R. Thippesh vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned State Public Prosecutor.

The appellant was the accused before the court below in the following circumstances:

"The complainant was one K.B. Pavitra, who is said to have been aged 17, as on the date of the complaint. It was her case that on 30.4.2007, the appellant herein and seven others had accosted her and had called upon her to join them, as the appellant was registering a new auto rickshaw acquired by him and she had accordingly joined them. The complainant was taken to the office of the Sub-Registrar, Chitradurga and she was called upon to sign certain forms, which she did and thereafter, she, along with the appellant, had boarded a bus to go to Kudligi. It was her case that she was forced to do so by the appellant. Thereafter, they got off the bus at Mallapura village and the appellant had taken her to the house of one Huliyamma and she was kept there from 30.4.2007 to 3.8.2007 and thereafter she had managed to escape from the said place and had returned to the village and thereafter had lodged the complaint."

The complainant was said to have completed her II year Pre-University Course and was attending the tuition classes to take the Common Entrance Test examination, at Sai Sanjeevani College at Chitradurga, at the time of the incident. It was her further case that the appellant with an intention to marry her had kidnapped her and had moved her from time to time along with the support of the other accused.

It is on those allegations that a case has been registered in Crime No. 83/2007 for offences punishable under Sections 143, 366A, 342, 363 read with 149 of the IPC. During the course of the investigation, the appellant and other accused were arrested and thereafter were released on bail. The appellants having been charge-sheeted and after further proceedings, the court below having framed charges, the accused had pleaded not guilty and had claimed to be tried. The prosecution had then examined PWs.1 to 9 and got marked Exhibits P.1 to P.17. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 having been recorded and the parties having been heard, the court below had framed the following points for its consideration which if loosely translated into English, would read as follows:

"1. Whether the prosecution proves beyond reasonable doubt that on 30.04.2007 at 10.30 a.m., when the complainant K.B. Pavitra was proceeding from Talaku village along with one Shwetha, to attend the tuition classes for Common Entrance Test Examination, at Shri Sai Sanjeevani College, they were intercepted by Accused No. 1, near the Railway Gate and on the ground that he wanted to take them for the registration of his new auto-rickshaw, he along with the other accused, had taken them to the Sub-Registrar Office, Chitradurga in an auto-rickshaw bearing No.KA-16A 5283, with the intention of marrying the complainant, and therefore has committed offences punishable under Sections 143 to 149 of the Indian Penal Code, 1860?

Whether the prosecution proves beyond reasonable doubt that on the above mentioned date, time and place, that Accused No. 1 had taken the complainant K.B. Pavitra to the Sub-Registrar Office, Chitradurga and had submitted her attested Transfer Certificate, altering her date of birth from 15.09.1989 to 15.09.1988, and has hence committed offence punishable under Section 468 of the Indian Penal Code, 1860?

Whether the prosecution proves beyond reasonable doubt that on the above mentioned date, time and place, the other accused had kidnapped the complainant without her consent and though knowing that she was a minor, had taken her to the Sub-Registrar Office and got her married to Accused No. 1 by submitting the altered attested Transfer Certificate of the complainant, got all the required documents signed by the Sub-Registrar and has hence committed offences punishable under Sections 366A read with Section 149 of the Indian Penal Code, 1860?

Whether the prosecution proves beyond reasonable doubt that on 30.04.2007 at about 12.30 p.m., the accused had forcibly taken the complainant and one Swetha from Chitradurga Sub-Registrar Office to the KSRTC Bus Stand in the same auto-rickshaw and had made them board a bus going to Kudligi and whether they were forcibly, without their consent, taken to Voddaramallapura Village of Sondur Taluk, and confined in a house and hence, the accused had committed offence punishable under Sections 363, 342 read with Section 149 of the Indian Penal Code, 1860?"

The Court below had answered point No. 1 and 4 in the negative and points 2 and 3 were held in the affirmative.

The accused was convicted and sentenced to undergo simple imprisonment for 5 years and to pay a fine of Rs.10,000/- for the offence punishable under Section 366A, IPC and to undergo simple imprisonment for 3 years and to pay a fine of Rs.5,000/- for the offence under Section 468, IPC.

It is that which is under challenge in the present appeal.

The learned Counsel for the appellant would point out that the very allegations are far-fetched and cannot be accepted. The claim that the complainant was forcibly called upon to accompany the appellant, on the pretext that he was registering his auto rickshaw and thereafter she having gone to the Sub-Registrar''s office and having signed several forms, would itself indicate that the allegations were utterly false. On the other hand, it is on record that the appellant had married the complainant and the Sub-Registrar had issued a Certificate of Registration of marriage on the said date, which is falsely claimed by the complainant as being in relation to the registration of an auto rickshaw.

