Bangalore District Court
Aishwarya.S vs Prakash Sabar on 14 February, 2024
KABC0C0000332023
IN THE COURT OF THE XI ADDL.C.M.M.
MAYO HALL UNIT, AT BENGALURU
Dated: This the 12th day of February 2024
PRESENT: SRI. KUMARA.S
B.A., LL.B.,
XI Addl. Chief Metropolitan Magistrate,
Bengaluru City.
C.C.No.50012/2023
Complainant - State by, Police Sub Inspector
Pulakeshinagar Police Station,
Pulakeshinagar , Bengaluru.
Represented by Ld.Sr.APP
/vs/
Accused Prakash Sabar S/o Ishwar Sabar,
aged about 29 years, R/at Khulla
Village, Debagar District, Orissa
State.
Represented by Sri. R. Radha
Krishna and N.H.J advocates
Date of : 06.11.2022
commission
of the
offence
Date of : 06.11.2022
report of the
offence
Date of : 06112022
arrest of
accused
2
CC No50012/2023
KABC0C0000332023
Date of : NIL
release of
accused on
bail
Name of the : Smt. Aishwarya.S
complainant
Date of : 09.10.2023
commencem
ent of
recording of
evidence
Date of : 24012024
Closure of
evidence
Offence : U/sec. 363 R/w section 511 of
alleged IPC.
Opinion of : The accused found guilty
the judge
(KUMARA. S)
XI A.C.M.M., BENGALURU.
3
CC No50012/2023
KABC0C0000332023
JUDGMENT
1. The P.S.I of Pulakeshinagar police station has filed this charge sheet against the accused for the offence punishable U/Sec. 363 R/w section 511 of IPC.
2. The brief facts of the case of the prosecution is as under: That on 06.11.2022 at about 07.30 PM at Jeevanahalli, Coxtown, Nagappa Garden, House No.12, Bengaluru, wherein the complainant after serving food to her children Aryan and Ananya aged about 5 and 2 years respectively, went to kitchen room and little later she came to the hall and seen her female child by name Ananya was missing, immediately she rushed out of the house and seen the accused had attempts to kidnap her female child and public have caught him red handedly 4 CC No50012/2023 KABC0C0000332023 along with the female child and thereby accused has attempts to kidnap the female child of the complainant and thereby committed the alleged offence. Hence, this chargesheet.
3. The accused was arrested and produced before the court and remanded to judicial custody. Though he has been ordered to be released on bail but he has not furnished the surety for his release on bail. Hence, he is in judicial custody during the trial and he was represented by the counsel.
4. I.O., after completion of investigation has submitted chargesheet against accused for the alleged offence. Cognizance was taken for the alleged offence. The prosecution papers have been furnished to the accused through his counsel as contemplated U/s 207 5 CC No50012/2023 KABC0C0000332023 Cr.P.C. Heard regarding charge. Charges were framed, read over and explained to the accused in the Hindi language known to him, he pleaded not guilty of offence and claimed trail.
5. In order to prove the guilt of the accused, the prosecution has examined 07 witnesses as PW1 to7 and got marked 4 documents as Ex.P1 to 4 and closed the prosecution side.
6. The statement of accused u/S.313 of Cr.P.C. is recorded, wherein accused has denied the incriminating evidence available against him and he did not choose to lead defence evidence.
7. I have heard the arguments advanced by the Learned Sr. APP for the state but inspite of sufficient opportunity has been given to the accused, his counsel 6 CC No50012/2023 KABC0C0000332023 has not advanced arguments. Hence, accused side arguments is taken as heard and perused the prosecution papers:
8. The following points that would arise for consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that, 06.11.2022 at about 07.30 PM at Jeevanahalli, Coxtown, Nagappa Garden, House No.12, Bengaluru, wherein the complainant after serving food to her children Arayan and Ananya aged about 5 and 2 years respectively, went to kitchen room and little later she came to the hall and seen her female child by name Ananya was missing, immediately she rushed out of the house and seen the accused had attempts to kidnap her female child and public have caught him red handedly along with the female child and accused has attempts to 7 CC No50012/2023 KABC0C0000332023 kidnap the female child from lawful guardianship of the complainant and thereby committed an offence punishable u/S.363 R/w section 511 of IPC?
