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2013 DIGILAW 840 (KAR)

Muniraju v. State of Karnataka

2013-07-25

A.S.PACHHAPURE

body2013
JUDGMENT 1. Though this matter is posted today for hearing on Interlocutory Application, with the consent of the learned counsel for the appellant and the learned High Court Government Pleader, it is taken up for final disposal. 2. The appellant has challenged his conviction and sentence for the offences punishable under Sections 342, 366, 376 and 506 IPC on a trial held by the Fast Track Court, Bangalore Rural. 3. The facts relevant for the purpose of this appeal are as under:- PW5 is the victim and PW1 Komala and PW2 Chikkaiah are her parents. On 11.8.2010 the victim who was studying in 9th standard left the house as usual to attend the school and did not return to the home. PW1 Komala her mother, suspected the appellant as the person responsible for her disappearance and she filed a missing complaint Ex.P1 on 14.8.2010. PW14 - A.S.I. received the said missing complaint and the police were in search of the victim and also the appellant. On 20.8.2010 the police traced the victim and also the appellant in Parishwad village of Belgaum District. After the victim was secured, she submitted a complaint on 21.8.2010 in the morning hours. It is her version that the appellant used to meet her now and then while she was going to the school and was expressing that he has love for her. Despite, she expressed her unwillingness, as she was still a school going girl, he did not leave chasing her and on 11.8.2010 in the morning at 7.00 a.m. he met her on the road near the bus stand and threatened her to accompany him and also warned that in case if she does not accompany him he would take the life of her parents and brother. She is said to have accompanied him and they came to Bangalore and then proceeded in a bus to Hubli and from there they went to Parishwad, a village in Khanapur Taluk of Belguam District and both of them stayed together for about 10 days in a rented house. It is the grievance that the appellant did not permit her to meet anybody and ultimately when the police came tracing her on the basis of the missing complaint, she was freed and complaint came to be filed on the aforesaid facts. It is the grievance that the appellant did not permit her to meet anybody and ultimately when the police came tracing her on the basis of the missing complaint, she was freed and complaint came to be filed on the aforesaid facts. PW15 the PSI registered her complaint in Crime No.40/2010 for the offences punishable under Sections 342, 366A, 376 and 506 IPC and sent the complaint Ex.P2 and FIR to the Magistrate. In the course of investigation, the Mahazar Ex.P3 was held in the presence of the witnesses and the statements were recorded. MO1 -the clothes of the victim PW5, MO2 - Nail clippings and MOs.3 to 6 were collected and they were sent for the opinion of the experts. PW5 victim was examined by PW7 Dr.Medhavi and a report was secured. On the arrest of the appellant he was examined by the doctor PW10. The extract of admission register Ex.P4 was secured from PW6- the Head Master of the school and Ex.P8 -the house property extract at Parishwad was also collected. On completion of the investigation a charge sheet was laid against the appellant for the aforesaid offences. In the course of the trial, the prosecution examined PWs.1 to 16, got marked the documents Exs.P1 to P14 and MOs.1 to 6. Statement of the appellant was recorded under Section 313 Cr.P.C. The appellant is examined as DW3 and he also examined the witnesses DWs.1, 2 and 4. In their evidence the documents Exs.D1 to D24 were marked. The trial Court after hearing the counsel for the parties and on appreciation of the material on record convicted the appellant for the charge under Sections 342, 366, 376 and 506 IPC and sentenced the appellant to undergo imprisonment for seven years and to pay fine of Rs.5,000/-for the offence under Section 376 IPC and lesser sentence for other offences. Aggrieved by the conviction and sentence, the present appeal is filed. 4. I have heard Sri.K.Shashikiran Shetty, the learned counsel for the appellant and also the learned High court Government Pleader. 5. The point that arise for my consideration is:- "Whether the appellant has made out any grounds to warrant interference in his conviction and sentence for the offences punishable under Sections 342, 366, 376 and 506 IPC?" 6. 4. I have heard Sri.K.Shashikiran Shetty, the learned counsel for the appellant and also the learned High court Government Pleader. 5. The point that arise for my consideration is:- "Whether the appellant has made out any grounds to warrant interference in his conviction and sentence for the offences punishable under Sections 342, 366, 376 and 506 IPC?" 6. Learned counsel for the appellant would contend that the victim PW5 is the wife of the appellant and that she voluntarily accompanied the appellant and have stayed together with the consent of each other. There is no question of any threat to the victim and the conduct of the victim would indicate that there was a free consent, both to accompany him and to have sexual intercourse. Hence, he contends that the material placed on record is insufficient to convict the appellant for the charges under Sections 342, 366, 376 and 506 IPC. It is also his submission that the victim married the appellant and they were living as husband and wife. Only because that they belonged to different caste, there was an apprehension of tension in the village and therefore they went together to different place. 