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Wednesday, 29 January 2025

Supreme Court: Victim identifying unknown accused Without Test Identification For First Time During Trial After Many Years Raises Doubts

 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.

Author: B.R. GAVAI, J.

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

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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

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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

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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

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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

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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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