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2013 DIGILAW 620 (KAR)

D. GANESH v. STATE OF KARNATAKA

2013-06-03

B.V.PINTO

body2013
JUDGMENT B.V. PINTO, J.-This appeal is filed challenging the judgment dated 14.03.2006 passed by the Additional Sessions Judge, Fast Track Court, Chitradurga in S.C. No. 81/2005 convicting the appellant for the offence under Section 366 (A), IPC and sentencing him to undergo R.I. for 5 years and to pay a fine of Rs. 5,000/-, in default to undergo R.I. for a further period of 3 months. 2. The case of the prosecution is that, on 15.08.2002 at about 12.00 noon, the appellant along with four others induced the victim Shruthi, a girl aged about 15 years to come from one place to another intending that the said Shruthi may be forced for illicit intercourse with the appellant. Thereby, all the five accused are charged for the offence committed under Section 366 (A) IPC. 3. It is the further case of the prosecution that the accused Nos. 2 to 5 have committed an offence under Section 506 read with 149 IPC by instigating the accused No. 1 to take away the minor girl on the date of the incident. The accused Nos. 2 to 5 have also been charged for having instigated the accused No. 1 to abduct the minor and also threatening the complainant and others with their lives, if they were to pursue to trace the victim, thereby, they are alleged to have committed an offence under Sections 366 (A), 114 and 506 read with 149 IPC. 4. The prosecution in order to prove the case has examined in all 16 witnesses and got marked Exs-P1 to P9. The defence of the accused was one of total denial. However, they have got marked Exs-D1 and D2 being a part of the statement of PWs-2 and 3. 5. The learned Sessions Judge on consideration of the entire evidence on record while holding that the appellant is guilty of offence punishable under Section 366 (A) IPC further held that accused Nos. 2 to 5 are not guilty of offence under Sections 366 (A), 114 and 506 read with 149 IPC. It is this judgment of conviction and sentence which has been challenged in this appeal. 6. On 29.10.2002, the Hiriyur police received a complaint from one H. Veeranna, s/o Hanumanthappa alleging that one Ganesh, S/o. D. Dasappa of their village had kidnapped his daughter by name Shruthi aged about 15 years on 15.08.2002 at about 12.00 noon. It is this judgment of conviction and sentence which has been challenged in this appeal. 6. On 29.10.2002, the Hiriyur police received a complaint from one H. Veeranna, s/o Hanumanthappa alleging that one Ganesh, S/o. D. Dasappa of their village had kidnapped his daughter by name Shruthi aged about 15 years on 15.08.2002 at about 12.00 noon. It is stated that the other accused namely G. Dasappa, Venktamma, Hanumeshi and C.V. Manjappa, who are the Panchayath members have also instigated the accused in the kidnap of the victim. The said Ganesh eloped along with the daughter of the complainant and his whereabouts are not known. Though a thorough search has been done in respect of the missing girl, she was not traced. It is not known whether his daughter has been murdered or any damage is caused to her life. Hence, he has requested the police to take suitable action against the appellant and four others. 7. PW-13, Inspector of Police who was present in the police station registered the above compliant in Cr. No. 447/2002 for the offence under Sections 366 (A), 114, 506 read with 149 IPC and transmitted the FIR to the Court and his Superior Officers. Compliant is marked as Ex-P1. Thereafter, he has conducted investigation in part. PW-8 who is the Head Constable of the said police station on instructions from his Superior Officer on 14.12.2002 went in search of the victim as well as the accused and based on the information gathered by him, he went near the Bedara Kanappa Temple in Kelagote, Chitradurga where he traced both the victim and the appellant and both of them were brought to the police station and produced before the Investigating Officer. Pw-16, the PSI on production of the victim as well as the accused questioned both of them and thereafter both of them were subjected to medical examination and after obtaining due permission, the victim was sent to remand home and investigation was carried on by PW-16 and after receipt of the necessary documents, charge sheet came to be filed. 8. PW-1 is the complainant. He has reiterated the contents of Ex-P1, the complaint given by him. In the cross-examination, it is elicited that on the date of the incident, his daughter had gone to the school along with one Pooja and that she had not come back thereafter. 