Karnataka High Court
State Of Karnataka vs Aluraiah on 19 July, 2023
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CRL.A No. 1892 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1892 OF 2017
BETWEEN:
1. STATE OF KARNATAKA
BY K. M. DODDI POLICE,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-1.
...APPELLANT
(BY SRI K.S. ABHIJITH, HCGP)
AND:
Digitally
signed by 1. ALURAIAH,
RAMYA D S/O MUDDIREGOWDA,
Location: High AGED ABOUT 46 YEARS,
Court of R/O SULYA, SOUTH KANNADA DISTRICT,
Karnataka
NEW RESIDING OF PAVAGADA,
NATIVE PLACE MENASAGERE,
MADDURU TALUK. 571 428.
2. A.C. AKARSH,
S/O RICHARD,
AGED ABOUT 35 YEARS,
BEHIND GOVERNMENT PRIMARY SCHOOL,
SULYA POST,
SOUTH KANNADA DISTRICT. 574239.
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CRL.A No. 1892 of 2017
3. B.R. BHANUPRAKAS,
S/O BUB RAGHUVEER B,
AGED ABOUT 35 YEARS,
R/O BANGLEGUDDE,
CHURCH ROAD, SULYA POST,
SOUTH KANNADA DISTRICT, 574239.
4. A.H. DEVIPRASAD,
S/O HONNAPPAGOWDA,
AGED ABOUT 35 YEARS,
R/O KANTAMANGALA HOUSE,
AJJAPURA POST, SULYA,
SOUTH KANNADA DISTRICT, 574239.
5. KRISHNA @ KRISHNAKUMAR,
AGED ABOUT 40 YEARS,
R/O SULYA TOWN,
SOUTH KANNADA DISTRICT, 574239.
6. B. VIJAY,
S/O LATE BASKAR,
AGED ABOUT 52 YEARS,
R/O NO. 33, 3RD WARD,
BANGLEGUDDE, CHURCH ROAD,
SULYA POST,
SOUTH KANNADA DISTRICT. 574239.
7. H.S. SHIVAKUMARASWAMI
S/O SHIVALINGEGOWDA,
AGED ABOUT 50 YEARS,
R/O NATIVE AT S.I. HAGALAHALLI VILLAGE,
MADUR TALUK, NOW RESIDING AT A.G. COLONY,
GUDIGERE ROAD,
K.M. DODDI TOWN. 571428.
8. M. ARAVINDA,
S/O MARIKENCHEGOWDA,
AGED ABOUT 34 YEARS,
R/O MARASNGANAHALLI VILLAGE,
MADDUR TALUK, 571428.
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CRL.A No. 1892 of 2017
9. B.M. CHIKKAHANUMEGOWDA,
S/O LATE MOODALAGIRIGOWDA,
AGED ABOUT 57 YEARS,
R/O G. MADEGOWDA LAYOUT,
K.M. DODDI TOWN,
NATIVE PLACE BIDARAHALLI VILLAGE,
MADDUR TALUK, 571428.
10. RAMESHA @ MOHANRAJ,
S/O RAJANNA,
AGED ABOUT 41 YEARS,
R/O SULYA MILITARY GROUND,
JAYANAGARA, SULYA TOWN,
SOUTH KANNADA DISTRICT. 574239.
...RESPONDENTS
(BY SRI. S.VICTOR MANOHARAN, ADVOCATE FOR R1-R10)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF CR.P.C BY THE S.P.P. FOR THE APPELLANT
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGEMENT AND ORDER OF ACQUITTAL DATED 27.04.2017
PASSED BY THE COURT OF V ADDL. DISTRICT AND SESSIONS
COURT AT, MANDYA IN S.C. NO. 209/2012, ACQUITTING THE
ACCUSED OF THE OFFENCES PUNISHABLE UNDER SECTIONS
143, 341, 366, 120(B), 307, 506 R/W 149 OF I.P.C., ETC
THIS CRIMINAL APPEAL, COMING ON FOR HEARING,
THIS DAY, G. BASAVARAJA J., DELIVERED THE FOLLOWING:
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CRL.A No. 1892 of 2017
JUDGMENT
This appeal is filed by the State challenging the Judgment and order of acquittal in SC No.209/2012 dated 27.04.2017 on the file of V Additional District and Sessions Court, Mandya. The respondents were charge sheeted for the offences punishable under Sections 143, 341, 366, 120-B, 307, 506 r/w 149 of IPC.
