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Judgment
Subhash B. Adi
Appeal by the accused Nos. 2 to 5 against the judgment of conviction for an offence punishable u/s 366 of the Indian Penal code in S.C. No. 100/1999 dated 7th October 2005 on the file of Fast Track Court-IV, Kolar.
Accused Nos. 1 to 7 were charge sheeted by Srinivasapur Police for an offence punishable under Sections 363, 366 and 114 of the Indian Penal Code.
Case of the prosecution is that, on 21.2.1997 at about 8.00 a.m.. PV/-2 - Bharathi - victim, the daughter of PW-1 was going along with PW-7 - Kalavathi and PW-9 - Sharada to college at Srinivasapur from Kallur village. They boarded the bus from Kallur village to Srinivasapur. The distance between Srinivasapur bus stand to the college was about one kilometer. When they got down at Srinivasapur bus stand at about 8.00 a.m., they saw a car parked, accused No. 1 - Reddappa, who is known to PW-2 and who was also from the same village, came from the said car, gagged her mouth and forcibly took PW-2 in the car to a place called Navadi village in Hosur taluk, Tamil Nadu and kept her in the house of accused Nos. 6 and 7. PWs 7 and 9, who saw the incident, went to the house of PW-1 -mother of the victim, informed her that accused No. 1 and others have kidnapped PW-2. PW-1 went to Srinivasapur Police Station. Srinivasapur Police recorder her statement at 10.15 a.m. and registered the case in Crime No. 42/1997 for an offence punishable u/s 363 of IPC. PW-15 -Narayanappa, Investigating Officer engaged P.C. No. 88 and P.C. No. 470 in search operation of the accused. Police Constables No. 88 and 470 with the help of the brother of PW-2 - victim went to the place of accused Nos. 6 and 7. By that time, accused No. 1 had got the information that PW-1 had filed the complaint. When the Police went to the place of accused Nos. 6 and 7, they found the victim and accused Nos. 1 to 3 in the said house. The Police arrested accused Nos. 3 to 3 and brought the victim to the Police Station and produced before PW-15. PW-15 took the accused into custody and recorded the statement of the victim, he produced accused before the jurisdictional Magistrate on 24.2.1997, however, accused Nos. 4 to 7 were not arrested, Accused Nos. 4 to 7 obtained anticipatory bail and appeared before the Police. Police on investigation filed the charge sheet against accused Nos. 1 to 7.
Learned Magistrate committed the accused to the learned Sessions Judge (Fast Track Court-IV, Kolar). On committal. learned Sessions Judge after securing the presence of the accused framed the following charges for the offences punishable under Sections 363, 366 and 114 of the Indian Penal Code:
That you, A-1 to A-3 on 21.2.1997 at about 8 p.m. while CW-2 Kum Bharathi D/o Narayanoppa, near Government Girls Pre-University College, Srinivasapur you A1 to 3 kidnapped along with split up accused 2 to 5 abducted CW-2 Kum. Bharathi 18 years girl in a car hewing No. KA-02/M-246 with an intention to marry her by you A-1 and thereby you have committed an of fence punishable under Sec. 363 of IPC and within the cognizance of this court.
Secondly, on the said date, place and time, you A-1 to A-3 (along with split up accused No. 4 to 7) (absconding accused) kidnapped CW-2 Kum. Bharathi, 18 years girl in a car bearing Reg. No. KA-02/M-246 with a view to marry her by you A-1. and finally you A-1 married CW-2 Kum. Bharathi by tying ''Thali'' to her neck in a temple situated at Savadi Village in Tamilnadu district without her consent and therereby you have committed an offence punishable u/s 366 of IPC and with in the congnizance of this court.
Thirdly, on the said date, place and time, you A-6 and A-7 instigated A-1 to marry CW-2 Kum. Bharathi 18 years girl and in pursuance of your instigating you A-1 (along with absconding accused No. 2 to 7) kidnapped the said girl in a above slated car by reaching Savadi Village in Tamilnadu district and forcely marry her by tying Thali on her neck and thereby you have committed an offence punishable u/s 114 of IPC and within the cognizance of this court
The prosecution to prove the charge examined PWs-1 to 17 and marked Exs. P1 to P12 and produced M. Os. 1 to 11. On the defence side, portion of the statement of PW-2 - victim was marked as Exs. D1 and D2.
