IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1246 OF 2010 BETWEEN:
Sri. Venkatesha S/o. Shankar, Aged about 21 years, R/at No.124, 5th Block, 6th Cross, Chamundinagar, Rajajinagar, Bengaluru City. …Appellant (By Sri. P.D.Subramanya, Advocate) AND:
State of Karnataka By Magadi Road P.S.
(Represented by A.P.P.) …Respondent (By Sri. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment dated:26.02.2010/03.03.2010 passed by the XLV Addl. City Civil and Sessions Judge, Bengaluru (CCH-46) in S.C.No.868/2008 – convicting the appellant/accused for the offence punishable under Section 363 of IPC. The appellant/accused is sentenced to undergo S.I. for four years and pay a fine of `5,000/- in default of payment of fine he shall undergo further S.I. for one month for the offence punishable under Section 363 of IPC. The appellant/accused prays that he be acquitted.
This Criminal Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The present appellant who is accused in S.C.No.868/2008, in the Court of XLV Addl.City Civil & Sessions Judge, Bengaluru City, (hereinafter for brevity referred to as `trial Court’), has challenged the judgment of conviction dated 26.02.2010 and order on sentence dated 3.3.2010, wherein accused is convicted for the offence punishable under Section 363 of Indian Penal Code (hereinafter for brevity referred to as `IPC’) and sentenced him to undergo simple imprisonment for a period of four years and to pay fine of `5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. It is against the said judgment of conviction and order on sentence, the appellant/accused has preferred this appeal.
2. The summary of the case of the prosecution in the trial Court was that on 13.03.2008, at 10.00 a.m. near Venkateshwara Medical Stores, Bashyam Circle, Bengaluru, when minor girl - PW-3, was proceeding towards the School, the accused intercepted her and took her towards Yedamadu Village, Kanakapura Taluk, with an intention to marry her and to commit rape. After kidnapping the minor victim girl, the accused confined her in a house belonging to PW-4 – Shantamma, from 13.03.2008 to 22.04.2008 and in the said period, at that time, he had several times committed rape on the said minor girl and thereby the accused has committed the offences punishable under Sections 344, 366(A), 376 of IPC.
3. The charges were framed against the accused for the offences under Sections 366(A), 344, and 376 of IPC. Since the accused pleaded not guilty, trial was held and in order to prove the alleged offences against him, the prosecution examined nineteen witnesses from PW-1 to PW-19 and got marked the documents from Exs.P-1 to P-22 and material objects from MO-1 to MO-9. Neither any witness was examined nor the documents were marked as exhibits from the accused side.
4. After hearing both side, the trial Court by its impugned judgment dated 26.02.2010, held the offences against the accused as not proved for the offences punishable under Sections 344 and 376 of IPC, however, it held him guilty of the offence punishable under Section 363 of IPC and sentenced him accordingly. It is challenging his conviction for the offence punishable under Section 363 of IPC, the accused has preferred this appeal.
5. The appellant was originally represented by a counsel engaged by him. However, noticing that the said learned counsel for the appellant had remained absent on several occasions, this Court by passing a detailed order on 7.2.2019, appointed the present counsel, Sri. P.D. Subramanya, panel advocate from the Legal Services Committee of this Court , as a counsel to prosecute the case on behalf of the appellant.
6. Lower Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side and perused the materials.
8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
9. Learned counsel for the appellant, Sri.P.D. Subramanya in his arguments submitted that, the evidence of parents of the victim that the victim girl was minor in her age has not been supported by any documents. The evidence of PW-9, the Head Mistress of the School, is not believable for the reason that she has not produced the original Birth Certificate of the victim girl. In the said circumstance, the evidence of PW-19, the Doctor, who has opined that the age of the victim girl should have been between 18 to 20 years is required to be believed. In such a case, when admittedly the girl has voluntarily joined the accused to go away from her parents, the act of the accused cannot be called as an act attracting the offence punishable under Section 363 of IPC.
10. Learned High Court Government Pleader in his arguments submitted that the evidence of all the material witnesses, including the parents, the lady doctor, who examined the victim, the Head Mistress, clearly go to show that the victim girl was minor in her age as on the date of the incident. Even the victim herself has stated about her date of birth which is not disputed from the other side. Therefore, when the accused has taken the girl with him on the alleged date of incident against the consent of her parents, it amounts to kidnapping, as such, the trial Court has appropriately convicted him for the said offence .