2. The factual summary of the prosecution case is that:
Accused No.1 - Aluraiah used to compel PW2- K.S.Ashwini to marry him. Since PW2 did not agree for marriage, on 23.10.2011 when PW2 was going alone in K.M.Doddi town, accused No.1 restrained her and gave life threat that if she did not agree for marriage, he will kidnap and kill her by pouring acid. In this regard, PW2 lodged a complaint to the police and accused No.1 was arrested and produced before the Court. Taking revenge in this regard against PW1-Shivalingegowda, that on 12.01.2012 accused Nos.2 to 6 had come to Mandya city in Omni car -5- NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 bearing No.KA-12 Z-693 and Tata Indica car bearing No.KA-21-9614 and assembled in Hotel Inchara of Mandya City and hatched a conspiracy to abduct and kill PW2 with deadly weapons such as 3 knives and also kept 2 pair of hand-gloves with preparation to watch for time. On 14.01.2012 at about 09.15 a.m. the accused Nos.1 to 6 and 10 formed an unlawful assembly with an intention to kidnap PW2 and commit murder, the accused Nos.1, 3, 4 and 5 came in Honda City car bearing No.KA-51-N-8353 driven by accused No.2 and accused No.6 came in Maruthi Omni car bearing KA-19-Z-693 driven by accused No.6 and were watching PW2, when PW2 was proceeding in a TVS Scooty bearing No.KA-11-X-2364 from K.M.Doddi to Gudigere road in front of the house of Master Boraiah, the accused chased her in a Honda City Car and restrained PW2 by parking their Omni car in front of scooter and accused Nos.1, 3, 4 and 5 alighted from car and forcibly dragged her from scooter by holding her hands and legs and kidnapped her in a Honda City Car No.KA-51-N-8353 and proceeded. While proceeding in the car, PW2 -6- NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 protested and screamed, then accused Nos.3 and 4 threatened her with point of knives by putting the knives near the neck of PW2 and caused criminal intimidation.
Further it is alleged that accused have also attempted to commit murder of PW2. Thus the accused have committed the aforesaid offences.
3. To substantiate the case of prosecution, 29 witnesses were examined as PW1 to PW29. 27 documents marked as Exs.P-1 to P-27. 14 Material objects were marked as MOs.1 to 14.
4. After prosecution side evidence was over, the accused were examined under Section 313 of Cr.P.C. Accused denied the incriminating evidence appearing against them. Accused No.7-H.S.Shivakumaraswami examined himself as DW2 and one Marikenchagowda is examined as DW1 and 4 documents were marked as Exs.D1 to D-4.
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5. Having heard the arguments on both sides the trial court passed the impugned judgment of acquittal. Being aggrieved by the same, the State has preferred this appeal.
6. Sri. K.S.Abhijith, learned HCGP has submitted his arguments that the judgment and order of acquittal passed by the trial court is illegal, invalid, contrary to law, evidence and material on record. The reasons assigned by the trial court are not sustainable under law. The victim PW2 has reiterated the incident in question and also identified all the material objects. The victim has withstood the cross examination and there is nothing worthwhile to be extracted here to doubt the veracity of the witness. Her evidence lends complete credence to the case of the prosecution and this evidence by itself is sufficient to prove the guilt of the accused. The trial court has failed to consider the evidence of the victim in its right perspective in accordance with law on the aspect of appreciation of evidence of victim/eye witness. -8-
NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 Furthermore, the trial court has also erred in observing that there is variance in evidence of PW1 and PW2. The trial court has grossly erred in giving undue credence to minor variations, which in-fact does not affect the case of the prosecution. The evidence of PW1 would also establish the motive for the commission of the crime. Further it is submitted that the trial court has failed to consider the circumstantial witnesses - PWs.3 and 4 who have also supported the case of the prosecution. The trial court has also not considered the evidence of PW5 Tangadore, who speaks about the damage caused to Tata Indica car and its repair. The trial court has failed to appreciate the evidence of PWs.7 to 29. The trial court has failed to notice that contradiction/omissions pointed out by defence was not of such magnitude that materially affects the trial. The trial court erred in considering minor contradictions, inconsistencies, embellishments and improvements on trivial matters, which in-fact did not affect the prosecution case. On all these grounds he sought for allowing this appeal.
