Karnataka High Court

The State By Chitradurga vs Ajith @ Ajith Kumar on 28 November, 2023

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

                             -1-
                                         CRL.A. No.447 of 2017




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
     DATED THIS THE 28TH DAY OF NOVEMBER, 2023
                           PRESENT
     THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                            AND
          THE HON'BLE MR. JUSTICE ANIL B KATTI
                CRL.A NO.447 OF 2017 (A)
BETWEEN:

      THE STATE BY CHITRADURGA
      RURAL POLICE STATION
      REPRESENTED BY STATE
      PUBLIC PROSECUTOR
      HIGH COUURT BUILDING
      BENGALURU-560 001
                                                   ...APPELLANT
(BY MR.B.N.JAGADEESH, ADDL. SPP)

AND:

1.    AJITH @ AJITH KUMAR
      S/O.BRAHMANANDA
      AGE:26 YEARS, WORKING AT
      SNADER ELECTRICAL COMPANY
      RESIDING AT JIGANI, BENGALURU
      NATIVE OF BEDAREDDIHALLI VILLAGE
      CHELLAKERE TALUK
      CHITRADURGA DISTRICT-577 522

2.    SHARMILA
      W/O.NAGARAJA
      AGE: 32 YEARS
      HOUSE WIFE

3.    NAGARAJA
      S/OCHENNAMALLAPPA
      AGE 37 YEARS
      OCCUPATION: TAILOR

      ACCUSED NO.2 AND 3 ARE RESIDING AT
      DODDASIDDAVVANA GRAMA
      CHITRADURGA TALUK-577 501
                                -2-
                                        CRL.A. No.447 of 2017




4.   H.C.RAMESH
     S/O.GURUMURTHY
     AGED ABOUT 53 YEARS
     R/AT D.S.HALLI VILLAGE
     CHITRADURGA TALUK
     CHITRADURGA DISTRICT

                                                ...RESPONDENTS
(BY SRI.N.SRINIVAS, ADVOCATE FOR R1 TO R3
    R4- SERVED)

                              -------


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) &

(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE

IMPUGNED    JUDGMENT    AND     ORDER   OF   ACQUITTAL    DATED

22.11.2016 PASSED BY THE LEARNED SPECIAL II ADDITIONAL

DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL.C (POSCO)

NO.28/2015 THEREBY ACQUITTING THE RESPONDENTS/ACCUSED

OF THE OFFENCES P/U/S 109, 342, 363, 506 R/W 34 OF IPC AND

SEC.8 OF POSCO ACT AND SEC.9 OF POSCO ACT.



      THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH

PHYSICAL    HEARING/VIDEO      CONFERENCING     FOR      FURTHER

ARGUMENTS AND RESERVED ON 23.08.2023, COMING ON FOR

PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI, J.,

DELIVERED THE FOLLOWING:
                              -3-
                                      CRL.A. No.447 of 2017




                        JUDGMENT

Appellant/State feeling aggrieved by judgment of

Trial Court on the file of Special II Additional District and

Sessions Judge, Chitradurga in Special Case (POCSO)

No.28/2015 dated 22.11.2016 preferred this appeal.

2. Parties to the appeal are referred with their ranks as

assigned in the Trial Court for the sake of convenience.

3. The factual matrix leading to the case of prosecution

can be stated in nutshell to the effect that daughter of

complainant-H.G.Ramesh, aged about 17 years studying in

Chitradurga Government I Grade College in B.Com I year

was traveling from Doddasiddavvanahalli to Chitradurga

everyday. On 29.11.2014, the daughter of complainant

went out of the house at 10.00 A.M. for getting zerox of

her books and she did not return to the house till the

evening. Complainant made search for his daughter with

his relatives in Chitradurga and other places. However,

she was not traced and hence, complainant filed missing

complaint of his daughter on 2.12.2014. Accused No.1, at

the instance of accused Nos.2 and 3 and on their

abetment, threatened the complainant's daughter, and

against her will took her from Chitradurga to Bengaluru by

kidnapping and secretly married her. Accused No.1 in

spite of knowing that daughter of complainant was minor,

with an intention to marry her and in prosecution of such

intention, kidnapped her from Chitradurga. On these

allegations made in the complaint, the Investigating

Officer having carried out investigation filed charge sheet

against accused for the offences punishable under Sections

109, 342, 363, 366, 506 r/w Section 34 of IPC and Section

8 of Protection of Children from Sexual Offences (POCSO)

Act, 2012 and Section 9 of Prohibition of Child Marriage

Act, 2006.

4. In response to the summons, accused Nos.1 to 3

appeared through their counsel. The Trial Court on being

prima facie satisfied of charge sheet materials framed

charges against accused for the offences alleged against

them. All the accused pleaded not guilty and claimed to be

tried. Prosecution in order to prove the allegations made

against the accused relied on the oral testimony of PWs.1

to 21 and documents Exs.P.1 to P.33.

