Sunil Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939** ## **CRL.A.No. 737 of 2005 ( )** **--------------------------** ## **AGAINST THE JUDGMENT IN SC 745/2000 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM DATED 6.4.2005** ## **APPELLANT(S)/ACCUSED:** ## **--------------------** **SRI. SUNIL KUMAR, S/O. BHARATHAN SUNIL BHAVANAM, MANAMPUZHA MURI, KUNNATHOOR VILLAGE, KOLLAM DISTRICT.** ## **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENT(S)/COMPLAINANT:** ## **--------------** ## **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. THE SUB INSPECTOR OF POLICE,** **SASTHAMKOTTA.** **BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.737 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of April, 2017** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence dated 6.4.2005 made in S.C.No.745/2000 on the file of the Additional District & Sessions Judge (Adhoc) II, Kollam. The conviction is under Section 361 of IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- under Section 363 of IPC, in default to pay the fine amount, undergo rigorous imprisonment for six months. 2. The prosecution case is that on 9.11.1999 at 10 p.m. the accused induced a minor girl under the age of 18 years to go with him from her residence, Santhi Bhavan, Manampuzha Muri, Kunnathoor village from the lawful guardianship of her parent, knowing that it is likely that she will be forced or seduced to illicit intercourse with him and thereby committed an offence under Section 366A of IPC. 2 Crl.A.No.737 of 2005 The crime was registered on a complaint forwarded u/s. 156(3) of Cr.P.C. by the court. Trial court framed charge for offences under Sections 344, 361 & 375 of IPC. Altogether 14 witnesses were examined and Exts.P1 to P17 (a) were marked. No material objects marked. After appreciating the evidence, the court below convicted the accused under Section 361 of PC and sentenced as stated above. The appellant was acquitted for all other offences for which charge was found. Aggrieved by the above conviction and sentence, this appeal is preferred. 3. When the appeal came for hearing, the learned senior counsel appearing for the appellant submitted before me that even though the fact that PW1 eloped alongwith the appellant herein, the ingredients of the offence is not proved by cogent and reliable evidence. It is the submission that in a conviction under Section 361 of IPC, the fact that a minor girl eloped along with another person alone will not be sufficient to warrant a conviction. The learned counsel submitted before me that as per Section 361 of IPC, to Crl.A.No.737 of 2005 3 convict an offence, there should be evidence regarding taking of a minor girl below 18 years and there should be evidence to show that the accused enticed a minor girl to come out of the keeping of the lawful guardianship. In this regard, to show the settled legal position, the learned Senior Counsel invited my attention to the decisions reported in **State of Kerala v. Jose [1989 (1) KLT 296]** and **S. Varadarajan v. State of Madras** [ **AIR 1965 (SC) 942]** . As per the dictum laid in Varadarajan's case (supra) the meaning of 'take out of keeping of the lawful guardian' under Section 361 of the Indian Penal Code, 1860 where a minor girl was allegedly taken away by the accused person from the protection of her father and where the girl had a capacity to know what she was doing and had voluntarily joined the accused, then in such case, it could not be said that the accused had taken her away from the protection of her lawful guardian within the meaning of Section 361 of the Code. 4. To canvass that, this legal position is applicable in Crl.A.No.737 of 2005 4 this case, the learned counsel submitted before me that PW2 deposed before the court to the effect that at the relevant point of time she was studying and it cannot be said that she was not aware of the thing what she was doing. Secondly, the learned counsel submitted before me that when appreciating the evidence of PW1, it can be seen that she deposed before the court that '¦øáç¿ÏᢠØÙÞÏÎßÜïÞæÄ çÉÞÏß' and it is also brought to my notice that leading questions were permitted to be asked by the prosecution like 'dÉÞÏÉâVJßÏÞµÞJ ÈßBæ{ ØáÈßWµáÎÞV ÕÖàµøߺîí Õß{ߺîá æµÞIáçÉÞÏÄçÜï?' . The answer was that '¥Äí ¥ùßÕßÜïÞæÄ Ø¢ ÍÕߺîÄÞÃí'. She was not admitting the fact that the accused enticed her but only blaming her ignorance leading to such a situation. PW2, who is the mother of the victim also deposed during cross examination that on a specific question 'PW1 ØbÏ¢ §ùBßçÉÞÏÄÞçÃÞ?'. The answer was 'Yes'. The learned counsel senior counsel was banking on all these admissions of the witnesses to show that it was not a case Crl.A.No.737 of 2005 5 ## where she was enticed to go with the accused. 