Karnataka High Court
Thimma S/O Rangappa vs The State Of Karnataka on 3 March, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL APPEAL No.63 OF 2014
BETWEEN:
1. Thimma S/o. Rangappa,
Aged about 22 years,
Occ: Laborer, Pillangere,
Shimoga Taluka and District - 577 201.
2. Parameshi S/o. Purale Rangappa,
Aged about 22 years,
Occ: Laborer, Pillangere,
Shimoga Taluka and District - 577 201.
3. Shashi S/o. Jayappa,
Aged about 20 years,
Occ: Laborer, Pillangere,
Shimoga Taluka and District - 577 201.
4. Manjunatha S/o. Lokeshappa,
Aged about 25 years,
Occ: Laborer, Pillangere,
Shimoga Taluka and District - 577 201.
5. Madhu S/o. Pakeerappa,
Aged about 26 years,
Occ: Laborer, Sogane,
Shimoga Taluka and District - 577 201.
6. L. Nagaraja S/o. Lokeshappa,
Crl.A.No.63/2014
2
Aged about 27 years,
Occ: Laborer, Pillangere,
Shimoga Taluka and District - 577 201.
7. Sathisha S/o. Rameshappa,
Aged about 43 years,
Occ: Laborer, Pillangere,
Shimoga Taluka and District - 577 201.
8. Nagaraja S/o. Pakeerappa,
Aged about 43 years,
Occ: Driver, Pillangere,
Shimoga Taluka and District - 577 201.
...Appellants
(By Sri. Umesh P.B. for
Sri.Ravindra B. Deshpande, Advocate)
AND:
The State of Karnataka
by Kumsi Police Station,
Shimoga - 577 201.
...Respondent
(By Sri.Showri H.R., HCGP)
****
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment of conviction
dated 13-01-2014 and order on sentence dated:
25-01-2014 passed by the I Additional Sessions Judge,
Shivamogga in S.C.No.12/13, convicting the appellants/
accused for the offences punishable under Sections 143,
366 read with Section 149 of IPC and sentencing them to
undergo Simple Imprisonment for two months for the
offence punishable under Section 143 of IPC and to
Crl.A.No.63/2014
3
undergo Rigorous Imprisonment for four years and also
pay a fine of `5,000/- each, in default to undergo Rigorous
Imprisonment for three months, for the offence punishable
under Section 366 read with Section 149 of IPC.
This Criminal Appeal coming on for Hearing, this day,
the Court delivered the following:
JUDGMENT
The present appellants as accused Nos.1 to 8
were tried and later convicted by the Court of the I Additional Sessions Judge at Shimoga (hereinafter referred to as `Trial Court' for brevity), in Sessions Case No.12/2013, by its judgment of conviction dated 13-01-2014 and order on sentence dated 25-01-2014, for the offences punishable under Sections 143, 366 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as `IPC' for brevity) and were sentenced accordingly. It is against the said judgment of conviction and order on sentence, the appellants/accused have preferred this appeal. Crl.A.No.63/2014 4
2. The summary of the case of the prosecution before the Trial Court is that, on 01-10-2011, when the prosecutrix - Kumari Usha, who is said to be minor in her age, was returning to her grand mother's house after attending agricultural work in their lands at Veerannana Benavalli village, within the limits of complainant Police Station, at about 5:30 p.m., all the accused herein forming themselves into an unlawful assembly, with an object of kidnapping her, kidnapped the victim Kumari Usha, put her in a vehicle bearing Registration No.KA-24/M-5835 and took her to a different place and thereby have committed the offences punishable under Sections 143, 366, 366-A read with Section 149 of IPC.
3. The Trial Court framed charges against the accused No.1 for the offences punishable under Sections 143, 366 read with Section 149 of IPC and Crl.A.No.63/2014 5 accused Nos.2 to 8 for the offences punishable under Sections 143, 366, 366A read with Section 149 of IPC.
4. Since the accused pleaded not guilty, in order to prove the charges leveled against the accused, the prosecution examined in all eight witnesses from PW-1 to PW-8 and got marked documents from Exhibits P1 to P6(a). No Material Objects were marked from the prosecution side.
Neither any witnesses were examined nor any documents were marked as exhibits from the side of the accused.
