Karnataka High Court
Vinayak S/O, Sangamesh Hajare vs The State Of Karnataka on 26 June, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
-1-
NC: 2024:KHC-D:8664-DB
CRL.A No. 100031 of 2022
C/W CRL.A No. 100237 of 2021, CRL.A No.
100428 of 2021, CRL.A No. 100490 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100031 OF 2022 (C)
C/W
CRIMINAL APPEAL NO. 100237 OF 2021
CRIMINAL APPEAL NO. 100428 OF 2021
CRIMINAL APPEAL NO. 100490 OF 2022
IN CRL.A. NO.100031/2022
BETWEEN:
GANESH S/O. SADASHIV SHETTY
AGE: 28 YEARS, OCC: STUDENT,
R/O: H.NO. 52, KURIYAVAR CHAWL,
OPP. KASTURIBAI HOSPITAL,
AZAD ROAD, GANESH PET,
HUBBALLI-580 020.
...APPELLANT
Digitally signed
by GIRIJA A
BYAHATTI (BY SRI. N.R. KRISHNAPPA, ADVOCATE)
Location:
HIGH COURT
OF
KARNATAKA
AND:
THE STATE OF KARNATAKA
THROUGH - POLICE INSPECTOR
VIDYANAGAR POLICE STATION
HUBBALLI-580 021,
NOW REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
-2-
NC: 2024:KHC-D:8664-DB
CRL.A No. 100031 of 2022
C/W CRL.A No. 100237 of 2021, CRL.A No.
100428 of 2021, CRL.A No. 100490 of 2022
THIS CRIMINAL APPEAL IS FILED U/S. 374 (2) OF CR.P.C.,
PRAYING TO, CALL FOR RECORDS AND ALLOW THIS APPEAL AND
SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
08.07.2021 AND ORDER OF SENTENCE DATED 12.07.2021 IN
SESSIONS CASE NO.3/2018 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI,
AND THEREBY ACQUIT THE APPELLANT/ACCUSED NO.2 FROM THE
OFFENCE PUNISHABLE U/S. 364(A), 392, 201 OF IPC, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN CRL.A. NO. 100237/2021
BETWEEN:
ANUGHA ALIAS ANAGHA D/O. RAGHAVENDRA VADAVI
AGE: 23 YEARS, OCC: SINGER,
R/O: KEMPATURU COMPUND,
MALAMADDI, DHARWAD,
TQ. AND DIST. DHARWAD 580007.
...APPELLANT
(BY SRI. VIDYASHANKAR G. DALWAI, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY ITS
POLICE INSPECTOR,
VIDYANAGAR POLICE STATION, HUBBALLI,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT, DHARWAD BENCH BUILDING,
DHARWAD 580011.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C.,
PRAYING TO CALL FOR RECORDS AND SET-ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 08.07.2021 AND 12.07.2021 IN
SC.NO.3/2018 PASSED BY THE COURT OF V ADDL. DISTRICT AND
-3-
NC: 2024:KHC-D:8664-DB
CRL.A No. 100031 of 2022
C/W CRL.A No. 100237 of 2021, CRL.A No.
100428 of 2021, CRL.A No. 100490 of 2022
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI FOR AN
OFFENCES PUNISHABLE U/S.364(A), 392 OF IPC AND ACQUIT THE
APPELLANT/A3 FOR CHARGES LEVELED AGAINST HER, IN THE
INTEREST OF JUSTICE.
IN CRL.A. NO.100428/2021
BETWEEN:
VINAYAK S/O. SANGAMESH HAJARE
AGE: 26 YEARS, OCC: AUTO DRIVER
R/O: 1ST CROSS, SHARAVATI NAGAR
NEAR COMMUNITY HALL,
AYODHYA NAGAR, OLD-HUBBALLI,
TQ: HUBBALLI, DIST: DHARWAD-580024
...APPELLANT
(BY SRI. N.R. KRISHNAPPA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ITS POLICE INSPECTOR,
VIDYANAGAR POLICE STATION, HUBBALLI,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT, DHARWAD BENCH BUILDING,
DHARWAD-580011.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C.,
PRAYING TO, CALL FOR RECORDS AND SET-ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 08.07.2021 AND SENTENCE
DATED 12.07.2021 IN SC NO.3/2018 PASSED BY THE COURT OF V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING
AT HUBBALLI FOR AN OFFENCES PUNISHABLE U/S 364(A), 392 AND
201 OF IPC AND ACQUIT THE APPELLANT/ACCUSED NO.4 FOR
CHARGES LEVELED AGAINST HIM, IN THE INTEREST OF JUSTICE.