5. On closure of the prosecution evidence, statements of

accused under Section 313 of Cr.P.C. came to be

recorded. Accused have denied all the incriminating

material appearing against them and claimed that false

case is filed. The Trial Court after appreciation of evidence

on record acquitted all the accused for the charges

alleged against them.

6. Appellant/State challenging judgment of acquittal of

all accused contended that the Trial Court has not properly

appreciated the evidence on record. The oral evidence of

PW.1-H.G.Ramesh and his wife PW.2-Mangalagowri would

speak about their daughter who had gone to Chitradurga

on 29.11.2014 to take zerox of her books, did not return

to the house in the evening and accordingly missing

complaint was filed on 2.12.2014. PW.19-victim in her

evidence also substantiate the allegations made in the

complaint Ex.P.1. The birth certificate issued by PW.6-

Tarini Subhadayini Ex.P.23 would go to show the date of

birth of PW.19-victim as 16.04.1997. PW.8-Rangaswamy

has performed marriage of victim with accused No.1 in

Mangaleshwaramma temple of Belageri village and he

admits his presence in the photographs Exs.P.19 and P.20.

PW.20-Shivalingappa and PW.11-Hanumanaika, panch

witnesses to Ex.P.26 for having recovered the photographs

Exs.P.4 to P.21 from PW.15-Veeresh would speak about

the performance of marriage of accused No.1 with PW.19-

victim. PW.5- S.Rangaswamy and PW.9- Ramalingappa

are the panch witnesses to the panchanama Ex.P.3 drawn

at the place, Chandapura Village, Hosur road, Bengaluru

where victim stayed with PW.16-Lakshmi and PW.17-

Sridevi at the instance of accused No.1. The statement of

the victim given before the Women PSI Ex.P.22 and the

one given before the Magistrate Ex.P.32 coupled with the

evidence of PW.19-victim would substantiate the

complaint allegations Ex.P.1. The said evidence is further

corroborated by the evidence of Investigating Officer,

PW.18-D.Raju and PW.21-N.Satish. However, the Trial

Court has not appreciated their evidence in proper

perspective and has committed serious error by acquitting

all the accused from the charges leveled against them.

The findings recorded by the Trial Court are contrary to

the above referred evidence on record. Therefore, prayed

for allowing the appeal and to convict accused Nos.1 to 3

for the charges levelled against them.

7. In response to the notice of appeal, respondents

No.1 to 3 have appeared through their counsel. Trial Court

records have been secured.

8. Heard the arguments of both sides.

9. After hearing both sides and on perusal of the Trial

Court records, including the impugned judgment, the

following points arise for consideration:

1) Whether the prosecution has proved beyond all reasonable doubt that on 29.11.2014, the minor victim- daughter of complainant, when had been to Chitradurga for getting xerox of her books and

accused No.1, at the instigation and abetment caused by accused Nos.2 and 3, kidnapped her from the xerox shop at Chitradurga, thereby committed the offence punishable under Section 109 r/w.

Section 34 of IPC ?

2) Whether the prosecution has proved beyond all reasonable doubt that accused No.1 on the abetment of accused Nos.2 and 3 came to Chitradurga and with an intention to marry the victim, kidnapped her from the above said place and took her to Bengaluru, thereby committed an offence punishable under Section 363 r/w. Section 34 of IPC ?

3) Whether the prosecution has proved beyond all reasonable doubt that accused No.1 at the instance and abetment of accused Nos.2 and 3 came to Chitradurga and with an intention to marry the victim, kidnapped her and married her against her will, thereby committed an offence punishable under Section 366 r/w. Section 34 of IPC ?

4) Whether the prosecution has further proved beyond all reasonable doubt that accused No.1 having kidnapped the victim from the xerox shop of Chitradurga, took her to different places and inappropriately touched her against the will of the victim, forcibly married her though knowing that she

was a minor, thereby committed an offence punishable under Section 8 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006 ?

5) Whether the prosecution has further proved beyond all reasonable doubt that accused No.1 having kidnapped the minor victim with an intention to marry her against her will, took her to Bengaluru and illegally kept her in the house of CWs 13 to 15 under the ownership of CW.12 and wrongfully restrained her and thereby committed an offence punishable under Section 342 R/w Section 34 of IPC?

6) Whether the prosecution has proved beyond all reasonable doubt that accused No.1 knowing that victim was minor, with an intention to marry her threatened and compelled her to marry him, otherwise, he would not leave her and thereby committed an offence punishable under Section 506 r/w Section 34 of IPC ?

7) Whether the judgment of the Trial Court requires any interference by this Court ?

