IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.45/2018 BETWEEN:
SENDIL KUMAR @ KUMAR S/O. LATE LAKSHMAN AGED 28 YEARS C/O. DHARMA, 5TH CROSS BHUVANESHWARI NAGAR BENGALURU N/O RUSHIVANDYAM VILLAGE SHANKARAPURAM TALUK VELLIPURAM DISTRICT TAMIL NADU STATE …APPELLANT (BY SRI. K. CHANDRA MOHAN, ADVOCATE) AND:
STATE BY JNANABHARATHI POLICE STATION, BENGALURU …RESPONDENT (BY SRI. K.NAGESHWARAPPA, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT DATED 05.12.2017 PASSED BY THE LXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE, BENGALRU IN S.C.NO.57/2015-CONVICTING THE APPELLANT/ACCUSED No.2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 363 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant/accused No.2 challenging the Judgment of conviction and order on sentence dated 5.12.2017 passed in S.C.No.57/2015 on the file of LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru City, convicting the appellant for the offence punishable under Sections 363 of Indian Penal Code and sentencing him to undergo simple imprisonment for a period of two years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of six months.
2. The brief facts of the case are:
The gist of the case of the prosecution is that, the appellant/accused No.2 took the victim girl, who was studying in VII Standard in Nirman Public School. She was aged about 13 years at the time of incident. That on 14.10.2014, when the victim girl was dropped at the School in a private van at 8-30 a.m, this accused thereafter took the victim girl to the house of the accused No.1 and facilitated accused No.1 to commit the rape on her.
3. The specific charge against appellant/accused No.2 is that, he kidnapped the minor girl from the School and left the girl in the house of accused No.1.
4. The prosecution in order to prove the charge against this accused relied upon the evidence of the victim girl – P.W.2 and so also the evidence of P.W.7, driver of the Van, in which, the victim girl was taken to School, other family witnesses and the police witnesses.
5. The Court below having considered the oral and documentary evidence, convicted this appellant and hence, the present appeal is filed.
6. The main ground urged in the appeal memorandum is that, there is no eyewitness to the incident and this appellant has not played any role in the entire crime and he has been falsely implicated in the case. The Court below failed to consider the material on record and no case is made out against the appellant and it is the case of acquittal. The appellant has not committed any offence under Section 363 of Indian Penal Code. The witnesses examined by the prosecution are none other than the relatives of the child victim and they were deliberately deposed before the Court with an ultimate aim to implicate him in the case. The Court below failed to understand the case in its proper perspective. Even though the prosecution witnesses have turned hostile, the statement of witnesses is contrary to each other. The Court below has not applied its judicial mind while appreciating the evidence and prayed this Court to acquit the accused.
7. The learned counsel appearing for the appellant/accused No.2, while reiterating the grounds urged in the appeal would contend that there are no eye witnesses to the incident. The evidence of P.W.2 cannot be believed. Though the prosecution examined P.W.7 – driver of the Van and his evidence is not helpful to the prosecution and he has not identified accused No.2 that he only took the victim girl. Hence, the Judgment of Conviction against this appellant is not sustainable in the eye of law.
8. Per contra, the learned High Court Government Pleader for the respondent/State, in his arguments, he would contend that the Court below taking into the evidence of P.W.2 – victim girl, who was having prior acquaintance with accused No.2 and the evidence of P.W.2 is creditworthy with regard to invoking Section 363 of Indian Penal Code against the accused. Apart from that, P.W.7, driver of the Van, who categorically deposed that after he dropped the victim girl to the School, thereafter, some one came and took the victim girl in the motor cycle and he witnessed the same and the same corroborates the case of the prosecution. There are no grounds to interfere with the order of the Trial Court. Hence, prayed this Court to dismiss the appeal.
9. Having considered the arguments of the learned counsel appearing for the appellant/accused No.2 and also the learned High Court Government Pleader appearing for the respondent/State, the points that arise for consideration of this Court are:
(1) Whether the Court Below has committed an error in convicting the appellant/accused No.2 for the offence punishable under Sections 363 of IPC and it requires an interference of this Court?
(2) What order?
10. Points No.1 and 2:
In nutshell, the case of the prosecution is that this appellant took the minor girl, who was studying in VII Standard at the time of the incident in his motor cycle and he left the minor girl in the house of accused No.1. Accused No.2 appeared through Counsel and denied the charges leveled against him. Hence, the prosecution mainly relied upon the evidence of PWs.1 to 13 and got marked Exs.P-1 to P-36 and 21 material objects.