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7. Sri. S. Victor Manoharan, learned counsel representing respondents/accused has presented his argument ascertaining that trial court meticulously evaluated the evidence on record in accordance with applicable legal principles and factual aspects. Accordingly, he contends that there is no valid grounds, warranting the interference in the impugned judgment of acquittal rendered by the trial court. In the light of submission, the counsel seeks dismissal of this appeal.
8. On hearing the arguments of both sides and on perusal of the record, the following points would arise for our consideration:
1. Whether the prosecution has made out grounds to interfere with the impugned judgment and order of acquittal?
2. What order?
9. Our answer to the above points as under:
1. In the Negative
2. As per final order
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 RE. POINT NO.1:
10. PW1 - Shivalingegowda, the father of PW2 has deposed that PW2 had been to college on 14.01.2012 at about 9.00 am in her Scooty bearing No.KA-11-X-2364 on the same day at about 9.15 a.m. one Ravi of Devarahalli village had come to his house and informed that his daughter was abducted in a Honda City car near Om Shanti Road of K.M.Doddi Town. Immediately, he rushed to police station and lodged complaint to the police as per Ex.P.1. When he was in police station at around 9.45 a.m., the police brought accused Nos.1 to 4. Further he has deposed that prior to 3 months from the date of this incident, accused No.1 asked his daughter to marry him, but they did not agree. However, accused No.1 was compelling for marriage with PW2. In this regard, in the month of October 2011, they lodged a complaint against accused No.1. Police enquired in this regard. Further he has deposed that one Honda City Car bearing No.KA-51-N- 8383 and Omni car No.KA-19-Z-693 were parked in front of police station.
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11. PW2-Victim has deposed in her evidence that in the year 2012 she was working as a lecturer in K.M.Doddi Bharati College. She used to go to college at about 9.00 a.m. in her Scooty everyday. In the same college she studied from PUC to B.Sc., at that time when she was studying, accused No.1 was the librarian, he used to attempt to talk with her unnecessarily, he had spread the news in college stating that she was in love with him. Accused No.1 had made proposal for her marriage with her father. Her parents had rejected the said proposal. On 23.10.2011, the accused No.1 had restrained her and compelled her to marry with him or else he had threatened to pour acid on her. In this regard, the case was registered against him in K.M.Doddi Police Station. In that case police had arrested the accused No.1 and he was in jail. That on 14.01.2012 at about 9.30 a.m. when she was proceeding to the college in Scooty near OM Shanti Road, Mandya, one white colour Omni car and Honda City Car came from back side and restrained her, accused
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 Nos.1 to 4 got down from Honda City Car and forcibly dragged her into the car. Accused No.1 had attempted to tie Thali to her neck. Accused Nos.2 to 4 threatened her not to cry. On the same day, police stopped car near Santemela Circle Bannur and arrested accused Nos.1 to 4 and rescued her. Then police took accused Nos.1 to 4 along with her to the police station. She has also deposed as to the identification of weapon used for commission of offence and also the Thali and Karimanisara. Further she has deposed that the accused No.1 and another accused tried to squeeze her neck, accused No.3 has forcibly held her right hand and accused No.3 caught hold of her both hands. Hence, she received injury on left ring finger. She has taken treatment in the hospital through police.
12. PW3 - C.Varalakshmi and PW4 - Suresha are said to be the eye witnesses to the said incident. PW3 has deposed in her evidence that on 14.01.2012 when she was going to drop her two kids to Vivekananda Convent, one Suresh (PW4) met her in the road and were talking to
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 each other. At that time, PW2 was proceeding in the said road in the Scooty and one Honda City car and Omni car came and restrained PW2 and forcibly abducted her. She raised alarm. Someone had informed the same to the police, thereafter she came to know that accused No.1 had abducted PW2. She came to know the names of accused Nos.2 to 4 in the police station. On the same day within half an hour Mandya police had arrested accused Nos.1 to 4 and brought them to the police station.
