Karnataka High Court
The State Of Karnataka vs Venkatesh on 22 April, 2024
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CRL.A No. 724 of 2018
NC: 2024:KHC:15911
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.724 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
THROUGH COTTON PETE POLICE STATION,
REPT BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,w
BENGALURU - 01
...APPELLANT
(BY SRI. RAJAT SUBRAMANYAM, HCGP)
AND:
VENKATESH
S/O LATE MANJUNATH,
AGED ABOUT 23 YEARS
R/AT NO.458, PEER BOUNDARY,
COTTON PET, 3RD MAIN ROAD,
BENGALURU ,
C/O VENKATESH'S HOUSE,
Digitally signed
by REKHA R BALAGARANAHALLI,
Location: High ATTIBELE HOBLI,
Court of
Karnataka BENGALURU - 562 107
...RESPONDENT
(BY SMT. VIDYA S, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(1) & (3)
CR.P.C PRAYING TO a) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 18.11.2017 PASSED BY THE L
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU IN
SPECIAL C.C.NO.294/2016 ACQUITTING THE ACCUSED/
RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 366 OF IPC; b) SET ASIDE THE IMPUGNED
JUDGMENT AND ORDER DATED 18.11.2017 PASSED BY THE L
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU IN
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CRL.A No. 724 of 2018
NC: 2024:KHC:15911
SPECIAL C.C.NO.294/2016 ACQUITTING THE ACCUSED /
RESPONDENT, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 366 OF IPC; c) CONVICT AND SENTENCE THE
ACCUSED / RESPONDENT FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366 OF IPC, IN ACCORDANCE WITH LAW, IN
THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
State has filed this appeal under Section 378 (1) and
(3) of Cr.P.C, challenging the acquittal of
respondent/accused for the offence punishable under
Section 366 IPC.
2. For the sake of convenience, parties are
referred to by the rank before the trial Court.
3. A charge sheet came to be filed against the
accused alleging that on 05.04.2016 at 10 a.m, accused
with the intention of having illicit intercourse with the
prosecutrix, kidnapped her from out of her guardianship
and took her to Channapatna, Kukke Subramanya and
Dharmasthala and when she did not co-operate with him
to have a sexual intercourse, he brought her back and
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thereby committed the offence punishable under Section
363 and 366 A I.P.C.
4. The trial Court framed the charge only for the
offence punishable under Section 366 I.P.C. The trial Court
has failed to frame charge for the offence punishable
under Section 366-A I.P.C. However, the state has not
challenged the same.
5. Accused pleaded not guilty and claimed trial.
6. In order to prove the allegations against the
accused, the prosecution has relied upon evidence of PW-1
to 8, Ex.P1 to 9. No material objects are marked for the
prosecution.
7. During the course of his statement under
Section 313 Cr.P.C the accused has denied the
incriminating evidence led by the prosecution.
8. Accused has not led any defence evidence.
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9. Vide the impugned judgment and order, the
trial Court has acquitted the accused.
10. Aggrieved by the same, the State has filed this
appeal, contending that the impugned judgment and order
is illegal, invalid, contrary to the evidence and material on
record and the same is liable to be set aside. The trial
Court has failed to properly appreciate the material
evidence adduced by the prosecution. It has failed to
appreciate the evidence in proper perspective resulting in
miscarriage of justice. The trial Court ought to have
appreciated the evidence of the victim girl which is
sufficient to bring home guilt to the accused. Her evidence
corroborate with the complaints. Her evidence itself is
sufficient to connect the accused with the allegations in
question.
11. The trial Court has failed to appreciate the fact
that PW-1 to 3 have supported the prosecution case in
entirety in the examination-in-chief. Having regard to the
fact that the prosecutrix was aged 17 years as on the date
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of incident, the allegations against the accused for the
offence punishable under Section 366 I.P.C is clearly made
out. The trial Court ought not to have given much
importance to the minor discrepancies in the evidence of
prosecution witnesses, which are natural. Viewed from any
angle, the impugned judgment and order are not
sustainable and pray to allow the appeal, convict accused
and sentence him in accordance with law.
12. On the other hand, learned counsel for accused
has supported the impugned judgment and order passed
with the trial Court and sought for dismissal of the appeal.
13. Heard elaborate arguments of both sides and
perused the record.
