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2023 DIGILAW 440 (KAR)

Dilip @ Papa S/O Ranganatha v. State Of Karnataka

2023-03-15

MOHAMMAD NAWAZ

body2023
JUDGMENT : This appeal is preferred by accused Nos.1 to 4 against the judgment and order dated 26.09.2018 passed by the Court of I Additional Sessions and Special Judge at Chikkamagaluru in Special Case (PCSOA) No.5/2015, whereby accused No.1 has been convicted for the offence punishable under Section 363, 366 and 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’, for short) and accused Nos.2 to 4 are convicted for offences punishable under Sections 363, 366-A r/w 34 of IPC. 2. Accused Nos.2 to 4 have been acquitted of the offences punishable under Sections 114 r/w 363, 376 of IPC and Section 17 of POCSO Act, 2012. 3. Heard the learned counsel Sri N.R.Krishnappa for accused No.1, Sri Umesh P.B. for accused Nos.2 to 4 and Sri K. Nageshwarappa, learned High Court Government Pleader for respondent/State and perused the evidence and material on record. 4. The factual matrix Of the prosecution case are that the prosecutrix – PW.4 is a minor aged about 17 years. She is a resident of Bilekallahalli Village. She was studying in I PUC in BGS college, Chikkamagaluru. She used to travel in a bus from her village to her college to attend the classes. Accused No.1-Dilip is a resident of the same village. He had befriended the prosecutrix while she was traveling in the bus to her college. He was telling her that he is in love with her and he will marry her. On 17.11.2014 when PW.4 was proceeding to her college, near the Housing Board, Chikkamagaluru accused No.1 came in a goods vehicle bearing Registration No.KA-18-B-5540 along with accused Nos.2 to 4. He asked her to board the vehicle telling that he will drop her near the college. Thereafter, the accused instead of dropping her at the college, took her to Dharmasthala, wherein accused No.1 forcibly married her by tying thaali. From Dharmasthala accused No.1 took PW.4 to Bengaluru in a bus and took her to a house situated in Siddagunta Palya, Whitefield, wherein he committed sexual intercourse on her against her will. On 25.11.2014, he brought her back to Devanoor by train. 5. PW.1 is the father of the victim. He lodged a missing complaint as per Ex.P1 on 18.11.2014. The victim was traced on 25.11.2014 along with accused No.1 at Devanoor Railway Station. On 25.11.2014, he brought her back to Devanoor by train. 5. PW.1 is the father of the victim. He lodged a missing complaint as per Ex.P1 on 18.11.2014. The victim was traced on 25.11.2014 along with accused No.1 at Devanoor Railway Station. The statement of the victim was recorded under Section 164 of Cr.P.C. and her medical examination was also conducted. On completion of investigation charge-sheet was filed against accused Nos.1 to 4. 6. Charges were framed against accused Nos.1 to 4 for which they pleaded not guilty and claimed to be tried. Prosecution in all got examined 17 witnesses and got marked 29 documents and MOs.1 to 8. The defence of the accused was one of total denial, however they did not chose to lead any evidence. 7. The learned Sessions Judge held accused No.1 guilty of the offence punishable under Sections 363, 366 and 376 of IPC and Section 4 of the POCSO Act, 2012 and accused Nos.2 to 4 of the offence punishable under Section 363, 366A r/w 34 of IPC. Accused Nos.2 to 4 were acquitted of the offences punishable under Sections 114 r/w 363, 376 of IPC and under Section 7 of POCSO Act, 2012. 8. In the missing complaint-Ex.P1, lodged by PW1-father of the victim, he has stated that his daughter is studying in I PUC at BGS College at Chikkamagaluru and she was going to college in a bus. On 17.11.2014 at about 7.00 a.m., she went to the college but till 7.00 p.m., she did not return and therefore, he searched everywhere but she was not traced. He enquired with the Principal of the College and came to know that his daughter had not attended the classes. He enquired with his relatives but the whereabouts of his daughter was not known. Then, he came to know that accused No.1 was also not present in the village. Hence, he raised a suspicion that the said accused might have kidnapped his daughter. 9. On the basis of Ex.P1 lodged by PW1, PW6-PSI, registered a case and forwarded the FIR-Ex.P11 to the Court. He conducted spot mahazar-Ex.P4 in the presence of panch witnesses and thereafter transferred the investigation to CPI-PW15, who took over investigation on 21.11.2014 and directed his staff to trace the accused. On 25.11.2014, at about 11.00 a.m., both the victim as well as the accused were traced at Devanoor Railway Station. He conducted spot mahazar-Ex.P4 in the presence of panch witnesses and thereafter transferred the investigation to CPI-PW15, who took over investigation on 21.11.2014 and directed his staff to trace the accused. On 25.11.2014, at about 11.00 a.m., both the victim as well as the accused were traced at Devanoor Railway Station. Statement of the victim was recorded as per Ex.P19. Her statement was also recorded under Section 164 Cr.P.C., which is marked as Ex.P8. The victim was subjected to medical examination by PW12. The investigation was thereafter transferred to Chikkamagaluru Rural Police. PW17-CPI, took over further investigation and on completion of the same, filed charge sheet against accused Nos.1 to 4. 