10. On a careful perusal of the oral and documentary

evidence placed on record, the contention of the

prosecution would reveal that the daughter of the

- 10 -

complainant PW.1- H.G.Ramesh on 29.11.2014 went to

get xerox copies of her book to Chitradurga and she did

not return to the house in the evening. The father of

victim, PW.1-H.G.Ramesh could not trace the victim in

spite of his due search and enquiry with the relatives

spread in different places and as such filed missing

complaint of his daughter on 02.12.2014. PW.1-

H.G.Ramesh, father of victim, after coming to know from

accused No.2 about accused No.1 having taken the victim,

filed complaint Ex.P.1. It is on the basis of the said

complaint, case was registered in Rural Police Station,

Chitradurga under Crime No.478/2014. The Investigating

Officer-PW.18 Raju.D has deputed a woman police

constable, P.C.1319-Anitha, P.C.1106-Chidanandareddy

and gave report Ex.P.30. It is thereafter PW.21-N.Satish

who took up further investigation from PW.18-Raju.D,

having completed the investigation filed charge sheet

against accused Nos.1 to 3.

- 11 -

11. The case of the prosecution entirely rests on

circumstantial evidence. The law is well settled that

where the case of the prosecution rest on circumstantial

evidence, all the connecting circumstances to complete the

chain of events must be proved to conclusively to hold

that it is accused Nos.1 to 3 are guilty of the offences

alleged against them.

12. The prosecution to prove the first circumstance of the

PW.19-victim being minor, relied on the evidence of

PW.1-H G Ramesh, PW.2-Mangalagowri, parents of PW.19-

victim, so also the evidence of PW.6-Tarini Subhadayini,

Principal of the College who issued the date of birth record

maintained in the records Ex.P.23.

The prosecution to prove the second circumstance that

PW.19-missing victim was in the house situated in

Chandapura Village, Hosur road, Bengaluru, relied on the

evidence of PW.1 H G Ramesh and PW.2-Mangalagowri,

father and mother of the victim. PW.12-Leelavathi and

PW.13-Shivamma, neighbourers of the complainant and

- 12 -

also PW.16-Lakshmi, PW.17-Shridevi who gave shelter to

the victim and that of evidence of PW.18-Raju D who has

arrested accused No.1.

The prosecution to prove the third circumstance of

sexual assault, relied on the evidence of PWs. 1 and 2,

father and mother of victim and PW.19-victim, coupled

with the evidence of PW.20-Kamalamma S, woman PSI,

who recorded the statement of PW.19-victim Ex.P.22.

The last circumstance relied by the prosecution is the

marriage of victim with accused No.1. The prosecution to

prove the said aspect relies on the evidence of PWs. 1 and

2, father and mother of PW.19-victim, PW.8-Rangaswami

who claims to have performed the marriage of accused

No.1 with the victim. The said evidence is sought to be

corroborated by the evidence of PW.10-Shivalingappa and

PW.11-Hanumanaik who are the panch witnesses to the

panchanama for recovery of photographs Exs.P.4 to P.21

produced by PW.15-Veeresh under the panchanama

Ex.P.26. The above referred circumstances relied by the

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prosecution will have to be appreciated with reference to

the evidence placed on record by the prosecution.

13. Before proceeding further in analysing the evidence

laid in the matter, it is to be borne in mind that it is an

appeal against the judgment of acquittal of accused from

the alleged offences punishable under Sections 109, 342,

363, 366, 506 r/w Section 34 of IPC and Section 8 of

POCSO Act and Section 9 of Prohibition of Child Marriage

Act, 2006. Therefore, accused have primarily the double

benefit. Firstly, the presumption under law that, unless

their guilt is proved, the accused have to be treated as

innocent in the alleged crime. Secondly, the accused are

already enjoying the benefit of judgment of acquittal

passed under the impugned judgment. As such, bearing

the same in, the evidence placed by the prosecution in the

matter is required to be analysed. The Hon'ble Apex Court

in catena of judgments has laid down the general

principles regarding powers of the Appellate Court while

dealing in an appeal against an order of an acquittal. It

- 14 -

would be appropriate to refer to the latest two judgments

of Hon'ble Apex Court in Jafarudheen Vs. State of

Kerala reported in (2022) 8 SCC 440 at para 25 of the

judgment, the Hon'ble Apex Court was pleased to observe

as below:

"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

The Hon'ble Apex Court in another latest judgment in

Roopwanti vs. State of Haryana and Others reported

in 2023 SCC Online 179 wherein it has been observed

and held in paragraph No.7 that :

- 15 -

"In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of a full trial is strengthened and stands fortified. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the fortified presumption of innocence. This fortification of the presumption of innocence has been held in catena of judgments by this Court."

It is keeping in mind the above principles laid down by the

Hon'ble Apex Court, we proceed to analyse the evidence

placed on record by the prosecution.