14. The fact that as on the date of incident
prosecutrix was aged about 17 years and as such a minor
is not disputed by the accused. Ex.P8 is the certificate
issued by Government High School, New Kote, Pampa
Mahakavi Road, Chamarajapet, Bengaluru. This document
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is issued based on entry in the admission register for the
year 2012-13. When the prosecutrix was admitted to the
said school for eighth standard. As per the said document,
her date of birth is 08.11.1999 and as on the date of
issue, she was aged 16 years, 6 months and 19 days.
Thus, as on the date of incident i.e., on 05.04.2016,
prosecutrix was a minor.
15. PW-1 Manjula is the mother of prosecutrix. Her
evidence reveal that she is having three children including
the prosecutrix. She is working in Agarbatti shop. Since 10
years, her husband is not living with her. Her evidence
reveal the fact that on 05.04.2016, at 10-00 a.m
prosecutrix left the house saying that she is going to meet
her aunt but failed to return. Complainant searched for her
everywhere and at 5-00 p.m, lodged missing complaint as
per Ex.P1. After two days, prosecutrix returned and on
enquiry came to know that the accused took her to Kukke
Subramanya and other places and also offered to book a
room in a hotel, but on her reluctance, he brought her
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back. The evidence of PW-1 also revealed that though the
accused is already married, he offered to marry the
prosecutrix and since they belong to different caste, she
refused the offer.
16. PW-2 Dhanalakshmi is the aunt of prosecutrix.
Her evidence is to the effect that on the date of incident,
she saw the prosecutrix following the accused and since at
that time she did not suspect any foul play, she did not
bring it to the notice of complainant and went to her
house.
17. PW-3 is the prosecutrix. She has clearly
deposed that she came to be acquainted with the accused
when he was studying in the same college. After his
marriage with Deepa, they were living elsewhere, but he
used to visit her mother and speak to her. The prosecutrix
has further deposed that on 05.04.2016, accused invited
her to accompany him. When she said that she will inform
her mother, he stopped her saying that she will not give
permission and took her to Channapatna from there to
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Kukke Subramanya and from there to Dharmasthala. He
offered to book a room in the hotel, but when she did not
consent for the same, they returned to Bengaluru and she
came to know that her mother has given complaint.
18. PW-4 Nagarajaiah, ASI has registered the case.
PW-7 S.L.Devaraj, Constable has apprehended the
accused and produced him before the Investigating
Officer. PW-6 Dr.Venkat Raghava has examined the
accused and given report at Ex. P7 to the effect that there
is nothing to suggest that the accused is incapable of
having sexual intercourse. Ex.P9 is the provisional Medical
report of the prosecutrix. It state that her Hymen is not
intact. PW-5 N. Sowmya has conducted initial
investigation. On her transfer, the investigation was
handed over. PW-8 Narayani has conducted further
investigation and filed charge sheet.
19. Though PW-1 to 3 have supported the
prosecution case in their examination-in-chief, during the
cross-examination by the accused, they have resiled from
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their statement and given admission supporting the
accused. The learned Public Prosecutor has sought
permission of the Court to cross-examine them by treating
them as hostile. However, the trial Court has wrongly
refused to grant permission. Consequently, the Public
Prosecutor was unable to cross-examine them despite
they turning hostile to the prosecution in their cross-
examination.
20. However, fact remains that there is no element
of force or deception on the part of the accused in taking
or enticing away the prosecutrix from out of the lawful
guardianship of her mother. In this regard, the decision of
the Division Bench of this Court in Crl.A.No.964/2011 in
the matter of State of Karnataka Vs. Gowtham1 is
relevant and applicable to the case on hand. In that
decision the prosecutrix who was a minor was taken by
the accused on his motorbike. There was no resistance by
her even when they stayed together in a lodge. There was
also no evidence of sexual assault on the prosecutrix.
2016 (4) Kar 60 (DB)
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Hence, it was held that the offence under Section 366 and
376 of I.P.C are not made out and consequently, the
equity of the accused was upheld. It is aptly applicable to
the present case.
21. Considering the oral and documentary evidence
placed on record, the trial Court has come to a correct
conclusion that the allegations made against accused are
not proved and acquitted him. The findings of the trial
Court are in accordance with the evidence placed on
record and it is not perverse. This Court finds no justifiable
grounds to interfere with the conclusions arrived at by the
trial Court. In the result, the appeal fails and accordingly
the following:
ORDER
(i) Appeal filed by the State under Section
378(1) and (3) of Cr.P.C is dismissed.
(ii) The impugned judgment and order dated
18.11.2017 in Spl.C.C.No.294/2016 on the
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file of I Addl.City Civil and Session Judge,
Bengaluru is hereby confirmed.
(iii) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
