~01 IN THE HIGH COURT OF KARNATAKA AT BA?sGALojair:,_:" DATED THIS THE 11?" DAY OF NovEM_1§1¢;;g '2oj1o 0' BEFORE? 0 > 0' THE HONBLE MR;t3Ds'fieA1§:i'--N.ANA'N.DA' " 0' 1. CRIMINAL ApPEA1:_'Na._1fi41,_/2os4 S BETWEEN: Sri Srinatha S/0 Rudraswamy V V Aged 28 Years . R/ o Huralag-erej.V_i11age Ma1urTa1_u-kké = A V Kokar . ...APPELLAN'l' (By The State of Karnatafisa ' Represented by its ' V ' State Public 'ProseCut=3r Qoetrt of Karnzvéaka " «.BangaIure ...RESPONDENT Majage, HCGP} _.Th_isf.:appeal is filed under section 374(2) Cr.P.C., against the ju'dgn'1ent dated 02.08.2004 passed by the Principal Sessions Judge, ¥ Kola}: in S.C.No.232/2002, convicting the " appellant/accused No.1 for an offence punishable under section _ 365 §PC and serltencing him to undergo S3. for 1 Year and pay 'fine of Rs.1.0,000/~, in default to undergo 8.1. for 6 months. This appeal coming on for final hearing this day, the Court delivered the following: JUDGMENT
The appellant (hereinafter referred to as
and accused 2 to 4 were tried for an offe_n”ceV punishable V’
under section 366 r/w 34 IPCj.;and”also
punishable under section 109 IEQC. ‘dA_ccuseti_i’ lV4i–.i’V*.re’reVV
acquitted of aforestated offe”11ces.. ‘A.cc’L1s_”edx”:pl’\loV§ was
convicted for an offence puziilsliesgble”under section 366 IPC
and has been sentenced to u11dter’go_&s’iIi1p1″e– imprisonment for
a period of onesrear and ..ofv’R’s~. x1V0,000/–, in default
to undergo “irn”p~risor1nient”Vfor a period of six months.
T’.herefore,_ filed this appeal.
” I. hail/e”~ heard ‘VSri.’K.S.N.Karanth, learned counsel for
andméri Vijaykumar Majage, learned HCGP for
A . State.-‘.V4 , iv
3.2 2 Vlllinhlorief, the inter se relationship of some of the
A prosecution witnesses and the case of prosecution are as
A’ follows:~
as 3
PW1»Rajaiah.C — the first informant is the father of
PW2–Sharadamma {Wctim}. PW4»»Anitha
were classmates of PW2. During the year 200’O5_:PW:2.x
PW6 were studying in 11 year y_ 0«Co11’e0gex'”‘at 0?
Malur. PW2 was aged about 20 yea_rs’.__A.PW1 as
Health Inspector at Malur. Accused “No..1’wa_sRaV”student of
final year B.A. of same c:>negéa;”Acr:used”2–~ are the
associates of accused”No’.’1’§fNLo’.4 is the father of
accused No._1 hover property held
andZ”possesesedfi?-gidy Therefore, accused No.1 had
intent:-‘on._ to and marry her. In order to
accomplish such iA11~ega1″b0Vacts, accused No.1 had taken the
ofAAaccu.se’d 2 & 3 and accused No.4 ~– father of
‘ .»Vaec’u’s.edr had supported accused No.1 to accomplish
” .$t:¢h ii’1¢?gg1’s’a’¢ts.
