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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2015
PRESENT
THE HON’BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON’BLE MR.JUSTICE P.S.DINESH KUMAR
CRIMINAL APPEAL NO.288/2011
BETWEEN :
State of Karnataka
by Police Station
Bangalore City
..Appellant
(By Sri B.T.Venkatesh, Addl. SPP.,)
AND :
Venkatesh @ Thutha
S/o Armugam
Aged about 23 years
No.209, 3rd Cross
Asha Jyothi
Sanjaygandhi Nagar
Bangalore.
..Respondent
(By Sri K.J. Gopi, Adv.,)
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This Appeal is filed under Section 378(1)&(3) Cr.P.C
praying to grant leave to appeal against the judgment and
order
of
acquittal
dated
16.06.2010
passed
by
the
Presiding Officer, Fast Track Court-VIII, Bangalore, in
S.C.No.264/2006
thereby
acquitting
the
accused/respondent for the offences punishable under
Sections 343, 366 and 376 of Indian Penal Code.
This Appeal coming on for hearing, this day, MOHAN
M. SHANTANAGOUDAR, J., delivered the following:JUDGMENT
The judgment and order of acquittal, dated
16.6.2010, passed by the Fast Track Court, Bangalore
City, in SC.No.264/2006 is appealed against by the
State.
The respondent-accused is charged, tried and
acquitted for the offences punishable under Sections
343 and 376 of IPC.
2. Case of the prosecution in brief is that PW.4Pavitra (victim girl) was studying in II Year PUC in the
year 2005; the house of the accused was near the
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house of the victim; accused used to tease the victim
everyday and he used to force the victim to marry
him; on 26.9.2005, when PW.4 was standing in the
bus stop to go to her house from the college at about
3.15 p.m., the accused came there and kidnapped
her; the accused took her to Kunigal and tied ‘thali’
(Mangalasutra) in Yediur Siddalingeswara temple and
thereafter he took her to a lodge and committed rape
on her after confining her in a room of the said lodge;
he had disclosed his name as Raju before the Manager
of the lodge at the time of taking the room; after
taking her to various places including Dharmastala,
the victim was taken to Bangalore by the accused and
kept in the house of Ramesh-PW.10 till 1.10.2005;
accused had sexual intercourse with the victim after
tying ‘thali’ till 6.10.2005 without her consent; the
police came to the house, wherein the victim was kept
by the accused and took her to the Police Station; she
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was sent to Remand Home; the police got the victim
medically examined by the doctors.
3. It is relevant to note that in the meanwhile, a
complaint came to be lodged by PW.3-father of the
victim as per Ex.P3 on 27.9.2005, which came to be
registered at 11.10 a.m. on the said day. The police
after investigation, laid the charge sheet against the
accused for the aforesaid offences.
4. In order to prove its case, the prosecution in
all, has examined 17 witnesses and got marked 18
Exhibits. On behalf of the defence, 3 Exhibits got
marked. The trial Court on evaluation of the material
on record, acquitted the accused.
5. It is not in dispute that the victim was
studying in II Year PUC, which means that she was
studying in 12th Class. Generally, the children will be
admitted to schools between the age of 5 and 6 years
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to the I Standard. In this context, the trial Court has
rightly concluded that the victim must be aged about
17 years at the time of the incident. It is no doubt
true that SSLC marks card at Ex.P14 produced before
the trial Court shows the date of birth of the victim girl
as 8.10.1989. The incident has taken place on
26.9.2005. Thus, according to the prosecution, the
victim was aged below 16 years as on the date of the
incident and therefore, legally she was not in a
position to give consent to have sexual acts. As per
the evidence of the father of the victim-PW3, it is clear
that he does not have any record to show the exact
date of birth of the victim; the victim was born in a
village of Kunigal Taluk; however, her date of birth is
not registered. PW.3 has deposed that the victim was
admitted to the school during the year 1991 or 1993.
