Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 209 (KAR)

Muniswamy v. State of Karnataka

2023-02-02

SHIVASHANKAR AMARANNAVAR

body2023
JUDGMENT/ORDER 1. This appeal is filed against the judgment of conviction and order of sentence dtd. 24/6/2011 passed in S.C. No. 59/2007 by the Presiding Officer, Fast Tract Court, Kollegal, convicting the appellant for the offence under Ss. 363, 366 and 342 of IPC and sentencing to undergo simple imprisonment for a period of three years and to pay fine of Rs.5, 000.00 with default sentence for offence under Sec. 363 ; further sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.10, 000.00 with default sentence for offence under Sec. 366 IPC and further sentenced to undergo simple imprisonment for a period of two months and to pay fine of Rs.1, 000.00 with default sentence for offence under Sec. 342 IPC. 2. Factual matrix of the case is, that on 5/1/2007 at about 01.30 pm the appellant - accused kidnapped P.W.2 victim girl near St. Thomas Rural High School of Thomiyarapalya with an intention to marry her, knowing fully well that she was minor. The appellant - accused had threatened her that if she did not marry him, he will kill her and he wrongfully kept her in his relative's (P.W.7) house and at Hameediya Lodge at Kodaicanal. P.W.1 father of victim girl-P.W.2 filed complaint as per Ex.P.1 registered in crime No. 3/2007 of Hanur Police Station for the offence under Sec. 363 IPC against appellant - accused. The Investigating Officer, after completing investigation filed charge sheet against the appellant - accused for the offence under Ss. 363, 366, 342 and 506 IPC. JMFC had taken cognizance and committed the case to the Sessions Court. 3. The Sessions Court framed charge against the appellant - accused for the offence under Ss. 366, 506, 342 and 363 IPC. Appellant - accused has denied the charges leveled against him. The prosecution examined 12 witnesses as P.W.1 to P.W.12 and got marked documents Ex.P.1 to Ex.P.11 and material object as M.O.1, i.e., Motorcycle. The statement of the accused under Sec. 313 Cr.P.C. was recorded. 4. After hearing arguments on both sides, the trial Court framed points for consideration and convicted the appellant - accused for the offence under Ss. 363, 366 and 342 of IPC. The said judgment of conviction and order of sentence has been challenged by the appellant - accused in this appeal. 5. 4. After hearing arguments on both sides, the trial Court framed points for consideration and convicted the appellant - accused for the offence under Ss. 363, 366 and 342 of IPC. The said judgment of conviction and order of sentence has been challenged by the appellant - accused in this appeal. 5. Heard the Amicus Curiae for the appellant - accused and learned HCGP for the respondent - State. 6. Learned counsel for appellant - accused argues that the age of the victim - P.W.2 has not been established by proper evidence. There is a discrepancy in her date of birth mentioned in Ex.P.7 and in her evidence. He contends that Ex.P.7 is not sufficient to establish the age of P.W.2. P.W.2 has stated her date of birth as 1/3/1990 whereas her birth date is mentioned as 1/3/1991 in Ex.P.7. Learned counsel for appellant - accused by referring to the entire deposition of P.W.2 argued that P.W.2 had sufficient opportunity to make a hue and cry and run away from the clutches of appellant - accused as she stayed nearly for one month from 5/1/2007 to 6/2/2007. The very act of not making any efforts by P.W.2 to escape itself goes to show that she is not kidnapped by the appellant - accused. The case of the prosecution is silent regarding the whereabouts of the appellant - accused and the victim between 28/1/2007 to 4/2/2007. There is no investigation in that regard. The appellant - accused was not knowing that P.W.1 - father of P.W.2 was going to Mysuru or his travel plan so as to falsely say to P.W.2 that her father has met with an accident and he is in a hospital. The victim girl, after this appellant - accused taking her on his bike on the pretext that her father met with an accident and is admitted in a hospital, within 20 to 22 minutes as the bike proceeded in a different route, but she continued to travel with him on his bike to the house of P.W.7 at Dindgal. P.W.2 has not told her kidnap by appellant - accused to P.W.7 or to his family members even though she stayed in their house for 22 days i.e., till 27/1/2007. P.W.2 has not told her kidnap by appellant - accused to P.W.7 or to his family members even though she stayed in their house for 22 days i.e., till 27/1/2007. P.W.2 had sufficient opportunity and once she had gone to a telephone booth to make a call to her mother and at that time also she had not intimated the lady in the telephone booth to save her. P.W.2 has also not told regarding her kidnap to the wife of P.W.7. P.W.2 further traveled from Dindgal to Kodaicanal on the bike of appellant - accused and stayed with him in a lodge for