13. PW5 - Tangadore, four wheeler Mechanic has deposed in his evidence as to the repair of Indica car and Omni. This witness is treated as partly hostile witness and cross examined. PW6 - Shrikanth, S/o. Shankaregowda, the Manager of Inchara Hotel has not supported to the case of prosecution. PW7 - C.Lokesh, who was witness to the earlier incident between PW2 and accused No.1, has also not supported the case of the prosecution. PW8 - Santhosh has deposed in his evidence that at about 4-5 years back when he and PW7 were near Hotel, Om Shanti
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 Road, KM Doddi, PW2 was going, accused No.1 restrained her and compelled her to marry him and he pulled duppatta of PW2 and then he and PW7 intervened, pacified the quarrel. He has also stated the same before the police. PW9 - Ravi Kumar and PW10 - Siddegowda, who were attestors to the panchanama Ex.P-11 have deposed in their evidence as to the contents of Ex.P-11 and seizure of MOs.1 and 2 and identification of Ex.P.12 photo.
14. PW11 - Vijayakumar who was working as Manager in Basaweshwara Lodge, Malavalli, has not supported the case of the prosecution. PW12 - Hemanth Kumar, the Manager of Jyoti International Lodge has also not supported to the case of the prosecution, but he has deposed that police have taken his signature on Ex.P-16, but he has denied the statement recorded by police. PW13 - M.Manchalingaiah and PW14 - P.Sathish have deposed regarding Ex.P-16 and also identification of photo
- Ex.P-2 and P-3 and MOs.3 to 12. PW15 - Rajanikanth and PW16 - M.Suresh have deposed regarding seizure
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 mahazar - Ex.P-6 and also seizure of diary - Ex.P-18. PW17 - S.Vinod and PW18 - Chandan drivers of cars have deposed in their evidence as to the seizure mahazar - Ex.P.15.
15. PW19 - Puttaswamy and PW20 - Krishna have deposed in their evidence as to the seizure of Tata Indica car, one Mobile, one pair of hand gloves from the possession of accused Nos.6 and 10 in the police station under seizure mahazar - Ex.P-19. PW21 - S.Kumar said to be the attester to mahazar - Ex.P.13 has not supported to the case of the prosecution. PW22 - H.B. Bommaiah, ASI, has deposed in his evidence that on 14.01.2012 when he was in SHO of K.M.Doddi police station at 09.15 a.m. the complainant Shivalingegowda came and lodged a complaint. On that basis, they registered a case in Crime No.16/12 and submitted FIR to the Court as per Ex.P.1. Thereafter, he rushed to the spot and conducted panchanama as per Ex.P-11 and at the time of
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 panchanama he has seized one two wheeler vehicle and one pair of chappal.
16. PW23 - Kempegowda has deposed in his evidence as to the contents of mahazar - Ex.P-22. PW24 - Dr.T.Shobha Rani has deposed in her evidence that on 14.01.2012 at about 04.47 p.m. the women police constable 811 brought the injured Ashwini.K.S., D/o.Shivalingegowda with history of assault and she examined her and found injuries as per Ex.P-23 - wound certificate. PW25 - Pashu Ahamad, Police Constable and PW26 - Veerabhadrappa, ASI have deposed in there evidence that on 14.01.2012 when they were on duty at about 11.00 a.m., ASI received an information as to the kidnapping of one woman in a car. Then immediately the ASI and others were watching near Santemela Circle by putting barricade on the road. They stopped the Honda City Car KA-51-N-8383 and one lady and 3 persons were in the car when they surrounded the car, 3 persons tried to escape but they apprehended them, then they took
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 them to police station along with car and he has identified the accused Aluraiah and he will also identify other accused.
17. PW27 - V.Vijaya, Head Constable, PW28 - M.V.Ventakaramu, ASI, PW29 - Jagadisha, PSI have deposed as to their respective investigation.