5. After hearing both side, the Trial Court by its impugned judgment dated 13-01-2014, acquitted all the accused for the offences punishable under Section 366A read with Section 149 of IPC, however, it convicted them for the offences punishable under Crl.A.No.63/2014 6 Sections 143, 366 read with Section 149 of IPC and sentenced them accordingly. It is against the said judgment of conviction and order on sentence, the accused have preferred this appeal.
6. The trial Court records were called for and the same are placed before this Court.
7. Heard the arguments of the learned counsel for the appellants and the learned High Court Government Pleader for the respondent State.
8. Perused the material placed before this Court including the impugned judgment and also Trial Court records.
9. For the sake of convenience, the parties would be referred to as per their ranks before the Trial Court.
10. Among the eight witnesses examined by the prosecution, PW-1 (CW-8) - Gadla Basappa is the Crl.A.No.63/2014 7 witness who has stated that the scene of offence panchanama as per Ex.P-1 was drawn in his presence by the Police. The place of incident was shown by the complainant/victim girl herself.
11. PW-2 (CW-10) - Shesha Naik, though was projected by the prosecution as a panch for the alleged seizure of the vehicle panchanama, but the said witness except stating that when he was summoned to the Police Station, a white coloured taxi vehicle was parked in the Police Station and that Police obtained his signature on a mahazar which mahazar, the witness has identified at Ex.P-2, has not stated anything further in that regard. Neither he could able to give the vehicle number nor he stated as to what formalities were complied before obtaining his signature at Ex.P-2. Even after treating him as Crl.A.No.63/2014 8 hostile, the prosecution could not get any further support from him.
12. PW-3 (CW-13) - Durgoji Rao has stated that the Police on 25-10-2011 took the photograph of the motor vehicle seized in this case in his presence and released the said vehicle to the R.C. owner of the said vehicle by drawing a panchanama as per Ex.P-4. The witness has identified the said vehicle through its photograph and got it marked at Ex.P-3.
13. The rest of the witnesses, mainly PW-4, PW-5, PW-6 and PW-7 have spoken about the incident and the alleged overt acts of the accused in the incident. However, the relationship between the parties inter se that, PW-4 is the daughter of PW-7 (CW-6 - Eramma) and CW-5 - Chandrappa, and that CW-2 (PW-5 - Yallamma) is the maternal aunt, i.e. Crl.A.No.63/2014 9 the younger sister of CW-6 - Eramma and CW-3 - Mallesh and CW-4 (PW-6 - Eshwarappa) are the brothers of CW-6 - Eramma, as such, the maternal uncles of the alleged victim girl, are not in dispute. The further evidence of these witnesses that the alleged victim girl and her parents were the residents of a place called Pillanagere village and except accused No.7 - Sathisha, all other accused are also the residents of the same village, is also not in dispute. Further, the evidence of these witnesses to the effect that, as on the date of the alleged incident, PW-4 - Kumari Usha, the alleged victim girl was residing in her grand parents' house at a place called Veerannana Benavalli village, is also not in dispute.
In the light of the above undisputed facts, the evidence of the prosecution witnesses with respect to the Crl.A.No.63/2014 10 alleged incident and the alleged role of the accused in it are required to be analysed.
14. PW-4 (CW-1) - Kumari Usha, the alleged victim girl has stated in her evidence that the accused No.1 - Thimma was spreading rumours in the village stating that he was marrying her. He had done it for about a year. Hence, her parents had shifted her to Veerannana Benavalli village from Pillanagere village to reside with her grandparents there. Accordingly, she was residing with her grandmother in Veerannana Benavalli village.
