IN THE H1GIl COURT 01: KARNA1AKA CIRCUIT BENCH AT 1)1 IARWAD DATED THIS THE 15 TH DAY OF OCTOBER 2011 BEFORE TIlE HON13LE MR. JUSTICE ANAND BYRAREDDY CRIMINAL APPEAL No.670/2006 BETWEEN: Manju Sb Channabasavappa Datanal. Aged about 28 years. Rio Mellaghatti Plot. Savanur. .... APPEALLANT (By Shri, G.A.I loleyannavar, Advocate) AND: State by Police Sub-Inspector. Savanur Police Station. RESPONDENT (By Shri.Anand K. Navalgimath, Government Pleader) This Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure. 1973. praying to call for records pertaining to judgment and order dated 01.03.2006 in Sessions case No.3F2004 on the file of Fast irack Court at Naval and £8 to set aside the Sentence and conviction ol the appellant punishable under Section 1 flo) read with Section 376 uI Indian Penal (ode and etc. This appeal comma on for hearing this day, the Court made the fbllo\ving: JU)MNT - - a 1--leard the learned counsel for the appellant and the learned (io\ ernment Pleader. 2. The Icts briefly stated are as IbI lows: It is alleged that one Ravh accused no. I had trespassed into the house ol the complainant, one Shankrappa Neelappa [)oddamani at ‘\ie1laaatti Village and had kidnapped his daughter Madevi Madevakka, inducing her that he would marry her and took her to Madikeri and stayed alongwith her in the house ol accused no.2. the ji’eseit appellant, During their stay, accused no. I is said to have eonim itted repeated rape on her and accused no.2. the present appellant had provided a room in his rented house, where he was s-laying and also joined .‘1 accused no. I in constantly threatening the complainant, over the phone that his daughter was in their custody and that. accused no. I should be allowed to marry her and if the complainant resisted. he would be done to death. It is after fifteen days that she was traced at Madikeri by the Police on a complaint and thereafter the accused were taken into custody and a case was registered against them for offences punishable under Sections 366, 376, 451, and 506 read with Section 109 of the Indian Penal Code (hereinafter referred to as the bIpC for brevity) as against the present accused. The accused having pleaded not guilty, the Ibllowing charges were framed against the accused: I. That on 06/04/2004 at 11.30 a.m., you the above said accused No.1 trespassed into the house of complainant Shankrappa Neelappa Doddamani.. situate at Mellagatti village with an ‘intention to kidnap his daughter (‘W-6 Madevi c1 Made akka- minor girl and thereby committed an otIènee punishable L T: 5 451 IPC’ and within my cognizance. 2. That on the same date. time and place you the above said accused No.1 kidnapped Madevi @ • 43 4 Madevakka I) o Complainant Shankrapa Neelappa I )oddamani inducing her that you would marry her. took her to Madakeri and made her to slav in the house of accused No.2. house No.161) and thereby commuted an offence punishable LJ/s.366 IPC.. and within my cognizance. • 3. That on the same date, time and place you the above said Accused No.1 kidnapped Madevi Qi’ Madevakka D/o complainant Shankrappa inducing her that you would marry her. took her Madakeri and made her to stay in the house of Accused No.2 herein you Accused No.1 committed rape on her 2—3 times Ibrcihly and thereby committed an offence punishable L 1s.376 IPC’.. and within my cognizance. 4. 1hat on the same day. time and place and subsequently you the above said Accused No.2 instigated Accused No.1 to kidnap Kumari Madevi Madevakka D/o Complainant Shankrappa with an intention to commit criminal offence of rape and thereby committed an offence punishable U/s. 109 R/w. 376 IPC.. and within my cognizance. 5. 1 hat on the same day. time and place and subsequently you the above said Accused No.2 allowed Accused No.1 to keep Kumari Madevi ci Made akka D:o Complainant Shankrappa Doddamani in our rented house at Madakcri and also threatened to ç 5 S complain through phone No.813667 of CW- 11 Neelappa Sb Fakkiravva Harijan you would perform their maniage, if resisted complainant would be done away and thereby committed an offence punishable U/s 506 IPC., and within my cognizance.” Insofar as the present appellant is concerned, it is charges 4 and 5 which are relevant. 3. The learned counsel for the appellant would submit that from a reading of the complaint, it is evident that the only accusation against the appellant is to the effect that he had harboured accused no. I during his stay at Madikeri along with the victim and that he had on several occasions, called the complainant on telephone and alongwith accused no. I, had threatened that he would be done to death if he did net consent to accused no. I marrying the victim. Apart from this, there is no other allegation of active participation in the commission of the offences punishable under the several sections that have been invoked. It is evident, on the other hand, that the victim I 6 had willingly come along with accused no. I to Madikeri and the appellant would have had no inkling that she had been kidnapped and the appellant, who was a resident of Madikeri, had no role in either inducing the victim to join accused no.1 or to leave her home without the consent of her father. The appellant had provided a room in the rented house of the appellant, with all innocence of helping a friend, as he was acquainted with accused no. I and did not have any idea that the girl had been allegedly kidnapped, as claimed by the complainant. The allegation that he was threatening the complainant on telephone, is a baseless allegation and has been made only with an intention to also frame a case against the appellant In any event, the said allegation has not been established though an attempt was made by the prosecution to establish the circumstance that the present appellant had a role in constantly calling up the father of the complainant and threatening him with death, if he