14. The prosecution claims that PW.19-victim, daughter

of PW.1-H.G.Ramesh was a minor as on the date of

incident. Accused have denied the same. The prosecution

to prove the age of victim relied on the evidence of PW.1-

H.G.Ramesh and PW.2-Mangalagowri, parents of victim

and the evidence of PW.6 - Principal of the College where

PW.19-victim was studying and received the records of the

college Ex.P.23 and the evidence of PW.19-victim. The

- 16 -

evidence of PW.19-victim and PW.6-Tarini Subhadayini,

Principal of the college, would go to show that the date of

birth of victim is 16.4.1997 and the date of incident is on

29.11.2014. The said evidence on record would go to

show that PW.19-victim was of 17 years, 7 months, 7 days

as on the date of incident. The evidence of

PW.1-H G Ramesh, father of victim girl has stated that his

daughter was aged 17 years as on the date of incident.

The same has not been specifically denied from the

accused in his cross-examination. PW.6-Tarini Subhadayini,

Principal of the college has deposed that the date of birth

of PW.19-victim has been recorded as 16.04.1997. The

evidence of none else than PW.19-victim girl that her date

of birth is 16.04.1997 has not been denied in the cross-

examination. Thus, the evidence of PW.6-Tarini

Subhadayini regarding the date of birth that victim was

born on 16.04.1997 has not been specifically denied from

the accused side. On the other hand, in her single

sentence cross-examination from the accused side, it was

elicited from none else than the accused himself that

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before issuing admission register extract, the witness has

verified the transfer certificate and the SSLC marks card

submitted by the victim at the time of her admission. This

statement is elicited by none else than the accused

himself. Further, no denial suggestion was made from the

accused side in the said statement of PW.6. In the light of

the above, prosecution has proved that PW.19-victim was

minor i.e., less than 18 years as on the date of incident.

15. The prosecution to prove the second circumstance

regarding missing of PW.19-victim, relies on the evidence

of PW.1-H.G.Ramesh and PW.2-Mangalagowri (parents);

PW.12-Leelavathi and PW.13-Shivamma, who were the

neighbourers of complainant; so also the evidence of

PW.16-Laxmi, PW.17-Shridevi, who were the tenants of

PW.14-Subbamma where the victim was alleged to have

been confined from 29.11.2014 till 07.12.2014.

16. The evidence of PW.1-H.G.Ramesh and PW.2-

Mangalagowri, parents of the victim, would go to show

that their daughter left the house on 29.11.2014 by saying

- 18 -

that she was going to Chitradurga for getting xerox of the

book at 10.00 A.M. and she did not return to the home in

the evening. They searched for their daughter and

enquired with their relatives at Bellary, Hosapete,

Raidurga etc. but victim was not traced. Therefore,

missing complaint was filed by PW.1-H.G.Ramesh on

2.12.2014.

PW.1-H.G.Ramesh further deposed to the effect that,

after three days of filing missing complaint through

accused No.2 he came to know that accused No.1 has

taken PW.19-victim and therefore, he filed complaint

against accused Nos.1 to 3 on 7.12.2014 Ex.P.1. The

evidence of PW.18-Raju D, the first Investigating Officer of

the case goes to show that he has deputed woman police

constable P.C.1319-Anitha and P.C.1106-Chidanandareddy

for tracing the accused involved in this case and on

7.12.2014, they have produced accused No.1 before him

and gave report Ex.P.31.

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17. On 7.12.2014 both PW.1-H.G.Ramesh and PW.2-

Mangalagowri were called to the police station since their

daughter and accused No.1 have been traced. On going to

the police station, through their daughter PW.19-victim,

they claims to have come to know about accused No.1

having kidnapped their daughter from Chitradurga and

carried to Bengaluru with an intention to marry her.

Thereafter, PW.19-victim gave statement before the police

Ex.P.22 and she has also given statement before the

Magistrate Ex.P.32. Therefore, from the evidence of

PW.1-H.G.Ramesh and PW.2-Mangalagowri, it would go to

show that other than missing of their daughter from the

house, their remaining evidence is based on the alleged

revelation made by their daughter PW.19-victim. The

primary evidence regarding the allegations made against

accused is only in the form of PW.19-victim and the

statement given by her before PW.20-Kamalamma Ex.P.22

and statement given by PW.19-victim given before the

Magistrate Ex.P.32.

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18. PW.19-victim has deposed to the effect that she was

studying in I year B.Com in Government Womens' College,

Chitradurga, by traveling from her native place

Doddasiddavannahalli by bus. Accused No.1 is the brother

of accused No.2.

On 29.11.2014 for taking xerox of her notes, PW.19-

victim left the house at 11.00 A.M. and proceeded to

Chitradurga. While she was taking xerox copies, accused

No.1 came to the said place and told that he is going to

marry her and he will not allow her to marry any another

person and even if marriage is performed, he will inform

the boy that she is having an affair with him. On such

threat, he asked PW.19-victim to accompany him without

making any hue and cry. Accused No.1 by saying so, took

PW.19-victim to Chitradurga fort and in front of

Gopalaswamy pond, accused No.1 has inappropriately

touched her over her chest and private part and in the

evening, they came down from the fort and had dinner in

the hotel by spending time upto 11.00 P.M.

