Saleem alias Mahammedsaleem vs The State of Karnataka

K.N. Phaneendra, J.—The appellant called in question the Judgment of conviction and sentence passed by the Fast Track Court-II, Dharwad in S.C. No. 101/2011 in convicting the appellant for the offence u/s 363 of I.P.C. and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- in default to undergo rigorous imprisonment for two months. The case of the prosecution against the accused/appellant is that, the accused on 06.05.2010 at about 12.00 noon near Bengeri Khadi Gramodyog Centre, Hubli, knowing fully well that the complainant''s daughter victim girl was a minor, induced her and kidnapped her with an intention to marry her and thereby committed an offence punishable u/s 366(A) of I.P.C. After the charge sheet being filed and after securing the accused, the learned Sessions Judge framed a charge against the accused for the above said offence and proceeded with the trial.

In order to prove the guilt of the accused, the prosecution has examined as many as 12 witnesses and got marked Ex. P1 to P9 and MOs 1 and 2. Ex. D1 is the relevant statement given by the victim girl before the Police. After analysing and appreciating the evidence on record, the learned Sessions Judge arrived at a conclusion that the prosecution has failed to prove the case against the accused for the offence u/s 366(A) of I.P.C. beyond reasonable doubt, and recorded such finding. However, the Trial Court came to the conclusion though the prosecution failed to prove the guilt of the accused u/s 366-A of I.P.C. nevertheless there was sufficient materials to show that the accused had committed an offence u/s 363 of I.P.C. Therefore, the Trial Court has convicted the accused for the said offence and sentenced him accordingly.

The learned Additional State Public Prosecutor submitted that there is no State appeal preferred against the orders of the learned Sessions Judge in not recording the judgment of conviction and sentencing the accused for the offence u/s 366(A) of I.P.C. Therefore, there is no need for this Court to go in detail dwell upon the materials on record so as to find out whether the Trial Court has committed any error in not recording the conviction against the accused for the offence u/s 366(A) of I.P.C. However, this Court is bound to look into the materials on record only in order to ascertain whether the Trial Court is correct and right in convicting the accused for the offence u/s 363 of I.P.C. and sentencing him accordingly.

I have carefully perused the evidence of the prosecution witnesses so far it relates to the offence u/s 363 of I.P.C. Before adverting to the evidence of the relevant witnesses PWs 8 and 9 and Investigating Officer and other documentary evidence available on record, it is just and necessary to bear in mind the observations made by the Trial Court in recording the conviction against the accused for the above said offence. The Trial Court in its judgment at para 35 has narrated that:

the date of birth of victim girl as stated by PWs 8 and 9 is 07.06.1993 and the said fact is not at all denied by defence during the cross-examination of PWs 8 and 9. The alleged incident took place on 06.05.2010, so, it will be clear that as on 06.05.2010 the victim girl was below 18 years and she was a minor girl. It is stated that the evidence of PW-12-the Investigating Officer on record to the drawing up of panchanama-Ex. P3 and also Ex. P2 were unchallenged. Therefore, the evidence of these two witnesses shows that the victim girl was below the age of 18 years. The Trial Court has also observed that the prosecution has not proved the ingredients of Section 366 of Indian Penal Code, 1860, but the ingredients of Section 363 of IPC has been proved.

It is to be borne in mind that, in order to convict the accused u/s 363 of I.P.C., the prosecution shall prove the alleged offence against the accused beyond all reasonable doubt. The charge sheet filed by the Police show that the offence alleged against the accused is only u/s 366(A) of I.P.C. Section 366(A) of I.P.C. also defines that any minor girl under the age of eighteen years was induced to go from one place to another or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person then only the accused is liable for punishment under the said provision of law. Section 363 of I.P.C. also prescribes-Punishment for the offence of kidnapping. In order to prove kidnap, one should bear in mind the definition clause u/s 361 of I.P.C., which reads as follows:

Kidnapping from lawful guardianship. 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.

In order to prove the offence under these provisions invariably prosecution has to prove that the age of the kidnapped victim was below the age of 16 years if he is male and below 18 years if victim is a female and if a person kidnaps such minor without the consent of such guardian is said to kidnap such minor, from lawful guardianship. Now, the prime ingredient in order to prove the kidnap is the age of the person who is kidnapped. The prosecution has to prove beyond all reasonable doubt so far as it pertains to this case is concerned that the said girl who was subjected to kidnap was below the age of 18 years. The learned Sessions Judge has only relied on the evidence of PWs 8 and 9-father and mother of the victim girl and stated that those persons have stated in their evidence that the age of the victim girl was 17 years as on the date of the offence and this particular portion of the evidence has not been denied by the accused. Therefore, virtually it has been taken as an admission on the part of the accused, whether such an observation made by the learned Sessions Judge that it amounts to an admission on the part of the accused is proper is to be looked into by the Court.

Before adverting to this particular aspect, first let me have a look at the evidence of PWs 8 and 9. PW-8 Mr. Raju Hemanth Reddy-father of the victim girl has deposed before the Court that the victim born on 07.06.1993, when she left the house in connection with this case she was aged 17 years he has also stated that he has given the xerox copy of the birth certificate to the Police at the time of investigation. So far as this particular aspect is concerned, the evidence is so deficit and inadequate to show that on what basis this person is deposing that her date of birth is 07.06.1993. Neither the said birth certificate is produced before the Court nor any other documentary evidence has been placed before the Court by the prosecution in order to prove the age of the victim girl. It is also there in the evidence of this witness that the said girl was studying in the College, that shows that there must be documentary evidence i.e. S.S.L.C. Marks Card, it would have exactly shown the age of the victim girl. But none of the documentary materials have been placed before the Court in order to prove the age of the victim girl.