did not permit accused no.1 and the victim to marry, has not been established since the $ 7 telephone booth owner, who as examined in this regard, had not supported the case of the prosecution, as is evident from the material on record. [be learned counsel would, therefore, endeavour to point out that apart from the fact that accused no, I and the victim, who had willing accompanied accused noJ, had stayed in a room in the rented house, in which the appellant was residing. there is no other circumstance which would indicate that he had any role in either kidnapping of the victim or the commission of rape on her and in the absence of any proof to establish that he had joined accused no.1 in threatening the complainant, there is no semblance of a case made out against the present appellant and therefore, the charges at nos.4 and 5 cannot be said to hae been estah1ihed beyond all reasonable doubt Abetment of a serious crime entailing an equally serious punishment has been mulcted on the appellant which i wholly unjust and unfair without the necessan requirement of the charges having been established beyond all rcasonable doubt, On the othi hand thL i a set iou doubt as 8 to the fact of the appellant being aware that the victim had been kidnapped as alleged by the complainant. In that view of the matter, he would submit that the accused is entitled to the benefit of doubt and not only are the charges not proved, the appellant would certainly have the benefit of doubt in pressing home the serious charges which have been ranged against the appellant and would, thereibre. submit that the judgment of the court below insofar as the present appellant is concerned, ought to be set aside. 4. On the other hand. the learned Government Pleader would seek to justi the judgment and would submit that the victim was a minor and this circumstance would aggravate the seriousness of the offence. The victim was incapable of giving her consent to join accused no. I when he brought her from her village to Madikeri. This would constitute kidnapping and the fact that there is continuous sexual intercourse with a minor would also constitute rape. as the minor was incapable of C) • b consenting to consensual sex . l’he fact that accused no.2 was fully aware of the minority of the girl cannot be lost sight of. ‘[he contention that he was unaware that the girl was minor and that she had been kidnapped cannot he readily believed. The tender age of the victim was apparent and the appellant seeking to feign ignorance of the circumstance cannot he accepted. On the other hand, it is admitted that the accused no. I had stayed alongwith accused no.2 in his rented house. There was, therefore, abetment of the commission of the offences alleged. in that he had actively assisted accused no. I in confining the minor over a period of time and having committed forcible sex on her. ‘[his would squarely make the appellant liable and it cannot be said that the charges have not been established. Though the telephone booth owner from where the accused are said to have made constant phone calls to the complainant, has not supported the case of the prosecution. The case of the prosecution does not rest on the allegations as regards the constant phone calls alone. The admitted t 10 circumstance that PW.5, who is the victim, has stated that the accused-appellant herein had joined the accused no. I in constantly calling up the complainant and threatening him that he would be done to death, if he did not consent to the marriage of accused no.1 with the victim, is sufficient corroboration of the evidence of PW. I. the complainant, as regards this aspect of the matter and therefore, he would submit that accused no. I, having undergone the sentence and having completed the term of imprisonment, it is the turn of’ the appellant to complete his term of punishment and that there is no warrant for acquitting him on the grounds alleged in the present appeal and therefore, would submit that the appeal be dismissed. 5. In the above facts and circumstances, the fact that the victim has willingly accompanied accused no. I and would not have given any inkling to accused no.2 that she had been kidnapped. The fact that she had willingly stayed in the house of accused no.2 alongwith accused no.1 in a separate room and 4 II had even undertaken labour, iii order to eke out their livelihood during the course of their stay, would not have given any room for any doubt as to the girl having been kidnapped. This would be apparent from the conduct of PW.5. PW.5 herself has stated that she stayed in the house and had even worked during the period to earn their livelihood and therefore. it was the conduct of a normal couple eking out their livelihood and living together. Hence, it cannot be presumed that there was any active role on the part of accused no.2 in having abetted the crime of kidnapping and rape. Insofar as the other charge of constant threats held out to the complainant is concerned, as admitted even by the learned Government Pleader, there is no proof of such phone calls having been made. The telephone booth owner who would have been a significant witness in this regard has not supported the case of the prosecution. I lence. in the absence of any proof of such threatening phone calls, as there would have been no incentive for accused no.2 to threaten the complainant, and as it cannot be readily accepted that he 4 12 S would hae any say in the matter. it cannot he said that this aspect of the matter has been. established beyond all reasonable doubt. i’hcrefore, the finding of the court below that the appellant was guilty of abetment of the offences alleged on the grounds urged by the prosecution cannot be accepted. Accordingly, the appeal is allowed. The judgment as against the present appellant is set aside. The fine amount that has been paid by the appellant be refunded. Sd! JUDGE n’