The witness has further stated that on 01-10-2011, herself along with her aunt (CW-2) - Yallamma (PW-5) and her maternal uncle CW-3 - Mallesh, after attending agricultural work of plucking the chilli grown in the land at Veerannana Benavalli Crl.A.No.63/2014 11 village, were returning from the land to the village through a plantation. It was at about 5:30 p.m., while she was walking a bit ahead of CW-2 -Yallamma and CW-3 - Mallesh, and had come near eucalyptus plantation area, she noticed that all the accused were standing by parking a tempo trax vehicle on the road in the said plantation area. At that time, accused No.1 - Thimma approached her and stating that he would marry her, pulled her arm and asked her to accompany him. Though she cried for help from CW-2 and CW-3, by the time they could go near, the accused persons made her to enter the vehicle. While accused No.7 - Sathisha was still standing outside the vehicle, the remaining accused drove away the said vehicle which was being driven by accused No.8 - Nagaraja. All the accused except accused No.7 took her in the said vehicle near the main bus stand at Crl.A.No.63/2014 12 Shivamogga where accused No.1 - Thimma, accused No.4 - Manjunatha, accused No.3 - Shashi went to purchase the tali and flowers while the remaining accused were standing near the vehicle. At that time, she noticed her another maternal uncle CW-4 Eshwarappa (PW-6) in that area. As she was aware that he had come to Shivamogga as one of his sisters was admitted to the Hospital, she called her said maternal uncle Eshwarappa. Accused No.3 was sitting inside the vehicle along with her at that time. On seeing Eshwarappa coming towards the vehicle, accused No.3 ran away from the vehicle. Eshwarappa (PW-6) got her (victim girl) out of the vehicle and then the said vehicle was driven away from the place by accused No.7.
The witness has further stated that she was told that accused No.7 - Sathisha was caught hold of by Crl.A.No.63/2014 13 the said Yallamma (CW-2) and Mallesh (CW-3), however, later accused No.7 also managed to escape from them. She stated that from the bus stand of Shivamogga, herself joined by her maternal uncle Eshwarappa, went to Kumsi Police Station, where she lodged a complaint with the Police. The witness has identified the said complaint at Ex.P-5 and her signature therein at Ex.P-5(a). She also stated that after she lodged the complaint with the Police, they visited the place where the vehicle was stationed by the accused in eucalyptus plantation area at Veerannana Benavalli village. As per the spot shown by her, the Police drew scene of offence panchanama as per Ex.P-1. The witness has identified the photograph of the vehicle at Ex.P-3 and stated that it was the said vehicle which was used to take her from Veerannana Benavalli village to Shivamogga. She Crl.A.No.63/2014 14 also stated that she was not willing to go with the accused, but she was forcibly taken by them. She stated her age as 17 years as at the time of the incident. Further, she stated that when accused No.1
- Thimma and accused No.4 - Manjunatha pulled her inside the tempo, the other accused were encouraging them to take her inside the vehicle. The witness was subjected to a detailed cross-examination from the accused' side, wherein she adhered to her original version.
15. PW-5 - (CW-2) - Yallamma has stated that on the date of incident, after completing the agricultural work in their field, she, along with her brother Mallesh (CW-3) and the victim girl - Usha were returning to home at 5:30 p.m., and Usha was walking in front followed by herself (this witness) and her brother. On the way, while they were passing Crl.A.No.63/2014 15 through eucalyptus plantation, the accused were found having parked a tempo trax vehicle on the road and were standing near the vehicle. Among them, accused No.1 - Thimma came to the victim girl - Usha and caught hold of her, stating that he would marry her and took her forcibly to the vehicle. At that time, Usha screamed for help. The witness stated that, even though herself and Mallesh attempted to save her, however, they could only catch hold of accused No.7 -Sathisha, while the remaining accused pushed them and drove away the vehicle taking Usha along with them. Though Usha attempted to escape but the accused persons did not allow her. The witness also stated that after the vehicle was gone, even accused No.7 - Sathisha also escaped from them. Crl.A.No.63/2014 16
The witness after seeing all the accused in the Court, has identified all the accused stating that she knows them.
The witness has also stated that Usha was left in her house by her (Usha's) parents since accused No.1 was saying in his village that he would marry Usha and had even told his brother-in-law that he would marry Usha. Being scared of his said statement, the parents of Usha had left their daughter in her grandmother's house.
The witness further stated that it was another brother Eshwarappa who had taken his sister Lakshmamma to the Mc.Gann Hospital at Shivamogga for treatment, met Usha at Shivamogga, since on seeing him, Usha called him from the vehicle in which she was sitting near Shivamogga bus stand. Hence, Eshwarappa brought her (victim girl) back to the Crl.A.No.63/2014 17 place. The witness has identified the vehicle in the photograph at Ex.P-3 stating that it was the vehicle in which Usha was kidnapped by the accused. This witness also was subjected to a detailed cross- examination, wherein she adhered to her original version.