11. Section 363 of IPC prescribes punishment for the offence of kidnapping. It is section 361 of IPC which prescribes as to what constitutes an offence of kidnapping from a lawful guardianship. The said section reads as below:-
“Section 361: Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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 lawful guardianship.
Explanation.- The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.”
A reading of the said Section goes to show that on the date of alleged offence, the victim if she were to be a female, should have been under the age of eighteen years and she should have been taken or enticed by the accused out of the lawful guardianship of such minor or person. It is in the above background the evidence of prosecution witnesses is required to be analysed.
12. PW-1 – Smt.Pushpavathi and PW-2 – H.Nagaraj, are admittedly the parents of the alleged victim girl. Both of them in their evidence have uniformly stated that their daughter, i.e. PW-3, the victim, who was studying in 10th Standard (SSLC), left home on 13.03.2008, at about 10.00 a.m., stating that she would be going to attend a program in her school and that she did not return home on the said day. On the next day, i.e. on 14.03.2008, PW-2 , the father, lodged a complaint with the police alleging missing of his daughter. Thereafter, on 30.04.2008, the police brought both the accused and their missing daughter together and summoned these parents to the police station, where they enquired their daughter only to know that accused had taken her with him to a different place. These witnesses have also stated that the accused had wrongfully confined their daughter in a house for more than a month and had committed rape upon her on several times.
13. However, the trial court since has acquitted the accused of the offences punishable under Sections 344 and 376 of IPC and has convicted him only for the offence punishable under Section 363 of IPC, the evidence of the prosecution witnesses on the aspect of the alleged wrongful confinement of the victim and the alleged rape upon her would not be of much relevance in this appeal.
Both PW-1 and PW-2 specifically stated that as on the date of the alleged incident, their daughter i.e. PW-3 was minor in her age. PW-1, the mother, has stated that the date of birth of her daughter (PW-3) was 29.02.1992.
The denial suggestion made to them in their cross- examination were not admitted as true by them.
14. PW-3, the alleged victim girl, in her examination-in-chief, has specifically stated that her date of birth is 29.02.1992, and that in year 2008, she was studying in 10th standard (SSLC), in a High School at Basaveshwaranagar, Bengaluru and her house was at Rajajinagar, Bengaluru. Apart from stating that the accused was a known person to her since he was their neighbour, she has also stated that after she left home on the pretext of going to school on 13.03.2008, the accused took her in a bus to Kaggalipura. She also stated that she went along with accused to said Kaggalipura, where the accused leased a house on a monthly rental basis and kept her there for a period of one and a half months. In her cross-examination from the accused side, she admitted a suggestion as true that while the accused was talking to her, she had told him that her age was eighteen years and that on 13.03.2008, at the time of she leaving the house along with the accused, she had told the accused that they will go away somewhere.
15. PW-4 – Smt.Shanthamma, the land lady at Yedamadu village, Kaggalipura, and PW-5 – Kiran, her son, both of them have stated that accused had brought the victim with him and had taken a portion of their house on monthly rental basis. However, looking at their behavior, they suspected their relationship and got them vacated.
16. PW-6- Balaraj and PW-7 – Vinod Kumar, who claims to be the known persons and friend of the accused have stated that accused has taken the victim girl to a place at Kanakapura road, and was in contact with them over the phone.
17. PW-8 – Dr.Shakuntala M.B., the lady doctor has stated that on 1.5.2008, when she examined the victim girl medically, she opined that the age of the victim girl was between 16 to 17 years.
The denial suggestions made to her was not admitted as true by her, rather she stated that regarding her age, the Radiologist had conducted the examination.
18. PW-9 – Smt.K.Kalavathi Dalwai, the Head Mistress of the High School where the alleged victim girl was studying, has stated in her evidence that as per the school record, the date of birth of the victim girl (PW-3) was 29.2.1992. It is in that regard, she has issued a certificate to the complainant-police as per Ex.P-2. She has also produced the original Admission Register maintained by the school for the relevant year and the relevant portion of the entry with respect to the date of birth of the victim girl was marked as Ex.P-10 and photocopy of the said entry at Ex.P-10(a).
