THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1251 of 2003 DATE: 09TH FEBRURAY 2010 Between: Balagodavala Satyanarayana …Appellant / Accused AND The State of A.P. rep by The Public Prosecutor, High Court of A.P. And another. …Respondent / Complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1251 of 2003 JUDGMENT: 1. This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, (‘Cr.P.C.’, for brevity) is directed against the judgment, dated 14.11.2003, made in S.C.No.311 of 2003 on the file of the Ist Additional Assistant Sessions Judge, Ranga Reddy at L.B.Nagar, Hyderabad, whereunder and whereby, the appellant/accused was found guilty of the offence punishable under Section 366 I.P.C. and sentenced to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.500/- in default, to undergo Simple Imprisonment for a period of three months. 2. The brief facts that are necessary for the disposal of the prosecution case may be stated as follows. P.W.2 is the victim girl aged about 18 years. She was working as Maid Servant in the house of one Ms.Kavitha. The accused was also working in the house of Ms.Kavitha from six months prior to the date of incident, who was engaged for ironing clothes. On 29.03.2000 at about 09:30 A.M., while P.W.2 was going to the house of Ms.Kavitha, the accused, who was present on the way with an auto, called her saying that her mother asked her to come along with him. Hence, P.W.2 went along with the accused in the auto. After going some distance in the auto, the accused tied a cloth to the mouth of P.W.2 and took her to an unknown place on the outskirts of Ranga Reddy District, confined her in a room for one week. Thereafter, P.W.2 returned to her home and informed the incident to P.W.1, who lodged a complaint with the Police. The police registered the case, examined P.W.2 and sent her to hospital for determination of age. P.W.6 is the Assistant Professor, Department of forensic medicine, Gandhi Medical College, Hyderabad, who examined P.W.2 determined her age as 18 years. After receipt of report from the hospital, on 05.04.2003, the accused was arrested and was sent for judicial remand. 3. When a charge under Section 366 I.P.C. was framed, read over and explained to the accused, he denied the offences, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 and 6 and got marked Exs.P.1 to P.3. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence. 6. The trial Court, after consideration of the evidence available on record, found the accused guilty for the offence punishable under Section 366 I.P.C. and accordingly convicted and sentenced him as stated above. Challenging the same, the present Criminal appeal is preferred. As the advocate engaged by the accused is not evincing any interest in arguing the appeal, this Court has no option, but to appoint K.Lalitha to defend the appeal and argue the case. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the offence punishable under Section 366 I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel for the appellant contended that except the solitary testimony of P.W.2, there is no other evidence to show that accused kidnapped P.W.2; Investigation has not been conducted properly by the police and they have not examined the auto driver who took P.W.2 to an unknown place and wrongfully confined her; that the entire case rests on the solitary testimony of P.W.2 alone and hence, she prays to set aside the conviction and sentence recorded against the appellant. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.2 is very clear that she was forcibly taken by the accused in an auto and she was confined in a room at unknown place for one week; that there is no grouse or enmity for P.W.2 to foist a false case against the accused; that mere irregularities and illegalities committed by the police in conducting investigation cannot be a ground for acquittal of the accused; that the trial Court, after placing reliance on the evidence of P.W.2, rightly found the accused guilty of the offence punishable under Section 366 I.P.C. and there are no grounds to interfere with the same and hence, she prays to dismiss the appeal. 10. Section 366 I.P.C. reads thus: (i) Whoever kidnaps or abducts any women with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will, (ii) or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. The evidence of P.W.2 is that while she was going to work, the accused, who was present on the way with an auto, called her stating that her mother was at work and asked to come along with him. Therefore, P.W.2 boarded the auto. After going some distance, the accused tied a cloth on her mouth and took her to the outskirts of Ranga Reddy District where she was confined in a room at unknown place. Except the allegation that she was taken to an unknown place by deceitful means, there is no evidence to show that the intention of the accused is to compel her to marry him or in order that she may be forced or seduced to illicit intercourse. Evidence is clear that P.W.2 was confined wrongfully for about one week. It is not the case of the prosecution that the intention of the accused is to have a sexual intercourse with P.W.2 against her will. Hence, these acts of the accused will not fall under Section 366 I.P.C., as there is no evidence to prove necessary ingredients of Section 366 I.P.C. But the evidence of P.W.1 would go to show that P.W.2 was taken by the accused by deceitful means to unknown place and was confined wrongfully. In such circumstances, it has to be decided as to what is the offence committed by the accused. 