-4-
NC: 2024:KHC-D:8664-DB
CRL.A No. 100031 of 2022
C/W CRL.A No. 100237 of 2021, CRL.A No.
100428 of 2021, CRL.A No. 100490 of 2022
IN CRL.A. NO. 100490/2022
BETWEEN:
RAMESH S/O. SANGAMESH HAJARE
AGE: 28 YEARS, OCC: DRIVER,
R/O: BIDNAL 1ST CROSS,
LAKSHMI NAGAR, HUBBALLI,
DHARWAD DISTRICT-580030
(NOW IN CENTRAL PRISON, DHARWAD)
...APPELLANT
(BY SRI. N.R. KRISHNAPPA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
VIDYANAGAR POLICE STATION, HUBBALLI,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD-580001.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C.,
PRAYING TO, SET ASIDE THE JUDGMENT DATED 08.07.2021 PASSED
IN S.C. NO.3/2018, PASSED BY V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, AND
SENTENCE DATED 12.07.2021, SENTENCED IN THE SAME CASE
PASSED BY THE SAME JUDGE CONVICTING THE APPELLANT FOR THE
OFFENCE PUNISHABLE U/S 364(A), 392, 397 AND 201 OF IPC, AND
FOR OTHER OFFENCES SENTENCING LIFE IMPRISONMENT AND TO
PAY FINE OF RS.10,000/- ID TO UNDERGO SI FOR 3 YEARS, TO SET
ASIDE THE SAME AND ACQUIT THE APPELLANT/ACCUSED NO.1
FROM ALL THE CHARGES IN THE INTEREST OF JUSTICE.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
MOHAMMAD NAWAZ, J., DELIVERED THE FOLLOWING:
-5-
NC: 2024:KHC-D:8664-DB
CRL.A No. 100031 of 2022
C/W CRL.A No. 100237 of 2021, CRL.A No.
100428 of 2021, CRL.A No. 100490 of 2022
JUDGMENT
These appeals arise out of the judgment and order dated 08.07.2021 and 12.07.2021 passed by the Court of 5th Addl. District and Sessions Judge, Dharwad, sitting at Hubballi, in Sessions Case No.3/2018.
2. Vide impugned judgment, the learned Sessions Judge has convicted accused Nos.1 to 4 for the offences punishable under Section 364-A and 392 of Indian Penal Code, 1860 (for short, 'IPC'), accused No.1 for the offence punishable under Section 397 of IPC, accused Nos.1, 2 and 4 for the offence punishable under Section 201 of IPC. Accused Nos.1 to 4 are acquitted of the offence punishable under Section 401 of IPC.
3. Crl.A.No.100490/2022 is by accused No.1, Crl.A.No.100031/2022 is by accused No.2, Crl.A. No.100237/2021 is by accused No.3 and Crl.A. No.100428/2021 is by accused No.4.
-6-
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022
4. We have heard the learned counsel appearing for the appellants and the learned Addl. SPP for the State and perused the evidence and material on record.
5. Brief facts of the case are, on 31.07.2017, the victim by name Balbir Durgojirao got admitted to Lifeline Hospital, Hubballi for treatment for the stab injuries he sustained on 30.07.2017 between 9.00 p.m. to 10.00 p.m. PW-11 working as RMO in the said Hospital, sent the MLC intimation-Ex.P-28 to Old Hubballi Police station. On receiving the said intimation, PW-17-PSI sent an ASI to the hospital for recording his statement. However, he was informed as per Ex.P-37 that the victim was not in a position to give statement. Once again at 12.45 p.m., PW-17 visited the hospital and enquired with the doctor- PW-10 regarding the fit condition of the patient to give statement. PW-10 issued endorsement as per Ex.P-26. Thereafter, PW-17 recorded the statement of the victim/complainant as per Ex.P-21 in the presence of the doctor-PW-10. On the basis of the said statement, he -7- NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 registered the FIR-Ex.P-38 and forwarded the same to the jurisdictional Court.
