C.A. Lokesh vs State

N. Ananda, J.—The appellant (accused) was tried for offences punishable under Sections 366 and 376 IPC. The learned Sessions Judge has convicted the accused for offences punishable under Sections 366 and 376 IPC. Therefore, he is before this court. I have heard Sri. Shankarappa, learned counsel for accused and learned Government Advocate for the State.

The accused was tried for the aforestated offences on the allegations that on 22.11.2004 at about 8.00 a.m., the accused kidnapped the victim (P.W. 3) when she was waiting for the bus near KEB circle in Hoskote town, with an intention to seduce her, thereby committed an offence punishable u/s 366 IPC. The accused kidnapped the victim and committed rape on her house in the house of Nagaraju on 25.11.2004, thereby committed an offence punishable u/s 376 IPC.

P.W. 1-Nagaraja and P.W. 2-Narayanamma are the parents of victim. From the tenor of cross-examination of victim, her parents and also from the documents (photographs produced by the accused) I find that accused has not disputed that he was in the company of victim on the aforestated dates. The accused has contended that they had fallen in love and the victim had accompanied him on her volition. The accused married the victim. They stayed as husband and wife for few days till they were apprehended by the police. The accused has relied on the photographs marked as Ex. D2 to D9.

The victim (P.W. 3) has deposed; during the year 2004, she was studying in Xth Standard in Sri Vivekananda Vidya/Kendra at Hoskote; she was travelling from her native place Cholappanahalli to attend the school. Besides attending the school, she was also attending tuition classes; on 22.11.2004, at about 6.00 a.m., or 6.15 a.m., she left her native place to attend tuition classes at Hoskote; after completing tuition classes, she came near KEB Circle to catch a bus to go to her village; at that time, accused came and held her hands and asked her to elope with him to marry him; the victim resisted; the accused closed her nose and made her to inhale some sedative and she lost her consciousness; she regained consciousness when she was travelling in a bus; the victim and accused reached Anekal bus stand; accused took the victim to his friends house; they stayed in that house till 09.12.2004. The accused was troubling her; the accused forced and committed rape on her; the accused came to know that the father of victim had informed a Television channel; on 09.12.2004, accused took the victim to Nandagudi Police Station; later, she was taken to Hoskote Town Police station; she lodged the first information as per Ex. P3; her statement (first information) was recorded; she was examined by the Doctors in Government Hospital at Hoskote; she was sent to remand home; on 22.01.2005, her parents took her to the house of her uncle from the remand home.

During cross-examination, P.W. 3 (victim) has admitted that her father (P.W. 1) was running a provision store in a building belonging to accused; she was acquainted with the accused; he is also from her native place; accused was a cable operator; he was visiting the house of victim to check the cable; she had acquaintance with the accused; she had denied the presence of others near KEB circle from where accused took her; before the victim was taken from that place she had spoken with the accused for about 2-3 minutes; she did not raise hue and cry to escape from the clutches of accused; the house in which they were staying at Anekal was one among three houses in a row. When the victim was confronted with photographs marked as Ex. D2 to D.9, she has admitted that photographs were taken when the ceremonies were performed in connection with the marriage of accused and victim. She has admitted that all necessary ceremonies of marriage were performed and the photographs were taken at that time.

During cross-examination of victim and the investigation officer, we find that incriminating evidence given by the victim that accused forcibly took her from KEB Circle at Hoskote and forcibly committed rape on her are found to be omissions are omitting to material contradictions.

In view of specific defences taken by the accused, the crucial point for determination is:

1) Whether the victim was a minor on the date of incident?

2) Whether the accused had forcibly kidnapped the victim?

The prosecution has not adduced satisfactory evidence in proof of age of victim. The prosecution has relied on the documentary evidence (Ex. P2 and P17) said to have been issued by the Head Mistress of Vivekananda Vidya Kendra. The prosecution has examined P.W. 17 to prove the contents of Ex. P2 and P17.

P.W. 17-Jalajakshi has deposed; that she was working as Head Mistress in Vivekananda Vidya Kendra High School at Hoskote since 12 years prior to 2007; on verification of admission register, she had issued certificate as per Ex. P17.

During cross-examination, P.W. 17 has admitted that police had not contacted her to collect the certificate marked as Ex. P17. She has admitted that Ex. P17 was written on the Letter Head of school, so also, Ex. P2. Ex. P2 and P17 are written on different Letter Heads. Ex. P2 was issued by the clerk byname Usha. P.W. 17 has not stated that Ex. P17 was prepared after perusing the entries in the school admission register. She has further admitted that as per the contents of Ex. P2, the victim was admitted to school in the year 2002-03.

From the contents of Ex. P2, we find that it was issued on 20.12.2004. This document is styled as "Date of Birth Confirmation Certificate". The author of this document was not examined before the trial court. The document (Ex. P2) does not indicate that this was prepared after perusing the school admission register. Ex. P2 is not an extract of school admission register. As per this document, the victim was admitted to Vivekananda Vidya Kendra in the year 2002-03.

