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Synopsis

The Supreme Court recently observed that a man cannot be convicted of the offence of enticing a girl away from the lawful guardianship, and the provision of Sections 361 and 363 IPC can not be invoked, if the victim is above 18 years at the time of the alleged offence.

A bench of Justices Abhay S Oka and Augustine George Masih allowed an appeal filed by Venkatesha and others and set aside the Karnataka High Court's judgment of December 14, 2011.

The high court had partly allowed the appeal and reduced the period of sentence from five to one years imprisonment while confirming the conviction as made by the trial court.

According to the prosecution, on February 21, 1997 at about 08:00 am, when victim was going to college, she was kidnapped by Reddappa, from the same village, and taken away in a car, after gagging her mouth. She was taken to a place in Tamil Nadu.

Upon the complaint lodged by the girl's parents, the police rescued the victim.

After the trial, the judge convicted the appellants for the offence punishable under Section 366, IPC and sentenced them to undergo rigorous imprisonment for five years.

The appellants preferred an appeal before the high court, which found that the trial court had erred in convicting the appellants under Section 366 of the IPC, inasmuch as there was no demand for ransom.

The high court set aside the conviction of the appellants for the offence punishable under Section 366, IPC and convicted the appellants punishable for an offence under Section 363, IPC and sentenced them to suffer rigorous imprisonment for one year with fine of Rs 5000 each.

The appellants' counsel submitted the trial court had grossly erred in convicting the appellants. He said that an offence under Section 366, IPC was not made out, inasmuch as the victim herself had admitted in her evidence that she was 19 years old at time of incident. He, therefore, said that the impugned judgment and order was liable to be quashed and set aside.

The state counsel, on the contrary, submitted that the high court took a liberal view and reduced the sentence from five years to one year and as such, no interference was warranted.

The apex court noted in the present appeal, accused nos. 6 and 7 in whose house the victim was allegedly taken, had been acquitted by the trial court. Insofar as the main accused Reddappa was concerned, he, in a subsequent separate trial, had also been acquitted.

The case basically rests on the evidence of mother of the victim, the victim and the Investigating Officer inasmuch as the other two witnesses, who were alleged to have accompanied the victim, have turned hostile, the bench said.

Going by the definition of penal provisions, the bench said, it can thus be seen that an offence punishable under Section 361, IPC would be made out only when a person takes or entices any minor under the age of 16 years, if he is a male or under 18 years, if female.

Section 361, IPC, defines kidnapping from lawful guardianship and Section 363, IPC provides a sentence for the offence of kidnapping a person from lawful guardianship, the court pointed out.

"The evidence of the prosecution itself would reveal that she was aged 19 years at the time of her alleged abduction. If the victim was above 18 years at the time of the alleged offence, the provision of Sections 361 and 363 IPC could not have been invoked," the bench said.

As such, the court felt, on this short ground alone, the appeal deserved to be allowed.

However, the court pointed out, another aspect that the trial court and the high court had failed to consider was that the incident was alleged to have occurred on February 21, 1997, while the trial took place in the year 2005, approximately eight years after the date of incident.

"From the deposition of the prosecutrix/PW2, it is revealed that she only knew Reddappa, who was from her village. She also admitted that she did not know the other co-accused persons," the bench said.

Furthermore, the court pointed out, no identification parade had been conducted in the present matter.

"While identification by a witness in a given case for the first time in witness box would be permissible, the substantial gap of approximately eight years raises serious concern regarding identification. If no identification parade of the unknown accused persons took place, their identification in the Trial Court, for the first time, would cast a serious doubt on the veracity of the prosecution’s case," the bench said.

The court therefore allowed the appeal and set aside the conviction in the case.

Case Title: Venkatesha & Ors Vs State of Karnataka