18. It is the defence of accused that PW2 had love affair with accused No.1. Hence she had voluntarily come with accused No.1 to marry him and other accused came to attend the marriage. In order to substantiate their defence accused have lead defence evidence. DW1 - Marikenchegowda has deposed that the mother of PW2 had come to his house to attend marriage of his daughter, at that time, she had told him about love affair of her daughter with accused No.1 and also told that they have given consent for their marriage. He has also deposed that he came to know from accused No.7 that PW2 had gone with accused No.1 to marry him. The trial court has observed that prosecution has failed to elicit any favorable
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 answers from these witness to disbelieve the testimony of this witness. Accused No.7 H.S.Shivakumaraswamy, who is the uncle of PW2 examined as DW2, has deposed about the love affair of PW2 with accused No1. The trial court has also observed that prosecution has failed to elicit any favorable answer from this witness to disbelieve his evidence.
19. It is the case of prosecution that PW1 lodged complaint on the basis of information given by one Ravi. The said Ravi is not examined by the prosecution. PW2 has not deposed in her evidence that Ravi witnessed this incident. PW1 is not an eye witness to this incident. According to the case of prosecution, D.S.Ravi Kumar, PW3 - Varalakshmi, PW4 Suresh are the eye witnesses to this alleged incident. Out of these material witnesses, D.S.Ravikumar was given up by the prosecution. PW3 - Varalakshmi has deposed in her examination in chief that she witnessed accused Nos.2 to 4 when they were kidnapping PW2, she has not witnessed CW5 to CW10.
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 During her cross examination she has deposed that she has not given statement before the police that some 4 male persons came in a car and kidnapped PW2 as per Ex.D-1. She has also stated that she has not stated car number and scooter No.KA-11-X-2364 as per Ex.D-2. Further she clearly admitted that she has not deposed before the IO as per statement - Ex.D-2. During the course of cross examination of PW4 - Suresh deposed that he heard sound of galata at a distance of 30 to 40 feet and about 20 to 30 persons had gathered when he visited the spot, he did not find the car, he saw Scooty which was laying on the ground and one chappal was laying. Further he stated that he is not acquainted with persons who were proceeding in Scooty and car. Further he has deposed that he has not stated the names of accused and vehicle numbers to the police. Further he has clearly admitted that police have read over their statements and he came to know that police have inserted the names of the accused and also vehicle numbers in his statement.
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20. Now, we have to analyze the evidence of prime prominent witnesses - PW1 and PW2. PW1 is not an eye witness to this incident and PW1 and PW2 have not deposed as to the alleged conspiracy to the kidnapping of PW2 and also forcible marriage by these accused. They have also not deposed as to the unlawful assembly formed by the accused Nos.1 to 10 as alleged by the prosecution. Hence, it is clear that absolutely there are no evidence as to the alleged commission of offence punishable under Section 143 and 120B r/w Section 149 IPC.
21. With regard to offences punishable under Sections 341, 366, 307 and 506 are concerned, PW2 has deposed in her evidence as to the injuries caused by accused. Apart from this evidence of PW2, the prosecution has produced wound certificate - Ex.P-23, which is issued by Dr.T.Shobha Rani - PW24. Neither in the wound certificate - Ex.P-23 nor in the evidence of PW24 the names of the persons who assaulted PW2 are reflected. Only after filing the complaint, PW2 brought by
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 Women Police to the hospital for treatment. Wound certificate reveals the injuries caused to PW2, which are as under:
• Abrasion (Scratch mark) over the front of the neck above the medial end of left claricle 1cmX2mm • Scratch mark (Abrasion) over the palmer aspect of left Ring finger over terminal phalynx ½ cmX2mm.
• Abrasion (Scratch mark) over the vertical aspect of left wrist joint on left lateral side 2 cm X 2mm • Tenderness over right forearm.