on 11.05.2000 at about 12.30 pm. (afternoon),
it * .PW2VVaiong with PVV4 <3: PW6 were returning after writing II-
year BA. examination and they were walking on the road in
'0 front of JSS College, at that time, accused No.1 came in a
}"\_s, '-e 6}!»-'~«-5£€'kr '
Tata Sumo vehicle bearing No.KA~O8rM~»33O and Vefpforcibly
abducted PW2 and took her to different places. "E0
3 took PW2 to a temple, accused No.1 forcih_1jf"tiedZVA_ia if
the neck of PW2 to marry her. Achcufsfed' 3' "azei'e_Vall':aloi':g
assisting commission of above illegalfacts by_'v_laccu'sed' 'N.o.i..,
On the date of incident, at about 5 .p;rn.,' first
information stating that accu'se'd.d1VVV'to._3 have abducted his
daughter [PW2} and these offf'-accused 1 to 3 were
supported of accused No.1. The
policefftracetd, 7 daysgwhen accused 1 to 3 and
PW2 §22rere_ rnovingjinfia_.carfn,ear Hosakote. Accused No.1 to 3
were arrested and Was given to the custody of PW]. The
aOlfficer«,' after completion of investigation, filed
V .=Vc11.arge:'shcet' against accused 1 to 4 for aforestated offences.
4;, trial, PW1 to PW9 were examined and
AA docurnents as per Ex.P.1 to Ex.P.8 were marked so also
'=n;1_ateria1 objects as per M.O.1 :3: M.O.2 were marked. The
photographs produced by the defence were collectively
marked as Ex.D.1 to Ex.D.5. IL).
AA 5 __
5. The learned trial Judge on appreciation of -eifidence
and after hearing learned counsel for parties-.§.’phpafcqéritfed
accused 2 to 4 for aforestated offencesqand’ipiconxrictedV’
accused No.1 for an offence punishable und.ere:_sect.ion’ 366
{PC and sentenced him as peaforestated. ‘l’herefore;~
No. 1 has filed this appeal.
6. In View of convfction accusefd’~–No.1 andfacquittal of
accused 2 to 4, the .”poir1fts__’.’–~would arise for
deterrninationi ‘\ ‘
{1} –Whei’.her’Vt.he-.pro_secution has proved that on
A’ pp 12.30 p.m., {afternoon}
Vdaccused Al:-IVo.’1..’=”Srinatha forcibly took PW2–
S.l{“Sharadamma when she was coming out
JSS véollege at Malur after writing ll year
V ».4B.,:A1examination in a TATA Sumo vehicle
‘ No.KA-08»~l\/E-330 and kept her in
2 2 ‘different places and he forcibly tied thali to
her neck to marry her and thereby
committed an offence punishable under
section 366 IPC?
_kNC}LU.W… ;{<
".5 M
(2} Whether the learned trial Judge has i/
appreciated evidence on record? xi" 'M "
(3) Whether the impugned' '1 _ interference? (4) What order?"
7′. Before adveriiflg. evidence in proof of
the above, it v’r1eeess2>;ry”Atov’– at the time of
incident, _ and she was
studyirigv in $0.1 was studying in III
year:’–,_B.A.– ‘eoi’ie.ge–. PW} was working as Health
Inspector at Malurg’ ,. ”
8; E per case of prosecution, incident of abduction of
‘ No.1 took place at 12.30 pm. (afternoon) on
H * –.iIii:=.vfro-nt of JSB Coilege at a of half a
from Meier Police Station. The incident of
A’ ahciucfion took.” “piece VVifl1il’1 ptibiic visiorg. At _.’tif;_e cf. H
incident, PW2 was in the company of her classmates namely
I?’W4–Anitha ané PW6-Radha. As could be gathered from
time and place of incident, incident is alleged to havle”‘t.aken
place when PW2 had come out of college after v:ritlu1ig_’__il’.j’year
B.A.examination. It is obvious that the othe_r’jA’stud_ent’s afteif V’
Writing examination were also rncavinglon, road’ in.fi’ront”of the
college. The incident is alleged to havetaken in m5’1n;0o£
JSS College in a broad at la._l’disti1nlc”eWof half a
kilometer from Malur’JPolice.”Stati.o:n.TPW6 hasladniitted that
people were moving onlthe whenfincident took place.
Even then, none “of the pnljlic~.ven’ftt1i’edlfto prevent abduction
of RW2″byfrgtceilggedil”ixégs.1. twat, who is alleged to have
witnessed. the not inform the Principal of the
college or”t~he’ jiiri-sdictiorfial police. After the incident, none of
.infonned”t’ie—-«tr1atter to juiisdictional police regarding
V a young college girl by accused No.1, which
.0 took place_ oiibroad day light at a distance of half a kilometer
from jurisdictional Police Station. PW1~Rajaiah.C — the father
0 of«–PWO lodged first information at 5 pm. on 11.05.2000.