10. PW1, in his evidence, has corroborated the statement made in Ex.P1. He has stated that on 25.11.2014, he along with his wife went to the police station. From there they were taken to Devanoor Railway Station and at about 11.00 a.m., his daughter and accused No.1 got down from the train and then they were taken to the police station and his daughter was enquired. His daughter informed that when she was proceeding to the college, all the accused came in a goods vehicle bearing registration No.KA-18-B-5540 and telling her that they are going in the direction of the college, took her in the said vehicle. Then accused No.1 stating that he would marry her took her to Dharmasthala. Further, when his daughter told accused No.1 that she will not marry till completion of her studies, accused No.1 threatened her saying if she did not marry him, he will consume poison. PW1 has further stated that his daughter informed him that other accused were also present when accused No.1 married his daughter and they sent her and accused No.1 in a bus to Bengaluru, wherein accused No.1 committed rape on her in a house situated at Siddagunte Palya, Bengaluru. Thereafter, when she insisted that she want to see her parents, accused No.1 brought her back. 11. PW4 is the victim. She has deposed in her chief examination that on 17.11.2014 at about 8.15 p.m. when she was proceeding to her college and while she was walking near the Housing Board, accused No.1 came in a goods vehicle and stating that he will drop her to the college, took her in the said vehicle. 11. PW4 is the victim. She has deposed in her chief examination that on 17.11.2014 at about 8.15 p.m. when she was proceeding to her college and while she was walking near the Housing Board, accused No.1 came in a goods vehicle and stating that he will drop her to the college, took her in the said vehicle. She has stated that even accused Nos.2 to 4 were in the vehicle and accused No.1 was driving the vehicle. They, instead of dropping her to college, turned the vehicle towards Chikkamagaluru Town. When she enquired as to why they are taking her in a different direction, accused No.1 told her that he will marry her and if she refused he will consume poison. Further, the persons who were along with accused No.1 threatened her saying that if she did not marry accused No.1, they will kill her parents. 12. PW4 has further deposed that she was taken to Dharmasthala and accused No.1 forcibly tied thaali to her and put toe rings. He has further stated that the friends of accused No.1 sent her and accused No.1 to Bengaluru in a bus and thereafter, they went in the goods vehicle. She was then taken by accused No.1 to a house in Siddagunte Palya, Whitefield, Bengaluru, wherein accused No.1 committed sexual intercourse on her. 13. There is nothing worthwhile elicited in the cross-examination of PW1 or PW4 so as to disbelieve their evidence. Learned counsel for accused No.1 has tried to contend that there was a love affair between accused No.1 and PW4 and therefore, she herself has accompanied the accused to Dharmasthala and to Bengaluru and there was no force or threat to PW4 by the accused persons, as alleged by the prosecution. He would contend that there was ample opportunity for PW4 to raise hue and cry if she was forcibly kidnapped, married or detained in a house and raped. He would point out from the cross-examination of PW4 wherein she has admitted that she was talking to accused No.1 for about two months. He would also draw the attention to Ex.P8, statement of the victim recorded under Section 164 Cr.P.C. wherein she has stated that she was in love with accused No.1 and since her family members wanted to perform her marriage with some other person, she informed the same to accused No.1. He would also draw the attention to Ex.P8, statement of the victim recorded under Section 164 Cr.P.C. wherein she has stated that she was in love with accused No.1 and since her family members wanted to perform her marriage with some other person, she informed the same to accused No.1. He would therefore contend that this is a case of love affair and there is no force or threat or kidnap as alleged by the prosecution. 