two days. She did not intimate any person whom she came across during that period. All these aspects go to show that the appellant - accused has not kidnapped P.W.2 and she might have voluntarily went along with him. He submits that there is no allegation of any sexual assault by this appellant - accused on P.W.2. There is also no attempt by this appellant - accused to marry P.W.2 to attract offence under Sec. 366 IPC. He placed reliance on the decision of the Hon'ble Apex Court in the case of Alamelu and another Vs. State represented by Inspector of Police reported in (2011) 2 SCC 385 on the point that Ex.P.7 - certificate issued by the school consisting the date of birth is not having much evidential value to prove the age of the girl in the absence of material on the basis of which the age was recorded. He placed reliance on paragraph No. 55 of the said decision which reads thus: "55. Earlier also, the girl had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar(A-1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A-1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW 5 Thiru Thirunavukarasu and stayed at his place. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A-1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW 5 Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar(A-1) took her to the police station on the fifth day of the alleged abduction and told at Tiruchi Police Station that they had already been married. The above behavior would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse." With these grounds he prayed to allow the appeal and acquit the appellant - accused. 7. Per contra, learned HCGP submits that the age of the victim girl is not disputed. P.W.5 who is the school Head Master is examined to prove Ex.P.7 which contains the date of birth of the victim girl - P.W.2. The date of birth of the victim girl is not disputed in the cross- examination of P.W.5. He contends that the evidence of P.W.1 to P.W.3 is sufficient to hold that this appellant - accused giving false information and took the victim girl and kept in the house of P.W.7 with an intention to marry her. The evidence of P.W.8 also establishes that appellant - accused stayed with the victim girl in the hotel at Kodaicanal. The evidence of P.W.1 and P.W.2 is consistent. Considering all these aspects the learned trial Judge has rightly convicted the appellant - accused for offence alleged against him. There are no grounds for interfering with the judgment of conviction and order of sentence passed by the trial Court. With this, he prayed to dismiss the appeal. 8. On the grounds made out and considering the arguments advanced, the following points arise for my consideration: I. Whether the trial Court has erred in holding that the prosecution has proved beyond all reasonable doubt that on 5/1/2007 at about 01.30 pm the appellant - accused kidnapped the victim girl - P.W.2 with an intention to marry her knowing fully well that she is a minor and further he threatened to kill her if she did not marry her? II. II. Whether the trial Court has erred in holding that the appellant - accused confined the victim girl - P.W.2 in the house of his relative and also at Hameediya Lodge, Kodaicanal? 9. The answer to point No. 1 is in the affirmative and point No. 2 is in the negative for the following reasons: P.W.1 is the father of P.W.2 who has filed complaint as per Ex.P.1 when he came to know through P.W.3 that his daughter - P.W.2 went on the bike of appellant - accused. P.W.2 is the victim girl. P.W.3 is a witness who saw the victim girl going on the bike of appellant - accused and intimated the same to P.W.1 and he is also a pancha to mahazar of the spot of kidnap as per Ex.P.6. P.W.4 is the brother-in-law of P.W.1 who went along with P.W.1 to Kodaicanal and secured the victim on 6/2/2007. P.W.5 is the school Head Master who has issued Ex.P.7 containing the date of birth of the victim girl and her date of birth is 1/3/1991 as per the school records. P.W.6 is the panch witness to the spot mahazar drawn at the house of P.W.7 at Dindgal. P.W.7 is one Balamurugan - relative of the appellant - accused in whose house the appellant - accused and victim girl stayed for 22 days. He has not fully supported the case of the prosecution. P.W.8 is the lodge Manager who has furnished Ex.P.4 - extract of lodge register wherein there is an entry of stay of the appellant - accused on 4/2/2007 and 5/2/2007 and he has also identified the appellant - accused and victim girl on showing her photograph. P.W.9 is Head Constable who had carried the complaint - Ex.P.1 and FIR - Ex.P.10 and handed over to the jurisdictional Magistrate. P.W.10 and P.W.12 are the Investigating Officers. P.W.11 is the eye witness who is stated to have given the bike to the appellant - accused but, he has not supported the case of the prosecution. 