Bangalore District Court
SPL.C/166/2014 on 21 September, 2015
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 21st DAY OF SEPTEMBER, 2015
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 166/2014
COMPLAINANT :
The State of Karnataka by
Subramanyapura Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
4. Suri @ Thopa Suri
S/o Krishnappa
Aged 23 years, r/at
Vishnu road, Kadrenahalli,
Banashankari II Stage,
Bengaluru.
[Rep. by Sri.Divokara E.T, Advocate.]
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/2/ Spl.C.C.No.166/2014
JUDGMENT
Subramanyapura Police, Bangalore City have charge sheeted the accused for the offences punishable under Sections 366A, 341, 342, 376, 504, 506 R/w Section 34 of I.P.C.
2. The case of the prosecution in brief, is as under :
CW2-Nandini was of 16 years in the year 2009. She was the minor daughter of C.W-1, Mahendrachari, residing in Munireddy extension, Chikkalasandra, Bengaluru. Accused No.4 Suri @ Thopasuri alongwith accused No.2 and 3 instigated accused No.1, Anil to kidnap C.W-2, Nandini with intention to marry her, consequently accused No.1 had kidnapped her on 27/09/2009 at 9.00am while she was going by walk in I cross, 18th main road, Munireddy extension, Chikkalasandra, accused No.1 had kept her in the house of C.W-12, Manjunath who was residing in Motappa layout, Mahadevapura, Bengaluru where he /3/ Spl.C.C.No.166/2014 committed rape on her. On 16/05/2010 at 4.00pm C.W-1, Mahendrachari was coming nearby Gowdanapalya bus stop, then accused No.2 alongwith accused No.2 and 3 wrongfully restrained him, abused in filthy language referring to his daughter and also gave threat to his life if he complains to police about missing of his daughter, they would set fire to his house and also finish off his entire dynasty. Prior to that C.W-1 had lodged complaint on 20/03/2010 with respect to missing of his daughter. He had also lodged a complaint on 17/05/2010 with respect to the incident taken place on 16/05/2010. Subramanyapura police had traced the accused No.1 and C.W-2, Nandini on 03/06/2010 when they had been to the accused No.1's house to see his parents who are residing in Kadrenahalli. After they were brought to Subramanyapura Police Station, Bengaluru Investigating Officer recorded the statement, drew necessary Mahazars, recorded the statement of other prosecution witnesses. By completing the /4/ Spl.C.C.No.166/2014 investigation, he submitted the charge sheet for the aforesaid offences.
3. The chargesheet was submitted to II ACMM Court and the case against accused No.4 was split up in C.C No.15171/2011 by II ACMM. After securing this accused No.4 the case of this accused was committed to the Court of Sessions for trial. After registering the case in S.C.No.744/2013, it was entrusted to FTC-7, thereafter it was transferred to LIV Addl.City Civil & Sessions Court, CCH-55 (45th Addl.City Civil & Sessions Court was in concurrent charge). Subsequently, on the point of jurisdiction, this case has been transferred to this Court when the case was for HBC. After following the procedure laid down under Law the charge for the offences punishable under Sections 109, 341, 504, 506 R/w Section 34 of I.P.C has been framed and read over to the accused. Accused has pleaded not guilty and /5/ Spl.C.C.No.166/2014 claimed to be tried. Hence, posted for evidence on prosecution side.
4. On prosecution side got examined as many as 4 witnesses as P.W.1 to P.W.-4 out of 21 charge sheet witnesses and got marked documents at Ex.P.1 to Ex.P.3, the details of which are given in the annexure of this Judgment. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused No.4 Suri @ Thopasuri, in furtherance of common intention /6/ Spl.C.C.No.166/2014 alongwith accused No.2 and 3 had abetted accused No.1 by way of instigation to kidnap C.W-2, Nandini, the minor daughter of C.W-
1, Mahendrachari on 27/09/2009 at 9.00am from Munireddy extension, Chikkalasandra, Bengaluru with intention that she may be compelled to marry accused No.1 punishable under Section 109 R/w Section 34 of I.P.C ?
2) Whether the prosecution has proved beyond reasonable doubt that accused No.4 in furtherance of common intention alongwith accused No.2 and 3 had wrongfully restrained C.W-1, Mahendrachari on 16/05/2010 at 4.00pm while he was coming nearby Gowdanapalya bus stop punishable under Section 341 R/w Section 34 of I.P.C ?
3) Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place /7/ Spl.C.C.No.166/2014 accused No.4 alongwith accused No.2 and 3 in furtherance of common intention abused C.W-1, Mahendrachari, in filthy language punishable under Section 504 R/w Section 34 of I.P.C?
4) Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused No.4 alongwith accused No.2 and 3 in furtherance of common intention, gave threat to his life and to set fire to house and dynasty if he gives complaint to police punishable under Section 506 R/w Section 34 of I.P.C ?
5) What order ?
7. My findings on the above points are as under:-
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : In the Negative.
Point No.4 : In the Negative.
/8/ Spl.C.C.No.166/2014
Point No.5 : As per final orders for the
following:
REASONS
8. Point No.1 : The prosecution made allegations against accused No.4 that he alongwith accused No.2 and 3 had instigated accused No.1 to kidnap P.W-2 in order to marry her, consequently she was kidnapped by accused No.1 on 27/09/2009 at 9.00am while she was going in I Cross, 18th main road, Chikkalasandra, Bengaluru. C.W-1, Mahendrachari, father of the prosecutrix had lodged a complaint on 20/03/2010. Then accused No.4 alongwith accused No.2 and 3 on 16/05/2010 while P.W-1, Mahendrachari was coming in Gowdanapalya bus stop wrongfully restrained him as he lodged a complaint before the police with respect to missing of his daughter, abused in filthy language and also gave threat to his life.
9. So far as concerned to offence of kidnap of P.W-2 by accused No.1, according to prosecution the present /9/ Spl.C.C.No.166/2014 accused who is accused No.4 alongwith accused No.2 and 3 had instigated him, because of their conspiracy the offence of kidnapping was complete by accused No.1 on 27/09/09. The first and foremost point here to be looked into is there any proof to show accused No.4 aids and abets the actual perpetration of the crime at the very time when it is committed. Active abetment at the time of committing the offence is covered by this Section. Section 109 of I.P.C provides punishment of abetment, if the act abetted is committed in consequence of the abetment, and no express provision is made for its punishment. In view of the aforesaid Section, the act of offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation or in pursuance of the conspiracy or with the aid which constitutes the abetment. The burden lies upon the prosecution to establish the instigation made by accused No.4 alongwith accused No.2 and 3. The instigation must have reference to the thing that was / 10 / Spl.C.C.No.166/2014 done and not to the thing that was likely to have been be done by a person who is instigated. It is only if this condition is fulfilled that person can be guilty of abetment by instigation. But I do not find any evidence on record to establish the instigation made by accused No.4 to accused No.1 to kidnap P.W-2, Nandini.
10. In order to prove its case prosecution has got examined 4 material witnesses. P.W-1, Mahendrachari is the complainant and he is also the father of the prosecutrix. P.W-2, Nandini is the prosecutrix. P.W-3, Muralidhara is an eye witness to the offence of kidnapping. P.W-4, Surekha is then Woman Police Constable who took the victim to the hospital for medical examination.
11. P.W-1, Mahendrachari, the Complainant is the material witness to speak about the conspiracy or instigation made by accused No.4 alongwith other accused, accused No.1 kidnapped P.W-2, prosecutrix. Ex.P.1 is the complaint said to have been lodged by / 11 / Spl.C.C.No.166/2014 him by making allegations against accused No.4 and other accused as already discussed in supra. In view of oral testimony of P.W-1, he has not at all supported the prosecution. Ofcourse, he has stated in his chief examination that he had lodged a complaint doubting the accused No.1, but he has stated in further he does not know the accused No.4 and he also does not know what is the relationship between accused No.1 and 4. It is also further stated by him one year after lodging the complaint by him, Subramanyapura police called him to the Police Station that they had traced the P.W-
2. Except this statement, there is nothing on record to draw the conviction against accused No.4 for the offence of abetment under Section 109 of I.P.C. There is no clinching evidence to establish accused No.4 alongwith other accused instigated accused No.1 to kidnap P.W-2, prosecutrix for the purpose of marrying her. Merely because there is a complaint at Ex.P.1 with respect to offence of kidnapping, it does not establish the abetment by accused No.4 by way of / 12 / Spl.C.C.No.166/2014 instigation. The essential ingredient of Section 109 is not at all proved by the prosecution. There is absolutely no single piece of evidence to show the instigation by accused No.4 to accused No.1 to kidnap P.W-2, Nandini. In the absence of any proof with respect to conspiracy made by accused No.4 alongwith accused No.2 and 3 for the offence of kidnapping by accused No.1, he cannot be held guilty for the offence of abetment under Section 109 of I.P.C.