22. Doctor has opined that injuries are simple in nature. In Ex.P-1 - complaint PW1 has not stated anything as to the assault said to have been caused by the accused. According to the evidence of PW2, accused No.1 and another tried to squeeze her neck, she received injuries on her neck, accused No.3 caught hold of her two hands. Hence, she has received injuries on her left ring finger and both hands, she has not deposed anything as to the other accused except accused Nos.1 and 3. The
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 wound certificate - Ex.P-23 does not reflect the squeeze marks on the neck. She has received only abrasion over front of the neck and wound certificate also reflects that injured has received scratch mark (abrasion over palmer aspect) and also she has received abrasion on her left wrist joint and there was tenderness over right forearm. These injuries are not consistent with the evidence of PW2. If really accused No.1 and another accused tried to squeeze her neck, there would be squeeze mark on her neck. Except abrasion over neck and left ring finger and left wrist joint, there are no severe injuries on the body of PW2. The other eye witnesses have not deposed as to the injuries caused to the PW2. Therefore, the evidence of PW2 is not sufficient to come to the conclusion that accused have assaulted to PW2 as alleged by the prosecution. Therefore, we do not find any cogent, consistent and corroborative evidence regarding the assault made by the accused.
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23. The alleged incident took place on 14.01.2012 at 9.00 a.m. PW1 lodged the complaint on the same day at 10.15 a.m. On the basis of complaint, police have registered the case in Cr.No.16/2012 for the commission of offences punishable under Section 143, 341, 366, 120(B), 307 r/w Section 149 of IPC and submitted the FIR to the Court as per Ex.P-21 on the same day at 08.10 p.m. In Ex.P-21 - FIR the name of accused No.1 is only shown as Aluraiah, the names of other accused are not shown in FIR. The case is registered against Aluraiah and others. Only after investigation the IO has submitted charge sheet against accused Nos.1 to 10 for the offences punishable under Section 143, 341, 366, 120(B), 307, 506 r/w Section 149 of IPC.
24. The investigating officer, who is PW29 - Jagadish, PSI, has deposed that on the date of incident i.e., 14.01.2012 he has taken the custody of accused Nos.1 to 4 along with victim girl and took them to the police station at 12.30 p.m. On the basis of statement
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 given by PW2, he has given requisition to the Court to insert offences 120(B) and 307 IPC and recorded the voluntary statement of accused Nos.1 to 4.
25. PW1 has clearly stated in his examination in chief that when he was sitting in the police station, the police brought accused Nos.1 to 4 and also his daughter PW2. At 09.45 a.m. PW2 has also deposed in her examination in chief that police have brought the accused Nos.1 to 4 along with her and she has narrated as to the incident. Ex.P-1 - complaint reveals that PW1 has lodged the complaint to the police on 14.01.2012 at 10.15 am. The IO has also deposed the same. A perusal of aforesaid material it is crystal clear that before filing the complaint - Ex.P.1 by PW1, he was aware of the names and addresses of accused Nos.1 to 4, who were in the police station. The victim has also narrated the facts to the police in the presence of complainant. Further the names of accused Nos.2 to 4 have not been disclosed in Ex.P-1 - complaint. The FIR which is marked as Ex.P-21 the name of Aluraiah
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 is shown and the names and addresses of other accused were not shown, the same is shown as others. Though, the names and addresses of the accused are available prior to filing complaint, the accused Nos.1 to 4 physical presence were in the concerned police. PW1 has not stated the names and addresses of accused Nos.2 to 4 in this regard. PW1, PW2 and IO have not whispered anything as to the omission of names of accused Nos.2 to 4 in the complaint as well as FIR. Therefore, it will create reasonable doubt as to the involvement of accused Nos.2 to 4 along with other accused.
26. With regard to the other accused are concerned, PW1 has not whispered against accused Nos.5 to 10. PW2 - victim has stated that accused No.1 compelled her to marry with him. Accused No.7 used to say that if she did not marry accused No.1, he may do anything. Further she has deposed that accused No.1 called accused No.8 over phone to bring accused No.7. Accused Nos.2 to 4 had threatened her not to cry. Further
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 he has stated that on the date of incident, accused Nos.6 and 10 were in the Omni car. Further he has stated that for the first time, she has seen accused Nos.5, 7, 8 and 9 in KM Doddi police station at 5.00 p.m. Further she has stated that since accused No.1 called accused Nos.7 and 8 to come near the place of alleged incident, she inserted the names of accused Nos.7 and 8, except this they have not committed any offence. She has also stated that she has not stated the names of witnesses before the police station except the name of accused Nos.1, 8 and 9. Further she has stated that when she was in police station, accused Nos.7 and 8 were not present in the police station. A perusal of evidence of PW1 and PW2 it is crystal clear that both have not deposed anything as to accused Nos.5 to 10 as to the alleged conspiracy, unlawful assembly and also common object in assaulting PW2. The other witnesses have not whispered anything against accused Nos.5 to 10. The investigating officer PW29 - Jagadish has also not satisfactorily explained as to the involvement of accused Nos.5 to 10. Absolutely there is
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 no evidence against accused Nos.5 to 10 for the alleged commission of offence.