9. During examination–in–chief, PW6–Radha has deposed;
that on 11.05.2000 at 1.30 p.m., after writing examination,
PW2, PW-4 81 PW6 and others were walking on thewlroad in
front of JSS College and some persons
took PW2 in a car. PW6 informed the matterio; V’
of PW2).
During cross~exarnination, 15\V(5:”has adrnitted
road on which PW2. PW4 were a busy
road and it was at adistance”‘of’h’a.1.l;”a.._kilorne’ter”from Malur
Police Station; there are :_house”sJor_1_:eit_h.er=_side of the road;
though PW6..mised hiue cry,.’rl’i1one”-came to rescue PW2;
PW6: even registration number of TATA Sumo
vehicle; PW2 taken by accused No.1 and others.
PW_6_ has “deposed; is-hlewi/as advised to inform the matter to
PW6 go to Malur Police Station. PW6 has
V deposedi; ivafterone week, PW2 contacted PW6 over phone and
it 2 she had safely returned home.
10. H v.V__l§’W4–Anitha, who is alleged to have witnessed the
V’ ‘V.i_n:cfident, has not supported the case of prosecution. PW-4
was declared as a hostile witness for resiling from her
statement recorded under section 161 Cr.P.C. Even during
crossmexamination by the learned Public Prosecuto_r’}a.PW4
has not given any incriminating evidence aga;ms:’Va¢¢:u_s”ed
No.1.
11. As already stated, PW} lodged 1ri£onn;a:i.;$1§ii*sfirmg
evening on the date of ‘in’c;dent.A’v- first’
information on the basis of ~he’h_ad frofn others.
12. On careful consideration ?of of PW6, I find
that her evid=er’1ce:’does not .si:1spire’.jconfidence. The conduct of
PW6 ‘at”tic1e:itimeiiof in’cid-entdandvafter the incident is highly
unnatural. The PW6 that PW2 was abducted or
forcibly xtalien by No.1 in broad day light from a
_road’Asitt1at.e at a distance of half a kilometer from
‘ .lIV{aluvrV4Police’Station and no body came to rescue PW2 looks
” .ui1natu1’aj}:. per the evidence of PW6, the incident occurred
urithirilyypublic vision. PW6 raised hue and cry and no body
2 it camefllto rescue PW2. PW6 did not go to Police Station to
the incident of abduction of PW2 and PW6 has not
t given reasons for her unnatural conduct. The evidence of
N vcfa
» 10
PW6 that accused No.1 had chosen a crowded road to
abduct PW2 looks improbable. PW6 has deposed;”shef’~had
informed PW1 {father of PW2} soon after
then PW1 had not Eodged first information’inirnrediateiyd.
first information was lodged thefV{iiate:1.c_of
incident. Therefore, the evidence of Laciésffcre.dibi1’ityv.d
the circumstances, we are the «.ei_?iden€te of PW2
{Victim}.
13. PW2–Shat*a,dam.rna”11as the year 2000,
she was__ fB.A in the Junior College at
Malurr from Shettikothanoor to the
co§;1ege..every’-»c1ay;V” accused No.1 was studying in III year BA.
coiiege; 11.05.2000 at 12.30 p.m. (afternoon),
I aftefr-wri.ti1ig-examination, PW2, pwz; 8: PW6 were returning
Ah-omeV_;v’acc.i;1sed No.1 came from her behind; gagged her and
AA forcibigf’ took her in a Tata Sumo vehicle; PW2 was taken to a
‘rhojiise and she was confined in that house for a day;
thereafter PW2 was taken to different places.
Rf ,.;_.,,.