6. Investigation was conducted by PW-12-Police Inspector, Old Hubballi Police Station. He recorded the further statement of the victim on 01.08.2017 and verified the call records of accused No.3. He arrested accused Nos.1 to 4 on 04.08.2017 and recorded their voluntary statements. Incriminating articles were recovered at their instance. Bloodstained clothes of the victim etc. were collected and sent for forensic examination. On the point of jurisdiction, case was transferred to Vidyanagar Police Station. PW-22-Police Inspector of Vidyanagar Police Station took over the further investigation and on completion of the investigation, filed charge sheet against accused Nos.1 to 4.
7. It is the case of prosecution that accused Nos.1 to 4 hatched a plan to extort money from wealthy persons and executed a plan. In furtherance of the same, accused No.3 befriended the victim/complainant working as a -8- NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 Lecturer in BVB Engineering College. On 30.07.2017, at about 8.45 p.m., she asked the complainant to come near the main gate of Vidyanagar BVB College. When the complainant went there in his Honda City Car bearing registration No.KA-25/N-6492, she got into his car and in the guise of going for a drive, took him near Sainik School road and updated other accused persons about their movements. When the complainant came near Sainik School road, accused Nos.1, 2 and 4 came in a Bajaj Pulsar motorcycle bearing No.KA-25/EX-4020, they stopped him and demanded for ransom of Rs.4 to 5 lakhs telling him that he has come there with accused No.3 to rape her. Accused No.1 struck him with a knife and caused injuries on his left ear, right hand and abdomen. They forcibly took his credit card and accused No.2 went to the ATM of SBI Bank, situated near Siddarudha Matha and withdrew a sum of Rs.10,000/-. They destroyed the ATM card and the mobile SIM of the complainant. Thereafter, took him in his car and dropped him near Siddarudha Matha Circle, -9- NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 threatening him with dire consequences if he disclosed the incident to others.
8. Charges were framed against accused Nos.1 to 4 for the offences punishable under Sections 364-A, 397, 392, 504, 201 and 401 read with Section 34 of IPC.
9. In order to establish the guilt of the accused, prosecution in all examined PW-1 to PW-25 and got marked Exs.P-1 to P-71 and MOs.1 to 5.
10. The learned Sessions Judge vide impugned judgment, convicted and sentenced accused Nos.1 to 4 for the offence punishable under Sections 364-A and 392 of IPC, accused No.1, 2 and 4 for the offence punishable under Section 201 of IPC and accused No.1 for the offence punishable under Section 397 of IPC. Accused were acquitted of the offence punishable under Section 401 of IPC.
11. Assailing the impugned judgment, learned counsel appearing for accused Nos.1, 2 and 4 has
- 10 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 contended that prosecution has suppressed the genesis of the incident and on the basis of further statement of the victim has come up with a concocted story implicating the accused persons. It is his contention that the Investigation Officer has fabricated the call records and relying on the said call records, falsely implicated the accused. He contended that the ingredients of the offences charged against the accused are not attracted and there are discrepancies in the evidence of PW-5 and the Investigation Officers. He has further contended that the wound certificate of the victim-PW5 does not corroborate with the medical evidence and the description of the injuries do not tally. The recovery of incriminating articles is planted. There is no certificate issued under Section 65B of the Evidence Act by the Service Provider and therefore, the Call Detail Records, which are marked as Exs.P-42, 51 to 54 cannot be relied upon. He has further contended that the prosecution has failed to establish that the accused were using the SIM card seized from them at
- 11 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 the relevant point of time and therefore, the case of the prosecution that accused Nos.1, 2 and 4 were in contact with accused No.3 is not established. The complainant after due deliberation has implicated the accused persons. He has contended that the learned Sessions Judge has failed to take into consideration the above relevant aspects and accordingly, sought to allow the appeal by setting aside the impugned judgment and order of conviction and sentence.
12. Learned counsel appearing for accused No.3 contended that the said accused is innocent of the alleged offences. He contended that the name of accused No.3 is not mentioned in the First Information Report and even otherwise, there is no role played by the said accused. She has been arraigned as an accused only on the basis of the call detail records, wherein the prosecution alleges that she tried to contact other accused persons when she was along with the complainant. He contended that there is no such calls exchanged between accused No.3 and
- 12 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 other accused persons when she was in the company of the complainant. He, therefore, contended that accused No.3 is innocent of the alleged charges leveled against her. He has therefore, sought to set aside the judgment and order of conviction and the sentence passed against said accused.
