Karnataka High Court
Muniswamy S/O Late Muthaiah vs State Of Karnataka By on 2 February, 2023
Bench: Shivashankar Amarannavar
-1-
CRL.A No. 652 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 652 OF 2011
BETWEEN:
MUNISWAMY S/O LATE MUTHAIAH
AGED ABOUT 29 YEARS,
SALOON SHOP
R/A THOMYARAPALYA VILLAGE,
KOLLEGAL TALUK,
CHAMARAJNAGAR DIST.
...APPELLANT
(BY SRI MAHESH Y L, ADVOCATE FOR AMICUS CURIAE)
Digitally signed AND:
by SANDHYA S
Location: HIGH STATE OF KARNATAKA BY
COURT OF HANUR POLICE STATION,
KARNATAKA REP. BY S.P.P HIGH COURT BUILDINGS,
BANGALORE-1
...RESPONDENT
(BY SRI S VISHWAMURTHY, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C TO SET
ASIDE THE ORDER DATED:24.6.11 PASSED BY THE P.O., FTC,
KOLLEGAL IN S.C.NO.59/07-CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 363, 366 AND
342 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
-2-
CRL.A No. 652 of 2011
JUDGMENT
This appeal is filed against the judgment of
conviction and order of sentence dated 24.06.2011 passed
in S.C. No. 59/2007 by the Presiding Officer, Fast Tract
Court, Kollegal, convicting the appellant for the offence
under Sections 363, 366 and 342 of IPC and sentencing to
undergo simple imprisonment for a period of three years
and to pay fine of Rs.5,000/- with default sentence for
offence under Section 363; further sentenced to undergo
simple imprisonment for a period of three years and to pay
fine of Rs.10,000/- with default sentence for offence under
Section 366 IPC and further sentenced to undergo simple
imprisonment for a period of two months and to pay fine
of Rs.1,000/- with default sentence for offence under
Section 342 IPC.
2. Factual matrix of the case is, that on 05.01.2007
at about 01.30 pm the appellant - accused kidnapped
P.W.2 victim girl near St. Thomas Rural High School of
CRL.A No. 652 of 2011
Thomiyarapalya with an intention to marry her, knowing
fully well that she was minor. The appellant - accused had
threatened her that if she did not marry him, he will kill
her and he wrongfully kept her in his relative's (P.W.7)
house and at Hameediya Lodge at Kodaicanal. P.W.1
father of victim girl-P.W.2 filed complaint as per Ex.P.1
registered in crime No. 3/2007 of Hanur Police Station for
the offence under Section 363 IPC against appellant -
accused. The Investigating Officer, after completing
investigation filed charge sheet against the appellant -
accused for the offence under Sections 363, 366, 342 and
506 IPC. JMFC had taken cognizance and committed the
case to the Sessions Court.
3. The Sessions Court framed charge against the
appellant - accused for the offence under Sections 366,
506, 342 and 363 IPC. Appellant - accused has denied the
charges leveled against him. The prosecution examined 12
witnesses as P.W.1 to P.W.12 and got marked documents
CRL.A No. 652 of 2011
Ex.P.1 to Ex.P.11 and material object as M.O.1, i.e.,
Motorcycle. The statement of the accused under Section
313 Cr.P.C. was recorded.
4. After hearing arguments on both sides, the trial
Court framed points for consideration and convicted the
appellant - accused for the offence under Sections 363,
366 and 342 of IPC. The said judgment of conviction and
order of sentence has been challenged by the appellant -
accused in this appeal.
5. Heard the Amicus Curiae for the appellant -
accused and learned HCGP for the respondent - State.
6. Learned counsel for appellant - accused argues
that the age of the victim - P.W.2 has not been
established by proper evidence. There is a discrepancy in
her date of birth mentioned in Ex.P.7 and in her evidence.