N11 _
14. At this juncture, I deem it necessary to state th,_a’L.PW2
has not deposed that she was abducted by
when she was walking on the road, in frontlV_A4of.phey. ;_o11égfe,;
PW2 has deposed that accused 1 f_c4ame«_gfron1:_.herv
gagged her and forcibly took_h_er inlay Tata Su:rrio’A.vehicle;”this.L
is in contradiction of the evidence of PW.E_i,’v.rho fhaslldeposedl
that not only accused No.1 ;but’some’.other ‘persons forcibly
took PW2 in a car. The evid¢;::e of that accused No.1
alone gagged ‘r:_e_r’*mouth too1~;”h_er’ir2’a Tata Sumo vehicle
looks” it is~.n’ot disputved and cannot be disputed
at theytiinelof .was in the company of PW4 &
PW6 andother’collegeugirls. In the circumstances, accused
15_4lp_d~:.1 not overpowered PW2 to forcibly take her
‘ ;.Va»vay’u_inaeaixwlthin public vision. The evidence of PW2 that
” .accusfec1’V.”r§;of,’}iforcibly abducted her, even then no body came
to her rescue also looks unnatural.
* At this juncture, it is necessary to recall the evidence
of PW6, who has deposed; after one week, PW2″ contacted
PW6 over phone and PW2 informed PW6 that she had safely
i\3c “~13″? ” “”&’*”‘
,. 32 __
returned back. If PW2 had been forcibly taken:.~b§.f’
No.1 against her wish and accused No.1 had.Vforctb1:,f1nax’riee1 K V’
her. PW2 would not have told
returned home.
16. PW2 has deposed; that eaccused»_No.d1 taken her to
a house and urrongfutlyconftneci’ hé1~;Ltvac’cused No.1 took her
to a temple; accused neck: after two
days, lflto 2:3 her near Hosakote.
they were wPW2 has deposed; that
accused ‘edyeh-..o’V’er_’;;V)Vr’operty held and acquired by
PW1: had requested her to marry
hirn. “but P’.W2s refused to marry accused No.1.
1 .cross–exarnination. PW2 has deposed; that she
.’ cannot §ij§reA’o1=the names of places to which she was taken;
PW2. had stayed with accused Nos.1 to 3 for 5-6 days in a
2 AA ‘house”: there was a priest in the temple: when bunch of
flrotographs [seven in number coliectively marked as Ex.D.1)
‘ were confronted to her: PW2 has admitted that those
N on.
_. 13 W
photographs were taken during marriage of accused No.1
and PW2. PW2 has also admitted photographs in
numbers and collectively marked as
taken when PW2 and accused :No’.1.had iotttdifferentdji
places. PW2 has also admitted
marked as Ex.D.2 were takenijxiear 1i”arihar.dVd1§1?i?2:’has’V;denieddd
suggestion that she had fa11e;:3…:1:’Vi1A”1″p’.l.o’VepA.\J£Iith”acflusdd No.1 and
she had consented for accused No.1 and
accused No.1 _n’iarried’dVPW’i?{in”a:’tenip1e..i has not denied
the vt’conten5;,s ‘*pho_t’ographs””vzconfronted to her. Even
otherwise, no case that photographs
coiiectixielydrnarked’.a’s=.1§X.D.1 to I3x.iZ).5 were superimposed
Pfi0t9.3’1’3.PhS’- 1′ . ….. .. «
V tenor of cross–examination of accused No.1, 1
1′ .find thatf’j’ac’cused No.1 has not denied that he was in the
comptanyv of PW2 during relevant period. Accused No.1 has
it Vdnot denied that PW2 and himself had left Malur and had
Visited several places. Accused No.1 has not denied that he
1 tied thaii to the neck of PW2 to marry her. The defence of
f\’:’ \, ”~~- !7″”‘””””€5″‘
_ 14 _
accused No.1 that PW2 and accused No.1 had fallen ___in love
with each other and decided to marry, accort1.ing1yVp:.’PW2
accompanied accused No.1 to a temple and 4_
a marriage. Thereafter, newly wedded 13aVd.4_”Vfisited’a.
different places.