13. Per contra, the learned Additional State Public Prosecutor has contended that the prosecution has established the guilt of the accused beyond reasonable doubt by adducing cogent and convincing evidence in the form of oral evidence of PW.5, recovery of incriminating articles like mobile phones, motorcycle, cash and a blood stained knife. Further, the prosecution has collected CCTV footages, which also establishes the involvement of the accused persons. He contended that the prosecution collected the Call Detail Records of accused Nos.1 to 3, which shows that on the relevant point of time, before and after the incident, the said accused were in constant touch with each other. He contended that accused No.3 by
- 13 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 inducing the complainant, took him near Sainik School Road and informed other accused persons about their movements and when they were near Sainik School Road, other accused persons, who were present, threatened the complainant, demanded ransom from him and stabbed him with a knife, causing grievous injuries and then robbed him. He contended that the complainant-PW.5 has supported the case of prosecution and identified the accused persons. He has therefore contended that the trial Court having appreciated the entire evidence and material on record has rightly convicted the appellants. He has therefore, sought to dismiss the appeals.
14. Ex.P-21 is the statement of the victim/PW.5 recorded by PW.17 at Lifeline Hospital, Gokul Road, Hubli, wherein, he has stated that on 30.07.2017 at about 8:45pm, when he had gone for urination near Axis Bank, Deshpande Nagar, after parking his Honda City car bearing No.KA-25/N-6492, 3 unknown persons, aged between 25- 30 years, forcibly took him in his car, assaulted him with
- 14 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 hands and demanded Rs.4-5 lakhs. Thereafter, they took him towards Sainik School Road, where they stopped the car and once again demanded ransom and threatened him. One of the accused caused injuries to him on the back of his left ear, right hand and abdomen. When he told them that he has only Rs.700/- with him, they took his credit card and one of the accused withdrew Rs.10,000/- from the ATM. They were conversing among themselves in Kannada, calling each other as Vinaya, Appu and RH. Thereafter, they left him near Siddaroodhmath Cross. It is further stated in Ex.P-21 that he came to his house and informed the matter to family members and they shifted him to the hospital and he was in an unconscious condition in the hospital.
15. Further statement of the victim/complainant was recorded on 01.08.2017, wherein, he has stated that, he met one Anugha(accused No.3), few months back, in the college function and they became acquainted with each other. She took his mobile number and she was
- 15 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 contacting him over phone. On 30.07.2017, she called him and expressed that she intends to meet him and asked him to come near BVB college. Accordingly, he went near BVB college at about 8:45pm, where she met him and asked him to take her for a drive. Trusting her, he took her in the car. On the way she was talking to someone over phone and telling them to come near Hanchatageri Sainik School Road and took him there. When they were talking to each other, 3 persons came in a motorcycle and threatened him saying that he has come there to rape her and demanded Rs.4-5 lakhs. When he told them that he is having only Rs.700/-, one of the accused stabbed him with a knife and caused injuries near his ear. They forcibly took his credit card, one Lenovo mobile phone with IMEI No.867802027748897 having SIM No.9438810869. One of the accused went to an ATM and withdrew Rs.10,000/- and thereafter all of them, dropped him near Siddaroodhmath in his car and went away
- 16 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 threatening him with dire consequences if he informed the matter to others.
16. Accused Nos.1 to 4 were arrested on 04.08.2017 and their voluntary statements were recorded as per Exs.P 43 to 46.
17. At the instance of accused No.1, a black colour Lenovo Mobile Phone without SIM, a Samsung phone with dual SIM and cash of Rs.1,200/- were seized.
18. At the instance of accused No.2, a black and blue colour Zen X-45 basic mobile with dual SIM, cash of Rs.2,000/- and a Pulsar motorcycle bearing registration No.KA.25/EX-4020 were seized.
19. At the instance of accused No.3, a white colour VIVO Y51L mobile phone with Vodafone SIM No.7829616100 and cash of Rs.800/- were seized.
20. At the instance of accused No.4, a black colour and a gold colour MI mobile phones and cash of Rs.850/- were seized.
- 17 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022
21. Seizure of the above material objects from accused Nos.1 and 2 is under Ex.P-2 and seizure from accused No.4 is under Ex.P-3. Further, the accused led the Investigation Officer and the panchas to the place where they threw the knife. Accused No.1 produced blood stained knife (M.O.2) which was seized under a mahazar Ex.P-4.