2. What order?
8. My findings on the above points are as under: Point No.1 - in the Affirmative.
Point No.2 - As per final order,
for the following;
REASONS
9. POINT NO.1 : The prosecution in order to prove the guilt of the accused in all examined seven witnesses as PW1 to7.
10.PW1 Aishwarya.S is a complainant and mother of female child, she has supported the prosecution case in her chief examination evidence by 8 CC No50012/2023 KABC0C0000332023 deposing that, on the date of incident at about 07.30 PM after serving food to her children, she went to the kitchen and little later she came to hall and noticed that her daughter was missing and hence, she immediately came out of the house and seen the public gathering outside the house and shouted as thief and she seen her female child was in the hands of the accused and public are caught hold the accused and also stated that, prior to one week of the alleged incident, the same accused had came to her house and asked for food and she refused to provide food to him and same accused has came on the date of alleged incident and attempts to kidnap her female child and she also clearly identified the accused who was produced before the court through video conference and in this regard she lodged the complaint 9 CC No50012/2023 KABC0C0000332023 as per Ex.P1 and after lodging the complaint, the police have come to the spot and conducted the spot panchanama in her presence. During the course of crossexamination by accused counsel she clearly stated that, prior to one week of alleged incident also she has seen the accused and she also deposed in the cross examination that, she seen the accused when people have redhandedly caught hold accused and also stated that, the public are caught hold accused at about 07.30PM. The evidence of PW1 is clearly goes to show that, the accused had committed the alleged offence and during the course of crossexamination her evidence has not been shaken and nothing is brought on record to disbelieve, discredit and distrust the evidence of PW1. 10
CC No50012/2023 KABC0C0000332023
11.PW2 Kishor Kumar is a eye witness he also supported the prosecution case in his chief examination evidence by deposing that, the accused had attempts to kidnap the female child of the complainant who is none otherthen his sister's daughter and next morning the police have come to the spot and conducted spot panchanama in their presence as shown by the complainant and he has given statement in this regard. Though he has been crossexamined by the accused counsel but his chief evidence is not been shaken and there is no reason to disbelieve or distrust or discredit evidence of PW2. The evidence of PW2 is corroborates with evidence of PW1.
12.PW3 Vijaya is a eye witness she clearly deposed that, as on the date of alleged incident at about 11 CC No50012/2023 KABC0C0000332023 07.30PM when accused attempts to kidnap the female child of the complainant, the public have caught him and wherein accused has deposed his name as Prakash and she also identified the accused who produced before the court though video conference and clearly stated that, said accused is the person who attempts to kidnap the female child of the complainant and also stated that, she has given statement in this regard before the police. Though she has been elaborately crossexamined by the accused counsel but her chief evidence has not been shaken and nothing is elicited from her mouth to disbelieve or distrust or discredit evidence of the PW3. In her crossexamination she clearly stated that, " ನನನನ ನನನನಡದನಗ ಮಗನ ಆರನನನಪ ಕನಕಯಲಲತನತ. ಪಲನಸರನ ಬಬದನಗ ಜನ ಆರನನನಪಗನ ಹನನಡನಯನತತದನದ ನಬತರ ಪಲನಸರನ ಬಬದನ ಆರನನನಪಯನನನ ಕರನದನಕನನಬಡನ 12 CC No50012/2023 KABC0C0000332023 ಹನನನದರನ ಎಬದನ ಹನನಳನತನತರನ". This statement given by the witness before the court clearly indicates that, as on the date of alleged incident, the accused has attempts to kidnap the female child of the complainant and due to which public have caught accused redhandedly and assault him and subsequently the police have came to the spot and took the accused to the police station. Therefore, her evidence is also corroborates with the evidence of PW1&2.