5. I have very carefully examined the evidence of PWs 1 and 2. The court charge is as follows: That, you accused on 9.11.1999 at 10 p.m. kidnapped Salini, D/o. Sarojakumari, a minor under the age of 18 years out of the keeping of the lawful guardianship of Achuthan Thampi without his consent from Santhi Bhavanam housed wherein CW1 resides with CW2 and wrongfully confined the minor (CW2) for more than 10 days (from 9.11.99 to 3.1.00) and thereby committed the offence u/s. 344 IPC. That you accused on 9.11.99 at 10 p.m. kidnapped CW2 Salini, a minor girl under 18 years of age after the keeping of lawful guardianship of CW1 Achuthan Thampi and thereby committed the offence u/s. 361 IPC. That you accused on 9.11.99 at 10 a.m. kidnapped CW1 Achuthan Thampi granddaughter of CW1 from his lawful guardianship while residing at Santhibhavanam, Manampuzha muri, Kunnathoor Village and wrongfully confined her against her will and raped her without her consent and you accused thereby committed the offence Crl.A.No.737 of 2005 6 u/s. 375 IPC within the cognizance of this court. “ 6. The appellant was not convicted for offence under Section 344 of IPC as well as for an offence under Section 375 of IPC. It can be seen that court not even framed charge or convinced from Police report that she was taken for any illicit intercourse as contemplated under Section 366 of IPC. Eventhough there was a charge under Section 375 of IPC, he was acquitted for the said offence also. Then the only question pertaining to this appeal is whether there was enticing or taking away the girl to go with the accused by which an offence under Section 361 of IPC is made out. While appreciating the evidence now before the Court two facts are relevant. One is that the crime is registered on a compliant filed before court which was forwarded under Section 156(3) of Cr.P.C. Second, even though at the earliest point of time she was surrendered/produced before court and a statement is taken and thereafter let her go. The statement is not before the court. It was on a crime of man missing. Crl.A.No.737 of 2005 7 7. Under the above circumstances there will be positive evidence regarding the enticing of the girl. Surely, when offence under Section 361 of IPC as well as an offence punishable under Section 366 of IPC is therein, the appreciation of the evidence by the court will be different. Here is a case where prosecution was permitted to ask leading questions without declaring the victim hostile. Her positive evidence is that there was no coitus in between victim and accused, then the question whether enticed or taken away will be differently dealt with. If there was illicit sexual relationship, then it can be presumed the intention of the accused and his role to achieve the same. That is, when there is illicit intercourse with a minor girl, then naturally enticing can be inferred. But when there is no legal evidence for illicit relationship and when there is no offence made out under Section 375 of IPC or convicted thereunder and further when there is no positive evidence by the victim to the effect that she was enticed by the accused and her evidence before this court is only to the effect that without Crl.A.No.737 of 2005 8 the help of any other person she went with the accused, it cannot be said that it is a case where a minor was taken or enticed by the accused. It is to be remembered that by not framing a charge under Section 366 of IPC, actually court discharged the accused for the said offence. This view can be fortified by the evidence of PW2 to the effect that she admitted that 'PW1 ØbÏ¢ §ùBßçÉÞÏÄÞçÃÞ?'. The answer was 'Yes'. It is also pertinent to note that the original compliant was filed by the grandfather of the child who is no more. While appreciating the evidence, it is also to be considered as stated above that when the victim was produced before Magistrate, Sasthamkotta statement of PW1 taken and no suo motu crime registered. PW12 is the police officer examined to prove this aspect by the prosecution. Now, the evidence before the court is that grandfather was the guardian in the absence of her father who was in gulf country at that point of time. Surely, PW1 was staying with PW2 at that time. After appreciating the evidence of PW2 Crl.A.No.737 of 2005 9 who is none other than the mother of the victim girl and further considering the nature of the evidence tendered by PW1 and her first version as evident from the evidence of PW12, and also considering the fact that the incident occurred as back as on 9.11.1999 and there was no conviction under Section 375 of IPC, it can be only held that she went with the accused on her own desire and will. She was staying with PW2 during the said period, who is none other than her mother but prosecution presented the case as grandfather is the guardian. He was staying in another house. He is the person who filed the compliant. Under such circumstances, the ingredients necessary for convicting an accused under Section 363 of IPC is not made out. The first version of victim before a Magistrate cannot be brushed aside lightly in a criminal case. The said statement is now not before us. Hence, considering all attending circumstances including the stand of victim that there was no coitus, appeal is allowed setting aside the conviction and sentence imposed against the appellant. The Crl.A.No.737 of 2005 10 bail bond, if any, executed by the appellant is cancelled and he is set at liberty. Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/