In her cross-examination, she has stated that at the time of admission of the victim girl to the High School, they had not obtained the Birth Certificate, but, they had received the Transfer Certificate issued by the previous school from which she was promoted for High School education.
19. PW-10 - Gayathri, the sister-in-law of PW-2, has stated that on 13.3.2008, she helped the victim girl for her dressing when the victim girl stated that she had to attend a function in her school. She also stated that on the said date, which was on 13.3.2008, PW-3 did not return home and thereafter, the police traced her and the accused and brought to the police station. As such, on 30.4.2008, when she went to the police station, she saw both accused and the victim girl in the police station. She has also stated that as on the date of alleged incident, PW-3 was aged fifteen years.
In her cross-examination, the statement of the witness that as on the date of the alleged incident, the victim girl was aged fifteen years has not been denied.
20. PW-13 - Dinesh, a friend of the accused has stated that he knew the love affair of the accused who had told him that he was in love with PW-3, the victim girl. Fifteen days after the missing of PW-3, the victim girl, the accused had contacted him over the cell-phone and had talked to him.
21. PW-15, the Assistant Sub-Inspector of Police, has stated that the complaint about missing girl was received and registered by him from PW-1 of missing of their daughter i.e., PW-3, from 13.3.2008. He has stated that the said complaint was registered in their station Crime No.64/2008. He has identified the said complaint at Ex.P-1.
22. PW-16, the then Police Sub-Inspector of the complainant police station has stated that on 30.4.2008, their staff traced missing girl i.e., PW-3, who was minor in her age and produced both accused and the said girl in his presence and as per the directions of the High Court. He has also stated that the same was in continuation of the complaint registered in their station about missing of PW-3 from 13.3.2008.
23. PW-18, a Woman Constable from respondent- police station has stated that in connection with investigation of their station Crime No.64/2008, as per the directions of the Superiors (PW-16), she accompanied him for tracing PW-3, the missing girl. As such, based on the information, they went to the house of PW-4 (CW-5) at Kaggalipura of Bengaluru and noticed the presence of both the accused and PW-3 in the said house and thereafter, they brought them to the police station.
24. PW-19- Dr.Venkataraghava, one more doctor, working in the Department of Forensic Science at Victoria Hospital, at Bengaluru, has stated that on 1.5.2008, he has examined both the accused and the victim brought to him by the complainant-police. According to the dental examination conducted by him upon the victim girl, he noticed the presence of only twentyeight teeth and based on radiological test, he opined that the age of the girl was from 18 to 20 years.
25. From the above evidence of the prosecution witnesses, it is clear that, including the parents, Head Mistress of the School where the victim girl was studying and also the victim girl herself, the date of birth of the victim girl was 29.2.1992. According to all the material witnesses, PW-3 was minor in her age as on 13.3.2008, which was the date of the incident. It is only PW-19, the doctor, based on a X-Ray report, has opined that the age of the girl as on the date of examination was between 18 to 20 years. Incidentally, another doctor who examined the girl, apart from her age, even with respect to the alleged act of rape upon her, has opined the age of the girl as between 16 to 17 years as on the date of her medical examination. This doubts the medical opinion with regard to age of the girl. On the other hand, the evidence of parents of the girl and the date of birth as recorded in the school gives the date of birth as has been recorded in her school records.
26. The date of birth of the victim girl as said to have been recorded in her school records, which is produced by PW-9 – the Head Mistress of the school, is 29.2.1992. No doubt, she did not verify the original birth certificate, however, she has considered the entry made in the Transfer Certificate issued by the previous school where the victim girl had completed her 7th standard of schooling before joining her High School. As such, merely because the said Head Mistress has not gone through the original Birth Certificate and relies upon another authenticated document which is a school record from the institution where the victim girl had studied earlier and which document was in the form of Transfer Certificate, cannot be ignored.