If the version of PW.3 that the victim was admitted in
the year 1991 is taken into consideration, then the
victim was aged about 2 years at time of her
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admission to school and if she was admitted to school
in the year 1993 as deposed by her father, the victim
would been about 4 years at that time, which is
unbelievable. Since the victim was studying in II Year
PUC, the trial Court is justified in concluding that the
victim may be aged about 17 years, more particularly
when PW.3 (father of victim) was not sure about her
date of birth.
It is also relevant to note that in paragraph-4 of
his examination-in-chief itself, PW.3 has admitted that
the victim had completed 16 years of age and she was
in 17th year of age during the relevant time.
6. The trial Court in detail has narrated the
conduct of the victim in keeping quiet for the period
from 26.9.2005 till 6.10.2005. According to the case
of the prosecution, the victim was taken by the
accused with the help of his two friends from the bus
stop of Bangalore City to Kunigal at the first instance
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on 26.9.2005 at 3.15 p.m; thereafter she was taken
to various places including Yediyur Siddalingeswara
Temple, Dharmasthala and thereafter to Bangalore;
she was kept in two houses in Bangalore; she has not
raised any hue and cry at any point of time till the
accused is apprehended. She has admitted that
number of persons were present when she was
waiting for the bus in Devaiah Park bus stop; she did
not ask for any help and did not raise hue and cry
while she was allegedly kidnapped by the accused;
even during transit also, she did not complain before
anybody about the alleged act of kidnap by the
accused. It is the evidence of PW.4 that accused tied
‘thali’ under a tree near Yediyur Siddalingeswara
Temple and thereafter the accused and PW.4 went
inside
the
temple;
they
came
from
Yediyur
to
Hesaraghatta; she was given shelter in the house of
Ramesh-PW.10 and at that time, wife and children of
Ramesh were present in the said house; the house of
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Ramesh was having accommodation of one room, hall
and kitchen; number of houses are situated adjoining
the house of Ramesh; they stayed in the said house
for about three days; she did not tell anybody that the
accused has kidnapped and forcibly married her; she
even did not tell that she was forced to have sexual
intercourse with the accused. She has further deposed
that she was wearing ‘thali’ when she was in the
house of Ramesh; she was taken to another house at
Bangalore where in she was kept for some days; there
also she did not raise any hue and cry. If really the
victim was forcibly subjected to sexual torture, she
would not have kept quiet without raising hue and cry
for more than 10 days. She even did not try to call her
father over phone when she was in Bangalore after
returning from Dharmastala and Kunigal. Though she
had got every chance to get away from the clutches of
the accused, she did not venture to do so till she was
secured by the police. She did not go along with her
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parents when she was brought to the Police Station
after securing her presence along with the accused.
She was kept in Remand Home for two days.
7. PW.9-Senior Specialist after getting the victim
medically examined through lady Gynecologist, found
that there were no signs of forcible sexual intercourse
on the victim girl.
8. PW.3 in his deposition has admitted that there
was a marriage proposal in between the accused and
the victim. The accused is from ‘Lambani’ Community
(Scheduled Caste), whereas the victim is from ‘Gowda’
Community (upper caste). PW.3 himself made a
proposal to the mother of the accused, but she told
him that they are from ‘Lambani’ Community, which
according to her is a lower caste and therefore she felt
that such marriage is not possible and in that context,
the difference arose between the two families.
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9. Looking to the totality of the facts and
circumstances of the case, the trial Court is justified in
concluding that it is not a case of forcible intercourse
or a case of kidnap. On reconsideration of the material
on record also, we do not find any ground to interfere
with the order of acquittal passed by the trial Court,
more particularly when we find that the view taken by
the trial Court is one of the possible views under the
facts and circumstances of the case.
Hence, no interference is called for. Accordingly,
appeal fails and the same stands dismissed.
Sd/JUDGE
Sd/JUDGE
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