22. Accused No.3 showed the spot from where she took the complainant in his car. Further, the accused persons showed the place where they demanded ransom from the complainant etc and the SBI ATM from where accused No.2 withdrew a sum of Rs.10,000/-.
23. PW.5 is the victim and he is the prime witness. Prosecution is also relying on the Call Detail Records, recovery of incriminating articles and the wound certificate-Ex.P-27 issued by PW.1, opinion with regard to the knife seized at the instance of accused persons to establish the guilt of the accused persons.
- 18 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022
24. It is the contention of the learned counsel appearing for the appellants that in the earliest version, PW.5 has suppressed the facts and his subsequent statements cannot be believed, as he is an untrustworthy witness. It is contended that even though PW.5 has alleged that accused No.3 was accompanying him in his car, he has suppressed the same in Ex.P.21. It is therefore contended that the genesis of the incident has been suppressed and a false story is created by PW.5 falsely implicating accused Nos.1 to 4.
25. In his deposition, PW.5 has deposed that on 30.07.2017 between 7:00-7:15pm, accused No.3 telephoned him and asked him to come near BVB College at about 8:15pm. Accordingly, he went near BVB college at 8:30pm. Accused No.3 came at about 8:40pm. Thereafter, both of them went in their Honda City car. Accused No.3 asked him to go towards Hanchatageri road, in the guise of watching falling stars. When they were proceeding, she was continuously talking over phone with
- 19 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 someone saying that she is coming to the said location. When he took a turn near Sainik School, 3 persons/accused were waiting there on a red colour bike. When he stopped the car, they surrounded him and started threatening him saying that he has brought a girl to rape her. They demanded ransom of Rs.4-5 lakhs. When he told that he is having only Rs.700/- with him, one of the accused stabbed him near his left ear and assaulted him on his abdomen and right hand. He identified the person who stabbed him as accused No.1. He has stated that they snatched Rs.700/-, ATM card and a phone. They asked the PIN number and accused No.2 took the card and withdrew the cash. He has stated that accused No.4 was driving the car. Then they dropped him near Siddaroodmath, threatening him that he will be killed if the matter was informed to others. After reaching home, he informed the family members that he was robbed by someone. They took him to Lifeline hospital, Hubli, wherein surgery was conducted on him.
- 20 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022
26. PW.5 has identified the accused persons. He has identified accused No.1 as the one who stabbed him with a knife and inflicted injuries near his left ear, abdomen and hand, accused No.2, as the one who took the credit card and withdrew the cash and accused No.4 as the one who drove his car.
27. PW5 has deposed that, on 04.08.2017, all the four accused were brought to the hospital, wherein he identified them. The Investigating Officer - PW21 has also deposed in his evidence that, after the arrest of accused persons, and after the recovery of incriminating articles, he took the accused to the hospital where the complainant was taking treatment and the complainant identified the accused persons as well as his mobile phone. There is nothing elicited in the cross-examination of PW5 so as to disbelieve his evidence. He has categorically stated that, he was assaulted by accused No.1 and accused No.2 is the one who took his ATM card and accused No.4 is the one who was driving the car.
- 21 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022
28. The prosecution has examined the younger brother of the complainant as PW6. He has deposed that, at about 11.00 pm on 30.07.2017, his brother came to the house with injuries on his abdomen, ear and hand and informed that he was attacked by four unknown persons near Axis Bank, Deshpande Nagar. They shifted him to the hospital. On the next day, PW5 informed about the involvement of accused No.3, stating that she took him near Sainik School road and during that time, she was talking to someone in the phone. When they stopped the car near Sainik School road, other three accused came there, threatened him saying that he has come to that place to rape the girl and then demanded ransom, assaulted him and snatched his mobile and ATM card and withdrew a sum of Rs.10,000/- from the ATM, etc., and then dropped him near Siddaroodhmath.
29. PW5 was treated by PW11, working as RMO at Lifeline Hospital, Hubballi. PW11 has stated that, on 31.01.2017, the victim was admitted in their hospital for
- 22 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 the treatment of stab injuries caused on 30.01.2017 between 9.00 pm and 10.00 pm. He noticed the stab injuries over the right side of the abdomen, a lacerated wound measuring 2x1 cm and a lacerated wound on the left temporal region measuring 5 cm. He has stated that, injury No.1 caused on the abdomen is grievous in nature. The wound certificate is marked as Ex.P27.
