Full Judgment Text
REPORTABLE
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1938 OF 2010
MOHAMMED YOUSUFF @ MOULA & ANR. …APPELLANTS
Versus
THE STATE OF KARNATAKA … RESPONDENT
JUDGMENT
AMANA
N. V. R , J.
1. The instant appeal, by way of special leave, is directed
against judgment and order dated 11.09.2008 passed by the
High Court of Karnataka at Bangalore whereby the High
Court dismissed the Criminal Appeal No. 128 of 2005 filed
by the appellants herein (accused nos. 1 and 2) and affirmed
the order passed by the trial court.
2. Brief facts of the case are as follows: The appellants
accused were tenants of PW7 (complainant). Accused no. 1
is the brother of accused no. 2 and accused no. 3 is the wife
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2021.01.12
16:51:37 IST
Reason:
of accused no. 2. When accused no.1 expressed his desire to
marry PW8 (victim the daughter of the PW7), they were
evicted from the house. On 13.07.2002 at 8.00 P.M., while
the victim had gone to the market to purchase a notebook,
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the appellants forcibly took her to Punganur (Chittoor
District) where allegedly accused no.1 married PW8 in a
mosque. The father (PW7) got a telephone call from
accused no.2 and accused no.3 that they have kidnapped
his daughter and marriage ceremony has been conducted
between PW8 (victim) and accused no. 1. Pursuant to the
same, PW7 lodged a complaint before the police on the
same day.
3.
On 22.07.2002, accused no. 1 was apprehended while he
was in the company of the victim and later on accused no.2
and accused no.3 were also apprehended. Accused no.4
and accused no.5 were the persons who had given shelter to
accused no.1 and the victim. The accused were charged for
committing offences punishable under Sections 366, 343,
323 and 506 read with Sections 114 and 34 of IPC.
4.
The trial court convicted the appellants and sentenced them
to undergo Rigorous Imprisonment for 3 years for offence
punishable under Section 366 IPC, Rigorous Imprisonment
for 3 months for offence punishable under Section 323 IPC,
Rigorous Imprisonment for 6 months for offence punishable
under Section 343 IPC and Rigorous Imprisonment for one
year for offence punishable under Section 506 IPC.
Aggrieved, the appellants preferred an appeal before the
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High Court and the same was dismissed vide impugned
judgment dated 11.09.2008. Hence, the present appeal.
5.
Learned counsel for the appellants vehemently contended
that the victim was of 18 years of age at the time of the
incident, and she had willingly accompanied the accused
persons. It was further submitted that the eyewitnesses
have not stated that the victim was forced into the rickshaw.
6. On the other hand, learned counsel for the respondentState
supported the impugned judgment passed by the High Court
and argued that the victim was a minor at the time of the
said offence.
7.
Having heard learned counsel for the parties at length it is
pertinent for us to have a look at Section 366 which reads as
follows:
366. Kidnapping, abducting or
inducing woman to compel her
marriage, etc .—Whoever kidnaps or
abducts any woman with intent that she
may be compelled, or knowing it to be
likely that she will be compelled, to marry
any person against her will, or in order
that she may be forced or seduced to
illicit intercourse, or knowing it to be
likely that she will be forced or seduced
to illicit intercourse, shall be punished
with imprisonment of either description
for a term which may extend to ten years,
and shall also be liable to fine; and
whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
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compulsion, induces any woman to go
from any place with intent that she may
be, or knowing that it is likely that she
will be, forced or seduced to illicit
intercourse with another person shall
also be punishable as aforesaid.
8. Chapter XVI of IPC contains offences against the human
body. Section 366, which is the pertinent provision, is
contained within this Chapter. Kidnapping/abduction
simpliciter is defined under Section 359 and maximum
punishment for the same extends up to seven years and fine
as provided under Section 363. However, if the kidnapping
is done with an intent of begging, to murder, for ransom, to
induce women to marry, to have illicit intercourse stricter
punishments are provided from Section 363A to Section
369.