18. Therefore, the crucia1,_:”p_oint.V’that.VV}w.Qu1d”L”arfse for
determination is: —
“Whether “FW2 was a consenting party for
whatever. that was done -by_ ac¢;~..1séd., ‘No. 1 ?”
19. As -}?_W2_’has not bothered to state place
from tizhere PW2 has deposed; that she
waskept houseffor 5-6 days; accused No.1 had forcibly
. th’a1iVh’to her accused No.1 had held out threats to
” “.her’1if’eA._ ” V
“VAs.’xscou1d be seen from the evidence of PW2,
photographs collectiveiy marked as Ex.D.1 to E.x.D.5,
accused No.1 tied a thali to the neck of PW2 in a temple
__ 15 _
within public vision. The marriage had taken place”-«during
day time and a priest had perfonned marriage.
21. As could be seen from the contents;
photographs, apart from marriagewparty’–«consistir;gxVoi’ PW2 7
and accused i to 3 there were other deirotees_–v_of’ternp14e;–~.:lf~it
was a marriage forced upon she. had
to reveal the same to .others”‘tuAd:escdap.e from”the-djclutches of
accused No. 1. The photographs’ marriage would
reveal that .had§_’cVo’–:op:t21’at’et’1’~.fQr’ail the ceremonies that
preceded th ali -her neck.
It’~i.s seerj.’ marriage photographs. some of the
d€}:V’oVtees had blessed accused no.1 and PW2. It is seen
, ..from’.’pho_to’graphs, after accused No.1 tied a thali to the neck
._ accused No.1 had exchanged garlands.
v–..’:A.s’vc’ould be seen from the marriage photographs, PW2
was in a traditional dress and costumes of a bride.
“”._vd’i’l1erefore, evidence of PW2 that accused No.1 held out
W rt.
—- 16
threats to her life and to forcibly marry her isP._high1y
incredible and untrustworthy.
22. It is seen from the evidence of PW2,
accused No.1 & PW2 had visited ldifferenlt l?W2 l 7
admitted that photographs collectiye.ly marlted. as
were taken at Harihar, whicl1..l;iS–.almost. at’.a_”distancelllof 300
kilometers from place of &ll’I>”‘N2″.V: PW2 has
admitted that accusedll\llo’.’l ll1ald.lta}::erl1v”l»’1.ei- in a bus.
23. “As ‘could lseei1,:f1’omlphotographs collectively marked
as _.and PW2 are found moving in
public places like gardens, bus stands and all along PW2
to be l”1’n-..a.n«’ecstatic mood. From the appearance of
‘ alaccuvsved PW2 in photographs collectively marked as
” both accused No.1 8: PW2 appear as newly
wfedded husband and wife. I do not see PW2 in a frightened
it ‘moodlllin any of the photographs. PW2 has not offered any
‘explanation as to how she had moved with accused No.1 to
l different places, without there being any slightest protest or
R}: aglg\.., £’::.§.”L/».____C:£fl*
_ 17 IV’!
demur on her part. PW2 has not given explanation for
moving with accused No.1 in a romantic mood. PW2_)__was in
the company of accused No.1 for a period of seve.n*d:ays”–and
they had visited different places, including
every opportunity to seek help f_rom__pnI;:lic”tog’_’escapepfront_
the clutches of accused No.1. On th.eie’ither_hand.VV
contents of photographs c’o_ll’ectivc’lyv.
Ex.D.5 and conduct of PW2_,___l:1″-.f:ind_pthat jubilant
and ecstatic. PW2 nor Inorosive. It is
obVio’us”‘that, P\il/lf};’lhas.gd’epos.ed:’accused No.1 had held out
threats to married her and took her to
differentlplaces cover up lapses on her part. The
trial t}udvge._i«11 spite of noticing the fact that PW2 has
‘ ;,V’ad.InitVted_’the contents of photographs collectively marked as
has not considered the same for non-
produetion of negatives of photographs. It is not a situation
in ‘where the prosecution had taken any objection for
confrontation of positive photographs to PW2, without the
1 production of negative photographs. The prosecution has no
,x?~_ i::\.vL.– {E-‘V’\w—-C{g¢.. ~
_ 13 __
case that photographs marked as EXD1 to D5 collectively
are superimposed photographs.
