Karnataka High Court

S K Madhusudhana vs State Of Karnataka on 13 December, 2023

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                        NC: 2023:KHC:45395
                                                   CRL.A No. 1024 of 2012




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 13TH DAY OF DECEMBER, 2023

                                        BEFORE
                       THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                           CRIMINAL APPEAL NO. 1024 OF 2012
                BETWEEN:

                1.    S K MADHUSUDHANA
                      S/O LATE KUNTEGOWDA,
                      AGED ABOUT 28 YEARS,
                      VOKKALIGA BY CASTE,
                      HELPER, AXLE FACTORY,
                      COORGALLI, MYSORE
                      R/AT SHINDABOGANAHALLI VILLAGE,
                      CHINAKURALI HOBLI,
                      PANDAVAPURA TALUK.

                2.    S K MANOHARA
                      S/O LATE S M KUNTEGOWDA,
                      AGED MAJOR,
Digitally             VOKKALIGA BY CASTE, DRIVER
signed by
SUMITHRA R            R/AT SHINDABOGANAHALLI VILLAGE,
Location:             CHINAKURALI HOBLI,
High Court of         PANDAVAPURA TALUK.
Karnataka
                3.    S M SURESHA
                      S/O VAIKUNTEGOWDA,
                      AGED ABOUT 31 YEARS,
                      R/AT HOSA EXTENSION,
                      SHINDABOGANAHALLI VILLAGE,
                      CHINAKURALI HOBLI,
                      PANDAVAPURA TALUK
                                                             ...APPELLANTS
                (BY SRI. SRINIVAS N., ADVOCATE)
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                                       NC: 2023:KHC:45395
                                   CRL.A No. 1024 of 2012




AND:

1.   STATE OF KARNATAKA
     BY THE STATE PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA,
     BANGALORE-560001.
                                           ...RESPONDENT
(BY SRI. B.LAKSHMAN, HCGP)

     THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 17/8/2012 PASSED IN
S.C.No.171/2011 BY THE SESSIONS JUDGE FAST TRACK
COURT, SRIRANGAPATNA - CONVICTING APPELLANTS/
ACCUSED Nos.1 TO 3 FOR THE OFFENCE P/U/S.366 R/W.
SEC.34 OF IPC.

     THIS APPEAL IS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is preferred against the Judgment and

Order dated 17.08.2012 passed by the Court of the

Sessions Judge, Fast Track Court at Srirangapatna in

S.C.No.171/2011.

2. Vide impugned judgment, the learned Sessions

Judge has convicted accused Nos.1 to 3 for the offence

punishable under Section 366 r/w Section 34 of IPC and

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acquitted accused No.4 of the offence punishable under

Section 114 IPC.

3. Heard both sides and perused the material on

record.

4. In brief, the case of the prosecution is that on

03.02.2011 at about 9.00 a.m., near Malleshwara Temple

in Baby village, when the minor victim/PW4 aged about

15 years was going towards her school, accused Nos.1 to

3 in furtherance of their common intention to kidnap her,

came in a Omni car bearing registration No. KA-09-7555

and kidnapped her in the said vehicle with intent that she

will be compelled to marry accused No.1 or she will be

forced or seduced to illicit intercourse with him. Further,

accused No.4, being the mother of accused No.1 abetted

accused Nos.1 to 3 to kidnap the minor victim.

5. The incident took place on 03.02.2011 at about

9.00 a.m. In Ex.P2-complaint lodged by PW3/victim's

father, it is averred that his daughter is aged about

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15 years and she was studying in X standard. When she

was proceeding to her school along with her friends on

03.02.2011 at about 9.00 a.m., accused Nos.1 to 3 and

others came in a Omni car bearing registration

No.KA-09-7555 and forcibly kidnapped her. It is stated

that his daughter's friends informed the matter to the

teachers and in turn, he was informed by them. It is

further stated that the accused had requested him to give

his daughter in marriage and since they had refused, his

daughter was kidnapped, at the instigation of the mother

of accused No.1.

6. The case was registered at about 5.15 p.m. on

03.02.2011. PW7-police inspector has deposed in his

evidence about the complainant visiting the police station

and lodging the complaint as per Ex.P2. He has stated

that, after registration of the case he went to the spot and

conducted the spot mahazar as per Ex.P1.

7. PWs.1 and 2 are the panch witnesses to

Ex.P1-spot mahazar. They have not supported the case of

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prosecution. The prosecution has examined the

complainant as PW3 and the victim girl as PW4. One of

the victim's friends who was along with her at the time of

incident is examined as PW5. PW6 is the Head Master

who issued Ex.P3-age Certificate of the victim. PW7 is

the Police Inspector who registered the case. PW8 is the

Police Constable who arrested accused No.1. PW9 is the

Investigating Officer who conducted the investigation and

filed the charge sheet.

8. The complainant-PW3 has re-iterated the

complaint averments. Further, he has stated that the

incident was informed to his brother by the school teacher.