- 21 -

Thereafter, they proceeded to Bengaluru in KSRTC bus

and while traveling also, accused No.1 inappropriately

touched her in spite of resistance of PW.19-victim. They

reached Bengaluru in the morning at 6.00 A.M. and after

fresh up, had breakfast in the bus-stand. Thereafter, they

have visited Lalbagh, Cubbonpark and other places,

accused No.1 moved by holding hand and kissed her.

They spent time upto 4.00 P.M., then came to Railway

Station. After having dinner came to bus-stand and

reached Challakere.

After reaching Challakere, they had lunch and

accused No.1 took PW.19-victim to Corporation park and

thereafter, asking her to sit in the park, went from the

place by saying that he is going to photo studio. After

some time, accused No.1 came back to the park and in an

Autorickshaw, they proceeded to Belegere village. Accused

No.1 took her to Mangaleramma temple and against her

will knowing that she is a minor, underwent the process of

marriage and exchanged garlands. She did not raise any

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alarm due to threat of accused No.1. One Veeresh took

photographs of the said marriage and left the place.

Thereafter, accused No.1 carried PW.19-victim to

Bengaluru and kept her in the house situated at

Chandapura village, Hosur Road, Bengaluru, where she

stayed with PW.16-Lakshmi and PW.17-Sridevi. Accused

No.1 stated before them that PW.19-victim is his friend

and she is in search of job, further he requested them to

accommodate PW.19-victim in their house. Accused No.1

left the said place stating that he is having night duty.

PW.19-victim has disclosed before PW.16-Lakshmi that

accused No.1 has forcibly married her and brought her

against her will, further expressed her desire to talk to her

parents, as such requested PW.16-Lakshmi to give her

mobile, but she refused to give on the pretext that she has

no currency and further she also refused to give mobile

even to make miss call to her parents. She stayed in the

said house for one week and accused No.1 was in search

of a separate house.

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On 7.12.2014, accused No.2 called accused No.1

over phone and informed that the parents of PW.19-victim

are in search of them. Therefore, accused No.1 took

PW.19-victim to Chitradurga and while they were in the

bus-stand, police apprehended them.

On the same day, she has narrated about the incident

to her parents and also given statement before the police

Ex.P.22. She was taken to Government Hospital for

medical examination and then police sent her along with

her parents.

On 9.12.2014, she has given statement before the

Magistrate and on going through the statement given by

her before the Magistrate Ex.P.32, she has signed on the

said statement.

On 23.12.2014, police called PW.19-victim and her

parents to police station. Accused No.1 led the police

officials and panch witnesses and shown the place where

PW.19-victim stayed in the house in Chandapura village,

Hosur road, Bengaluru. The police after inspecting the

said house at the instance of accused No.1, prepared

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panchanama Ex.P.3 and she has signed on the said

panchanama. She further identifies the photographs

shown to her Exs.P.4 to P.21.

19. The evidence of PW.19-victim and her parents PW.1-

H.G.Ramesh, PW.2-Mangalagowri would go to show that

PW.19-victim went out of the house on 29.11.2014 at

10.00 a.m. for getting xerox of her books and she did not

return to the house till evening. She was traced in private

bus-stand of Chitradurga along with accused No.1 by WPC

1319 Anitha and PC 1106 Chidanandareddy on 7.12.2014

and accordingly, gave a report Ex.P.31. On the same day,

accused No.1 was arrested and PW.19-victim was allowed

to go with her parents. It means that PW.19-victim was

missing from 29.11.2014 to 07.12.2014. The evidence of

PW.19-victim would go to show that she moved with

accused No.1 at different places, she also took shelter in

the house of PW.16-Lakshmi. PW.17-Sridevi corroborate

the evidence of PW.19-victim and PW.16-Lakshmi that

accused No.1 along with PW.19-victim came to the house

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of PW.16-Lakshmi and she stayed in her house. The said

evidence on record would go to show that PW.19-victim

was with accused No.1 for all these days from 29.11.2014

to 07.12.2014. The prosecution by the above referred

evidence on record has proved that PW.19-victim was

missing from 29.11.2014 to 07.12.2014.

20. The third circumstance projected by the prosecution is

that accused has committed sexual assault on PW.19-

victim. In order to prove the said fact, the prosecution

chose to rely on the evidence of PW.1-H.G.Ramesh, PW.2-

Mangalagowri and PW.19-victim. The evidence of PW.1-

H.G.Ramesh and PW.2-Mangalagowri, parents of PW.19-

victim regarding the alleged sexual assault of accused

No.1 on PW.19-victim is based on the revelation made by

PW.19-victim herself when she was brought to the police

station on 7.12.2014.

PW.19-victim has deposed in her evidence that

accused No.1 under threat took her to Chitradurga fort

and in front of Gopalaswamy pond, accused No.1 has

- 26 -

inappropriately touched over her chest and private part.

