IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM CRIMINAL APPEAL NO.832/2018 BETWEEN:
STATE OF KARNATAKA BY SALIGRAMA POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-1. ...APPELLANT (BY SRI VINAYAKA.V.S, HCGP) AND:
SUNIL G C S/O CHIKKEGOWDA, AGED 28 YEARS R/O GANDHANAHALLI VILLAGE K.R.NAGAR TALUK MYSURU DISTRICT-571 602 …RESPONDENT (BY SRI C.N.RAJU, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 07.11.2017 PASSED BY THE VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU IN S.C.NO.180/2015, ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 451, 380, 366 AND 376(2) AND (n) OF IPC AND ALSO U/S 5(1) R/W 6 OF POCSO ACT AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the State against the judgment and order of acquittal dated 07.11.2017 passed by the VI Additional District and Special Judge, Mysuru, in SC No.180/15.
2. The proceedings in SC No.180/15 was commenced pursuant to the complaint dated 27.01.2015 registered by the Saligrama Police Station, K.R.Nagar, Mysuru in Crime No.15/2015 for the offences punishable under Sections 300, 366A and 380 of IPC. The said complaint was lodged by the father of the victim girl Jayaramachari wherein he would state that on 27.01.2015 at about 4.00 p.m. he and his wife went to field leaving the responsibility of the house on the victim girl but when they returned home at 6.30 pm they did not find the victim girl at home and that back door of the house was open and that the complainant found that the almirah was broke open and gold articles worth about 85 grams and cash of Rs.38,500/- were missing. That the complainant suspected involvement of the accused Sunil since he used to follow the victim girl about 1½ months back and that since she was a minor studying I year PUC, by enticing her the accused has taken out the victim girl forcibly out of the house along with the gold ornaments and cash which was in the house. Thereafter, investigation was conducted and charge sheet was filed by the Saligrama Police Station on 20.04.2015 for the offences punishable under Sections 366, 380, 376(2)(i)(n) of IPC r/w Sections 3, 4, 5(1) and 6 of POCSO Act, 2012 and the matter was committed to Sessions Court where charges were framed and thereafter recording the statement of the accused the matter was taken up for trial.
3. During trial, the victim girl was examined as PW1, father of the victim girl was examined as PW2, Krishnachari and Manjachari-panch witnesses were examined as PWs.3 and 4, Swamachari, who is the eyewitness was examined as PW5, PW6 is Dr.Supriya who conducted medical examination of the victim girl after she was secured in the company of accused, PW7-Natesha is the friend of accused in whose house the accused and victim girl resided for two days immediately after the incident, PW8-G.D.Krishnegowda is the Head Constable, who registered FIR, PW9-Harish is the lecturer in the college wherein the victim was studying, PW10- N.Jayakanthamani is the person who recorded the statement of the victim girl, PW11-Meena @ Meenakshi is the neighbour of PWs.1 and 2, PW12-Sahana is a social worker and PW13-Mahesha B.G. is the PSI who conducted investigation and PW14 is another investigating officer who filed charge sheet after receiving case papers from PW13.
4. It is seen from the material available on record that the victim and the accused were residents of same locality and known to each other and they were said to be good friends. The records would indicate that on 27.01.2015 between 4.00 p.m. and 6.30 p.m., when the complainant and his wife were not at home, the victim girl has left the house in the company of accused. While leaving the house, they have also taken gold ornaments weighing 105 grams and also cash of Rs.38,500/- from the house of the complainant. It is seen thereafter that they have gone to the house of PW.7 – Natesh, where they have stayed as husband and wife for two days and subsequently, on the basis of the complaint filed by the victim’s father, investigation was conducted by the police and the victim girl and accused were traced in the house of PW.7 from where they were taken to the police station.
5. Subsequently, when the victim was produced before the Magistrate on 30.01.2015, she has given a voluntary statement under Section 164 of Cr.P.C., where she would state that she was in love with the accused, they were residents of the same locality and they belong to different caste. The love affair between herself and accused was not accepted by the members of both the family. It is in this background, she left the house of the complainant along with the accused on 27.01.2015 when her parents were not at home, she would voluntary state that she herself took gold articles weighing 105 grams and cash of Rs.38,500/- from her residence. Thereafter, they went to the house of accused friend Natesh – PW.7. On first day, they lived separately in the said house and on the second day, when she came to know that her father has lodged a complaint with the police, she had voluntary physical intercourse with the accused and on the next day, they were apprehended by the police. Thereafter, the victim girl, accused and accused friend went voluntarily to Honnemaranahalli Police Station, who in turn informed the Saligrama Police Station regarding the surrender of accused along with victim.