27. Added to this, none else than the mother of the victim girl as PW-1 has specifically stated that the date of birth of her daughter was 29.2.1992. Even father of the girl has also stated that as on the date of the incident i.e., on 13.3.2008, his daughter was aged sixteen years and that she was minor in her age. As a crown to all these statement of the witnesses, the evidence of none else than PW-3, the victim girl herself, is clear about her date of birth, wherein, in the beginning of her examination-in-chief, she has categorically stated that her date of birth is 29.2.1992. Her categorical assertive statement regarding her date of birth has not been denied in her cross-examination. It was only suggested to the witness in her cross- examination that she stated before the accused that she was aged eighteen years, which she admitted as true. However, in making the said suggestion, the accused himself has shown that he also believed the victim as minor in her age, it is because, the said suggestion reads as below :
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By making the said suggestion, even the accused had also shown that he too believed that the girl was minor in her age. Therefore, when the evidence of all material witnesses, including the parents of the victim girl, Head Mistress of the High School, where the girl was studying, the date of birth entered in the school record, more particularly in Ex.P-10, so also, the opinion of the lady doctor i.e., PW-8, who examined the victim, shows that the girl was minor as on 13.3.2008. The mere statement of PW-19 that by radiological test, he opined that the age of the girl between 18 to 20 years, cannot override the documentary proof in the form of date of birth certificate based on school record, as well as undenied categorical evidence by none else than the victim girl herself about her date of birth, which according to her, is 29.2.1992. Therefore, the trial Court has rightly held that as on 13.3.2008, the victim girl was minor in her age and not more than sixteen years of age.
28. The next point would be whether there was an act of kidnapping of the said girl by the accused. According to the prosecution, the accused took the girl against the consent of her parents and made her to stay in a rented house at Kaggalipura for nearly fortyfour days. As observed above, the material prosecution witnesses have given their evidence supporting the prosecution on that point. The most important witness who could speak about the accused taking the girl with him would be the parents of the girl and the very girl herself. PWs.1 and 2, the parents of the girl have clearly stated that they had no knowledge or consent that their daughter leaving their house with somebody else, except for going to school and coming back. In such a situation, when they had permitted their girl on 13.3.2008 only to go to school and to come back, the further act of the said girl accompanying the accused or being taken by the accused to some other place was clearly without the consent of the said parents of the victim girl. Even PW-3, the victim girl, as observed above, in her examination-in-chief has stated that, after she left home on 13.3.2008, the accused took her in a bus to Kaggalipura and she accompanied him to the said place. Though it was an attempt to show that she was a consenting party to join the accused to Kaggalipura, but, when she is a minor, her consent would not be a free consent. On the other hand, it was the accused who took her to Kaggalipura. Section 361 of IPC says that whoever takes a minor girl without consent of her parents would constitute the offence of kidnapping.
29. In the instant case, even as per the evidence of PW-3, it is the accused who `took’ her to Kaggalipura. The evidence of PW-4 and PW-5, the landlady and her son, who rented their house to the accused in Kaggalipura, also go to show that accused went there to take their house on rent and victim girl, who, even according to them, appears to be minor in her age, was with him and they introduced themselves as husband and wife. Therefore, their evidence also go to show that it was the accused who had brought the victim to their house seeking lease of their house.
30. The evidence of PW-6, who is none else than the friend of the accused also goes to show that he has stated that it was the accused who had taken PW-3 to a place at Kanakapura road.
In addition to the above, the evidence of PW-18, a woman Constable, shows that when they went to Kaggalipura, they saw the accused and girl together. PW-16, the Investigating Officer, also has stated that the accused and the girl were produced before him by his staff on 30.4.2008. Therefore, the cogent and consistent evidence of all these witnesses proves beyond reasonable doubt that even though the victim girl had no objection to go with the accused, but, she was taken by the accused against the consent of her parents to a different place away from her residence and thus has committed an offence punishable under Section 363 of IPC.
31. The trial Court since has appropriately held the accused guilty of the alleged offence after appreciating the evidence placed before it in its proper perspective, I do not find any reason to interfere in the said finding. Since the trial Court has also ordered the sentence which is proportionate to the criminality of the proven guilt, I do not find any reason to modify the said sentence part of the offence also.
32. Accordingly, I proceed to pass the following order:
ORDER The Appeal is dismissed as devoid of merits. The judgment of conviction dated 26.02.2010, passed by the learned III XLV Addl.City Civil & Sessions Judge, Bengaluru City, in S.C.No.868/2008, is confirmed.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court immediately.
Considering the effort put by the learned counsel for the appellant from the panel of High Court Legal Services Committee, Bengaluru, it is recommended to the Committee to consider the remuneration/ honorarium payable to the learned counsel for the appellant at `5,000/-.
An entire copy of this judgment also be delivered to the appellant/accused, immediately free of cost.
Sd/- JUDGE bk/