Furthermore, no identification parade has 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. {Para 15}
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 176 OF 2014
VENKATESHA & ORS. Vs STATE OF KARNATAKA
Dated: 09 JANUARY, 2025.
Citation: 2025 INSC 103.
1. This appeal challenges the judgment and order dated 14th
December, 2011 passed by the High court of Karnataka at Bangalore,
vide which the learned Single Judge of the High Court has partly
allowed the appeal filed by the appellants herein and set aside the
judgment and order of the P.O. and Addl. Sessions Judge, Fast Track
Court-IV, at Kolar, by which the learned Additional Sessions Judge
convicted the appellants under Section 366 of the Indian Penal Code,
1860 (“IPC” for short) and sentenced them to undergo rigorous
imprisonment for five years. Thereafter, the High Court convicted
them for the offence punishable under Section 363 of the IPC and
2
sentenced them to undergo rigorous imprisonment for one year.
FACTS:
2. The facts, in brief, giving rise to the present appeal are as follows:
2.1 According to the prosecution on 21st February, 1997 at about
08:00 a.m., PW2-Bharathi-victim, the daughter of PW1 was going
along with PW7-Kalavathi and PW-9-Sharada to the College at
Srinivasapur from Kallur village. They boarded the bus from Kallur
village to Srinivasapur. When they got down at Srinivaspur bus stand
at about 08:00 a.m., they saw a car parked. The original accused
No.1-Reddappa, who is known to PW2 and who was also from the
same village, came out from the said car, allegedly gagged her mouth
and forcibly took PW2 in the car to a place called Navadi Village in
Hosur Taluk, Tamil Nadu. She was kept in the house of accused Nos. 6
and 7. It is the prosecution’s case that the PW7 and PW9, who had
seen the incident, went to the house of PW1 (Smt. Chowdamma), the
mother of the victim, and informed her that accused No.1 and others
have kidnapped the PW2. PW1 went to Srinivasapur Police Station
wherein the statement of PW1 was recorded at 10:15 a.m. and Crime
No. 42 of 1997 came to be registered for the offence punishable under
Section 363 of the IPC. In a search operation, the police party went to
the house of accused Nos. 6 and 7. They found victim-PW2 and
accused Nos. 1 to 3 in the said house. The police arrested accused
3
Nos. 1 to 3 and brought the victim to the police station and produced
them before the PW-15, G.N. Narayanappa, the Investigating Officer
(I.O.). Accused Nos. 4 to 7 were not arrested.
2.2 Since the original accused No.1 was absconding, the trial was
conducted against the six other accused.
2.3 Upon the conclusion of the trial, the learned trial Judge
convicted the appellants for the offence punishable under Section 366
IPC and sentenced them to undergo rigorous imprisonment for five
years.
2.4 Being aggrieved thereby, the appellants preferred an appeal
before the High Court.
2.5 Learned single Judge of the High Court 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.
2.6 However, the High Court has 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. In default to pay fine, they have to
undergo simple imprisonment for 3 months each. It was also directed
that out of the fine amount of Rs. 20,000/-, Rs. 15,000/- to be paid to
4
the PW2 and Rs.5,000/- fine in the State account.
3. We have heard Mr. Mr. Shekhar G. Devasa, learned senior
counsel appearing for the appellants as well as Mr. Avishkar Singhvi,
learned Additional Advocate General appearing for the respondentState of Karnataka.
4. Mr. Devasa submits that learned Trial Court has grossly erred in
convicting the appellants. He submits that an offence under Section
366 IPC was not made out, inasmuch as the victim herself has
admitted in her evidence that she was 19 years old at time of incident.
He, therefore, submits that the impugned judgment and order is liable
to be quashed and set aside.
5. Mr. Singhvi, on the contrary, submits that the High Court has
already taken a liberal view and has reduced the sentence from 5
years to 1 year and as such, no interference is warranted.
6. In the present appeal, accused Nos. 6 and 7 in whose house the
victim was allegedly taken, have been acquitted by the Trial Court.
Insofar as the main accused Reddappa is concerned, he, in a
subsequent separate trial, has also been acquitted.
7. The case basically rests on the evidence of PW-1, mother of the
victim, PW-2 victim and PW-15, the I.O., inasmuch as the other two
witnesses, who were alleged to have accompanied the victim, have
5
turned hostile.
8. It will be relevant to refer to Sections 361 and 363 IPC, which are
reproduced as under:
“361. Kidnapping from lawful guardianship;-
Whoever takes or entices any minor under sixteen
years of age if a male, or under eighteen years of age if
a female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person
of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from
lawful guardianship.
Explanation.— The words “lawful guardian” in
this section include any person lawfully entrusted with
the care or custody of such minor or other person.
Exception:- This section does not extend to the
act of any person who in good faith believes himself to
be the father of an illegitimate child, or who in good
faith believes himself to be entitled to lawful custody of
such child, unless such act is committed for an
immoral or unlawful purpose.
363. Punishment for kidnapping – Whoever kidnaps
any person from India or from lawful guardianship,
shall be punished with imprisonment of either
description for a term which may extend to seven
years, and shall also be liable to find.”
9. 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.
10. The evidence of the prosecution itself would reveal that she was
6
aged 19 years at the time of her alleged abduction.
11. 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.
12. This Court in the case of Sannaia Subba Rao and Ors. v. State
of Andhra Pradesh1 has observed thus:
“50. The ingredients of Section 363 IPC involve an
act of kidnapping of any person from the lawful
guardianship. Kidnapping from the lawful
guardianship is defined under Section 361 IPC,
where it is stated that whoever takes or entices any
minor under sixteen years of age if a male, or under
eighteen years of age if a female, or any person of
unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind,
without the consent of such guardian, a case of
kidnapping is made out.”
13. As such, on this short ground alone, the appeal deserves to be
allowed.
14. However, another aspect that the trial court and the High Court
have failed to consider is that the incident is alleged to have occurred
on 21st February, 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.
1 (2018) 17 SCC 225
15. Furthermore, no identification parade has 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 ofapproximately 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.
16. In that view of the matter, the appeal is allowed. The impugned
judgment and order dated 14th December, 2011 passed by the High
court of Karnataka at Bangalore is quashed and set aside.
17. Since the appellants are already on bail, the bail bonds of the
appellants stand discharged, if not required in any other case.
18. Pending application(s), if any, shall stand disposed of.
………………………J.
[B.R. GAVAI]
………………………………….…J.
[AUGUSTINE GEORGE MASIH]
NEW DELHI;
09 JANUARY, 2025
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