30. The prosecution is relying on the recovery of M.O.2 - knife, from which accused No.1 inflicted injuries to PW5. The said knife, which was blood stained, was seized under Ex.P4. PWs.1 and 2 - panch witnesses to the recovery mahazer have turned hostile.
31. PW21 - Investigating Officer has stated that, the accused have led the police and panchas to the outskirt of Anchatageri, where the knife was thrown. Accused No.1 showed the knife, which was concealed in the bush. The said knife - M.O.2 was seized under a Mahazer - Ex.P4. Exs.P8 to P10 are the photographs
- 23 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 taken at the time of seizure of M.O.2. Further, bloodstained pant of PW5 was also seized.
32. PW12 is the WPC, who has also deposed about the seizure of button knife. He has identified M.O.2 as the said knife seized under a mahazer. The bloodstained knife
- M.O.2 was sent for forensic examination.
33. PW18, working as the Assistant Director at RFSL, Belagavi, has deposed about receiving the articles, namely blood stained pant and knife. He has issued the report, marked as Ex.P39, according to which the said articles were stained with human blood of 'B' group. The knife was sent to PW11 for seeking his opinion. On examination, PW11 has issued his opinion as per Ex.P31, according to which, injuries mentioned in Ex.P27 could be caused with the knife which was examined by him.
34. From the above evidence on record, we have no hesitation to hold that the prosecution has been able to establish that a knife was recovered at the instance of
- 24 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 accused No.1 and the said knife was stained with human blood of 'B' group and pant - M.O.1 of PW5 was also blood stained with the same group of blood. Further, as per Ex.P27, PW5 sustained injuries near the backside of his left ear and abdomen and injury No.1 is a grievous injury.
35. In the cross-examination of PW5, he has stated that, he did not reveal the true facts in his complaint as he was a married man and afraid of his reputation. A perusal of his evidence goes to show that, he was working as part time lecturer at BVB College during 2014-2017 and on one occasion, accused No.3 had come to the college campus for singing and at that time, he got acquainted with her. Thereafter, they were in touch with each other.
36. It is the case of prosecution that, all the accused hatched a plan to rob a wealthy person and other accused persons told accused No.3 to befriend the complainant and then to bring him near the road leading to Sainik School. Accordingly, on 30.07.2017, accused No.3 called PW5 over phone at about 7.00 pm and asked
- 25 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 him to come near BVB college and when PW5 came near BVB college at about 8.45 pm, she took him near the road leading to Sainik School, where other accused were waiting. It is also the case of prosecution that, when PW5 and accused No.3 were proceeding in the car, accused No.3 was in constant touch with other accused persons and she was informing them over phone about their movements and location.
37. The prosecution has placed reliance on the Call Detail Records, which are marked as Exs.P42, P51 to P53, to show that, during the relevant point of time and date, before and after the incident, all the accused were in touch with each other and that the accused were at the spot where the incident took place. We have carefully perused the above Call Detail Records.
38. The mobile Sim number of accused No.1 is 9738810869 and that of accused No.3 is 7829616100. The Call Records are marked as Ex.P42. The prosecution is placing reliance on the calls made between accused
- 26 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 No.3 and PW5 and the tower location, to contend that accused No.3 was along with PW5 at the relevant point of time. Admittedly, PW5 and accused No.3 were acquainted with each other and even according to PW5, since many months they were talking to each other over phone. What is required to be seen is that, whether accused No.3 was in constant touch with other accused persons when she was in the company of the complainant. From the material on record, the presence of accused No.3 with PW5, when the incident took place, cannot be doubted.
39. According to PW5, he was asked by accused No.3 to come near BVB College at about 8.15 pm. He went near BVB College in his car at about 8.30 pm. Accused No.3 met him near BVB College gate at about 8.45 pm and thereafter, both of them went towards Sainik School in the car. PW5 has stated that, when they were proceeding towards Sainik School road, accused No.3 was constantly talking to someone and informing them about their location etc. If the said evidence of PW5 is taken
- 27 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 into consideration, then accused No.3 would have contacted other accused persons after 8.40 pm, till they reached Sainik School road, where accused Nos. 1, 2 and 4 were waiting. If Ex.P42 is perused, calls between accused No.3 and accused No.1, there was a call exchanged at 8.31 pm, which is prior to accused No.3 meeting PW5 at 8.40 pm. Similarly, if the call records of accused No.3 and accused No.2 are perused, we find that there are no calls exchanged between the said accused from 8.40 pm till 10.50 pm. By the said time, the incident was over. Hence, the evidence of PW5, wherein he has stated that accused No.3 was repeatedly calling someone when they were proceeding from BVB College towards Sainik School road is doubtful. If any such calls were made by accused No.3 to either accused No.1, 2 or 4, then there should have been calls made by accused No.3 to the said accused between 8.40 pm and till they reached Sainik School road.