13.PW4 Venkatesh is a husband of the complainant and witness, he also stated that, after he completed his work, he came to the house at about 07.30 PM as on date of the alleged incident, he seen the accused was caught hold by the public and on enquiry he came to know that, the said accused had attempts to 13 CC No50012/2023 KABC0C0000332023 kidnap her daughter and hence, the police have took him to police station and in this regard his wife lodged the complaint and on next day police have come to the spot and conducted spot panchanama in his presence and he has given the statement in this regard. During the course of crossexamination by the accused counsel he has deposed has under: " ಆರನನನಪಯನನನ 10-15 ಜನ ಹಡದನಕನನಬಡದದರನ. ಆಗ ಸಮಯ ಸಬಜನ 7.30 ಗಬಟನ ಇರಬಹನದನ.ಬನನರನ ಯನರನನನ ಮಗನವನನನ ಎತತಕನನಬಡನ ಹನನನಗನವ ಸಮಯದಲಲ ಆರನನನಪಗನ ನಮಮ ಮಗನ ಗನನತತದದರಬದ ಆತನಬದ ಮಗನವನನನ ಕತನತಕನನಬಡನ ನಮಮ ಮಗನವನನನ ಕರನದನಕನನಬಡನ ನಮಮ ಮನನಗನ ಬರನತತದನದಗ ಸನವಜರನಕರನ ತಪಪಪ ಕಲಪನನಯಬದ ಆರನನನಪಗನ ಹನನಡನದದನದರನ ಎಬದರನ ಗನನತತಲಲ .".
Though accused has suggested that, the public under misconception, have caught hold the accused and some other person has attempts to kidnap the child 14 CC No50012/2023 KABC0C0000332023 but for that, no defence evidence is adduced by the accused and during the statement U/sec. 313 of Cr.P.C he has stated nothing regarding someother person has attempted to kidnap the child and he has rescued the child. Therefore, the defence of the accused is not believable. Though he has been elaborately cross examined by the accused but nothing is elicited from his mouth to distrust or disbelieve or discredit his evidence. . Therefore, the evidence of PW1 to 4 is corroborates with each other and believable.
14.PW5 S. Lakshmi is a another eye witness to the alleged incident she clearly stated that, as on date of alleged incident when she was stepping down from her house, she seen that, one person who is the accused has attempts to kidnap the female child of the complainant 15 CC No50012/2023 KABC0C0000332023 approximately between 06.30 to 07.00PM and after seen the accused had attempts to kidnap the child, she called the complainant and immediately the complainant and neighbors are came to the spot and caught hold the accused and later police have come to the spot and took the accused to the police station and she clearly identified the accused who was produced before the court through video conference and she has given statement in this regard. During the course of crossexamination she has deposed has under: "ನನನನ ಕನಗದ ನಬತರ ಎಲಲರನ ಬಬದನ ಆರನನನಪಯನನನ ಹಡದನಕನನಬಡದದರನ. ನನನನ ನನನನಡದನಗ ಆರನನನಪ ಮಗನವನನನ ನನನಬದ ಅಬದನಜನ ಹತನತ ಅಡ ದನರದಲಲ ಹಡದನಕನನಬಡದದ. ಚನಸನ 1 ರವರ ಮಗನವನನನ ಅವರ ಮನನಯಬದ ಎತತಕನನಬಡನ ಬಬದದದನನನ ನನನನಡದದನರ ಎಬದರನ ಸನಕಕ ಮಗನ ಆರನನನಪಯ ಕನಕಯಲಲ ಅಳನತತದನದಗ ನನನನಡದನದ ಎಬದನ ಹನನಳನತನತರನ . ಚನಸನ 1 ರವರ 16 CC No50012/2023 KABC0C0000332023 ಮಗನವನನನ ಬನನರನ ಯನರನನನ ಎತತಕನನಬಡನ ಹನನನಗಲನ ಪಪಯತನಸದನದ ಆರನನನಪ ಮಗನವನನನ ಅಪಹರಸಲನ ಯತನಸಲಲ ಎಬದರನ ಸರಯಲಲ. "
In the crossexamination she clearly stated that after she shouted, public were gathered and caught hold the accused and she clearly stated that, she seen the female child was crying in the hands of the accused and she denied the suggestion that, some other person has attempts to kidnap the child of the complainant and not accused. Though she has been elaborately cross examined by the accused but nothing is elicited from her mouth distrust or disbelieve or discredit her evidence. Therefore, the evidence of PW1 to 5 is corroborates with each other and believable.