14. Learned counsel appearing for accused Nos.2 to 4 has contended that the said accused are falsely implicated in this case since there was some enmity between the said accused and one Devaraj, brother-in-law of PW1. He has contended that as per prosecution, all the accused have kidnapped the victim in a goods vehicle and they were sitting in the cabin of the vehicle, which is highly impossible. He contends that there is no corroboration to the evidence of PW4 and no independent witnesses are examined to show that even accused Nos.2 to 4 were either present in the goods vehicle or they have kidnapped the victim from Chikkamagaluru to Dharmasthala and from there they have sent accused No.1 and the victim in a bus to Bengaluru. He contends that the victim’s mother would have been the best witness to say what transpired after the victim was brought back to their house, but she has not been examined. He has further contended that in the statement of the victim recorded under Section 164 of Cr.P.C., she has stated that the friends of accused No.1 threatened her but in her evidence she has deposed that they have threatened to kill her parents, if she did not marry accused No.1. He, therefore, contends that there are contradictions and since no independent witnesses are examined, the said accused Nos.2 to 4 have to be acquitted. 15. A perusal of the evidence of PW4 would clearly reveal that on 17.11.2014 at about 8.15 a.m., when she was proceeding to her college, accused No.1 along with accused Nos.2 to 4 came in a goods vehicle. The said vehicle was driven by accused No.1. They told that they are going towards her college and she will be dropped at the college. It appears that the victim boarded the said vehicle thinking that she will be dropped near the college. The said vehicle was driven by accused No.1. They told that they are going towards her college and she will be dropped at the college. It appears that the victim boarded the said vehicle thinking that she will be dropped near the college. A careful reading of the evidence of PW4 would further reveal that accused No.1 was known to the victim and therefore without raising any doubt, the victim boarded the said vehicle. However, instead of taking her to the college, the accused took her towards Chikkamagaluru Town. PW.4 has further stated that accused No.1 told her that he will consume poison if she did not marry her and even the other accused also threatened her with dire consequences. She has further stated that she was taken to Dharmasthala and accused No.1 forcibly tied thaali to her and then other accused sent her and accused No.1 in a bus to Bengaluru, wherein accused No.1 committed sexual intercourse on her. 16. The contention raised by learned counsel appearing for accused Nos.2 to 4 that there was some enmity between one Devaraj and accused Nos.2 to 4 and therefore, they have been falsely implicated is not at all proved. PWs.1 and 4 have denied the said suggestion. Further, PW4 in her cross-examination has stated that in the goods auto she was sitting beside accused No.1 and then accused No.4-Ashoka was sitting. Accused No.3- Avinasha was sitting on the lap of accused No.4 and next to him accused No.2 was sitting. The goods vehicle bearing registration No.KA-18-B-5540 was seized from accused No.2 under a mahazar-Ex.P14. 17. The contention of the learned counsel for the appellants that there was consent on the part of PW4 and she willingly accompanied the accused to Dharmasthala and then to Bengaluru and stayed along with accused No.1 and therefore, there is no offence committed as alleged cannot be accepted. According to prosecution, the victim was a minor aged below 18 years. Therefore, even if there was any consent on the part of the victim or the victim had accompanied the accused persons on her own volition, it cannot be said that the accused have not committed any offence. To prove that the victim was a minor, the prosecution has got marked Exs.P12 and 13 through PW7. Ex.P12 is the letter issued by PW7-Principal of BGS College, Chikkamagaluru mentioning the Date of Birth of the victim. To prove that the victim was a minor, the prosecution has got marked Exs.P12 and 13 through PW7. Ex.P12 is the letter issued by PW7-Principal of BGS College, Chikkamagaluru mentioning the Date of Birth of the victim. He has stated that the victim joined the college to pursue I PUC during the academic year 2014-15 and as per records, her Date of Birth is 02.08.1998. Further, Ex.P13 is the Transfer Certificate issued by the Government PU College wherein the victim completed her X standard (S.S.L.C). The Date of Birth of the victim at Col.No.18 of the said Transfer Certificate is mentioned as 02.08.1998. What is relevant to be seen is that the defence has not disputed the age of the victim. In fact, in the cross-examination of PW4, defence admitted that her Date of Birth is 02.08.1998. Hence, as on the date of commission of the offence, victim-PW4 was a minor, aged below 18 years. The prosecution has therefore established beyond reasonable doubt that the victim was a minor as on the date of commission of the offence. 