6. The aforesaid statement is given by the victim in the presence of Additional Civil Judge and JMFC, K.R. Nagar on 30.01.2015. Thereafter, she is also subjected to medical examination as could be seen from Ex.P-13 on the same day where physical test was conducted by PW.6 on the victim. The test would indicate that there was no proof of the victim having undergone recent physical intercourse. This would clearly indicate that there is no corroboration between that portion of the statement made where the victim girl would state that on the previous day, she had voluntary intercourse with the accused and the same is not corroborated in Ex.P-13, which is the report of medical examination conducted by PW.6 on the victim girl.
7. However, when the matter reached trial, it is seen that victim girl has turned around and made serious accusation against the accused in standing by the complaint which was lodged by her father and thereby giving a go by to the voluntary statement which she had given before the Magistrate under Section 164 Cr.P.C. on 30.01.2015. The recording of evidence of PW.1 has commenced on 12.05.2016 and got concluded with her cross-examination on 20.07.2016. Subsequently, it is seen that an application is filed seeking recall of PW.1 which was allowed by order dated 14.07.2017 and on 09.07.2017, the victim was subjected for further cross-
examination, where she would state that subsequent to commencement of recording of evidence in S.C.No.180/2015, she got married with the accused on 19.03.2017. Admittedly, by that time, she had attained the age of 18 years as against the age of 16 years when she had eloped with the accused.
8. Today, learned counsel appearing for the respondent – accused would bring to the notice of this Court a copy of the Certificate of Registration of Marriage between the victim and accused, which is said to have been taken place on 19.03.2017 and subsequently, registered with the Registrar of Marriage, Mirle, K.R.Nagar Taluk on 10.05.2017 by Marriage No.MIR-HM9-2017-18. Subsequently, two children were born to them in their wedlock on 28.12.2017 and 20.05.2019. The said documents are produced by the accused and victim who are present before the Court with their second child. The documents which are jointly produced by them is taken on record. On going through the entire material available on record, it is seen that a love affair between an adult and the minor has taken shape into a criminal case being lodged against the boy who is accused in this proceedings as having committed the offences punishable under Sections 366, 380, 376(2)(i) & (n) of IPC and under Sections 3, 4, 5(I) & 6 of POCSO Act, 2013.
9. From the entire material available on record, it is seen that though there is sufficient material to show that the victim and accused eloping from the house of the complainant on 27.01.2015, there is no material to show that the accused has forcibly taken the victim from the house of the complainant. On the contrary, as could be seen from the voluntary statement of the victim under Section 164 of Cr.P.C., the victim herself left the house in the company of the accused along with gold articles available in her house and also cash. Though the victim girl has left the house with gold articles and cash, there is nothing on record to demonstrate that the same was instigated by the accused as alleged by the complainant.
On the contrary, the voluntary statement of the victim itself would establish that it is on her willing, the accused has gone with her from the house and there is nothing either to support or substantiate that he has committed the offence of kidnapping, abducting or inducing the victim as alleged.
10. Therefore, there is no material to substantiate the accusation under Section 366 of IPC. Similarly, in the light of the voluntary statement of the victim that she has taken the gold articles and cash by herself, the accusation of offence under Section 380 of IPC against the accused is also not established by the prosecution, so also the victim having had voluntary sexual intercourse with a minor as on that date. Further, evidence of PW.6 would indicate that as on the date when the accused and victim were apprehended by the police and produced before the Doctor for investigation, PW.6 has noticed that such an act was not conducted which is supported by Ex.P-13. Even otherwise, the finding of the Sessions Court would indicate that it has taken note of evidence of father of victim who is examined as PW.1, who has stated that as on 19.03.2017, his daughter (victim) was aged around 21 years. The incident is dated 27.01.2015. Based on this statement, the Court has recorded a finding that victim was not a minor as on the date of alleged incident. The benefit of margin given to the accused holding that victim must have been above 18 years as on the date of offence does not suffer from any infirmities.
11. In the aforesaid circumstances, the prosecution has miserably failed to prove the charges which were framed in the light of the accusation made in the aforesaid proceedings. Therefore, the judgment and order passed by the court below in acquitting the accused for the offences referred to above appears to be just and proper and the said judgment does not suffer from any perversity and infirmity which calls for interference by this Court in this appeal.
12. Accordingly, the appeal filed by the prosecution does not merit consideration and the same is dismissed at the stage of admission itself.
Sd/- JUDGE Sd/- JUDGE TL/CA