14.PW6 Ananda Kokkanavar is a IO has stated that, he received further investigation from PW7 and his 17 CC No50012/2023 KABC0C0000332023 staff were produced the accused before him and he enquired the accused and recorded the confession statement of the accused and produced before the court and on 7112022 he visited the spot and conducted spot panchanama in the presence of CW2&3 as shown by the complainant and recorded the statement of CW2 to 5 and received the Aadhar card, photo of the child and also identified the accused produced before the court through video conference. Though he has been elaborately crossexamined by the accused counsel but nothing is elicited from his mouth to distrust or disbelieve or discredit his evidence . Therefore, the evidence of PW1 to 6 is corroborates with each other and believable.18
CC No50012/2023 KABC0C0000332023
15.PW7 Ruman Pasha is also one of the IO has deposed that, on 06112022 when he was on SHO duty at about 08.40PM the complainant came to the station and lodged the complaint and he registered the case and transmitted FIR to the court and handed over the further investigation to CW6. Though he has been elaborately crossexamined by the accused counsel but nothing is elicited from his mouth to disbelieve the case of the prosecution. Therefore, the evidence of PW1 to 7 is corroborates with each other and believable.
16. Before summarizing the evidence of the prosecution witnesses, it is just and necessary to go though the necessary provisions of law under the section 361, 363 and 511 of IPC.
Section 361 of IPC reads as under:
19
CC No50012/2023 KABC0C0000332023 "Kidnapping from lawful guardianship: Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation: The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exceptions: This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
Section 363 of IPC reads as under:
"Punishment for kidnapping Whoever kidnaps any person from India 20 CC No50012/2023 KABC0C0000332023 or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 511 of IPC reads as under:
"Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment: Whoever, attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.21
CC No50012/2023 KABC0C0000332023
17. On going through the above provision of law it clearly indicates that, the accused has attempts to kidnap the female child from lawful guardianship of the complainant and not come under exception clause as stated under section 361 of IPC. Hence, the accused has committed an offence punishable U/sec. 363 R/w section 511 of IPC.
18. On going through the entire prosecution case, the evidence of PW1 to 7 is corroborates with each other and there is no reason to disbelieve or discredit or distrust the evidence of PW1 to 7 with regard to commission of alleged offence by the accused. The various circumstances in the chain of events established, ruled out the reasonable likelihood of innocence of the 22 CC No50012/2023 KABC0C0000332023 accused. There is no apparent reason for the accused to be present at the spot with female child in his hand where he was caught hold and arrested which is for away from the place of his residence. Except for the purpose of materializing the kidnapping the female child. It is also appears from the evidence that, prior to one week of alleged incident, accused was making preparation and watching the complainant and their family by visiting their house and later he attempts to materializing kidnapping the female child. Before the child was found in the illegal custody of the accused, the accused was seen in the company of the child. The above circumstances cumulatively taken together leads to the only irresistible conclusion that, the accused alone is the perpetrator of the crime. Each and every 23 CC No50012/2023 KABC0C0000332023 incriminating circumstances has been established by reliable and clinching evidence. I have reached to an irresistible conclusion that inference can be drawn from proved circumstances that the accused was involved in the crime and is guilty.
19. Having analyzed the evidence, which was tendered before the court who taking into consideration the denial putforth by the accused while recording the statement U/sec. 313 of Cr.P.C had arrived at the conclusion that the charge levelled against the accused was proved. In the instate case, taking into consideration all facts including that, no material is available on record to indicate that the accused has any criminal antecedents but evidence on record discloses that, 24 CC No50012/2023 KABC0C0000332023 accused has committed the alleged offence and prosecution has successfully proved the guilt of the accused for the offences punishable U/sec. 363 read with section 511 of IPC who attempts to commit kidnapping female child from lawful custody or guardianship and was unsuccessful for kidnapping the female child due to sudden intervention of public. Therefore, the prosecution has proved the guilt of the accused beyond all reasonable doubt. Accordingly, I have answer the above point No1 in the Affirmative.
20. POINT NO.2: For the reasons assigned and findings given on the above points No.1 , I proceed to pass the following; 25 CC No50012/2023 KABC0C0000332023 ORDER In exercise of the powers conferred u/S.248(2) of Cr.P.C. the accused is convicted for the offences punishable u/S 363 read with section 511 of IPC.
For hearing regarding the sentence by:
13.02.2024 (Dictated to the Stenographer and transcribed and computerized by her, corrected by me and then pronounced by me in the open court on 12th Day of February 2024).
(KUMARA.S), XI A.C.M.M., BENGALURU.
26CC No50012/2023 KABC0C0000332023 ORDERS ON SENTENCE I have heard the arguments advanced by the Ld.Sr.APP for the state and accused on the question of sentence.
2. The accused submits he is first offender and leniency will be taken while awarding sentence. However, Ld.Sr. APP for the state argued that, since accused is proved the guilty of the alleged offence and he has attempts to commit kidnapping of minor child from the lawful custody of her parents, accused is not deserves for leniency of the court and pray for imposing stringent punishment for the accused.