24. The learned counsel for appellant/acc’a_:sedp’eNo.1*
produced negatives of photographs rtiarkted _:asAip’1v1§_;.VE:)1–:VtoVd’D5 b T
along with an application under it
25. On comparison of negatixre photogra_phs’1.:aiong
positive photographs~.__co11ective1y Vd’i’narked’V”as”VV’ I3x.D.1 to
Ex.D.5, Ifind the phodtograpiis’Lmarked as Ex.D1
to d”a1″e.:i’.he of utVh’eVflnegatives produced before
Court, it
26. accu_.se’-qlv :I”~Io.~.’1 was examined under section 313
he made a categorical statement that PW2 had
‘ _V’fa11cn_ in’1.oift3___vvith accused No.1 and accused No.1 married
H *:t3\_t/tf”2x’o1i.”.’if1erf:=.ifolition, without any force or threat to her life.
1 did not compel PW2 to marry him.
it ” “‘PW1–Rajaiah.C — the father of ‘PW2 lodged first
hginwformation at 5 p.m., on 11.05.2000. 1;; the first
Irv; ‘–
W 20
conduct and acts of PW2 were in agreement “thfe…Vacts
committed by accused No.1. The evidencewiof
accused No.1 had all along helrl~”‘out.threatsfto_her.’_:i.ifé$.,.AisVif 1′
falsified by her conduct and also lithe’
collectively marked as 5.. It at)’pears”afier PW2 1′
was brought back bythe poli–ce..”PW’-.1’periormedyrnarriage of
PW2 with some other PW2 in order to
keep her marfita_i. status’ in tact has thrown
blame on falselyliddehosing that all along
accused’ N 0:1 threatened”_her life.
29. Qrderlltofyyoffence punishable under section
366 IPC.dp.rosecutioi1 to establish that accused No.1 had
PW2′ w:i.th’ intent to compel her to marry him
‘ ;.V’against< –._will. In order to constitute an offence of
'' .'habductiorrfifnrosecution has to prove that accused no.1 by
forcehad 'compelled PW2 to go with him.
From the evidence on record, I do not find that
accused No.1 had used force against PW2 to go with him. I
fl ="'g;_ p1,~w..c?.£,.\.
— 23.
do not find that accused No.1 had compelled PW2 to marry
him. I do not find that accused No.1 had compelled to
accompany him. PW2 was in the company of
for seven days.
30. The iearned trial
evidence in proper perspec-ii_v’e..__.WithouVt
of parties and referring to vyhich Wouid
constitute an offence–…_of ghelddaccused No.1
guilty of an offence 366 IPC. The
findiif1gs__ oft-…t_ii–al’ Judge is based on improper
appreciation of Ve’ttide4nce’4’and some of the findings on no
evidence. lvfiaough l’Wt£ has not deposed that she was
and photographs collectively marked as Ex.D.1 to
by putting her to fear of iife, the learned
trial has heid that photographs were taken after
pp threatening PW2 with dire consequences to her life. The
V’ * iea-rned trial Judge has failed to notice that there was total
inconsistency between the evidence of PW2 and her conduct
at the time of incident and after the incident. In the
; C,’/’L vufiax ,
– . A jiuagrn¢nt.~ito%
__ 22 _
circumstances, the evidence on record is hardiy sufficient to
hold that accused No.1 had abducted PW2 and:v:c’or:I1;oe{ied
her to marry him. Therefore, the impugned a
be sustained. ~
31. In the resuit, I pass the :i7o11o’\_§vii’ig:d~:d’.’
The appeal is a_c:cepted_.__’_d:’i*:;;:c;_ is set
aside. Accused No.1 afifztffence punishable
under section .366 by accused
No.I_flstandi”carieeiled if accused No.1 had deposited
fine arnount.’ the”4v§a;§ie..:gha11 be refunded to him. Office is
dizjected to ‘-sejridd back? records along with a copy of this
Sfl/3
Iud5g”‘§
SNN