10. P.W.2 in her evidence has stated that her date of birth is 1/3/1990. Ex.P.7 is the letter issued by P.W.5 containing the date of birth of victim girl as 1/3/1991. The said letter is issued on the basis of admission records of the victim girl maintained in the school. 11. P.W.5 is the Head Master of the school who has issued Ex.P.7. Ex.P.7 is the letter issued by P.W.5 containing the date of birth of victim girl as 1/3/1991. The said letter is issued on the basis of admission records of the victim girl maintained in the school. 11. P.W.5 is the Head Master of the school who has issued Ex.P.7. He has given evidence stating that he issued Ex.P.7 on the basis of school admission register and stated that the date of birth of P.W.2 is 1/3/1991. In his cross-examination it is elicited that he has issued Ex.P.7 containing the date of birth of the victim girl based on her primary school records. The age of the victim girl has not been disputed by the appellant - accused in the cross- examination of P.W.2 and also P.W.5. Placing reliance on the observations made by the Hon'ble Apex Court in paragraph No. 40 of the judgment in the case of Alamelu (supra), learned counsel for the appellant - accused submits that even though Ex.P.7 is admissible in evidence under Sec. 35 of the Evidence Act, 1872, admissibility of such document would of not much evidentiary value to prove the age of the girl in the absence of material on which the age was recorded. The date of birth mentioned in the Transfer Certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. In the cross-examination of P.W.5 itself he has stated that he has issued Ex.P.7 based on her primary school records. The Hon'ble Apex Court in the case of Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263 by referring to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 has held that Rule 12 is strictly applicable only to determine the age of child in conflict in law and they are of the view that the said statutory provision should be the basis for determining the age even of a child who is a victim of a crime. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12. (3) envisages consideration of the date of birth entered in the school first attended by the child. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12. (3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. 12. P.W.5 who is the Head Master of the high school in which P.W.2 is studying in tenth standard has issued Ex.P.7 - letter containing the date of birth of the victim girl. The said date of birth is mentioned in the school admission register. In the cross-examination it is elicited that he has mentioned the date of birth of P.W.2 on the basis of her primary school records in which she was first admitted and studied. Therefore, the date of birth entered in the school first attended by the child is to be treated as final and conclusive and no other material is to be relied upon as held by the Apex Court in the case of Jarnail Singh (supra). Even though P.W.2 stated that her date of birth is 1/3/1990, it is oral evidence not supported by any documents and the date of birth mentioned in Ex.P.7 prevails over the oral testimony of P.W.2. Therefore, the prosecution has established that the date of birth of victim girl is 1/3/1991 and she is aged below 18 years as on the date of alleged offence. 13. As per the case of the prosecution the appellant - accused deceitfully induced P.W.2 to come along with him stating that her father is admitted in the hospital and he is taking her to the hospital. P.W.2 went along with appellant - accused on his bike. After some distance, after about 20 minutes, she came to know that appellant - accused is not taking her in the route of the hospital. At that time she has not made any hue and cry and not made any attempt to get down from the bike. P.W.2 chose to travel along with appellant - accused on his bike till Dindgal and stay in the house of P.W.7. At that time she has not made any hue and cry and not made any attempt to get down from the bike. P.W.2 chose to travel along with appellant - accused on his bike till Dindgal and stay in the house of P.W.7. P.W.7 and his wife were residing in the said house. Appellant - accused sometimes stayed in the house and sometimes went out of the house of P.W.7. At that time also the victim girl has not made any attempt to intimate P.W.7 or his wife that she has been kidnapped by appellant - accused. As per P.W.2 the appellant - accused is unknown to her, but still she chose to travel with him on his bike and stayed in the house of P.W.7 along with his family members for a period of 22 days. As per P.W.2 once she went outside the house of P.W.7 and made a phone call to her mother to save her from appellant - accused marrying her at Kodaicanal. P.W.2 has also not made any effort to intimate the same to the lady who was in the telephone booth. Mother of P.W.2 is not examined with regard to she receiving phone call from P.W.2. 