Karnataka High Court
Theja @ H S Ananda vs The State Of Karnataka By on 5 March, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 831 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 831 OF 2012
BETWEEN:
1. THEJA @ H S ANANDA
S/O H G SHIVALINGAPPA
AGED ABOUT 24 YEARS
HARANAHALLY VILLAGE
ARASIKERE TALUK, HASSAN DISTRICT.
...APPELLANT
(BY SRI. R B DESHPANDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY
TOWN POLICE, ARASIKERE.
Digitally
signed by ...RESPONDENT
LAKSHMI T (BY SRI. VINAY MAHADEVAIAH, HCGP)
Location:
High Court THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
of
Karnataka SET ASIDE THE CONVICTION AND SENTENCE DATED
24/25.07.2012 PASSED BY THE PRINCIPAL SESSIONS JUDGE,
HASSAN IN S.C.NO.69/2009 FOR THE OFFENCE P/U/S 366 OF
IPC.
THIS APPEAL IS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 831 of 2012
JUDGMENT
The Judgment and Order dated 24/25.07.2012
passed by the Court of Principal Sessions Judge, Hassan,
in SC No.69/2009 is called in question in this appeal.
Appellant/accused No.1 has been convicted by the
trial Court vide impugned judgment for the offence
punishable under Section 366 of IPC. He has been
sentenced to undergo rigorous imprisonment for a period
of four years and to pay a fine of Rs.10,000/-, in default of
payment of fine, to further undergo rigorous imprisonment
for four months.
2. Heard the learned counsel for appellant and the
learned High Court Government Pleader for respondent-
State and perused the evidence and material on record.
3. The case of prosecution is that, on 06.06.2008
at about 9.30 a.m., when the victim/PW2 was waiting for a
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bus in front of Dhanvantri Medical Stores at Arasikere
Town so as to go to Malekallu Thirupathi D.Ed. College,
accused No.1 came in a Tempo Trax Cruiser bearing
registration No.KA-06-C-1174 and abducted her in the
said Tempo Trax with an intention to marry her and took
her to the house of one Vijayakumar-PW4, situated at
Makali Extension in Bengaluru. Further, accused No.2 who
followed the said Tempo Trax in his car bearing
registration No.KA-03-M-8722 stopped the Tempo Trax
and inspite of victim/PW2 requesting him to rescue her,
instead of helping, he instigated accused No.1 to abduct
her.
4. Charges were framed against accused No.1 for
the offence punishable under Section 366 of IPC and
against accused No.2 for the offence punishable under
Section 366 r/w 114 of IPC.
5. The learned Sessions Judge was pleased to
acquit accused No.2 of the charges levelled against him
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holding that there is no sufficient evidence against the said
accused.
6. The law was set into motion by PW1-victim's
father. He lodged a complaint with the police as per Ex.P1,
according to which on 06.06.2008 at about 8.00 a.m., his
daughter went to the college, but did not return to the
village. He has stated that, while searching for her
daughter, he learnt that the accused has kidnapped her.
Based on the said complaint lodged on 07.06.2008 at
about 6.00 p.m., a case was registered against accused
No.1 for the offence punishable under Section 366 of IPC.
7. On the next day i.e., 08.06.2008, the victim
was traced in the house of PW3-Satisha in Bengaluru.
According to the prosecution, initially, the victim was
taken by accused No.1 to the house of PW4-Vijayakumar
in Bangalore and from there a relative by name Sathisha-
PW3 took her to his house and from there she was brought
back to her village.
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8. Insofar as acquittal of accused No.2 is
concerned, the judgment and order passed by the trial
Court has become final.
9. As per Section 366 of IPC, whoever kidnaps or
abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be
compelled, to marry any person against her will, 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, shall be punished
with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
10. In the case on hand, it is alleged that the
appellant/accused No.1 with an intention to marry the
victim/PW2, forcibly abducted her and detained in the
house of PW4-Vijayakumar. To attract the ingredients of
Section 366 of IPC, the prosecution has to establish that
the victim was either forcibly abducted or she was induced
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by the accused to accompany him with an intention that
she may be compelled to marry etc.
11. The prosecution is mainly relying on the
evidence of PWs.1,2, 5, 8 and 9 to establish the guilt of
the appellant/accused No.1.
12. PW1 is the complainant and he is the father of
the victim. PW2 is the victim. PW5 is the victim's
husband, whose marriage was fixed with the victim prior
to the date of incident. PWs.8 and 9 are the persons who
have gone to Bengaluru in search of the victim along with
CW6-Chandrashekar, CW12-Sathisha and CW13-Deepak.
13. PWs.3, 4, 7, 12, 13, 15 and 16 have turned
hostile to the prosecution. PW10 is the panch witness to
Ex.P6-spot mahazar and PW11 is the panch witness to
Ex.P3-spot mahazar.
14. PW14 is the A.S.I., who registered the case.
PW17 is the Magistrate who recorded the statement of the
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victim under Section 164 of Cr.P.C. PW18 is the P.S.I.
who conducted investigation and filed charge sheet.