16. PW-6 (CW-4) - Eshwarappa the maternal uncle of the alleged victim girl Usha has stated that as told to him by CW-5 and CW-6 (the parents of victim girl Kumari Usha), accused No.1 - Thimma was saying in Pillanagere village that he would marry Usha. Being scared by the said statement, the parents of the victim girl Usha had left her in his village. The accused had got the sister of Usha wedded to Manja in the same fashion and therefore, the parents of Usha were scared.
Crl.A.No.63/201418
The witness has further stated that the said victim girl - Usha was living in their house by attending to the agricultural work at their land as well doing coolie work in other lands along with his sister Yallamma and brother Mallesh.
About the incident, the witness has stated that on 01-10-2011 he had taken his another elder sister Lakshmamma to Mc.Gann Hospital at Shivamogga for treatment. At about 7:30 p.m., while he was going towards the bus stand of Shivamogga, he heard Usha calling from inside the tempo trax vehicle through its window by waving at him as 'mama'. He was surprised as to why Usha was there at that time and went near the said tempo trax vehicle which was parked opposite the bus stand. At that time, accused No.8 - Nagaraja who was on the wheels of the vehicle and accused No.5 - Madhu and accused No.7 - Crl.A.No.63/2014 19 Sathisha who were also there, ran away from the place. He made Usha to get down from the vehicle. At that time, accused No.8 - Nagaraja went away by driving the said vehicle. Thereafter, he enquired Usha as to why she was there and from her, he came to know that while she was returning after attending agricultural work, accused No.1 joined by the remaining accused had kidnapped her from the eucalyptus plantation area which is there in their village on the way to their home. Despite the attempts of Yallamma and Mallesh to save her, she was kidnapped by the accused.
The witness has stated that Usha also told him that accused Parameshi, Shashi and Madhu had gone to purchase tali along with Thimma. The witness has given the registration number of the vehicle as KA-24/ M-5835. He has stated that he took Usha to Kumsi Crl.A.No.63/2014 20 Police Station at about 7:30 to 8:00 p.m., where they gave a complaint to the Police orally which was reduced into writing. He has stated that he has gone to the Police Station on the next day also. He has identified the vehicle through this victim and stated that it was the same vehicle in which Usha was kidnapped. This witness also was subjected to a detailed cross-examination wherein he adhered to his original version.
17. PW-7 (CW-6) - Eramma - the mother of the victim girl has also stated that her daughter Usha was left in Usha's grand parents' house since accused No.1
- Thimma was saying in the village that, he would marry Usha. Since the younger sister of Usha was also kidnapped and got married to one Manja of their village, she was scared by the statement made by Crl.A.No.63/2014 21 Thimma, as such, Usha was living in her grand parents' house.
About the incident, the witness stated that she came to know about the incident when Usha telephoned to her and told her that she was kidnapped by the accused persons while she was returning home from the land. She was also told by Usha as to how she was taken to Shivamogga in a motor vehicle and where she could notice her maternal uncle Eshwarappa who went to her rescue. The denial suggestions made to this witness in her cross-examination from the accused' side were not admitted as true by this witness.
18. PW-8 (CW-15) - Shanmugam is the Investigating Officer in this case who stated that as a Police Sub Inspector of the complainant Police Station, Crl.A.No.63/2014 22 he has conducted the investigation in this matter and has given details of his investigation in the matter.
19. The above evidence of the prosecution witnesses would go to show that, apart from the victim, even her aunt i.e. PW-5 - Yallamma stating herself to be an eye witness and her maternal uncle Eshwarappa (PW-6) stating that he has rescued the victim girl, have also supported the case of the prosecution. According to these witnesses, all the accused have committed the alleged act of kidnapping of the victim girl Usha. The evidence of all these three witnesses have come in consonance regarding the manner in which Usha is said to have been forcibly taken away with them by the accused.