14. Case of the prosecution is silent with regard to where the appellant - accused and victim girl - P.W.2 resided or stayed between 28/1/2007 to 4/2/2007. P.W.1 - father of the victim girl and P.W.4 went to Kodaicanal on 6/2/2007 and secured the victim girl. P.W.1 and P.W.4 are stated to have received information through the mother of P.W.2 that appellant - accused is taking her to Kodaicanal but they did not choose to intimate the same to the Police. Investigation by the Police from the date of registration of the case from 7/1/2007 till P.W.1 and P.W.4 secured the victim and brought her is silent. P.W.2 - victim girl had many opportunities from 5/1/2007 to 6/2/2007 i.e., for a period of one month to intimate the alleged act of kidnapping by the appellant - accused to P.W.7, his wife or to any other person. She has not done so. P.W.2, in paragraph No.4 of her chief examination, has deposed that she will make hue and cry if the appellant - accused gives more trouble to her and intimate the same to the Police. She has not done so. P.W.2, in paragraph No.4 of her chief examination, has deposed that she will make hue and cry if the appellant - accused gives more trouble to her and intimate the same to the Police. By the said statement it is clear that P.W.2 was aware that she can make hue and cry and intimate the Police regarding the acts of the appellant - accused. P.W.2 even in the lodge at Kodaicanal had an opportunity to intimate the act of the appellant - accused kidnapping her to the staff of the said lodge. But she has not done so. The evidence of P.W.2 is that she is not knowing the appellant - accused, he deceived, induced, took her and threatened her and therefore, she stayed with him for more than a month appears to be not trustworthy. 15. Even though P.W.2 and appellant - accused were together for a period of 30 days, there is no allegation by P.W.2 of appellant - accused attempting to marry her. From the entire evidence of P.W.2 and from her conduct what can be inferred is that she was knowing the appellant - accused and she voluntarily went with him and stayed with him for 30 days. P.W.2 had many opportunities to complain or run away but she made no such efforts. 16. It is noteworthy to mention here that P.W.2 made no protest on seeing some known person i.e. P.W.3, near her after her alleged abduction. She did not make any complaint at the residence of P.W.7 and at Hammediya Lodge, Kodaicanal. The said behavior of P.W.2 would not be natural for a girl who had been compelled to go with appellant - accused. In view of the above, I am of the considered opinion that the prosecution has failed to prove beyond all reasonable doubt that the appellant - accused kidnapped P.W.2 with an intention to marry her and committed an offence punishable under Ss. 363 and 366 of IPC. 17. As per the evidence of P.W.2 the appellant - accused took her and kept in the house of P.W.7 and restrained her from proceeding further. The said evidence of P.W.2 establishes that appellant - accused had wrongfully confined P.W.2 in the house of P.W.7. 363 and 366 of IPC. 17. As per the evidence of P.W.2 the appellant - accused took her and kept in the house of P.W.7 and restrained her from proceeding further. The said evidence of P.W.2 establishes that appellant - accused had wrongfully confined P.W.2 in the house of P.W.7. P.W.7 deposed that the appellant - accused is his relative and three years ego he had brought a girl in his auto and he does not know the name of the said girl. He further deposed that the appellant - accused went along with the said girl to Madhurai. The evidence of P.W.2 and P.W.7 establishes that P.W.2 was made to stay in the house of P.W.7 by the appellant - accused and he confined her. The said confinement amounts to wrongful confinement as defined under Sec. 342 of IPC. The trial Court has rightly convicted the appellant - accused for the offence under Sec. 342 of IPC. The sentence imposed by the trial Court for the said offence under Sec. 342 of IPC is simple imprisonment for a period of two months and to pay fine of Rs.1, 000.00 and in default of payment of fine to undergo simple imprisonment for 15 days. The said sentence imposed by the trial Court appears to be appropriate and reasonable. 18. For the aforesaid reasons, the conviction of the appellant - accused for the offence under Ss. 363 and 366 of IPC requires to be set aside and he is required to be acquitted for the said offences. The conviction of the appellant - accused under Sec. 342 of IPC and sentence imposed on him by the trial Court for the said offence requires to be affirmed. Hence, the following; ORDER 1. Appeal is partly allowed. 2. The Judgment passed by the trial Court dtd. 24/6/2011 in S.C. No. 59/2007 convicting appellant - accused under Ss. 363 and 366 of IPC is set aside. 3. The appellant - accused is acquitted for the offence under Ss. 363 and 366 of IPC. 4. The order passed by the trial Court dtd. 24/6/2011 in S.C. No. 59/2007 convicting appellant - accused under Sec. 342 of IPC and sentence imposed on him is affirmed.