- 28 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022
40. We find that there is an SMS sent to accused No.2 from the mobile phone of accused No.3, which is at 8.56 pm. The content of the said SMS is not forthcoming. Hence, the prosecution has failed to establish beyond reasonable doubt the role played by accused No.3. It is not established that PW3 has by deceitful means taken PW5 near Sainik School, thereby facilitating other accused persons to demand ransom from him etc. It is also not the case of prosecution that, when accused Nos.1, 2, and 4 were threatening PW5, even accused No.3 joined with them or that she too threatened him. The evidence of PW5 is silent about the role of accused No.3, after they reached Sainik School road. The overt acts are only attributed against accused Nos.1, 2 and 4.
41. The prosecution has relied on the CCTV footages collected from the SBI ATM situated at Siddaroodhmath as well as the CCTV footage installed near the Siddaroodhmath. The contents of the footage establish that, accused No.2 in fact had come to the ATM to
- 29 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 withdraw the cash using the credit card of PW.5. The prosecution has examined PW.15-Police Constable who collected the CCTV footage. The DVD and CD are marked as Exs.P.32 and P33. PW.13-Manager of the Siddaroodhmath has deposed about giving the said CCTV footage which was recorded in the DVD. He has stated that he had copied the same in the CD and handed it over to the Police. The prosecution has collected the certificate under Section 65B of the Evidence Act, issued by PW.13 which is marked as Ex.P66. Similarly, prosecution has examined PW.20-Maintenance Engineer of the ATM installed near Siddaroodhmath from where accused No.2 withdrew cash using the credit card of the complainant. PW.20 has deposed that he copied the CCTV footage in a pen drive and then recorded in the CD and handed it over to Police. The said CD is marked as Ex.P.33. Ex.P.23 is the photograph of the CCTV footage. He has issued 65B certificate which is marked as Ex.P.67.
- 30 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022
42. The investigation officer-PW.22 has deposed about collecting SBI card statement of the complainant. The said document is marked as Ex.P.64. Ex.P64A is the relevant entry in the said document which shows that a sum of Rs.10,000/- was withdrawn on 30.07.2017 from the ATM installed at Siddaroodhmath complex. The said document shows that a sum of Rs.10,000/- was withdrawn by the accused using the credit card of PW.5 on 30.07.2017. Ex.P.65 is the letter issued by the Manager of SBI card, Hubballi regarding issuance of the credit card to the complainant on 27.05.2015, which also shows that the complainant was having a credit card as on the date of incident.
43. From the above evidence and material on record, we are of the considered view that the prosecution has established the presence of accused Nos.1, 2 and 4 near Sainik School road, when the victim and accused No.3 came there in victim's car. Further, they threatened the complainant and demanded ransom from
- 31 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 him, caused injuries with a knife and then snatched his mobile and credit card, withdrew a sum of Rs.10,000/- using the said credit card from the SBI ATM installed near Siddaroodhmath.
44. The learned counsel for the appellants has contended that section 65B certificate regarding call records between the accused persons are not issued by the authorized persons. However, same is not relevant, since we have observed that CDR regarding calls exchanged, at the relevant point of time, does not inculpate the accused.
45. It is contended by the learned counsel appearing for the appellants that the ingredients of Section 364A is not at all made out and therefore, the conviction and sentence passed against accused No.1 to 4 for the said offence is not sustainable.
46. Section 364A of IPC reads as under:
"364A. Kidnapping for ransom, etc.-- Whoever kidnaps or abducts any person or keeps a
- 32 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or 1[any foreign State or international inter-governmental organization or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
47. To convict a person under 364A of IPC, the victim should be either kidnapped or abducted and kept in detention after such kidnap or abduction. Therefore, the first essential condition as incorporated in Section 364A of IPC is that a person should be kidnapped or abducted and shall be kept in detention after such kidnap or abduction.