27. It is the case of prosecution that PW29 - Jagadish, PSI, has recorded the voluntary statement of accused Nos.1 to 4 on 14.01.2012. The IO has further deposed that he summoned CW25 - M.Manchalingaiah and CW26 - P Sathish, who are examined before the court as PW13 and PW14. He has seized the car which was used for commission of offence, two knives, one turmeric thread with thali and black karimani, 5 mobile phones under Ex.P-16 and the said material objects marked as MOs.3 and 4, 6 to 10 and 12. Ex.P-16 reveals that on 14.01.2012 the IO has arrested the accused on the basis of information given by the accused. The IO has seized the Hero Honda City Car bearing registration No.KA-51-N- 8383, 2 steel knives, 5 mobile phone sets, one gold metal model thali, 2 karimani and 2 red mani (PÉA¥ÀÄ §tÚzÀ ªÀÄtÂ), which are stringed to turmeric colour thread. In this panchanama it is stated that accused are owners of seized
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 mobile phones. But the IO has not produced any documents to show that these mobiles belong to the accused. During the course of cross examination of PW13
- Manchalingaiah has stated that when he was going to the police station the car was parked in the premises of police station. Ashwini was not present and four accused were in the police station. He cannot say the names of four accused except Aluraiah. The seized properties were on the table, police were sitting in front of the table, MO12 one thali was on the table, an amount of Rs.3,580/- was on the table, among accused one of the accused has produced, knives taken out from the car MOs.3 and 4. Police have not summoned him to the police station, he has voluntarily appeared in the police station.
28. PW14 - Sathish has stated in his cross examination that the car was parked in front of police station and seized properties were orderly placed on the table. He does not know who is Aluraiah. Ex.P-26 is the B register extract issued by Transport Department,
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 Government of Karnataka, which is standing in the name of Aluraiah, S/o Muddeeregowda who is accused No.1 in this case. Photos of Indica car is produced as per Ex.P-2 and P-3. The IO has not produced the voluntary statement of accused Nos.1 to 4 said to have been recorded by him as shown in mahazar Ex.P-16. Though IO
- PW29 has not recorded voluntary statement of the accused, he has deposed that he has enquired accused No.1 to 4 and recorded their voluntary statement. As already disclosed above that PW1 and PW2 have clearly deposed in their evidence that before filing complaint accused Nos.1 to 4 brought accused Nos.1 to 4 along with PW2 and also car. It is also evident from the prominent witness PW1 that one Honda city car and Omni car were parked in front of police station before lodging this complaint. A perusal of the above evidence along with mahazar - Ex.P.16 it is crystal clear that IO - PW29 has not recorded the voluntary statement of accused Nos.1 to
4. Even the seizure panchanama witness - PW13 and PW14 have clearly deposed that police have not produced
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 any of the property before the police but they have identified the properties, which were placed on the table in Police Station. When the police have arrested accused Nos.1 to 4 along with car, question of production of car before the police and producing karimanisara, thali and knives before police does not arise. PW1 and PW2 have not deposed anything as to the knives said to have been recovered by the IO on the instance of accused. Therefore, even if it is presumed that IO had recovered knives - Mos.3 and 4 at the instance of accused, then also it will not help the prosecution to prove that accused had common object and used these weapons for alleged commission of offence.