Thereafter, they proceeded to Bengaluru in KSRTC bus

and while traveling also accused No.1 inappropriately

touched her in spite of resistance. They have visited

Lalbagh, Cubbon park and other places, where accused

No.1 moved by holding her hand kissed her. PW.19-victim

while giving statement before PW.20-S.Kamalamma also

reiterated the above referred fact of accused No.1

inappropriately touching her at various places in

Chitradurga fort, while traveling in KSRTC bus from

Chitradurga to Bengaluru and while moving in Lalbagh and

Cubbon park. The said act of accused No.1 inappropriately

touching PW.19-victim at various places was with sexual

intent, since nothing has been brought on record in the

cross-examination of PW.19-victim as an improvement in

a manner known to law.

21. Whether the above referred act of accused No.1

inappropriately touching PW.19-victim amounts to a

sexual assault or not has to be considered. What amounts

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to sexual assault has been defined under Section 7 of the

POCSO Act, which reads as under :

"Section 7 - sexual assault - whoever with the sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does not any other act with the sexual intent which involves physical contact without penetration is said to commit sexual assault."

If the evidence of PW.19-victim as referred above is

appreciated, then, it is evident that evidence of PW.19-

victim would meet legal requirement in terms of Section 7

of the POCSO Act. In view of the reasons recorded above,

it has been held that the prosecution has proved that

PW.19-victim is below 18 years. Therefore, when PW.19-

victim is minor and even if it is accepted that she has

moved with accused No.1 on her consent, such consent

has no recognition under law.

22. The prosecution relies on the last circumstance of

accused No.1 having forcibly married knowing fully well

that PW.19-victim is a minor and the accused No.1 has

kidnapped her from Chitradurga under threat to force her

to marry with him. The prosecution to substantiate the

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said allegation, relies on the evidence of PW.8-

Rangaswamy who is stated to have performed the

marriage of accused No.1 and the PW.19-victim. PW.10-

Shivalingappa and PW.11-Hanumanaik are the panch

witnesses to the seizure panchanama Ex.P.26 for seizure

of photographs Exs.P.4 to P.21 produced by PW.15-

Veeresh under seizure panchannama Ex.P.26. PW.15-

Veeresh is said to be the photographer who has taken the

photographs of marriage of accused No.1 with PW.19-

victim in Mangaleramma Temple, Belagere.

PW.8-Rangaswamy has deposed to the effect that

there is a temple Mangaleramma by the side of his land

and identified the person before the Court as the one who

had come to the temple but he has not performed the

marriage of the said person with any girl and no

photographs were taken. However, on seeing the

photographs Exs.P.19 and P.20, admits his presence in the

said photographs. The witness has been declared as

hostile witness and though he has been subjected to

cross-examination, nothing worth material has been

- 29 -

brought on record, so as to prove that PW.8-Rangaswamy

has performed the marriage of accused No.1 with the girl

in the photograph. It is the specific evidence of PW.8-

Rangaswamy that he has only performed the pooja. The

mere admission of this witness regarding his presence in

the photograph in the Exs.P.19 and P.20, further the boy

and the girl appearing in the said photographs had come

to the temple does not by itself prove the fact that PW.8-

Rangaswamy has performed their marriage.

PW.10-Shivalingappa and PW.11-Hanumanaik are the

panch witnesses to the recovery of photographs Exs.P.4 to

P.21 under the recovery panchanama Ex.P.26. Their

evidence regarding identification of boy and girl appearing

in the photographs seized under the panchanama Ex.P.26

cannot be of much assistance to the case of the

prosecution to prove the fact that PW.8-Rangaswamy has

performed the marriage of accused No.1 with PW.19-

victim. They are not the witnesses to the marriage said to

have taken place in Mangaleramma temple at Belagere.

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23. The material witness is PW.15-Veeresh who is alleged

to have taken photographs of the marriage of accused

No.1 with PW.19-victim in Mangaleramma temple of

Belagere. PW.15-Veeresh has deposed to the effect that

he has not given any photographs to the police regarding

the marriage of accused No.1 with Kavya, PW.19-victim.

He further deposed to the effect that police came to the

studio and taken 18 photographs exhibits P.4 to P.21. The

witness has been declared as hostile witness by the

prosecution and though he has been subjected to cross-

examination, nothing worth material has been brought on

record so as to prove that PW.8-Rangaswamy has

performed the marriage of accused No.1 with PW.19-

victim in Mangaleramma temple at Belagere. The

Investigating Officer PW.21-N.Satish in his cross-

examination admitted that if the photographs are taken in

digital camera, the date and time will be appearing.