3. The offence alleged against accused is U/sec. 363 R/w section 511 of IPC. This court has not called the report from probationery officer as the offence is 27 CC No50012/2023 KABC0C0000332023 considered to be a serious one. In India there are lacks of children were missing every year and not traced out. many times children were kidnapped for the purpose of human trafficking. Further, the case on hand offence is committed against the minor female child and if the accused is released under the provisions of probation offenders act, then it is sent a wrong message to the society that, the persons committed such a heinous crime can easily escaped from the clutches of the law and there is possibility of increasing of such a type of crime in the society. Therefore, this court has not sought the report from the probation officer and even not extended the benefit of the provisions of probation offenders act.
28
CC No50012/2023 KABC0C0000332023 However, the prosecution has not placed any material about any previous antecedents against the accused nor any previous convictions nor any misconduct of the accused prior to the conviction in the present case. In the instate case taken into the consideration and facts including that, no material available on record to indicate that, accused has any criminal antecedents and there is no reason to apprehend that, accused would indulgence similar acts in future. In that circumstances I deem it appropriate that the sentence of three years would have been sufficient deterrent to serve the ends of justice and this court is also taken into consideration of fact that, the accused has been in judicial custody since from one year. Accordingly I proceed to pass the following: 29 CC No50012/2023 KABC0C0000332023 ORDER In exercise of the powers conferred U/sec. 248(2) of Cr.P.C accused is hereby convicted for the offence punishable U/sec. 363 R/w section 511 of IPC.
The accused is sentenced to undergo simple imprisonment for period of three years and shall pay fine, of Rs.1,000/ and in default of payment of fine he shall undergo the further simple imprisonment for one month.
Acting U/sec. 428 of Cr.P.C, the period of detention (imprisonment) already undergone by the accused is ordered to be set off.
The office is hereby directed to furnish a free copy of judgment to the accused immediately.
(Dictated to the Stenographer and transcribed and computerized by her, corrected by me and then pronounced by me in the open court on 14th Day of February 2024).
(KUMARA.S), XI A.C.M.M., BENGALURU.
30CC No50012/2023 KABC0C0000332023 ANNEXURE
1. WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION ::
PW1 :: Aishwarya
PW2 :: Kishor Kumar
PW3 :: Vijaya
PW4 :: Venkatesh
PW5 :: Lakshmi
PW6 :: Anand Kokkanavar
PW7 :: Ruman Pasha
2. DOCUMENTS EXHIBITED ON BEHALF OF THE PROSECUTION :
Ex.P1 :: Complaint Ex.P1(a) :: Signature of PW1 Ex.P1(b) :: Signature of PW7 Ex.P2 :: Panchanama Ex.P2(a) :: Signature of PW1 Ex.P2(b) :: Signature of PW2 Ex.P2(c) :: Signature of PW4 Ex.P2(d) :: Signature of PW6 Ex.P3 :: Confession statement of accused Ex.P3(a) :: Signature of PW6 Ex.P4 :: FIR Ex.P4(a) :: Signature of PW7 31 CC No50012/2023 KABC0C0000332023
3.WITNESSES EXAMINED ON BEHALF OF THE ACCUSED ::
NIL 4DOCUMENTS EXHIBITED ON BEHALF OF THE ACCUSED NIL
5. LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION ::
NIL (KUMARA.S), XI A.C.M.M., BENGALURU.32
CC No50012/2023 KABC0C0000332023 (Judgment pronounced in Open Court vide a separate ) O RDER In exercise of the powers conferred U/sec. 248(2) of Cr.P.C accused is hereby convicted for the offence punishable U/sec. 363 R/w section 511 of IPC.
The accused is sentenced to undergo simple imprisonment for period of three years and shall pay fine, of Rs.1,000/ and in default of payment of fine he shall undergo the further simple imprisonment for one month.
Acting U/sec. 428 of Cr.P.C, the period of detention (imprisonment) already 33 CC No50012/2023 KABC0C0000332023 undergone by the accused is ordered to be set off.
The office is hereby directed to furnish a free copy of judgment to the accused immediately..
(KUMARA.S), XI A.C.M.M., BENGALURU.
34CC No50012/2023 KABC0C0000332023