During the course of the trial, accused No. 1 absconded and the trial was held only against accused Nos. 2 to 5. From amongst the witnesses examined, PWs-7 and 9, the eye witnesses have not supported the case of the prosecution, however, PW-1 - mother of the victim and PW-2 -victim have supported the case of the prosecution.
Trial court held that, accused No. 1 with intention to many the victim PW-2, he along with accused Nos. 2 to 5 had kidnapped PW-2 and had kept her in the house of accused Nos 6 and 7 and held that the accused Nos. 2 to 5 are guilty of the offence punishable u/s 366 of IPC and accordingly, sentenced with five years'' R.I. and fine of ` 5,000/-each, in default, to undergo R.I. for one year. It is against the said judgment, accused Nos. 2 to 5 are before this Court.
Heard Sri. B. Anand, learned Counsel for the appellants - accused Nos. 2 to 5 and Sri. Srinivasa Reddy, learned Government Pleader for the State.
Learned Counsel for the appellants submitted that, the eye-witnesses PWs-7 and 9 have not supported the case of the prosecution. Even according to PW-15 - Investigating Officer, he had engaged two Police Constables for search of the accused, however, only accused Nos. 1 to 3 were found with the victim, accused Nos. 4 to 7 were not found in the house of accused Nos. 8 and 7. PWs-1 and 2 both have consistently stated that, accused No. 1 is known to them. He is from the same village and accused Nos. 2 to 5 are not known to PWs-1 and 2. The prosecution has not conducted test identification parade nor there is any identification of accused Nos. 2 to 5. The prosecution has not proved that the accused Nos. 2 to 5 were the persons accompanied accused No. 1. In the absence of the test identification parade, the prosecution has failed to prove the charge against accused Nos. 2 to 5. He also submitted that, there is no evidence much less evidence of victim that the accused No. 1 or the accused Nos. 2 to 5 had compelled PW-2 - victim for marriage or otherwise to attract the provisions of Section 366 of IPC. Relying on this evidence, learned Counsel submitted that, the prosecution having utterly failed to prove the charge, the trial court was not justified in convicting these accused.
On the other hand, learned Government Pleader submitted that, when there is evidence of PW-2, who is victim and who was forcibly taken in a car by accused No. 1 and she has travelled along with accused Nos. 2 to 5 and the evidence of PW-2 - victim shows that accused Nos. 1 to 5 were also staying in the house of accused Nos. 6 and 7 and Police arrested all the accused from the said house and further, she has also stated that, she has identified all the accused and further she has also stated that, accused No. 1 kidnapped her with intention to marry, this evidence is sufficient to prove the ingredients of provisions of Section 366 IPC and are fully proved.
The entire case of the prosecution is dependent on the evidence of PWs-1, 2, 7 and 9 and PW-15 (Investigating Officer). PW-1 has stated that, PWs-7 and 9 came and informed her that PW-2 has been kidnapped by accused No. 1. There is no doubt as regard to the identity of accused No. 1, as he is from the same village and known to PWs-7 and 9 and also PW-1, However, PW-1 has categorically stated that, she does not know accused Nos. 2 to 5. She also does not know the place from where they come. She has pleaded ignorance as far as accused Nos. 2 to 5 are concerned. Hence, the entire case of the prosecution is dependent on the evidence of PWs-2 and 15. PW-15 - Investigating Officer in his evidence has stated that, he engaged two Police Constables for the search of accused and Police Constables produced accused Nos. 1 to 3 before him and accordingly, he had produced them before the learned Magistrate. The evidence of PW-15 is corroborated with the remand order that accused were produced by PW-15. PW-2 - victim has also stated that, accused were arrested in the house of accused Nos. 6 and 7, however, she has stated accused Nos 1 to 5, but accused Nos. 1 to 5 were not arrested and produced before PW-15, only accused Nos. 1 to 3 were produced. Subsequently, accused Nos. 4 to 7 approached the court for anticipatory bail and on securing anticipatory bail, they appeared before the Police.