12. P.W-2, Nandini is the another material witness. She has also stated in her very chief examination that she does not know accused No.4. In the cross- examination also nothing has been extracted from the mouth of either P.W-1 or P.W-2 to prove the case of the prosecution against accused No.4. Ofcourse P.W-2 has admitted that she married one Anil Kumar. It is a different aspect from the aspect of abetment punishable under Section 109 of I.P.C for the offence of kidnapping.
/ 13 / Spl.C.C.No.166/2014
13. According to prosecution, P.W-3, Muralidhara is an eye witness to the offence of kidnapping by accused No.1. In the chief examination itself he has stated that he does not know accused No.4 before the Court. Even he does not know accused No.1 Anil. He has not at all seen the kidnap made by accused No.1 Anil. Though he has been subjected to cross- examination by learned Public Prosecutor extensively does not help the prosecution to connect the accused No.4 to the offence of abetment by way of instigation. Therefore, his evidence is also of no avail to the prosecution.
14. P.W-4, Surekha is then Woman Police Constable who took the victim to hospital. But her evidence does not refer to the role of accused No.4. I do not find anything in the evidence of P.W-1 to 4 about the participation of accused No.4 in commission of any kind of offence very particularly the abetment by way of instigation punishable under Section 109 of / 14 / Spl.C.C.No.166/2014 I.P.C. The prosecution has utterly failed to put forth a piece of evidence to record the conviction against him for the aforesaid offence. The benefit of doubt should go to the accused. Hence, I hold point No.1 in the Negative.
15. Points No.2 to 4 : Point Nos.2 to 4 are taken together for discussion to avoid repetition of facts as they are interconnected to each other. Accused No.4 alongwith accused No.2 and 3 is alleged to have committed wrongful restrainment while P.W-1, Mahendrachari was coming nearby the Gowdanapalya bus stop, uttered filthy words and also gave threat to his life if he complains to the police in the matter of his daughter. Ex.P.1 is the complaint said to have been given by P.W-1 on this aspect on 17/05/2010. P.W-1 is the material witness who has to speak about on this aspect. But he has not supported the prosecution. He has been cross-examined lengthily by learned Public Prosecutor, but it does not help the / 15 / Spl.C.C.No.166/2014 prosecution to prove its case. His evidence does not show any incriminating statement against accused No.4 for his complicity in the offence of 341, 504 and 506 of I.P.C. P.W-2, Nandini is the prosecutrix. But she is not an eye witness, but only hear say witness. Even otherwise his evidence also does not suggest anything with respect to the alleged crime committed by accused No.4 on 16/05/2010. When P.W-1, the complainant as well as the aggrieved person himself does not say anything against accused No.4, there is no other evidence to convict the accused for the aforesaid evidence. On the basis of the complaint lodged by P.W-1, the accused No.4 alongwith accused No.2 and 3 also charged for the aforesaid offence. There is no piece of evidence to believe the case of the prosecution that accused No.4 has committed the alleged crime. The prosecution has utterly failed to prove its case. There is no evidence to make out its case. The prosecution has miserably failed to prove the offence under Section 341, 504, 506 of I.P.C.
/ 16 / Spl.C.C.No.166/2014 Under the circumstances, accused No.4 is entitled to benefit of doubt. Hence, I hold point Nos.2 to 4 in the Negative.
16. Point No.5: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offences punishable under Sections 109, 341, 504, 506 R/w Section 34 of I.P.C.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 21st day of September, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Mahendrachari / 17 / Spl.C.C.No.166/2014 P.W.-2 Nandini P.W.-3 Muralidhar P.W-4 Surekha LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P.2 Statement of victim Ex.P.3 Statement of P.W-3 LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF WITNESSES EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
***