable accompanied
the victim to the hospital for medical examination.
21. PW.12 is the Senior Medical Officer, MGM Hospital
Nippani who examined the accused on 13.04.2012 and
issued report as per Ex.P.27 that the accused was capable
of performing sexual intercourse.
22. PW.13 the then Police Inspector, who partially
conducted investigation in this case by receiving missing
complaint as per Ex.P1 and also subsequently, registered
the case against the accused for the offence under Section
366A, 109 r/w 149 of IPC. He also sent requisition to the
Court to insert offence under Section 376 of IPC as per
Ex.P.30 and handed over the case for PW.14 for further
investigation.
23. PW.14 is the Investigating Officer in the case, he
conducted investigation by drawing mahazor and
recovered the material objects and also recorded the
statement of witnesses and after completing the
investigation filed the charge sheet before the Court.
24. A charge with reference to 366(a) of the Indian Penal
Code needs closure examination. Section 366(a) of IPC is
extracted 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."
25. A perusal of the aforesaid section reveals that
inducing of minor girl to constitute an offence under
Section 366(A) should have been with reference to an
intent to force or seduced her to "illicit intercourse with
another person." In fact, there is no mention of any other
person in the sequence of allegations leveled against the
appellant/accused.
26. From a bare perusal of the Section 366A, it appears
that there are three essential ingredients to constitute an
offence of procurement of a minor girl under Section 366A.
Those are 1) Victim girl may be induced by accused.
2)She must be minor age i.e. under the age of 18 years
and 3) She must be induced by the accused person to go
from a place or to do any act that 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. Amongst
those, inducement is the basic requirement of law in a
case of an offence under 366A of IPC. Though, the word
'inducement' has not been defined anywhere in the penal
code, in ordinary dictionary meaning 'inducement' means
the act or process of enticing or persuading another person
to take a certain course of action.
27. Keeping in view the legal provision and definition of
the word 'Inducing', 'Inducement', while appreciating the
evidence in the case on hand, PW.8-victim girl in her
evidence stated that on 28.03.2012 at about 11.30 p.m. in
the night hours, there was a fair in her village and
entertainment programs were being arranged. The accused
came near to her along with his sister and stated that she
should not marry with the engaged boy and accused would
marry her, since, the victim was already engaged with one
Sarjerao Pawar. She further deposed that accused took
her to Kollapur, thereby they wondered here and there and
came to Hupri village to the house of CW.12 and they
stayed there for about 8 days and during that time
accused committed sexual intercourse on her. From her
evidence, it is seen that there was no 'inducement' on the
part of the accused to take her from her village from the
place of fair in other words, she was never enticed or
persuaded to come along with the accused nor did the
accused induced her to go from any place or to do any act
with an intent or knowledge contemplated by this Section.
As such, the primary ingredient of Section 366A of IPC
appears to be absent in the present case.
28. Though, the PW.1 i.e. father of the victim girl
deposed that he lodged missing complaint of his daughter,
subsequently, Police investigated and informed him that
accused took her from the fair of their village. But, he
categorically admitted that in the Police Station i.e. after 8
days at the time when he has gone to take his daughter,
she informed that the accused took her from the fair.
Hence, it is clear that he is hearsay witness to the incident.
29. Though, other witness i.e owner of the house where
the accused and victim stayed for a period of 8 days,
examined by the prosecution, turned hostile and more
over, the PW.7-doctor also issued her final report as per
Ex.P21 stating that "there may be or may not be a sexual
intercourse on victim girl". As such, there is no
corroborative evidence placed by the prosecution to prove
the guilt of the accused for the offence punishable under
Section 366A of IPC that the accused procured the minor
girl for illicit sexual intercourse with another person. By
perusal of the evidence of the victim girl, it appears that
victim girl was simply accompanied the accused without
being enticed or influenced. Mere accompanying a person
without being induced does not constitute an offence under
Section 366A of IPC.Though, the learned HCGP vehemently
contended that age of the victim girl has proved by the
prosecution that she is minor as on the date of incident,
nevertheless, in order to convict the accused for the
offence under Section 366A of IPC, other two essential
ingredients i.e. the victim girl must be induced by the
accused and she must be induced by the accused person
to go from a place or to do any act with an intent that such
girl may be knowing that it is likely that she will be forced
or seduced to illicit intercourse by another person.
30. In that view of the matter, on close inspection of
material available on record including the impugned
judgment, this Court is of the view that the trial Court
failed to constitute and consider the essential ingredients
of Section 366A of IPC in order to convict the appellant for
the said offence.
31. My view is fortified by the judgment passed is the
case of Golapi Bibi And Anr. vs State Of Assam
reported in 2004 CriLJ 2209 and the decision of Division
Bench of this Court in the case of State of Karnataka Vs.
S.R.Mahesh, Crl.A.No.524/2014 connected with
Crl.A.No.194/2014. Admittedly, the State has not filed any
appeal against the acquittal of the accused for the offence
punishable under Sections 376 and 344 of IPC.
32. In the facts and circumstances of the case, in my
considered opinion, trial Judge has erred in convicting the
appellant for the offence under Section 366A of IPC and
accordingly points for consideration are answered.
33. In view of the above discussion, I proceed to pass
the following:
ORDER
The Judgment of conviction and Order of
sentence dated 25.11.2014 passed in SC
No.8/2013 by VIII Addl. District and Sessions
Judge, Belagavi is hereby set aside.
Accused is acquitted for the offence
punishable under Section 366A of IPC.
Fine amount deposited if any, shall be
paid the accused.
Sd/-
JUDGE
HMB