Though there is no test identification parade, however, PW-2 is the victim and she has stated that, on 21.2.1997 at 8.00 a.m., she was kidnapped by accused Nos. 1 to 5. She was secured on 23.2.1997. Her evidence shows that, she has stayed one night in the house of accused Nos. 6 and 7. Her evidence also shows that, accused Nos. 1 to 5 were also with her. It further shows that, when accused No. 1 came to know that the complaint is filed, accused were discussing to leave the victim and go. The evidence of PW-15 shows that, along with victim, accused Nos. l to 3 were present and they were arrested and victim was also brought to the Police Station. Though PW-2 has been cross-examined, but nothing has been suggested as regard to the identity of the accused. PW-2 - victim identifying the accused cannot be doubted and she has identified the accused Nos. 2 to 5 in the court. It is not the case of the defence that the accused were shown to PW-2 earlier and she had identified them in the court. In natural course, she has identified accused Nos. 2 to 5. The evidence of PW-2 proves that, she had been kidnapped by accused Nos. 1 to 5. It proves that, accused Nos. 2 to 5 were also accompanying accused No. 1.
However, PW-2 in her evidence has stated that, she was kidnapped by accused Nos. 1 to 5 i.e., accused No. 1 kidnapped her with the support of accused Nos. 2 to 5 and she has also stated that, accused No. 1 intended to ninny her, but she has not stated that accused No. 1 was forcing her to marry or he had compelled her to marry, it only shows that accused No. 1 had kidnapped her and kept in the house of accused Nos. 6 and 7. Whether the accused had compelled her to marry or not, is not forthcoming from the evidence, except stray sentence that accused No. 1 intended to marry her. If the evidence of PWs-2 and 1 is considered, PW-1 in her cross-examination has stated that, accused No. 1 is like her son-in-law, they are related and the is from the same village. It is in these circumstances, it is doubtful whether accused No. 1 was compelling PW-2 to marry him. however, the evidence shows that PW-2 was kidnapped by accused Nos. 1 to 5.
In view of this evidence, one of the ingredients required to prove the offence u/s 366 of IPC that, the accused must have compelled the victim to marry, has not been proved. There is no evidence to show that the accused had compelled PW-2 to marry accused No. 1. No doubt, the evidence proves that the accused Nos. 1 to 5 had kidnapped PW-2.
Hence, in my opinion, the trial court though rightly held that the accused Nos. 2 to 5 along with accused No. 1 had kidnapped the victim, but erred in holding that the prosecution has proved the charge for offence punishable u/s 366 of IPC. Hence, the entire evidence only proves the offence punishable u/s 363 and not Section 366 of IPC. Accordingly, I pass the following;
ORDER
The appeal is partly allowed. The judgment of conviction of accused Nos. 2 to 5 for an offence punishable u/s 366 of IPC, is hereby set aside. Accused Nos. 2 to 5 are convicted for an offence punishable u/s 363 of IPC.
The offence u/s 363 IPC is punishable with imprisonment extendable up to seven years or fine or both. Though the presence of accused Nos. 2 to 5 is stated by PW-2 -victim, but no specific overt acts are alleged against accused Nos. 2 to 5. Even the evidence of PWs-1 and 2 shows that, accused No. 1 intended to marry PW-2. The motive was against accused No. 1. It is not shown as to what is the relationship between accused No. 1 and accused Nos. 2 to 5. Considering these circumstances and also considering that the accused Nos. 2 to 5 being of different villages and were all youth aged about 22, 23, 24 and 20 years and they were on bail during the trial and in this appeal also, though the trial court has imposed five years'' R.I. and fine, in my opinion, sentence could be reduced. Accused are sentenced to undergo R.I. for one year with fine of ` 5,000/- each and in default, to undergo three months'' S.I. each. The accused are entitled for set off for the pretrial detention and sentence already served after conviction u/s 428 of Cr.P.C. Out of fine amount of ` 20.000/-. ` 15,000/- be paid to the victim - PW-2 and ` 5,000/- be appropriated towards fine in the State account.
Bail bond stands cancelled. The accused Nos. 2 to 5 shall surrender before the trial court to serve the remaining sentence, if the accused failed to surrender, the trial court to secure the presence of the accused Nos. 2 to 5 and commit to the prison to serve the remaining sentence.