8. PW-1 is the complainant. He has reiterated the contents of Ex-P1, the complaint given by him. In the cross-examination, it is elicited that on the date of the incident, his daughter had gone to the school along with one Pooja and that she had not come back thereafter. However, no explanation has been given by PW-1 in his evidence before the Court regarding the delay of 2 months and 14 days caused in filing the compliant before the police. PW-2 is the victim. She has stated that she was studying in the Girisha Giris Junior College in Hiriyur and at that time she was going in the auto of the accused. Since, her mother got suspicious, she stopped her from going in the auto of the accused/appellant. 9. On 14.08.2002, the accused had come near the college and he had told her that he will marry her and asked her to give reply within 3 days. However, she informed him that she will obey her parents in this respect. On 15.08.2002, Pooja was with her and they went to the Nehru Maidan for celebrating the Independence day. There is a road in between the Government hospital and the appellant was waiting there along with his auto rickshaw and she has stated that the appellant dragged her into the auto. However, though Pooja was around, she did not reach the place where she was forcibly kidnapped. Thereafter, the appellant took her to a hotel for taking tea, she went along with him as he virtually dragged her into the hotel. Thereafter, he dragged her to the bus stop and made her sit in a bus and took her to Chitradurga and from there he took her to the house of one Radhamma. She was there in the said house for 15 days or 1 month. Thereafter, he made a separate house for rent at Rs. 200/- and for an advance of Rs. 2,000/-. She spent nearly 3 months in that house. It is stated by her that accused had threatened her to finish of, if she were to come out of the house and he also instructed her not to speak with any neighboring persons. Thereafter she was rescued by the police. 10. 200/- and for an advance of Rs. 2,000/-. She spent nearly 3 months in that house. It is stated by her that accused had threatened her to finish of, if she were to come out of the house and he also instructed her not to speak with any neighboring persons. Thereafter she was rescued by the police. 10. In the cross-examination, it is elicited that on 15.08.2002, she had gone to the school at about 10.00 a.m. and when she left the same at 11.00 a.m., others were also in the Nehru Maidana. The function had concluded at 8.30 a.m. and she had further volunteered to state that she had gone to talk to the teacher and remained in the school till about 11.00 clock alone. She has stated that she has gone alone to the school on that day. It is further elicited that on that day, while coming out of the college she met Pooja on the road. Immediately after finishing tea, the accused brought a auto rickshaw and dragged her and took her away. There were persons around the accused. When a question was asked whether she tried to contact her parents, she replied that since the accused has threatened her, she could not contact her parents. It is suggested to her by the defence that she had voluntarily gone with the accused and that nobody has exercised any force on her, but she has denied the said suggestion. 11. PW-3 Venktamma is the mother of the victim, who has also reiterated the version of PW-1, the father. PW-4, 7, 10 and 11 have turned hostile to the case of the prosecution. PW-5 is a relative of the victim. His evidence is of no consequence, so also the evidence of PW-6 Veerappa. PW-8 is the Head Constable, who has secured the victim and appellant and produced them before the Investigating Officer. PW-9 is the Principal of the college, who has produced Ex-P4 which is the Date of Birth Certificate of the victim. The said certificate is in the letter head of the college. PW-9 has also deposed before the Court that, the date of birth of the victim is 13.01.1987. PW-12 is the Constable, who has carried the FIR to the Court. PW-13 is the Sub-Inspector, whose evidence has been discussed earlier. The said certificate is in the letter head of the college. PW-9 has also deposed before the Court that, the date of birth of the victim is 13.01.1987. PW-12 is the Constable, who has carried the FIR to the Court. PW-13 is the Sub-Inspector, whose evidence has been discussed earlier. PW-14 is the Senior Specialist in the Government Hospital, Tarikere, who has issued a certificate Ex-P8 stating that FSL Report indicates that no seminal stains were found in the articles sent for FSL analysis. 12. PW-14 further contends in his evidence that he has examined the appellant and that he has found that the appellant is capable of performing sexual intercourse. PW-15 Assistant Director of FSL, Davanagere has stated that he has issued a certificate as per Ex-P9 after examining the substance sent by PW-8. The certificate indicates that there is no presence of any seminal stains in the article sent by PW-14 for chemical examination. PW-16 is the Police Sub-Inspector, who has conducted the investigation and filed charge sheet. 13. Heard Sri. Kantharaja, learned counsel appearing for the appellant and Sri. G.M. Srinivasa Reddy, learned HCGP for the State. 