However, he volunteers that it will appear if fixed. PW.15

Veeresh in his examination-in-chief has stated that police

by taking 18 photographs, deleted the same in memory

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card. PW.21-N.Sateesh, Investigating Officer has

admitted in the cross-examination that if photographs are

taken in digital camera, then, time and date will be

reflected in the photographs. However, he volunteers that

if it is fixed in the camera then the date and time of taking

photographs will appear. PW.15-Veeresh claims that the

photos in the memory card were deleted. If the

photographs Exs.P4 to P21 are perused, then it would go

to show that the said photographs does not depict the

performance of marriage by PW.8-Rangaswamy. In

Exs.P.19 and P.20, PW.8-Rangaswamy is appearing with

accused No.1 and PW.19-victim. In view of PW.8-

Rangaswamy admitting that accused No.1 and PW.19-

victim had come to Mangaleramma temple, their presence

in the said temple can only be accepted. PW.8-

Rangaswamy claims that he had only performed the pooja

and his presence in the photographs at Exs.P.19 and P.20

may be at the time of performing the pooja. However,

there is no acceptable evidence to prove the marriage of

accused No.1 with PW.19-victim was performed by PW.8-

- 32 -

Rangaswamy and the photographs at Exs.P.4 to P.21 were

taken at the time of performing their marriage. Therefore,

the prosecution has failed to prove the last circumstance

of factum of marriage as claimed by the prosecution.

24. The prosecution out of the above referred material

evidence on record has proved that PW.19-victim was

minor as on the date of incident and she was missing from

the lawful custody of her parents from 29.11.2014 to

7.12.2014. PW.19-victim and accused No.1 have moved

to different places and accused No.1 with sexual intent has

inappropriately touched PW.19-victim as deposed by her

during the course of evidence and also evident from the

statement given before PW.20-Kamalamma.S Ex.P.22.

25. The evidence placed on record by the prosecution

would go to show that other than allegation made in the

complaint Ex.P.1 by PW.1-H.G.Ramesh that accused No.2

alleged to have revealed that accused No.1 has taken

PW.19-victim, accused Nos.2 and 3 were involved in this

case on the premise that they have abetted accused No.1

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to kidnap PW.19-victim by giving information that she had

gone to Chitradurga for taking xerox of her notes. Other

than uncorroborated oral testimony of PW.1-H.G.Ramesh,

there is no evidence to prove accused Nos.2 and 3 have

abetted accused No.1 in kidnapping PW.19-victim with an

intention to marry her. The prosecution has failed to prove

charge of abetment leveled against accused Nos.2 and 3.

26. The prosecution alleges that in pursuance of such

abetment, accused No.1 has followed the victim and

kidnapped PW.19-victim with an intention to marry her.

Prosecution in order to prove the charge under Section

366 of IPC against the accused, has to establish the

following ingredients :

1) That the accused induced the complainant to go from any place;

2)That such inducement was by deceitful means;

3) That such kidnapping or abduction took place with intent that the complainant may be seduced to illicit intercourse; and

- 34 -

4) That the accused knew it to be likely that the complainant may be seduced to illicit intercourse as the result of her kidnapping or abduction.

The above referred evidence placed on record by the

prosecution does not meet the legal requirement of

Section 366 of IPC that accused No.1 kidnapped PW.19-

victim with an intention to compel her marriage with him

and married PW.19-victim. The evidence of PW.8-

Rangaswamy, PW.15-Veeresh and that of PW.19-victim

does not meet the above referred legal requirement to

prove the offence under Section 366 of IPC.

27. The above referred evidence of PW.1-H.G.Ramesh,

PW.2-Mangalagowri and PW.19-victim would go to show

that PW.19-victim was not in the custody of lawful

guardianship of PW.1-H.G.Ramesh and PW.2-

Mangalagowri from 29.11.2014 to 07.12.2014. The

evidence of PW.19-victim would go to show that she was

with accused No.1 and moving along with him in different

places as deposed during the course of her evidence. The

- 35 -

evidence of PW.16-Lakshmi and PW.17-Sridevi would go

to show that accused No.1 left PW.19-victim in the house

of PW.16-Lakshmi on the pretext that she is in search of

PG and requested for accommodating her and PW.19-

victim stayed in the house of PW.16-Lakshmi. The said

evidence on record would go to show that accused No.1

has made such arrangement of PW.19-victim to stay in the

house of PW.16-Lakshmi. It means that PW.19-victim was

all along in the company of accused No.1 till 7.12.2014.

In terms of Section 361 of IPC whoever takes or entices

minor under 16 years of age if a male, or under 18 years

of age if a female, or any person of unsound mind out of

the keeping of the lawful guardian of such minor or person

of unsound mind without the consent of such guardian, is

said to kidnap such minor or person from such

guardianship. It is not the defence of accused No.1 that

she has taken PW.19-victim, minor with consent of her

parents. Therefore, the taking away of PW.19-victim who

is minor by accused No.1 and moving with her to various

places without the consent of lawful guardianship in terms

- 36 -

of Section 361 of IPC will attract penal action in terms of

Section 363 of IPC. The prosecution out of the above

referred evidence on record has proved that accused No.1

has committed offence under Section 363 of IPC.