7. Learned counsel for the appellant would contend that the appellant had taken care of the victim as she was pregnant and also provided medical treatment and gave gold ornaments because of his love for her. Hence, on these grounds he submits that the conviction and sentence ordered by the trial Court is erroneous and illegal. 8. On the other hand, the learned High Court Government Pleader supporting the judgment and order of the trial Court contends that the evidence of the victim is sufficient to establish the threat extended by the appellant to accompany her and as the sexual intercourse was without the consent, he submits that the trial Court has rightly convicted the appellant for the said charges. 9. Perusal of the evidence of PWs.1 and 2 the parents of the victim reveal that they are neighbours. The photographs produced by the appellant at Exs.D1 to D9 would indicate that there relationship was cordial and they were going to the houses of each other. The appellant was acquainted with the victim much prior to the incident in question. 9. Perusal of the evidence of PWs.1 and 2 the parents of the victim reveal that they are neighbours. The photographs produced by the appellant at Exs.D1 to D9 would indicate that there relationship was cordial and they were going to the houses of each other. The appellant was acquainted with the victim much prior to the incident in question. As could be seen from the evidence of PW5 the victim she states that when she was proceeding to the school, on the way the appellant intercepted and gave life threat to her parents and also her brother and insisted her to accompany him. So, from the village both together went to Bangalore and by a public transport both together travelled to Hubli, again they travelled in a public transport to a Parishwad village in Khana Taluk. The journey was about more than 10 hours. At any time the victim did not tell anybody including the co-passengers in the bus or any person in the village when they left the village and also in the bus stand at Bangalore while catching the bus. Though they stayed together for 10 days in Parishwad village in the house of PW12 Ashok, the evidence of PWs.12 and 13 reveal that they were living decently for about 10 days and even the victim was taken by the appellant to the doctor DW4 for medical examination and sonography test was done by DW4 and she was found pregnant of 15 weeks. At any time after the threat said to have been extended by the appellant in the village till she was traced out by the police she did not complained the act and conduct of the appellant gives a clear indication that she voluntarily accompanied the appellant and both together came to Bangalore and then proceeded to Parishwad in a public transport vehicle. If really there was any threat by the appellant, she could have complained the same to any of the persons on the way in the bus and also the neighbours in Parishwad village. Therefore, the appreciation of evidence of PW5 would clearly indicate that she voluntarily joined the appellant and accompanied him to Parishwad and they stayed together for many days in the said village. The question of administering threat by the appellant appears to be a concoction as they were loving each other. 10. Therefore, the appreciation of evidence of PW5 would clearly indicate that she voluntarily joined the appellant and accompanied him to Parishwad and they stayed together for many days in the said village. The question of administering threat by the appellant appears to be a concoction as they were loving each other. 10. Now to appreciate the evidence to assess the age of the victim, though the victim herself had said in her evidence that her age is 18 years, rather this evidence though said to be an admission by the learned counsel for the appellant, cannot be accepted as an admission for the sole reason that even if the appellant is to say her exact age, it is on the basis of either the birth certificate or a school certificate or by examination by experts that age of one individual could be stated definitely. An approximate age can be given by any person without the help of any documents like the birth certificate or any other evidence and merely because that the victim said to be the age of 18 years before DW4, in my opinion, is not sufficient to conclude that she was 18 years on the date when the incident took place. 11. The prosecution in the course of investigation collected Ex.P4, the extract of admission register maintained in the school by SJES High School, Medahalli and her date of birth is shown as 03.03.1994. To prove the contents of Ex.P4, the prosecution has examined PW6 Jeevarathnareddy, the Head Master of the school who has spoken to the contents of Ex.P4 and he states that on the basis of the admission register maintained by the school, her date of birth is 03.03.1994. Even the original register was produced by PW6 at the time when he deposed before the Court and on verification of the original register, it was registered at Ex.P4 (a) As admitted in evidence. Apart from Ex.P4, the prosecution has not produced any other documents. So far as the date of birth mentioned in Ex.P4 is concerned it is relevant to note that this document has came into existence at a time when there was no controversy relating to the date of birth of the victim and therefore Ex.P4 is admissible in evidence. Apart from Ex.P4, the prosecution has not produced any other documents. So far as the date of birth mentioned in Ex.P4 is concerned it is relevant to note that this document has came into existence at a time when there was no controversy relating to the date of birth of the victim and therefore Ex.P4 is admissible in evidence. So far as this date of birth is concerned, there is no serious cross- examination and nothing is elicited in the cross-examination of PW6 to disbelieve the contents of Ex.P4. So, from Ex.P4 it could be gathered that the prosecutrix PW5 was aged 16 years and 9 months as on the date of the incident and she was less than 18 years and was a minor. 