11. Section 365 I.P.C. reads as under: Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished. So also, Section 362 I.P.C. states that “whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.” In the present case, the deceitful means of the accused is that he informed P.W.2 that her mother was at work and asked her to come along with him. So, believing the false representation of the accused, P.W.2 boarded the auto. After going some distance in the said auto, the accused tied a cloth on her mouth. This act of the accused can be said to be against the will of P.W.2, and criminal force has been used by the accused against P.W.2 in tying towel on her mouth. 12. It is not a case of kidnapping a minor girl. P.W.6 is the doctor who examined P.W.2 on 22.04.2003 and on physical, dental and radiological examination of P.W.2, he opined in his report, which is marked as Ex.P.3, that P.W.2 was aged about 18 years. The evidence of P.W.6 and the recitals in Ex.P.3 remained unchallenged. On own showing, the prosecution did not prove the case that P.W.2 was under the age of 18 years, so as to declare that she was a minor girl. With regard to the place where she was confined wrongfully, the police have not conducted proper investigation. They have not taken P.W.2 to the place, where she was wrongfully confined. Similarly, they have also not investigated and examined the auto driver who carried the accused and P.W.2 to the unknown place in Ranga Reddy District. Even though some irregularities or even illegalities said to have been committed by the Investigating Officer in conducting the investigation, the same cannot be taken advantage by the accused. If the prosecution case is cogent, reliable and trustworthy, it can be acted upon. Therefore, the entire case rests upon the solitary testimony of P.W.2 alone. When a case rests upon solitary witness, the law is well settled that it must be un-impeachable, true, trustworthy and reliable. In short, it should be put in the category of wholly reliable and in such circumstances, conviction can be maintained even without corroboration. 13. Now, it is to be seen whether the evidence of P.W.2 has to be in the category of the wholly reliable. The fact that P.W.2 was working in the house of K.Lalitha is not in dispute. The case of the accused is that the brother of P.W.2 wanted to do ironing work in the house of Kavitha and as the accused started coming to her house, a false case is foisted against the accused. There is no proof to show that the brother of P.W.1 wanted to do ironing work in the house of Kavitha. Except that suggestion, there is no evidence to show that P.W.2 had a grouse or enmity against the accused so as to implicate him falsely in a case of this nature. Mere hurling some suggestions in the cross-examination of witnesses does not amount to offence. If the accused want to prove the fact, it must be established by him. Therefore, as seen from the evidence of P.W.2, there is absolutely no grouse or enmity for P.W.2 against the accused so as to implicate him falsely in the case of this nature. In the absence of any false implications, the evidence of P.W.2 can be accepted. Perhaps that is the reason why the trial Court accepted the evidence of P.W.2 and found the accused guilty. But her evidence does not disclose about necessary ingredients of Section 366 I.P.C. But the fact remains that she was compelled to go to an unknown place by deceitful means. In view of the fact that Section 365 I.P.C. is a minor offence, framing of charge under this Section is not necessary. Alteration of charge may not cause any prejudice to the accused in defending himself in the case, because, from the beginning it is the case of the prosecution that the accused, by deceitful means, took her in an auto to an unknown place and confined her wrongfully for about one week. Therefore, the accused can be convicted under Section 365 I.P.C. 14. In the result, the conviction and sentence recorded against the accused by the trial Court under Section 366 I.P.C. are set aside. However, the accused is found guilty for the offence punishable under Section 365 I.P.C. and accordingly he is convicted and sentenced to undergo Rigorous Imprisonment for two (02) years and to pay a fine of Rs.500/- and in default, to undergo Simple Imprisonment for three (03) months. 15. Accordingly, the Criminal Appeal is allowed in part. ___________________ JUSTICE K.C.BHANU February 09, 2010 Bvv