11. Though, the prosecution in detail let the evidence against accused Nos.1 and 2, this Court would like to take up the evidence, particularly, the evidence of P.Ws.2 and 7. P.W.2, victim girl, in her evidence categorically says that accused No.1 only introduced accused No.2 and on the date of the incident, accused No.2 only took her from the school to the house of accused No.1 saying that accused No.1 was calling her. Before appreciating the oral evidence of P.W.2, I would like to refer Ex.P1 – complaint dated 14.10.2014 and in the complaint, father of the victim has stated that he came to know through the driver of the vehicle of the School; a boy came in the motor cycle and took the victim girl and he followed little distance but he could not find out the person.
12. In the cross – examination of P.W.2, the learned counsel appearing for appellant/accused No.2 elicited that she did not know accused No.2 from the beginning but she claims that accused No.1 only got introduced accused No.2 to her. It is suggested that accused No.2 did not take her at any point of time and the same was denied. Further, suggestion was made that for the first time, she is seeing the accused in the Court and the same was denied. The further suggestion was made that she is deposing before the Court at the instance of her parents falsely against accused No.2 and the same was denied. The driver, who has been examined as P.W.7, in his evidence, he says that he left the victim girl at around 8-35 a.m, near the school. He also found a person was waiting outside the school in a two wheeler and he took the victim girl in the motor cycle and he followed the motor cycle to little distance. He went and told the same to the mother of the victim. On the same day, two accused persons were apprehended; he was called to the Police Station; he went and he could not identify the person, who took the victim girl in the motor cycle since he was wearing a helmet.
13. In the cross-examination of accused No.2’s Counsel, it is elicited that he has not given any complaint to the police and also he was not aware of the motor cycle number. It is suggested that he was falsely deposing that the victim was taken in the motor cycle and the same was denied.
14. Having considered the material on record i.e., the oral evidence of P.W.2 and also the evidence of P.W.7.
P.W.7 says only with regard to the victim girl was taken in the motor cycle and he has not identified the accused and he categorically says in his evidence that he could not identify since he was wearing a helmet. Hence, the evidence of P.W.7 is only helpful to the prosecution with regard to taking the minor victim girl, P.W.2 in the motor cycle. The evidence of P.W.2 is specific that on the date of the incident, accused No.2 came in the motor cycle and he took her to the house of the accused No.1 saying that accused No.1 is calling her and having considered the evidence of P.W.2 and in the cross-examination of P.W.2, nothing is elicited from the mouth of P.W.2, that she is not having any prior acquaintance with accused No.2. Though, it is suggested to P.W.2 that she was not having any acquaintance with accused No.2 from the beginning but she categorically deposed that accused No.1 only introduced accused No.2 prior to the incident. In the cross- examination of P.W.2, it is suggested that, for the first time, she is seeing the accused No.2 before the Court. The said suggestion was denied. No worthwhile cross- examination was made in dis-believing the evidence of P.W.2. When P.W.2’s evidence is specific that accused No.2 only came and took her from the school to the house of accused in the motor cycle. The prosecution was able to establish that accused No.2 only took the minor girl from the school to the house of accused No.1. Hence, I do not find any error committed by the Court below in appreciating the evidence of prosecution witnesses, particularly, the evidence of P.W.2.
15. The main contention of the accused Counsel in his arguments is that, there are no eye witnesses to the incident. When P.W.2 – victim girl identifies the accused No.2 and deposed specifically, the very contention of the accused counsel that there are no eye witnesses to the incident, cannot be accepted. The evidence of P.W.2 is creditworthy and nothing elicited in the cross-examination of P.W.2 that she was not having any prior acquaintance with the accused and there was no any ill-will to implicate the appellant. Apart from that the evidence of P.W.7 is helpful with regard to the prosecution taking the minor girl from the school in the motor cycle and hence, the contention of the appellant’s counsel, cannot be accepted.
16. I do not find any merit in the appeal to reverse the finding of the Trial Court convicting the accused for the offence punishable under Section 363 of Indian Penal Code. The fact that the girl is aged about 13 years and she was studying in VII Standard, are also not in dispute. Even though, the victim girl was proceeded along with accused No.2, the question of consent does not arise. It is her specific evidence that accused No.2 called to go to the house of accused No.1 saying that accused No.1 told him to bring her to the house of accused No.1. There is no substance in the argument of the learned counsel appearing for the appellant/accused No.2 that he has not committed any offence under Section 363 of Indian Penal Code.
17. With regard to the sentence is concerned, the Court below has taken note of the role of accused No.2, though punishment is provided for a period of 7 years, Court below sentenced him to undergo simple imprisonment for a period of two years. Having considered the fact that the victim girl is a minor and also accused No.2 facilitating accused No.1 to commit the rape on her, I am of the opinion that the Court below has not committed any error in even sentencing accused No.2. With regard to the sentence also, I do not find any ground to interfere with the order of the Trial Court.
18. In view of the discussions made above, I proceed to pass the following:
ORDER The appeal is dismissed.
Sd/- JUDGE cp*