He contends that Ex.P.7 is not sufficient to establish the
CRL.A No. 652 of 2011
age of P.W.2. P.W.2 has stated her date of birth as
01.03.1990 whereas her birth date is mentioned as
01.03.1991 in Ex.P.7. Learned counsel for appellant -
accused by referring to the entire deposition of P.W.2
argued that P.W.2 had sufficient opportunity to make a
hue and cry and run away from the clutches of appellant -
accused as she stayed nearly for one month from
05.01.2007 to 06.02.2007. The very act of not making any
efforts by P.W.2 to escape itself goes to show that she is
not kidnapped by the appellant - accused. The case of the
prosecution is silent regarding the whereabouts of the
appellant - accused and the victim between 28.01.2007 to
04.02.2007. There is no investigation in that regard. The
appellant - accused was not knowing that P.W.1 - father
of P.W.2 was going to Mysuru or his travel plan so as to
falsely say to P.W.2 that her father has met with an
accident and he is in a hospital. The victim girl, after this
appellant - accused taking her on his bike on the pretext
that her father met with an accident and is admitted in a
hospital, within 20 to 22 minutes as the bike proceeded in
CRL.A No. 652 of 2011
a different route, but she continued to travel with him on
his bike to the house of P.W.7 at Dindgal. P.W.2 has not
told her kidnap by appellant - accused to P.W.7 or to his
family members even though she stayed in their house for
22 days i.e., till 27.01.2007. P.W.2 had sufficient
opportunity and once she had gone to a telephone booth
to make a call to her mother and at that time also she had
not intimated the lady in the telephone booth to save her.
P.W.2 has also not told regarding her kidnap to the wife of
P.W.7. P.W.2 further traveled from Dindgal to Kodaicanal
on the bike of appellant - accused and stayed with him in
a lodge for two days. She did not intimate any person
whom she came across during that period. All these
aspects go to show that the appellant - accused has not
kidnapped P.W.2 and she might have voluntarily went
along with him. He submits that there is no allegation of
any sexual assault by this appellant - accused on P.W.2.
There is also no attempt by this appellant - accused to
marry P.W.2 to attract offence under Section 366 IPC. He
placed reliance on the decision of the Hon'ble Apex Court
CRL.A No. 652 of 2011
in the case of Alamelu and another Vs. State
represented by Inspector of Police reported in (2011)
2 SCC 385 on the point that Ex.P.7 - certificate issued by
the school consisting the date of birth is not having much
evidential value to prove the age of the girl in the absence
of material on the basis of which the age was recorded. He
placed reliance on paragraph No. 55 of the said decision
which reads thus:
"55. Earlier also, the girl had many
opportunities to complain or to run away, but she
made no such effort. It is noteworthy that she
made no protest on seeing some known persons
near the car, after her alleged abduction. She did
not make any complaint at the residence of Selvi,
sister of Sekar(A-1) at Pudupatti. Again, there
was no complaint on seeing her relatives allegedly
assembled at the temple. Her relatives
apparently took no steps at the time when
mangalsutra was forcibly tied around her neck by
Sekar (A-1). No one sent for police help even
though a car was available. She made no
complaint when she was taken to the house of PW
5 Thiru Thirunavukarasu and stayed at his place.
Again, there was no protest when Sekar(A-1) took
CRL.A No. 652 of 2011
her to the police station on the fifth day of the
alleged abduction and told at Tiruchi Police
Station that they had already been married. The
above behavior would not be natural for a girl
who had been compelled to marry and subjected
to illicit sexual intercourse."
With these grounds he prayed to allow the appeal and
acquit the appellant - accused.
7. Per contra, learned HCGP submits that the age
of the victim girl is not disputed. P.W.5 who is the school
Head Master is examined to prove Ex.P.7 which contains
the date of birth of the victim girl - P.W.2. The date of
birth of the victim girl is not disputed in the cross-
examination of P.W.5. He contends that the evidence of
P.W.1 to P.W.3 is sufficient to hold that this appellant -
accused giving false information and took the victim girl
and kept in the house of P.W.7 with an intention to marry
her. The evidence of P.W.8 also establishes that appellant
- accused stayed with the victim girl in the hotel at
Kodaicanal. The evidence of P.W.1 and P.W.2 is consistent.