9. Section 366 clearly states that whoever kidnaps/abducts
any woman with the intent that she may be compelled or
knowing that she will be compelled, to either get her married
or forced/seduced to have illicit intercourse they shall be
punished with imprisonment of up to ten years and fine. The
aforesaid Section requires the prosecution not only to lead
evidence to prove kidnapping simpliciter , but also requires
them to lead evidence to portray the abovementioned
specific intention of the kidnapper. Therefore, in order to
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constitute an offence under Section 366, besides proving the
factum of the abduction, the prosecution has to prove that
the said abduction was for one of the purposes mentioned in
the section. In this case at hand the prosecution was also
required to prove that there was compulsion on the part of
the accused persons to get the victim married. [See
Kavita
Chandrakant Lakhani v. State of Maharashtra , (2018) 6
SCC 664].
10. After carefully perusing the material placed before us, we are
of the considered view that the thrust of the submissions
made by the appellants on the age of the victim. The father
of the victim had specifically stated that, the victim was aged
around 15 years at the time of the incident. It is pertinent to
note that the investigating officer had collected the original
marksheet, which was duly attested by the headmistress of
the school where the victim was enrolled and thereafter, the
same was annexed to the charge sheet. Even while deposing
before the court, the investigating officer had produced the
original certificates along with the office file. On the
contrary, the accused appellants failed to produce any
evidence rebutting the validity of the aforesaid contention.
11. The counsel on behalf of the appellants further relied upon
the earlier decision of this Court in
S. Varadarajan v.
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(1965) 1 SCR 243 to argue that the victim
State of Madras ,
voluntarily joined the accused. However, we are unable to
agree with the aforesaid contention raised by the appellants
as the facts of the present case are clearly distinguishable.
12. In the present case, the victim (PW8) has clearly deposed
that accused nos.1 to 3 took her forcibly, and wrongfully
confined her in a house where the sister of accused nos.1
and 2 was residing. In the course of crossexamination, the
defense has not brought out anything much less any
contradictions to disbelieve or discard her evidence in this
regard.
13. Furthermore, the appellants have argued that the actual
performance of the marriage could not be proved as the
nikah certificate was incomplete and did not contain the
relevant information and the signatures. However, it ought
to be noted that, the language of Section 366 does not
require the factum of marriage to be proved, in order to
constitute an offence under Section 366, the prosecution
has to show that the kidnapping/abduction was done in
furtherance of an intent to compel the victim to marry
against her will.
14.
The facts of the present case indicate that, PW2 (Khazi) had
recognized both the accused no.1 and victim (PW8).
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Moreover, the complainant (PW7) has clearly stated that on
13.07.2002, when the victim did not return to the house
after purchasing the notebook, he lodged a missing
complaint the very next day after enquiring from all
relatives. He deposed that three days after lodging of the
missing complaint, on 17.07.2002, accused nos. 2 and 3
spoke to him over the telephone that they had performed the
marriage of the victim with accused no.1. The complainant
had further stated that, the accused person on prior
occasion used to tease the victim and had expressed the
desire to marry her. The appellants could not produce any
material contradiction so as to render his statements
unworthy. Lastly, statements of PW7 find support from that
of PW8 (victim).
15.
In the light of the admitted facts, it could be understood that
appellantsaccused had intentionally kidnapped PW8 to
perform the marriage. Lastly, considering the fact that, the
victim was pushed by the accused persons and was made to
forcibly board the autorickshaw. The victim also stated that
she was forcibly confined in house of the sister of accused
no.1, with legs tied, beyond three days. Moreover, during
this entire ordeal, the victim was under constant threat of
her physical safety. She has cited multiple instances where
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she was physically harmed by the accused persons. Thus, it
is evident that the ingredients of offences under Sections
343, 323 and 506 of I.P.C are also satisfied. In view of the
above, we see no reason to interfere with the impugned
order passed by the High Court affirming the order passed
by the trial court, especially when the sentence awarded is
already on a lenient side.
16.
The appeal is, accordingly, dismissed.
17.
Consequent upon dismissal of the appeal, the bail bonds of
the appellants, who were granted bail by this Court vide
order dated 05.10.2010, stand cancelled and they are
directed to surrender before the concerned trial court within
a period of two months from the date of communication of
this order, to serve out the remaining period of sentence,
failing which the concerned police authorities are directed to
take them into custody for the said purpose.
.........................J.
(N.V. RAMANA)
........................J.
(S. ABDUL NAZEER)
........................J.
(SURYA KANT)
NEW DELHI;
JULY 22, 2020.