The contents of document marked as per Ex. P17 do not reveal that this document was prepared after going through the contents of school admission register. The document (Ex. P17) styled as "Date of Birth Confirmation Certificate" was issued on 20.02.2007. The final report was filed on 17.04.2006. Obviously, this document was not filed along with the final report. The investigation officer has not stated the circumstances under which the document was collected. It is also not clear whether the document was furnished to the accused. Above all, this document is not the extract of school admission register when the victim was admitted to I Standard. The document refers to admission of victim during the year 2002-03. This document was issued by Vivekananda Vidya Kendra High School, which is a private school.

The prosecution has not produced the extract of school admission register when the victim was admitted to Ist Standard in the Primary School. The contents of these documents are hardly sufficient to hold that victim was born on 31.07.1998 and as on the date of offence, she was less than 18 years of age.

In a decision reported in Ravinder Singh Gorkhi Vs. State of U.P., , the Supreme Court has held:--

We have not been shown as to whether any register was required to be maintained under any statute We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was admitted therein, cannot be relied upon.

In a decision reported in Umesh Chandra Vs. State of Rajasthan, the Supreme Court has held that, if a public school maintains a register in the ordinary course of business, the same would be admissible in evidence.

The investigation officer had not subjected the victim to ossification test. The father of victim namely P.W. 1- Nagaraja and the mother of victim namely P.W. 2- Narayanamma have deposed; that during the year 2004, their daughter was aged about 16 years.

It is true that evidence of parents regarding age of victim bears evidentiary value. The entry in school admission register (documentary evidence) is the primary evidence of the fact. The evidence of parents relating to age of victim is only approximate. Even their evidence does not reveal that victim was less than 16 years of age. The victim had several opportunities to escape from the clutches of accused. Even after the victim was produced before the jurisdictional Magistrate, she was not willing to join her parents. Therefore, she stayed in the State Remand Home till 22.01.2005 and thereafter, she had gone with her parents. The evidence of victim that she was forcibly taken by accused No. 1 when she was waiting for a bus near KEB Circle on the date of incident does not inspire confidence. The victim had several opportunities to escape from the clutches of accused. She had not offered resistance. The victim has put forth a false story that accused had made her to inhale some sedative and she became unconscious.

The victim has deposed that she was staying in the house of relatives of accused for three days and she has not stated that she had made efforts to escape from the clutches of accused. She had not informed the inmates of house that accused had forcibly brought her. The photographs marked as Ex. D2 to D9 would reveal that accused had married the victim in a temple. The victim has put forth a version that she was not aware when necessary ceremonies were performed in connection with marriage of accused and victim. The silence of victim all through would lead to an inference she was a consenting party for what was being done by the accused. Even according to the evidence of parents, the victim was aged more than 16 years at the time of incident. Therefore, the possibility of victim being a consenting party for what was being done by the accused cannot be completely ruled out.

In the discussion made supra, I have held that the prosecution has failed to prove that victim was less than 16 years of age. Even if the evidence of parents of victim is accepted, that victim was more than 16 years of age. The accused cannot be held guilty of an offence punishable u/s 376 IPC as the conduct of victim would indicate that she was a consenting party.

In a decision reported in S. Varadarajan Vs. State of Madras, , the Supreme Court has held:--

The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father''s guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of S. 361 of the Indian Penal Code:

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 said to kidnap such minor or person from lawful guardianship.

It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.

It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father''s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

In the case on hand, the evidence adduced by prosecution reveals that, on the date of incident, victim had not gone to tuition classes. She was waiting near KEB Circle at Hoskote. When the accused came there, she had accompanied him on her volition. Later, she has given false version that she was forcibly dragged by the accused within public vision and the accused had made her to inhale some sedative and she became unconscious. Even after regaining consciousness, she was comfortably staying with the accused without any resistance and without making any efforts to escape from the clutches of accused. When the victim was confronted with the photographs marked as Ex. D2 to D9 which were taken during the marriage of accused and victim, she feigns her ignorance. As could be seen from the contents of photographs marked as Ex. D2 to D9, the victim was jubilant when necessary ceremonies were performed in connection with marriage of accused and the victim.

The learned Sessions Judge without properly appreciating the evidence on record and without adverting to the basic ingredients necessary to prove offences punishable under Sections 366 and 376 IPC, convicted the accused. Therefore, the impugned judgment cannot be sustained. In the result, I pass the following:

ORDER

The appeal is accepted. The impugned judgment is set aside. The accused is acquitted of offences punishable under Sections 366 and 376 IPC. The bail bond executed by the accused stands cancelled. If accused has deposited fine amount in terms of the impugned judgment, same shall be refunded to him.