CRL.A No. 652 of 2011
Considering all these aspects the learned trial Judge has
rightly convicted the appellant - accused for offence
alleged against him. There are no grounds for interfering
with the judgment of conviction and order of sentence
passed by the trial Court. With this, he prayed to dismiss
the appeal.
8. On the grounds made out and considering the
arguments advanced, the following points arise for my
consideration:
I. Whether the trial Court has erred in holding
that the prosecution has proved beyond all
reasonable doubt that on 05.01.2007 at about
01.30 pm the appellant - accused kidnapped
the victim girl - P.W.2 with an intention to
marry her knowing fully well that she is a minor
and further he threatened to kill her if she did
not marry her?
- 10 -
CRL.A No. 652 of 2011
II. Whether the trial Court has erred in holding
that the appellant - accused confined the victim
girl - P.W.2 in the house of his relative and also
at Hameediya Lodge, Kodaicanal?
9. The answer to point No. 1 is in the affirmative and
point No. 2 is in the negative for the following reasons:
P.W.1 is the father of P.W.2 who has filed complaint as per
Ex.P.1 when he came to know through P.W.3 that his
daughter - P.W.2 went on the bike of appellant - accused.
P.W.2 is the victim girl. P.W.3 is a witness who saw the
victim girl going on the bike of appellant - accused and
intimated the same to P.W.1 and he is also a pancha to
mahazar of the spot of kidnap as per Ex.P.6. P.W.4 is the
brother-in-law of P.W.1 who went along with P.W.1 to
Kodaicanal and secured the victim on 06.02.2007. P.W.5 is
the school Head Master who has issued Ex.P.7 containing
the date of birth of the victim girl and her date of birth is
01.03.1991 as per the school records. P.W.6 is the panch
- 11 -
CRL.A No. 652 of 2011
witness to the spot mahazar drawn at the house of P.W.7
at Dindgal. P.W.7 is one Balamurugan - relative of the
appellant - accused in whose house the appellant -
accused and victim girl stayed for 22 days. He has not
fully supported the case of the prosecution. P.W.8 is the
lodge Manager who has furnished Ex.P.4 - extract of lodge
register wherein there is an entry of stay of the appellant
- accused on 04.02.2007 and 05.02.2007 and he has also
identified the appellant - accused and victim girl on
showing her photograph. P.W.9 is Head Constable who
had carried the complaint - Ex.P.1 and FIR - Ex.P.10 and
handed over to the jurisdictional Magistrate. P.W.10 and
P.W.12 are the Investigating Officers. P.W.11 is the eye
witness who is stated to have given the bike to the
appellant - accused but, he has not supported the case of
the prosecution.
10. P.W.2 in her evidence has stated that her date of
birth is 01.03.1990. Ex.P.7 is the letter issued by P.W.5
- 12 -
CRL.A No. 652 of 2011
containing the date of birth of victim girl as 01.03.1991.
The said letter is issued on the basis of admission records
of the victim girl maintained in the school.