Secondly, the registration of marriage requires certain steps to be taken even prior to such registration and it is only if the complainant had joined the appellant in making such applications and taking such steps, that it was even possible for a Certificate of Registration to be issued on the particular day, which the complainant has herself admitted. Therefore, the allegation that the complainant was abducted forcibly and was taken in public transport to several places and she was made to reside for almost one month in the house of one Huliyamma, is also to be viewed with circumspection. For it was not possible for the complainant to be detained in a village openly for long, without she raising alarm or calling out others and this aspect has, in fact, been taken into account by the trial court and has come to the conclusion that there was no force employed by the appellant in taking away the complainant from the custody of her parents on the footing that she was minor and that she had taken away from the custody of her without the consent of the guardian.

The learned Counsel would point out that the court has embarked on a controversy as to whether the date of birth as disclosed in the Transfer Certificate of the complainant was in fact in order and has proceeded to hold that the date of birth has been tampered in Exhibit P.3, which is the Transfer Certificate produced by the appellant at the time of applying for registration of their marriage, which has been produced into court by the Sub-Registrar. It is pointed out that the court below has embarked on an inquiry into the veracity or otherwise of the date of birth of the complainant in relation to Exhibit P.8, which was a Certificate issued by the Head Master, where the complainant had studied from 8th Standard to 10th Standard, vis-�-vis Exhibit P.3, which was the transfer certificate indicating the date of birth of the complainant as 15.9.1988. Where as Exhibit P.8 issued by the Head Master of the School indicated the date of birth as 15.9.1989. The court below has readily accepted Exhibit P.8 and has negated Exhibit.P3. and has formed an opinion that the date of birth indicated in Exhibit P.3, was tampered by the appellant and therefore has concluded that the appellant had committed offences punishable under Section 366A and 468 of the IPC. The learned Counsel would submit that the assumption that there was tampering in Exhibit P.3 is unjust and unfair and even on an initial examination, it may be seen that there is no such suspicion that could be raised as seen from the figures even apparent from the photo copy of the original which is part of the record. The learned Counsel would further point out that the date of birth is shown in words, which is in the same handwriting as the handwriting in the other parts of the said document and it could not be then held that there was tampering of the date of birth. The Certificate issued at Exhibit P.8, by the Head Master of the School, was apparently a Certificate issued subsequent to the complaint having been filed and at the instance of the Investigation Officer. The unfortunate circumstance that the Head Master had not been cross-examined in eliciting further details aside, the fact remains that there is a glaring circumstance, as apparent from Exhibit P.3, itself, which has been overlooked by the court below. It is pointed out that the document records that the complainant had passed her SSLC in June 2005. It is the rule governing permission by the Secondary School Examination Board to permit a candidate taking the SSLC examination only on attaining the age of 16. Assuming that the age of the petitioner was 16 in June 2005, she was beyond 18 as on the date of the alleged offence. Therefore, ignoring the fact that there was no tampering of the document Exhibit P.3, it has been unfairly held against the appellant. Going by the other material which is available on record, it could not be said that there was any such tampering. In any event, there is a valid marriage as evidenced by the Certification of Registration of Marriage, which is available on record. Therefore, the court below having opined that there has been tampering with the document, namely, Exhibit P.3, could not have held that the appellant was not married to the complainant, notwithstanding the nebulous complaint that has been filed apparently at the instance of her parents, who were peeved by the fact that he had married the appellant without their knowledge and consent. Therefore, the learned Counsel would call upon the court to take a pragmatic view of the material that is available on record and would draw attention to the findings of the court below, to the effect that there was no force or other criminal intent in taking away the appellant who was a major as on the date of the alleged incident, as is apparent from other material on record and the court below itself having held that there was a serious crime committed and having further opined that Exhibit P.3 was tampered has come to an unjust conclusion that the appellant was guilty of offences punishable under Sections 366A and 468, IPC, visiting him with a stringent punishment of imprisonment for 5 years and payment of fine as well. The learned Counsel, therefore, seeks that the petitioner be acquitted in the light of the glaring circumstances that are apparent from record.

The learned State Public Prosecutor, on the other hand, would seek to impress upon this court that there is sufficient evidence to disclose that the complainant had been taken away from the lawful guardianship, without the consent of her guardian and hence, an offence punishable under Section 363, IPC is at least made out. However, it is to be noticed that the conviction is for offences punishable under Sections 366A, IPC and 468, IPC, which as rightly pointed out by the appellant, for all the reasons stated above, are not forthcoming. Therefore, there is an unfair and unjust finding against the appellant as to the appellant having tampered with Exhibit P.3, when there were other surrounding circumstances, would not advance the said case, as there was willful participation of the complainant in seeking the registration of their marriage and she having accompanied the appellant to various places and having stayed with him for a long period of time before returning home and possibly being pressurized by her parents to bring a criminal case against the appellants. Therefore, the appellant has made out a case for acquittal.

Hence, the appeal is allowed. The judgments of the court below is set aside. The appellant is acquitted. The fine amount, if any, shall be refunded to the appellant. The bail bond, furnished by the appellant stands cancelled.