12. The scrutiny of the evidence of the prosecution does not reveal any sort of force used by the appellant in taking the victim to different place and staying together in Parishwad village. In the absence of force the provisions of Section 366 IPC are not attracted. So also there is no threat and conviction for the offence under Section 506 -IPC is improper. That apart, as the victim was more than 16 years, as she consented for the sexual intercourse and even prior to that she was pregnant, it appears that she had sexual intercourse with the appellant and it has to be said that this sexual intercourse was with consent as she was more than 16 years age, even the provisions of Section 376 are not attracted. As she voluntarily accompanied the appellant and stayed with him together with her free will, even the provisions of Section 342 are not attracted and the conviction for the aforesaid offence by the trial Court appears to be erroneous and illegal. 13. The trial Court has not appreciated the evidence of PW5 the victim in a proper perspective and did not taken into consideration that the victim did not express her grievance to others at any time after she left the village till she was traced by the police. 14. Though it is contended by the learned counsel for the appellant that the victim married the appellant, as could be seen from the evidence of DW3, the marriage was held in Belgaum in the temple of Anjaneyaswamy. At that time neither PW1 the mother nor her father PW2 were present. 14. Though it is contended by the learned counsel for the appellant that the victim married the appellant, as could be seen from the evidence of DW3, the marriage was held in Belgaum in the temple of Anjaneyaswamy. At that time neither PW1 the mother nor her father PW2 were present. There is no acceptable material placed on record about the consent of the parents for the marriage of the victim. Every effort is made to establish that there was consent by PW1 the mother of the victim. The evidence in this regard is insufficient to conclude that the mother or her father had a consent for the marriage of the victim. The cross-examination of the witnesses examined by the accused and also that of DW3 indicate that the prosecution did not admit the marriage with the consent of the parents. Even as said by DW3 himself, the marriage was at Belgaum and as the parents were not at the place, the consent was not taken and hence the alleged marriage is not a valid marriage in the eyes of law, the marriage is void ab-initio or no marriage in the eyes of law. 15. Once if it is held that it is a void marriage, then there is no relationship between the prosecutrix and the appellant as wife and husband. 16. As the victim was 16 years and 9 months old, and was admittedly a minor, the parents are her lawful guardians. In this context if the provisions of Section 361 IPC are looked into, it provides that:- "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 aid to kidnap such minor or person from lawful guardianship." 17. Admittedly, PWs.1 and 2 are the lawful guardians of the victim PW5. If the appellant was to take the victim along with him, he would have asked for the consent of PWs.1 and 2. Admittedly, PWs.1 and 2 are the lawful guardians of the victim PW5. If the appellant was to take the victim along with him, he would have asked for the consent of PWs.1 and 2. The fact that when she was going to the school, the appellant intercepted her and took her with him to Bangalore and then to different places itself indicates that the appellant took PW5 the victim from lawful guardianship of PWs.1 and 2, without their consent and thereby the provisions of Section 361 IPC are attracted and the said offence is punishable under Section 363 IPC. The act of the appellant in taking away the victim without consent of the guardians is an act of kidnapping punishable under Section 363 IPC. The offence under Section 363 IPC is a lesser offence, as compared to the provision of Section 366 IPC and the conviction can be based even in the absence of any charge. 18. Taking into consideration the aforesaid circumstances, I am of the opinion that the appellant is guilty of the offence under Section 363 IPC and he has to be acquitted in respect of all other charges. 19. So far as the sentence is concerned, taking into consideration the facts and circumstances, to prevent such offence even by others, reasonable sentence has to be awarded. 20. In the result, the appeal is allowed in part. The conviction of the appellant for the charge under Sections 342, 366, 376 and 506 IPC are set aside. He is acquitted of the said charges. The appellant (accused) is convicted for the charge under Section 363 IPC and is ordered to undergo rigorous imprisonment for two years and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for three months. The appellant is entitled to set off under Section 428 Cr.P.C.