Of course, except the total denial by the accused, there is no specific denial so far as this particular portion of the evidence of PW-8 is concerned. PW-9 as could been seen with the evidence, she has also stated that the said victim girl born on 07.06.1993 and she was aged 17 years. Again, in the course of cross-examination, this portion is not specifically denied, but nevertheless the total case of the prosecution has been denied by the accused. It goes without saying that only on the instructions of the accused, the learned Advocate appearing for the accused has cross-examined the victim girl, but the question put during the course of cross-examination by the defence Counsel or if there is any deficiency in putting any questions by the defence Counsel, in my opinion, cannot be taken as an admission on the part of the accused.

The Indian Evidence Act defines what is an admission. Section 17:

An admission is a statement, oral or documentary or contained in electronic form, which suggests any interference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances, hereinafter mentioned.

Therefore, the admission should be in the nature of a submission oral or documentary. Here, in this case, whether it means the oral admission on the part of the accused is the important aspect to be taken into consideration. The admission by an Advocate even accepting that by means of cross-examination, some thing has been admitted by the Advocate, whether it can be taken as an admission. It is a recognized principle of law that any suggestions put in the cross-examination do not amount to admission. A suggestion put to prosecution witnesses during the course of cross-examination of defence Counsel cannot be used as an implied admission so as to dispense with the proof of such fact relied upon by the prosecution. The statements of the prosecution witnesses in a case like this that the victim girl was aged less than 18 years does not mean that the accused admitted the offence and subjected for consent for conviction u/s 363 of I.P.C.

It is also worth to note a decision of the Hon''ble Supreme Court, which is reported in Ram Murti Vs. State of Haryana, wherein it is said:

The question of age of the prosecutrix in case under Sections 363, 366 and 376 of I.P.C.

Bare statement in this regard is not sufficient, there should be corroboration of some material particular from some independent source in proof and school certificate would be relied upon.

In this particular case, the bare statement of PWs 8 and 9 have been believed by the learned Sessions Judge. In my opinion, the learned Sessions Judge has committed serious error in not subjecting the said bare oral statements of PWs 8 and 9 with other materials on record. The learned Sessions Judge has observed that the said statements of PWs 8 and 9 has not been denied and therefore reliable for acceptance. But the statement of the accused recorded u/s 313, Cr.P.C. so far as the evidence of PW 9 pertaining to the age of the victim girl has been put to the mouth of the accused, and the said suggestions that the victim girl was aged 17 years as on the date of the offence as per the evidence of PW-9 has been specifically denied by the accused. The statement of PW-8 to that extent has not at all been put to the mouth of the accused, that goes to show that the accused has denied the statement of PW-8 during the course of 313 Statement. Therefore, it cannot be said that at any stretch of imagination it is as an unequivocal admission on the part of the accused.

It is worth to note here that, even the evidence of the Investigating Officer does not disclose that he has made any effort to ascertain the age of the victim girl in any other manner. Though PW-8 has stated that he has produced the xerox copy of the birth certificate to the Investigating Officer, but no such document is produced before the Court in that regard. The Investigating Officer has not at all got the victim girl medically examined in order to ascertain the age of the victim girl. The only document available to the prosecution is Ex. P8 which is the examination of Forensic Medicine Department, KIMS, Hubli, the report pertaining to the victim girl. This document also does not disclose what was the age of the victim girl on the date of the offence. So many other factors have been narrated in the said document with regard to her physical features, etc., but the age of the girl is conspicuously absent. The Investigating Officer has not taken pains to secure any school certificate nor any medical certificate pertaining to the age of the victim girl. The learned Sessions Judge only on the basis of oral statement of PWs 8 and 9 convicted the accused for the offence punishable u/s 363 of I.P.C. Even accepting that there is no denial in the course of cross-examination of PWs 8 and 9 so far as the age of the victim girl is concerned. At any stretch of imagination, it cannot be taken as an unequivocal and free admission of the accused and it will not absolve the prosecution from otherwise proving the age of the victim girl that she was below the age of 18 years as on the date of commission of the alleged offence by the accused in order to prove the case u/s 363 of I.P.C. beyond all reasonable doubt.

It is well founded principle that any admission of the accused it should be on par with confession of the guilt, if not, such an admission of a fact in issue or a relevant fact can''t be made sole basis for conviction, unless corroborated by other materials on record.

In view of my above said observations, inevitably it has to be held that the Trial Court has committed a serious error in drawing inference only on the basis of the statements of PWs 8 and 9. Hence, the judgment of conviction and sentence deserves to be set aside. In view of the same, I proceed to pass the following Order:

The Criminal Appeal is hereby allowed. Consequently, the judgment of conviction and sentence passed by the Fast Track Court-II, Dharwad sitting at Hubli in S.C. No. 101/2011 is hereby set aside. The accused is hereby acquitted of the charges levelled against him u/s 363 of I.P.C. The bail bonds executed by the accused and the surety are hereby cancelled.

If any fine amount is deposited by the accused, the same is ordered to be refunded to the accused.