He has stated that accused No.1 had requested him to

give his daughter in marriage but he had refused saying

that for another 5-6 years he will not perform his

daughter's marriage. He has stated that the accused

have kidnapped his daughter for performing her marriage

with accused No.1.

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9. PW4-victim girl has deposed in her evidence

that while she was going to school at about 9.00 a.m. on

03.02.2011, accused Nos.1 to 3 came in a Omni Car and

dragged her inside the car and took her to the house of

one Manohara. Thereafter, her uncle, brothers and others

came and took her back.

10. The defence taken by the accused is that,

accused No.1 had asked PW3 to give his elder daughter in

marriage and in this regard PW3 had taken a sum of

Rs.1 lakh and since the accused were demanding him to

return the said amount, a false case was foisted against

them.

11. The defence of the accused that a sum of

Rs.1 lakh was given to PW3 is not established. PWs.3 and

4 have denied of any such amount having paid by the

accused to PW3. However, though PW3 has denied that

accused No.1 had asked to give his elder daughter,

PW4 i.e., the victim has deposed in her evidence that

earlier accused No.1 had asked to give her elder sister in

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marriage and later asked to give her in marriage with

accused No.1 for which her father refused. PW5-friend of

the victim girl has deposed that on the date of incident

PW4 was kidnapped in a Omni Car and they went and

informed the matter to their teachers.

12. According to prosecution, since PW3 i.e.,

father of the victim refused to give his daughter in

marriage with accused No.1, all the accused at the

instigation of accused No.4 kidnapped her in a maruthi van

and took her to the house of one Manohara in Katteri

village. The learned Sessions Judge has acquitted accused

No.4 holding that there is no material to show that she has

instigated accused Nos.1 to 3 to kidnap the victim girl.

13. Charge was framed under Section 366(A) r/w

34 IPC against accused Nos.1 to 3. The learned Sessions

Judge has held that offence under Section 366(A) is not

made out but overall evidence establishes that accused

Nos.1 to 3 are guilty of the offence punishable under

Section 366 of IPC.

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14. In this case, PW4 is the material witness and

she is the victim. She has deposed that accused Nos.1 to

3 came in a omni car and dragged her and then kidnapped

her in the said omni car and took her to the house of one

Manohara in Katteri village. However, the prosecution

has not drawn any mahazar in the house of the said

Manohara even though PW4 has stated that she was taken

to the house of Manohara in Katteri village. The said

Manohara is also not examined. According to PW7, he

received an information that accused had left the victim in

Katteri village. He has stated that on receiving the said

information he went to Katteri village and secured her.

15. PW4 in her deposition has not stated that after

she was kidnapped by the accused persons she was

compelled to marry. The prosecution is silent as to when

the victim was left at Katteri village by the accused, after

she was kidnapped. The omni car bearing No.KA-09-

7555 used for the commission of offence has not been

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seized. PW9, in his evidence has stated that he could not

trace the car or the owner of the car.

16. The learned counsel for the appellant has relied

on a decision of the Hon'ble Apex Court reported in

(2018) 6 SCC 664 in the case of Kavita Chandrakant

Lakhani v. State of Maharashtra and another. He has

contended that in the instant case the ingredients of

Section 366 of IPC is not made out.

17. It is useful to refer to Para-17 of the said

judgment, which is extracted hereunder:

"Apart from this, 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. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is

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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."

18. The learned High Court Government Pleader

has vehemently contended that the victim was aged about

15 years and therefore, she was a minor as on the date of

commission of the offence. He contends that the victim

was kidnapped by the accused persons without the

consent of her lawful guardian, with an intention to compel

her for the marriage.

19. The prosecution has got examined PW6 namely

the Head Master of the school where the victim was

studying. Ex.P3 is the certificate issued by PW6

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mentioning the Date of Birth of the victim as 21.03.1995.

However, the prosecution has not produced any school

pertaining to the victim. PW6 has admitted that he has

not produced the Transfer Certificate. Merely on the basis

of Ex.P3, it cannot be said that the Date of Birth of the

victim is 21.03.1995 and she was a minor as on the date

of commission of offence.

20. The Hon'ble Apex Court in the above referred

judgment has held that to constitute an offence under

Section 366 of IPC, it is necessary for the prosecution to

prove that the accused induced the woman or compelled

by force to go from any place and that such inducement

was by deceitful means and further that such abduction

took place with an intent that she may be seduced to illicit

intercourse etc., and mere abduction does not bring an

accused under the ambit of such penal section. It is held

that mere finding that a woman was abducted is not

enough and it must further be proved that the accused

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abducted the woman with a 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.

21. In the instant case the prosecution has not

established the ingredients of Section 366 of IPC, as held

in the above referred judgment. There is no conclusive

evidence adduced by the prosecution to establish that the

accused persons took the victim girl to compel her to

marry accused No.1 or with an intention that she may be

seduced to illicit intercourse.

22. For the forgoing reasons, I proceed to pass the

following:

ORDER

i. The appeal is allowed.

ii. The Judgment and Order dated 17.08.2012

passed by the Court of the Sessions Judge, Fast Track

Court at Srirangapatna in S.C.No.171/2011 is set aside.