As already observed above, the evidence of these witnesses that at the relevant point of time, Crl.A.No.63/2014 23 Usha was residing in her grand parents' house at Veerannana Benavalli village and was attending to agricultural and coolie work is not denied or disputed from the accused' side. According to these three material witnesses, at the time of incident, as usual, the victim girl after attending to agricultural work in their field was returning home along with her aunt Yallamma (PW-5) and her another maternal uncle Mallesh (CW-3). Both PW-4 - victim girl as well as PW-5, the alleged eye witnesses have uniformly stated that, on their way, they had to pass through eucalyptus plantation area and on the side of a road therein, all the accused were found standing duly parking a tempo trax motor vehicle on the side of the road. Both these witnesses have also stated that, among them, it was accused No.1 - Thimma who approached Usha the victim girl and stating that he Crl.A.No.63/2014 24 would marry her, as such, she should marry him, forcibly dragged her and put her in the tempo trax motor vehicle. The other accused, except accused No.7, reached the said vehicle and when PW-5 - Yallamma and Mallesh attempted to rush to the rescue of the victim girl Usha, they fled away from the area. An attempt was made in the cross-examination of both PW-4 and PW-5 to weaken the evidence of PW-4 and PW-5 about the incident. However, both these witnesses have withstood the searching cross- examination and reiterated their statement that Usha was the victim girl who was kidnapped by the accused.
20. PW-4 in her cross-examination has given some more details as to what was her routine on the said day and at what distance the said vehicle was parked from the place where she was walking on the Crl.A.No.63/2014 25 road leading to her house. She has also given the details as to at what distance PW-5 and her maternal uncle were following her. All those details further add to the case of the prosecution in making the alleged incident more clear and more nearer to believe it. The witness, at more than one place, while answering to the question put to her from the accused' side, had made it clear that, at both the places of her alleged abduction from eucalyptus plantation area and also while she was confined inside the motor vehicle opposite the bus stand at Shivamogga, she raised an alarm seeking help from the public, but, she could not get, except alerting her aunt - Yallamma (PW-5) and her maternal uncle Mallesh (CW-3). The said aspect has been further corroborated by PW-5 - Yallamma even in her evidence also. She has stated that while accused No.1 - Thimma was dragging the victim girl Crl.A.No.63/2014 26 Usha towards the motor vehicle, she raised an alarm at which, both herself (PW-5) and her brother Mallesh rushed to the rescue of the girl, but at that time, the accused could able to successfully put the victim in the car and except the accused No.7, rest of the accused could also board the vehicle and leave the place. Thus, regarding the occurrence of the incident and about the normal conduct of human being, what can be expected in such kind of circumstance, the prosecution has placed the evidence of PW-4 and PW-5, which leave no scope to disbelieve the same.
21. Learned counsel for the appellants as a first point of his argument canvassed that, no overt acts have been attributed against accused Nos.2 to 8 in the alleged act of abduction of the victim girl Usha.
22. Per contra, learned High Court Government Pleader, in his argument submitted that, in the very Crl.A.No.63/2014 27 complaint itself, the complainant/victim girl has not only named all the accused, but also has complained as to who were all the participants in the alleged commission of the crime.
23. A perusal of the complaint which is marked at Ex.P-5 would go to show that, the victim girl Usha in the complaint itself has stated about the participation of all the eight accused in the commission of the crime against her. She has stated that when accused No.1 - Thimma dragged her towards the vehicle and made her to sit in the vehicle, the remaining accused were also in the vehicle. She further stated that when her maternal uncle came near her to rescue at Shivamogga, accused No.6 - L.Nagaraja, accused No.5 - Madhu, accused No.3 - Shashi, Accused No.4 - Manjunatha, all ran away from near the vehicle. After she got down from the said Crl.A.No.63/2014 28 vehicle, accused No.8 - Nagaraja drove away the said vehicle.
In addition to the above, the victim girl as PW-4 in her evidence, at more than one place, has stated that, it was all the accused who have committed her abduction (according to witness it was a kidnap). She has stated in her examination-in-chief itself that, when accused No.1 - Thimma and accused No.4 - Manjunatha pulled her inside the tempo at the place of incident, other accused were encouraging them to take her inside the vehicle. In that manner, none else than the complainant/victim girl herself has not only stated and shown that all the accused were present at the place of incident, but also has shown the involvement of all the accused in the commission of the offence.
Crl.A.No.63/201429
In continuation of the above, the victim girl as PW-4 has further stated that though Accused No.7 - Sathisha could not able to board the vehicle at the place of incident, while the accused left the place after putting her inside the vehicle, the remaining accused had taken her upto Shivamogga and while they had parked the vehicle in front of the main bus stand of Shivamogga, accused No.1 - Thimma, accused No.4 - Manjunatha and Accused No.3 - Shashi went to purchase tali and flowers while the rest were standing by the side of the vehicle. Stating so, she has once again made it clear that the act of her alleged abduction from the village to Shivamogga was a common act on the part of all the accused who had pre-planned and determined to kidnap her and take her away to some other place to ensure her marriage with accused No.1. This not only shows the Crl.A.No.63/2014 30 involvement of all the accused in the commission of the crime but also the motive behind the commission of the crime.