11. P.W.5 is the Head Master of the school who has
issued Ex.P.7. He has given evidence stating that he
issued Ex.P.7 on the basis of school admission register and
stated that the date of birth of P.W.2 is 01.03.1991. In his
cross-examination it is elicited that he has issued Ex.P.7
containing the date of birth of the victim girl based on her
primary school records. The age of the victim girl has not
been disputed by the appellant - accused in the cross-
examination of P.W.2 and also P.W.5. Placing reliance on
the observations made by the Hon'ble Apex Court in
paragraph No. 40 of the judgment in the case of Alamelu
(supra), learned counsel for the appellant - accused
submits that even though Ex.P.7 is admissible in evidence
under Section 35 of the Evidence Act, 1872, admissibility
of such document would of not much evidentiary value to
- 13 -
CRL.A No. 652 of 2011
prove the age of the girl in the absence of material on
which the age was recorded. The date of birth mentioned
in the Transfer Certificate would have no evidentiary value
unless the person who made the entry or who gave the
date of birth is examined. In the cross-examination of
P.W.5 itself he has stated that he has issued Ex.P.7 based
on her primary school records. The Hon'ble Apex Court in
the case of Jarnail Singh Vs. State of Haryana,
reported in (2013) 7 SCC 263 by referring to Rule 12 of
the Juvenile Justice (Care and Protection of Children)
Rules, 2007 has held that Rule 12 is strictly applicable only
to determine the age of child in conflict in law and they are
of the view that the said statutory provision should be the
basis for determining the age even of a child who is a
victim of a crime. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of the child
concerned is the highest rated option. In case said
certificate is available, no other evidence can be relied
upon. Only in the absence of the said certificate, Rule
12(3) envisages consideration of the date of birth entered
- 14 -
CRL.A No. 652 of 2011
in the school first attended by the child. In case such an
entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied upon.
12. P.W.5 who is the Head Master of the high school
in which P.W.2 is studying in tenth standard has issued
Ex.P.7 - letter containing the date of birth of the victim
girl. The said date of birth is mentioned in the school
admission register. In the cross-examination it is elicited
that he has mentioned the date of birth of P.W.2 on the
basis of her primary school records in which she was first
admitted and studied. Therefore, the date of birth entered
in the school first attended by the child is to be treated as
final and conclusive and no other material is to be relied
upon as held by the Apex Court in the case of Jarnail
Singh (supra). Even though P.W.2 stated that her date of
birth is 01.03.1990, it is oral evidence not supported by
any documents and the date of birth mentioned in Ex.P.7
prevails over the oral testimony of P.W.2. Therefore, the
- 15 -
CRL.A No. 652 of 2011
prosecution has established that the date of birth of victim
girl is 01.03.1991 and she is aged below 18 years as on
the date of alleged offence.
13. As per the case of the prosecution the appellant
- accused deceitfully induced P.W.2 to come along with
him stating that her father is admitted in the hospital and
he is taking her to the hospital. P.W.2 went along with
appellant - accused on his bike. After some distance, after
about 20 minutes, she came to know that appellant -
accused is not taking her in the route of the hospital. At
that time she has not made any hue and cry and not made
any attempt to get down from the bike. P.W.2 chose to
travel along with appellant - accused on his bike till
Dindgal and stay in the house of P.W.7. P.W.7 and his wife
were residing in the said house. Appellant - accused
sometimes stayed in the house and sometimes went out of
the house of P.W.7. At that time also the victim girl has
not made any attempt to intimate P.W.7 or his wife that
- 16 -
CRL.A No. 652 of 2011
she has been kidnapped by appellant - accused. As per
P.W.2 the appellant - accused is unknown to her, but still
she chose to travel with him on his bike and stayed in the
house of P.W.7 along with his family members for a period
of 22 days. As per P.W.2 once she went outside the house
of P.W.7 and made a phone call to her mother to save her
from appellant - accused marrying her at Kodaicanal.
P.W.2 has also not made any effort to intimate the same
to the lady who was in the telephone booth. Mother of
P.W.2 is not examined with regard to she receiving phone
call from P.W.2.
14. Case of the prosecution is silent with regard to
where the appellant - accused and victim girl - P.W.2
resided or stayed between 28.01.2007 to 04.02.2007.
P.W.1 - father of the victim girl and P.W.4 went to
Kodaicanal on 06.02.2007 and secured the victim girl.