29. With regard to seizure of mobiles, which are marked as MOs.5 to 10, the IO has not produced any document before the Court to show that these mobiles were standing in the name of accused on the relevant point of time. The call records were also not collected by the IO and that there is no evidence to show that accused
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 have produced these mobiles before the IO. Therefore, this material object will not be helpful to substantiate the case of prosecution. With regard to MO11 is concerned, none of the witnesses has deposed before the Court that who has produced this cash of Rs.3,580/- and how this amount of Rs.3,580/- is relevant to connect to accused Nos.1 to 10 in the alleged commission of offence, have not been established by the prosecution.
30. With regard to seizure of car bearing No.KA-19- Z-693 is concerned, PW29 has deposed that on 15.01.2012 he has interrogated A3 - Bhanuprakash at his instance, seized the same along with one knife and one diary from Tata Indica car as per Ex.P-19, but the car seized under Ex.P-19 is not the car bearing No.KA-19-Z-
693. Exs.P-3 and P-4 are photos of Honda City car and omni car bearing No.KA-19-Z-693. These photos are not pertaining to car seized under Ex.P-19. However, prosecution has examined one Puttaswamy and Krishna as PWs.19 and 20. The prosecution witnesses have not
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 deposed anything before the Court as to the MO14 hand gloves seized by the prosecution. Though the IO has seized 2 cars, knives and hand gloves, chappals under various mahazar, IO has failed to explain to connect the role of the accused to the seizure of properties under various mahazar. Therefore, all these mahazar properties forms will not support the case of the prosecution to connect accused for alleged commission of the offences.
31. DW1 - Marikenchegowda and DW2 H.S.Shivakumarswamy have clearly deposed that PW2 and accused No.1 were loving each other. It has also come in their evidence that both were prepared to marry and since both witnesses have clearly deposed that development of love between the accused and PW2 and also they have deposed as to the arrangement of marriage between accused No.1 and PW2. During the course of cross examination of PW29, IO has clearly admitted in his cross examination that during investigation, he came to know that accused No.1 and PW2 were in Chamundi Hills and
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 other places together. It has also came in the evidence of IO that accused Nos.7 and 8 are uncles of PW2. Further he has clearly admitted that he has not found any direct evidence to prove that accused kidnapped PW2. The IO has clearly stated that he has not found any direct evidence to prove the alleged conspiracy of accused to kidnap PW2. Further he has clearly admitted that after obtaining wound certificate he came to know that there were no fatal injuries on PW2 and he came to know that during quarrel(J¼ÉzÁl) PW2 sustained some simple injuries. Further he came to know that accused No.1 took PW2 to marry her. Further he has clearly admitted that the knife was kept in backside of the Honda City car, in this regard he has not mentioned the same in the mahazar. Further he has clearly admitted that he has not found during investigation as to the specific role of the accused to commit the alleged commission of offence. These admissions made by IO reveal that though there are no sufficient, cogent, corroborative, clinching and trustworthy
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 evidence, IO has submitted charge sheet against the accused for the alleged commission of offences.
32. A careful scrutiny of evidence of DW1 and DW2 along with admission made by the prosecution witnesses, it is crystal clear that accused No.1 was having love affair with PW2. PW2 and accused No.1 were proceeding in a car with preparation for marriage. At that juncture, on the basis of information given by one Ravi, who is examined before the Court, PW1 has lodged complaint immediately. The police have chased the car and brought accused Nos.1 to 4 along with PW2 before police station. Though PW1 was aware of the names and addresses of accused Nos.1 to 4, he has not disclosed the same at the time of filing complaint - Ex.P-1. The prosecution has suppressed material facts before this Court. Accordingly, the prosecution has failed to establish their case beyond all reasonable doubt.
33. The Trial Court has properly appreciated the evidence on record in a proper and perspective manner
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NC: 2023:KHC:25485-DB CRL.A No. 1892 of 2017 and passed the impugned judgment. On re-appreciation of evidence on record also, we do not find any legal infirmities in the impugned judgment and order of acquittal. Hence, we answer point No.1 in the negative. RE. POINT NO:2:
34. For the aforesaid reasons and discussions, we proceed to pass the following:
ORDER (1) The appeal is dismissed.
(2) Registry is directed to transmit the
records along with the copy of this
judgment.
Sd/-
JUDGE
Sd/-
JUDGE
BH