24. The above description of the participation of all the accused has been further corroborated by the evidence of an eye witness to the incident i.e. PW-5 - Yallamma. As already observed above, she too has stated that all the accused after parking their vehicle were standing near the vehicle and while these people were returning to their home, accused No.1 approached the victim girl and dragged her to the vehicle. Thereafter, all ran away from the place except accused No.7 who was caught by this witness along with the help of her brother Mallesh, after alerting by the alarm raised by the victim girl Usha. The said evidence of the witness also goes to show that all the accused have actively participated in the Crl.A.No.63/2014 31 alleged commission of the crime. As such, the first argument of the learned counsel for the appellants that there are no overt acts attributed against accused Nos.2 to 8 for the alleged commission of the crime, is not acceptable. On the other hand, the act would go to show that it was the common act of all the accused who had commissioned the said act in a planned manner.
25. About the involvement of accused Nos.1 to 6 in the commission of crime, is not only stated by the victim girl Usha, but also corroborated in the evidence of PW-6 Eshwarappa. The said Eshwarappa also has stated that there was active involvement and participation of all the accused except accused No.7, as noticed by him. As already observed above, the said accused No.7 was caught hold of by PW-5 and Crl.A.No.63/2014 32 her brother Mallesh. However, the said accused is also said to have escaped from their clutches.
The said PW-6 - Eshwarappa has also stated that when he went near the tempo trax motor vehicle, at the alarm raised by PW-4 - the victim girl, he noticed accused Nagaraja at the wheels of the vehicle and other three accused running away from the place after seeing him. In that way, PW-6 also has shown that it is not just accused No.1 alone, but even the remaining accused also had participated in the actual and active commission of the crime against the victim girl PW-4. As such also, the argument of the learned counsel for the appellants that there is no evidence to show the involvement of accused Nos.2 to 8 in the commission of crime, is not acceptable.
26. The next point of argument of the learned counsel for the appellants is about the alleged delay in Crl.A.No.63/2014 33 lodging the complaint. According to the learned counsel, there is a delay of about seventeen hours in registering the complaint which has remained unexplained. Learned counsel submitted that when the incident is said to have occurred at 5:30 p.m., on 01-10-2011 and ended at 7:30 on the same evening, the complaint is registered on the next day (02-10-2011) at about 2:30 p.m. Thus, the said delay raises a suspicion in the case of the prosecution.
27. Learned High Court Government Pleader in his argument submitted that the alleged delay cannot be considered as a delay, because, the development that has taken place has been explained by the prosecution witnesses. Further, the alleged delay also has been properly and convincingly explained by none else than the complainant herself and it gives no suspicion in the case of the prosecution. Crl.A.No.63/2014 34
Even according to the prosecution, the entire incident of alleged abduction of victim girl Usha came to know at about 7:30 p.m. on 01-10-2011 when her maternal uncle Eshwarappa is said to have rescued her.
According to PW-4 - victim girl Usha, on the very same day, immediately thereafter, they went to Kumsi Police Station where she lodged a complaint with the Police as per Ex.P-5. In her cross- examination, the witness has further given details showing the reasons for the delayed registration of the complaint. She has stated that though the incident occurred on 01-10-2011, she, joined by her maternal uncle and grand father had gone to the Police Station on the very same night, but, the Police Sub-Inspector was not available. Hence, they lodged a complaint on the next day. She stated that on the Crl.A.No.63/2014 35 next day, she gave a complaint at about 9:30 a.m. to 10:00 a.m. However, she also submitted that on 01-10-2011 itself, somebody at the Police Station noted about her complaint, but since Police Sub- Inspector was not available, these people had to return and go the next day once again.
PW-6 - Eshwarappa who has stated that he took the victim girl Usha to the Police Station after rescuing her from the custody of the accused, has also stated in his evidence that, first, they went to the Rural Police Station, Shivamogga to give complaint, but they were told that the jurisdiction was at Kumsi Police Station and they should go there. In that manner, the said witness has explained the reason about the alleged delay.