P.W.1 and P.W.4 are stated to have received information
through the mother of P.W.2 that appellant - accused is
- 17 -
CRL.A No. 652 of 2011
taking her to Kodaicanal but they did not choose to
intimate the same to the Police. Investigation by the Police
from the date of registration of the case from 07.01.2007
till P.W.1 and P.W.4 secured the victim and brought her is
silent. P.W.2 - victim girl had many opportunities from
05.01.2007 to 06.02.2007 i.e., for a period of one month
to intimate the alleged act of kidnapping by the appellant
- accused to P.W.7, his wife or to any other person. She
has not done so. P.W.2, in paragraph No.4 of her chief
examination, has deposed that she will make hue and cry
if the appellant - accused gives more trouble to her and
intimate the same to the Police. By the said statement it is
clear that P.W.2 was aware that she can make hue and cry
and intimate the Police regarding the acts of the appellant
- accused. P.W.2 even in the lodge at Kodaicanal had an
opportunity to intimate the act of the appellant - accused
kidnapping her to the staff of the said lodge. But she has
not done so. The evidence of P.W.2 is that she is not
knowing the appellant - accused, he deceived, induced,
took her and threatened her and therefore, she stayed
- 18 -
CRL.A No. 652 of 2011
with him for more than a month appears to be not
trustworthy.
15. Even though P.W.2 and appellant - accused were
together for a period of 30 days, there is no allegation by
P.W.2 of appellant - accused attempting to marry her.
From the entire evidence of P.W.2 and from her conduct
what can be inferred is that she was knowing the appellant
- accused and she voluntarily went with him and stayed
with him for 30 days. P.W.2 had many opportunities to
complain or run away but she made no such efforts.
16. It is noteworthy to mention here that P.W.2
made no protest on seeing some known person i.e. P.W.3,
near her after her alleged abduction. She did not make
any complaint at the residence of P.W.7 and at
Hammediya Lodge, Kodaicanal. The said behavior of P.W.2
would not be natural for a girl who had been compelled to
go with appellant - accused. In view of the above, I am of
- 19 -
CRL.A No. 652 of 2011
the considered opinion that the prosecution has failed to
prove beyond all reasonable doubt that the appellant -
accused kidnapped P.W.2 with an intention to marry her
and committed an offence punishable under Sections 363
and 366 of IPC.
17. As per the evidence of P.W.2 the appellant -
accused took her and kept in the house of P.W.7 and
restrained her from proceeding further. The said evidence
of P.W.2 establishes that appellant - accused had
wrongfully confined P.W.2 in the house of P.W.7. P.W.7
deposed that the appellant - accused is his relative and
three years ego he had brought a girl in his auto and he
does not know the name of the said girl. He further
deposed that the appellant - accused went along with the
said girl to Madhurai. The evidence of P.W.2 and P.W.7
establishes that P.W.2 was made to stay in the house of
P.W.7 by the appellant - accused and he confined her. The
said confinement amounts to wrongful confinement as
- 20 -
CRL.A No. 652 of 2011
defined under Section 342 of IPC. The trial Court has
rightly convicted the appellant - accused for the offence
under Section 342 of IPC. The sentence imposed by the
trial Court for the said offence under Section 342 of IPC is
simple imprisonment for a period of two months and to
pay fine of Rs.1,000/- and in default of payment of fine to
undergo simple imprisonment for 15 days. The said
sentence imposed by the trial Court appears to be
appropriate and reasonable.
18. For the aforesaid reasons, the conviction of the
appellant - accused for the offence under Sections 363
and 366 of IPC requires to be set aside and he is required
to be acquitted for the said offences. The conviction of the
appellant - accused under Section 342 of IPC and
sentence imposed on him by the trial Court for the said
offence requires to be affirmed. Hence, the following;
ORDER
1. Appeal is partly allowed.
- 21 -
CRL.A No. 652 of 2011
2. The Judgment passed by the trial Court dated
24.06.2011 in S.C. No. 59/2007 convicting
appellant - accused under Sections 363 and
366 of IPC is set aside.
3. The appellant - accused is acquitted for the
offence under Sections 363 and 366 of IPC.
4. The order passed by the trial Court dated
24.06.2011 in S.C. No. 59/2007 convicting
appellant - accused under Section 342 of IPC
and sentence imposed on him is affirmed.
Sd/-
JUDGE
LRS