48. According to the prosecution all the accused hatched a plan and in furtherance of the same, accused No.3 took the complainant in his car near Sainik school, wherein, accused Nos.1, 2 and 4 were waiting. The
- 33 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 definition of abduction is provided under Section 362 of IPC, which reads as under:
"362. Abduction.-- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
49. Admittedly, PW.5 was not forced by either accused No.3 or other accused persons to go near Sainik school road. Hence, whether the prosecution has proved that accused No.3 by deceitful means induced PW.5 to go near to Sainik school is the question to be addressed.
50. In the case on hand, we have arrived at a conclusion that the prosecution has failed to show that while accused No.3 was in the company of PW.5, she made phone calls to other accused persons regarding their movements. If that is so, it cannot be said that, accused No.3 knew the location of accused Nos.1, 2 and 4. In his evidence, PW.5 has stated that accused No.3 asked him to go towards Anchatagere road telling him that she will show star falling. The same is not stated in his further
- 34 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 statement. Hence, it is an improvement made by PW.5 while deposing before the Court.
51. Section 364A of IPC will attract, if a person is detained after such kidnap or abduction. In the case on hand, there is no sufficient material to show that accused No.3 has either by force or by deceitful means or inducing PW.5, took him to the spot where accused Nos. 1, 2 and 4 were waiting. PW.5 has not stated that the accused persons have detained him in the car and took him to the ATM for withdrawing the money, whereas, he has deposed that he was threatened by accused Nos.1, 2 and 4 demanding ransom and then robbed his mobile phone, credit card and then accused No.2 went to the SBI ATM and withdrew the cash and returned back. He has stated that thereafter, accused persons left him at Siddaroodhmath circle. We find that the ingredients of abduction are not established by the prosecution beyond reasonable doubts.
- 35 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022
52. Evidence and material on record is sufficient to hold that accused Nos.1, 2 and 4 have committed robbery and out of them accused No.1 inflicted grievous injuries to PW.5 with a knife. They robbed the credit card and mobile phone of the complainant and withdrew a cash of Rs.10,000/- using the credit card. Thereafter, they destroyed the credit card and mobile SIM of the complainant.
53. The trial court has convicted and sentenced accused No.1 for the offence punishable under Section 392 of IPC as well as Section 397 of IPC. We find that the sentence imposed against accused No.1 for the offence punishable under Section 392 of IPC is not proper since, accused No.1 has been sentenced under Section 397 of IPC, for a period of 7 years. Under Section 397 of IPC, if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall
- 36 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 be punished shall not be less than seven years. Since accused No.1 has used the knife and caused grievous hurt to PW.5, he has been rightly sentenced to undergo 7 years imprisonment under Section 397 of IPC.
54. For the foregoing reasons, we proceed to pass the following:
ORDER
1) Crl.A.No.100237/2021 preferred by accused No.3 is allowed.
2) The judgment and order dated 08.07.2021 and 12.07.2021 passed by the court of V Addl. District and Sessions Judge, Dharwad sitting at Hubballi in SC No.3/2018, convicting accused No.3 for the offence punishable under Section 364A and 392 of IPC is hereby set aside.
3) Accused No.3 is acquitted of the charged offences.
4) Crl.A.No.100031/2022, Crl.A.No.100428/2021 and Crl.A.No.100490/2022 preferred by accused Nos.1, 2 and 4 are partly allowed.
5) The conviction and sentence imposed against the accused Nos.1, 2 & 4 for the offence punishable
- 37 -
NC: 2024:KHC-D:8664-DB CRL.A No. 100031 of 2022 C/W CRL.A No. 100237 of 2021, CRL.A No. 100428 of 2021, CRL.A No. 100490 of 2022 under section 364A of IPC is set aside and they are acquitted of the said offence.
6) The conviction of accused Nos.1, 2 and 4 for the offence punishable under Sections 392 and 201 of IPC is confirmed.
7) The sentence imposed on accused No.1 for the offence punishable under Sections 397 and 201 of IPC and the sentence imposed on accused Nos.2 and 4 for the offence punishable under Section 392 and 201 of IPC is confirmed.
8) The accused Nos.1, 2 and 4 are entitled for set off for the period of imprisonment already undergone by them, under Section 428 of Cr.P.C.
9) Fine amount collected shall be paid to PW.5 as compensation.
Sd/-
JUDGE Sd/-
JUDGE NAA- Para 1 to 11 KMV- Para 12 to 26 gab- Para 27 to 40 HMB- Para 41 to end Ct-cmu LIST NO.: 1 SL NO.: 3