Crl.A.No.63/201436
28. Learned counsel for the appellants also submitted in his argument that PW-6 - Eshwarappa in his evidence has specifically stated that the complaint was given on the very same day of incident, but Ex.P-5 shows that it was registered on the next date of the incident, i.e. on 02-10-2011.
29. As observed above, PW-4 has given the details as to what happened on 01-10-2011 when they had been to Police Station to lodge a complaint and what made them to go once again to the Police Station on the next day i.e. on 02-10-2011 to lodge the complaint.
As observed above, the said explanation given by the witness is convincing and appears to be truthful. Added to that, a careful study of the evidence of PW-6 - Eshwarappa would go to show that after the said witness joined by victim girl went to Crl.A.No.63/2014 37 the Police Station and returned to their village, the villagers of Pillanagere had approached them requesting them not to lodge the complaint. However, to their request, he did not accede, on the other hand, he insisted for registering the case. He had gone to the Police Station on the next day also. Thus, the witness has shown that after their return from the Police Station, on the date of the incident, i.e. on 01-10-2011, he was approached by the villagers of the accused and till then, the complaint was not registered, as such, on the next day, once again, he went to the Police Station and insisted for registering it.
According to PW-8 - Investigating Officer, the registration of the complaint was on the next day only i.e. on 02-10-2011. The reason for lodging the complaint on the said day and the non-availability of Crl.A.No.63/2014 38 the Police Sub-Inspector on the previous day i.e. on 01-10-2011 since has also been given by PW-4, the evidence of PW-4, PW-6 and PW-8 when read together, clearly go to show that there is no contradiction regarding the date and time of lodging and registration of the complaint. As such, the argument of the learned counsel for the appellants that there is delay in lodging the complaint and there is also variation regarding the date and time of lodging the complaint, is not acceptable.
30. Learned counsel for the appellants further in his argument submitted that there is variation in the evidence of PW-4. In her complaint, she has stated that, since about one week prior to the incident, she was residing in her grand parents' house, whereas in her evidence, she has stated that since about two Crl.A.No.63/2014 39 years she has been residing in her grand parents' house.
31. On a careful comparison of these two statements of the same witness (PW-4) would go to show that, as on the date of the incident, which has taken place on 01-10-2011, the witness as a complainant in her complaint has stated that she was residing in her grand parents' house since about a week prior to the incident. Whereas in her evidence as PW-4, which was recorded on 13-08-2013, i.e. nearly about two years after the incident, she has stated that, since last two years, she has been residing in her grand mother's place. Thus, both the statements of the witness are uniform and not contradictory and would clearly go to show that her stay in her grand mother's house since a week was upto the date of her complaint, whereas her Crl.A.No.63/2014 40 statement in the evidence that she was staying in her grandmother's house since about two years was as on the date of her evidence given in the Court. As such, the said argument of the learned counsel for the appellants on the said point, is also not acceptable.
32. Learned counsel in his argument also raised a doubt as to why no complaint was earlier lodged by the victim girl against accused No.1 - Thimma when he is said to have been saying to her that he would marry her. No doubt, the prosecution has not stated that any attempt was made to lodge any complaint against the said accused for his alleged act of saying to the victim girl that he would marry her even much prior to the present incident, however, by that itself, it cannot be considered that the present incident has not happened. It is for the reason that, admittedly, all the accused are known persons to the family of the victim Crl.A.No.63/2014 41 girl since earlier, as they were residing in a small village. As such, merely because a person is stating that he would marry another girl, it cannot be expected that, taking that statement as a crime, the known villager should rush to the Police Station and lodge a complaint. However, the parents of the victim girl, as a natural action of the parents, have shifted the place of residence of their daughter i.e. victim girl from their house to her grand parents' place in a different village to see that their daughter would be safe there. As such, the act of non-lodging of any complaint earlier by victim or her family members against the accused No.1 - Thimma cannot be considered as an element introducing any serious doubt in the case of the prosecution.
33. Learned counsel for the appellants also submitted that the registration number of the tempo Crl.A.No.63/2014 42 trax vehicle has not been forthcoming either in the complaint or in the evidence of PW-4, as such, the very involvement of the said vehicle in the commission of the crime is doubtful.