28. The prosecution also alleges that PW.19-victim was

wrongfully confined in the house of PW.16-Lakshmi.

Admittedly, PW.16-Lakshmi and PW.17-Sridevi are staff

nurses working in Narayana Hrudayalaya and they will be

attending to their duties. It is not the evidence of PW.19-

victim that during their absence, she was confined in the

house of PW.16-Lakshmi and her movements were

restricted. She was freely moving out of the house and

accused No.1 also used to visit her. In the absence of

positive evidence that PW.19-victim was prevented from

proceedings beyond circumscribing limits, it cannot be said

that PW.19-victim was wrongfully confined within the

meaning of Section 340 of IPC attracting penal action in

terms of Section 342 of IPC.

- 37 -

29. The prosecution further alleges that accused No.1 has

threatened with an intention to cause alarm to PW.19-

victim committed criminal intimidation within the meaning

of Section 503 of IPC attracting penal action in terms of

Section 506 of IPC. PW.19-victim has freely moved with

accused No.1 at various places and did not object for the

same till she was apprehended by police in Chitradurga on

7.12.2014 along with accused No.1. The evidence of

prosecution witnesses fall short of the legal requirement

for the offence under Section 506 of IPC.

30. In view of the reasons recorded as above, the

prosecution has proved the guilt of accused No.1 for the

offences punishable under Sections 363 of IPC and Section

8 of the POCSO Act. Whereas the prosecution has failed

to prove the charges under Section 109 R/w.Section 34,

Section 366, 342 and 506 of IPC. The interference of this

Court is required for the offence under Section 363 of IPC

and Section 8 of the POCSO Act against accused No.1.

Consequently, we proceed to pass the following :

- 38 -

ORDER

Appeal filed by Appellant/State is hereby partly allowed;

The judgment of Trial Court on the file of Special II Additional District and Sessions Judge, Chitradurga in Special Case (POCSO) No.28/2015 dated 22.11.2016 is hereby set aside for the offence under Section 363 of IPC and Section 8 of POCSO Act.

Accused No.1 is convicted for the offence under Section 363 of IPC and Section 8 of the POCSO Act.

Acquittal of accused No.1 for the offences punishable under Sections 366, 342 and 506 of IPC and Section 9 of the Child Marriage Act, 2016 and accused Nos.2 and 3 for the offence punishable under Section 109 R/w.34 of IPC stands confirmed.

Call to hear on quantum of sentence.

SD/-

JUDGE

SD/-

JUDGE

rs

- 39 -

HEARING ON SENTENCE

Heard both sides on quantum of sentence.

Learned HCGP appearing for learned Addl. SPP for

appellant/State submits that accused No.1 has kidnapped

PW.19-victim knowing that she is minor, took her to

various places and inappropriately touched her with

intention of sexual assault has been proved by the

prosecution. Accused No.1 is not entitled for any leniency

with respect to the offences proved against him.

Per contra, learned counsel for respondents submits

that the incident in question took place in 2014 and entire

family is dependent on the income of accused No.1 and he

is not a habitual offender. Therefore, prayed for taking

lenient view while imposing sentence including enlarging

accused No.1 under the Probation of Offenders Act, 1958.

It is the sentencing policy that the sentence ordered

must be proportionate to the proved offence against the

accused. The imposition of sentence shall be neither

exorbitant nor flee bite sentence. In the present case,

accused No.1 is found guilty for the offence punishable

- 40 -

under Section 363 of IPC and Section 8 of the POCSO Act.

Looking to the facts and circumstances of the case,

coupled with the allegations against accused No.1 in

kidnapping PW.19-victim from lawful guardianship of her

parents PW.1-H.G.Ramesh and PW.2-Mangalagowri,

further accused No.1 has inappropriately touched PW.19-

victim at various places with sexual intent. Therefore, we

are of the opinion that accused No.1 is not entitled to the

benefit of Probation of Offenders Act. Hence, we proceed

to pass the following :

ORDER ON SENTENCE

Accused No.1-Ajith @ Ajith Kumar,

S/o.Brahmananda, Age :26 years, working at Snader

Electrical Company, Residing at Jigani, Bengaluru, Native

of Bedareddihalli Village, Chellakere Taluk, Chitradurga

District-577 522 is sentenced to undergo simple

imprisonment for four years and pay a fine of Rs.5,000/-

and in default of payment of fine, shall undergo further

- 41 -

simple imprisonment for 3 months for the offence under

Section 363 of IPC.

Accused No.1 as referred above is sentenced to

undergo S.I. for a period of 3 years and pay a fine of

Rs.5,000/- and in default of payment of fine, to undergo

additional simple imprisonment for 3 months for the

offence under Section 8 of POCSO Act.

The sentence of imprisonment as ordered above are

ordered to run concurrently.

Accused No.1 is entitled for the benefit of set-off

under Section 428 of Cr.P.C. for the period having

undergone by him in judicial custody, if any, in the matter.