18. A perusal of the evidence of PW4 would clearly reveal that she was kidnapped by accused Nos.1 to 4 and then taken to Dharmasthala in a goods vehicle bearing registration No.KA-18-B-5540 from where she was taken by accused No.1 to Bengaluru. She has categorically stated that accused No.1 committed sexual intercourse on her in a house situated at Siddagunte Palya, Whitefield. On her return, she has narrated the incident to her father i.e., PW1 who has corroborated the same. Merely because the independent witnesses or the mother of PW4 are not examined is not a ground to disbelieve the testimony of prosecutrix-PW4. She has withstood the cross-examination conducted by the defence and nothing is elicited to disbelieve her evidence. Further, PW12-Medical Officer, who conducted medical examination on the victim has issued a report as per Ex.P15 stating that there are signs of recent vaginal penetration. 19. On a re-appreciation of the entire evidence and material on record, this Court finds that the prosecution has been able to establish that accused Nos.1 to 4 kidnapped the victim, a minor, aged below 18 years from the lawful custody of her parents by enticing her intending to perform her marriage with accused No.1 and with a knowledge that she would be subjected to sexual intercourse by accused No.1. Accused Nos.2 to 4 have knowing fully well that the victim may be compelled or forced or seduced to sexual intercourse by accused No.1, have kidnapped her. Hence, the judgment of conviction passed against the accused persons does not call for any interference. 20. It is submitted by the learned counsel for appellants that there was a love affair between accused No.1 and PW4 and as per victim’s statement recorded under Section 164 of Cr.P.C., she informed accused No.1 about her parents intention to perform her marriage with someone. Therefore, he submits that due to the close acquaintance and love affair, the incident might have occurred. It is also pointed out from the cross-examination of PW4 that she has been now married. It is therefore submitted that a lenient view may be taken and the sentence imposed against the accused may be reduced. 21. It is submitted that accused No.1 was in custody from 26.11.2014 to 22.04.2015 and he is in custody since 26.09.2018 i.e., from the date of judgment, which is nearly five years. The substantive sentence imposed against accused No.1 is to undergo R.I. for 10 years and to pay fine of Rs.50,000/- and against accused Nos.2 to 4, is S.I. for 1 year each and fine of Rs.2,000/- for the convicted offence. The incident took place in the year 2014. Considering the facts and circumstances of the case and also considering that PW4 is already married, the sentence imposed against the accused/appellants can be reduced. Hence, the following: ORDER i. The judgment and order dated 26.09.2018 passed by the Court of I Additional Sessions and Special Judge at Chikkamagaluru in Special Case (PCSOA) No.5/2015 convicting accused No.1 for the offence punishable under Sections 363, 366 and 376 of IPC and Section 4 of POCSO Act, and accused Nos.2 to 4 for offences punishable under Sections 363 and 366A r/w Section 34 IPC is confirmed. ii. The sentence imposed against accused No.1 for the offence punishable under Section 376 of IPC and Section 4 of POCSO Act is modified. He is sentenced to undergo R.I. for 7 years and to pay fine of Rs.50,000/-, in default of payment of fine, he shall undergo R.I. for a period of one year. iii. The sentence of imprisonment imposed against accused No.1 for the offence punishable under Sections 363 and 366-A r/w 34 of IPC is confirmed. iv. He is sentenced to undergo R.I. for 7 years and to pay fine of Rs.50,000/-, in default of payment of fine, he shall undergo R.I. for a period of one year. iii. The sentence of imprisonment imposed against accused No.1 for the offence punishable under Sections 363 and 366-A r/w 34 of IPC is confirmed. iv. The sentence imposed against accused Nos.2 to 4 for the offence punishable under Sections 363 and 366A r/w Section 34 of IPC is hereby modified. They shall undergo S.I. for a period of six months each and shall pay a fine of Rs.2,000/- each for the offence punishable under Sections 363 and 366A r/w Section 34 of IPC. All the sentences shall run concurrently. v. Accused No.1 is in custody. Accused Nos.2 to 4 shall surrender to serve the sentence imposed against them. vi. The accused are entitled to the benefit of set off under Section 428 of Cr.P.C.