15. A perusal of the evidence of PW1 reveal that his
daughter who had gone to the college on 06.06.2008 at
about 9.30 a.m. did not return to the house and therefore,
they searched for her in the village. On the next day at
about 4.30 p.m. he received an information that his
daughter had called his relative one Marulappa @
Marulaiah-PW9 over phone saying that she is in
Bengaluru. PW1 has stated that his relative Marulappa
and others went to Bengaluru and brought his daughter
back. He has further deposed that his daughter informed
him that accused No.1 abducted her with an intention to
marry her.
16. PW5 has also deposed in consonance with the
evidence of PW1. He has stated that CW3-Sathisha (PW3)
informed over phone that the victim girl is in his house
and they should not panic. Thereafter, PWs.8, 9 and
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others went to Bengaluru to the house of
CW3-Sathisha and brought her back to the village.
17. PWs.8 and 9 have deposed that, after receiving
information about the abduction of the complainant's
daughter, they proceeded to Bengaluru to the house of
PW3-Sathisha. The said witnesses have deposed about
PW2 informing them that the accused abducted her.
18. From the above evidence, it can be gathered
that the victim girl was found missing on 06.06.2008 and
she was traced in the house of PW.3-Sathisha in
Bengaluru on 08.06.2008 and she was brought back to her
village Madalu Koppalu by PWs.8, 9 and others. According
to prosecution, when PW2 was standing in front of one
Danvantri Medical Stores at Arasikere Town so as to go to
Malekallu Thirupathi D.Ed. College, accused No.1 came in
a Tempo Trax Cruiser and forcibly abducted her and took
her to the house of one Vijayakumar-PW4 situated at
Makali Extension in Bengaluru with an intention to marry
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her and from there she was taken by her relative by name
PW3-Sathisha to his house, from where she was rescued.
19. The victim girl is examined as PW2. In her
chief-examination, she has stated that on 06.06.2008 at
about 9.15 a.m. when she was waiting for the bus in front
of Danvanthri Medical Stores, accused No.1 came in a
Tempo Trax and dragged her inside, in spite of her
screaming and resistence, he took her to the house of
Vijayakumar-PW4, in Bengaluru. She has stated that in
the said house there were two female members and a
child. She has stated that accused No.1 has abducted
with an intention to marry her.
20. It is pertinent to see that according to PW2, in
the Tempo Trax there were three persons. The prosecution
is silent about the other persons present in the Tempo
Trax. PW2 has stated that she was forcibly dragged
inside the Tempo Trax. Nowhere she has stated that all
the three persons who were in the Tempo Trax dragged
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her inside the said vehicle. She has deposed that
throughout the journey she was requesting the accused to
take her back to Arasikere. In the cross-examination, she
has admitted that when she was forcibly dragged inside
the vehicle there were several persons present. She has
stated that in the vehicle her hands and legs were not
tied and her mouth was not gagged. She has admitted in
the cross-examination that from the date of her abduction,
no one tried to perform her marriage with accused No.1.
Nowhere she has stated that accused No.1 forced her to
marry him after she was abducted. According to her,
accused No.2 who was following the Tempo Trax forced
her to marry accused No.1.
21. The defence taken by the accused is that there
was a love affair between the appellant/accused No.1 with
the victim girl and as her marriage was fixed with PW5,
she willingly went with the accused in his Tempo Trax to
Bengaluru and there was no force or abduction.
Admittedly, the victim was a major, aged about 19 years.
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In her cross-examination, she has admitted that even
prior to the incident, she was having conversation with the
appellant over phone. She has stated that accused No.1
used to call her every four days over phone and she had
met him even prior to the incident. She has further
admitted that her sister by name Suma was aware of the
same.
22. PW2, in her cross-examination has stated that
in the house of PW4-Vijayakumar, the accused had locked
her in a room. However, neither PWs.1, 8 and 9 have
stated that PW2 was locked in a room in the house of
PW4. Both PW3-Sathisha and PW4-Vijayakumar have
turned hostile to the prosecution case. PW3 is a distant
relative of PWs.1 and 2. He has denied of having any
knowledge about the accused detaining the victim in the
house of PW4-Vijayakumar. Similarly, PW4-Vijayakumar
has also deposed that the victim was not detained by the
accused in his house.
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23. Another aspect is that, the prosecution has
examined PW17, the Magistrate who recorded the
statement of the victim under Section 164 of Cr.P.C.
However, the said statement has not been marked in
evidence.
24. Having carefully scrutinized the entire evidence
and material on record, this Court is of the considered
view that the prosecution has failed to establish the
ingredients of Section 366 of IPC. The accused is entitled
for benefit of doubt. The impugned Judgment and Order
of conviction and sentence is therefore liable to be set
aside. Accordingly, the following:
ORDER
i. Appeal is allowed.
ii. The Judgment and Order dated 24/25.07.2012
passed by the Court of Principal Sessions Judge,
Hassan, in SC No.69/2009 insofar as convicting the
appellant/accused No.1 for the offence punishable
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under Section 366 of IPC is hereby
set aside.
iii. Appellant/Accused No.1 is acquitted of the said
charges levelled against him.
iv. His bail bond stands cancelled.
SD/-
JUDGE
TL