14. Learned counsel for the appellant submits that except the evidence of PW-2, the victim, there is no other evidence on record to show that the victim has been taken forcibly from the school, where she went for Independence day celebration on the date of the incident. One Pooja who was the classmate of victim was not examined by the prosecution. It is the case of the victim that she was forcibly dragged to the auto rickshaw. However, she was traced in a house which is situated 40 k.m. away from Hiriyur, when the police went in search of her. It is her case that at every point of time she tried to escape from the clutches of the appellant, but she was threatened by the appellant that she will be killed and hence she could not escape. This version of PW-2 is artificial and cannot be believed. Hence, he submits that the appellant may be acquitted. 15. The learned HCGP on the other hand submits that the evidence of victim alone is sufficient to convict the appellant. This version of PW-2 is artificial and cannot be believed. Hence, he submits that the appellant may be acquitted. 15. The learned HCGP on the other hand submits that the evidence of victim alone is sufficient to convict the appellant. He further submits that Ex-P4 birth certificate issued by PW-9 clearly indicates that the victim was less than 16 years of age as on the date of the incident and therefore, the prosecution has proved the case against the accused beyond all reasonable doubt. Hence, he submits that the order of conviction and the sentence imposed on the appellant by the learned Session Judge is neither perverse nor against the settled principles of law. Hence, he submits that the appeal may be dismissed. 16. I have gone through the judgment of the trial Court. It is seen that PW-2 is more than 15 years of age even according to the certificate issued by PW-9. The said certificate has been issued in a letter head of the school. No original birth certificate has been produced by the prosecution nor the birth extract or the admission extract of the school has been produced by the prosecution. Ex-P4 is a derivative document and it is not clear as to from where the date of birth was secured by PW-9, Principal and therefore no reliance can be placed on the letter Ex-P4 issued by PW-9 to state that the date of birth of the victim is 13.01.1987. 17. So far as the evidence of PW-2 is concerned, apart from non-examination of Pooja, who was said to be present along with the victim at the time when the alleged incident happened, there is no evidence to show that the victim was forcibly taken to Chitradurga. Further, it is not the case of the PW-2 before the Court that she was subjected to sexual intercourse and the evidence in this regard is 'Negative' so far as medical examination is concerned. Therefore, the offence under Section 366 (A) IPC is not attracted in this case. 18. The alleged incident has happened on 15.08.2002 at about 12.00 noon. However, the complainant being her father has not chosen to approach the police till 29.10.2002. No reasonable person who is a father of a girl child would wait for such a long time of 2VQ. months for filing a missing compliant about his daughter. 18. The alleged incident has happened on 15.08.2002 at about 12.00 noon. However, the complainant being her father has not chosen to approach the police till 29.10.2002. No reasonable person who is a father of a girl child would wait for such a long time of 2VQ. months for filing a missing compliant about his daughter. Hence, the conduct of PW-1 is suspicious in this aspect. Further, it is the case of the victim that the appellant had hired a house for rent and she was staying in the said house while the appellant was working. Nothing prevented her from escaping from the said house and to attract the attention of the neighbouring people. She has remained in the said house for 4 months till the police came in search of her. This clearly indicates that the victim had voluntarily remained with the accused. 19. The learned Sessions Judge has not clearly adverted to this aspect of the case and has erroneously come to the conclusion that the victim was taken by the accused for subjecting her for illegal sexual intercourse. However, the evidence of PW-2 nowhere states that the appellant either had or attempted to have sexual intercourse with the victim. Hence, the finding of the learned Sessions Judge in this aspect is perverse. 20. On a careful scrutiny of the entire materials on record and on re-appreciation of the evidence, I find that the judgment passed by the learned Sessions Judge is perverse, not based on the evidence on record and is also against the settled principles of law. Hence, the same is liable to be set aside. 21. Accordingly, this appeal is allowed. The order of conviction and sentence passed against the appellant is set aside and the appellant is acquitted. The bail bond executed by him is cancelled and fine amount, if any deposited by the appellant shall be refunded to him.