Mohammed Yousuf @ Moula vs The State Of Karnataka

MOHAMMED YOUSUFF @ MOULA & ANR. …APPELLANTS

Versus

THE STATE OF KARNATAKA … RESPONDENT

JUDGMENT

N. V. RAMANA, 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

Signature Not Verified is the brother of accused no. 2 and accused no. 3 is the wife Digitally signed by SATISH KUMAR YADAV Date: 2021.01.12 16:51:37 IST

of accused no. 2. When accused no.1 expressed his desire to Reason:

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, 2

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 3

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 4

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 5

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. 6

State of Madras, (1965) 1 SCR 243 to argue that the victim

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). 7

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 8

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.