34. Learned High Court Government Pleader in his argument submitted that, when the complainant herself is the victim girl and who had rushed to the Police Station immediately after the incident, and she being a village girl of schooling only upto VI standard, cannot be expected of noticing the registration number of the vehicle and giving it to the Police in her complaint itself.
The complainant has also not stated the registration number of the vehicle in her evidence as PW-4, however, by that itself, it cannot be held that the said vehicle was alien to the alleged incident. PW-4 has given the description of the vehicle though Crl.A.No.63/2014 43 not with its registration number. Similarly, another eye witness PW-5 - Yallamma has also given the description of the vehicle. The Investigating Officer (PW-8) has stated that after he arrested accused No.2, accused No.8 voluntarily surrendered before him (PW-8) along with an order of anticipatory bail in his favour given by a competent Court. He also stated that the said accused No.8 also produced the vehicle which was used in the commission of the crime, which was seized by him, by drawing the seizure panchanama in the presence of PW-2 as per Ex.P-2.
In the above background, when the evidence of the prosecution witnesses with respect to identification of the vehicle is perused, it can be noticed that PW-4 has clearly identified the said vehicle through its colour photograph at Ex.P-3 stating that, it was the Crl.A.No.63/2014 44 very same vehicle in which she was kidnapped (as stated by the witness) by the accused.
More importantly, PW-6 Eshwarappa has stated that he has seen the vehicle while the kidnapped girl Usha was made to sit in the said vehicle when the said vehicle was parked opposite the Government Bus Stand at Shivamogga. That means, the said witness has actually seen not only the vehicle but also the alleged abducted girl in it. He has also seen the presence of some of the accused in that vehicle in that place. The said witness specifically and clearly in his evidence as PW-6 has stated that the vehicle registration number was KA-24/M-5835. Apart from giving the registration number of the vehicle, he has also identified the said vehicle through Ex.P-3 in the Court. The said statements of the prosecution witnesses have not been specifically denied in their Crl.A.No.63/2014 45 cross-examination. Thus, the evidence of PW-4, PW-5 and more particularly PW-6, when read with the evidence of Investigating Officer (PW-8) clearly goes to show that the vehicle used in the commission of the crime was the motor vehicle bearing registration No.KA-24/M-5835 only and none else. As such, the involvement and identity of the said vehicle also stands proved.
35. Learned counsel for the appellants raises one more point contending that, the act of the Investigating Officer in not seizing the alleged driving licence and the cell phone said to have been snatched by PW-5 and her brother from accused No.7, also creates doubt in the case of the prosecution.
36. The said argument of the learned counsel for appellants is not acceptable for the reason that, it Crl.A.No.63/2014 46 is nobody's case that the alleged driving licence of accused No.7 or the alleged cell phone, in any manner, has got any nexus with the incident or the crime committed by the accused in this case. Merely because PW-5 and her brother Mallesh are said to have taken the driving licence and the cell phone belonging to accused No.7 when they are said to have caught hold of him, by that itself, it cannot be inferred that they are also the necessary articles which should have been seized by the Investigating Officer, otherwise, the investigation would have led to some suspicion in it. Thus, the non-seizure of those two alleged articles since causes no prejudice to the case of the prosecution or gives no advantage to the accused in any manner, the argument on the said point canvassed by the learned counsel for the appellants, is also not acceptable.
Crl.A.No.63/201447
37. Lastly, learned counsel for the appellants raised a doubt about PW-5 Yallamma not lodging any complaint even though she claims to have been an eye witness to the alleged incident.
38. Learned High Court Government Pleader in his argument submitted that, admittedly, the said witness is a villager and an illiterate lady and more over, within two hours of she seeing the incident of abduction of the girl, the incident had ended by PW-6 rescuing the girl. As such, this villager from her village going to the Police Station and lodging the complaint cannot be expected.
39. I find more force in the argument canvassed by the prosecution on this point. Admittedly, when PW-5 is a rustic villager and as a family member, she has reacted to the situation on Crl.A.No.63/2014 48 the spot in a reasonable manner by attempting to rush to the rescue of the girl. It is not reasonable to expect that she should also run to the Police Station immediately and lodge a complaint. However, by the time she returned home and narrated the incident to one Sri. Lingappa, a neighbour to their house and to Thirthappa who resides opposite to her house, the incident had ended on a safe note since PW-6 had rescued the victim girl Usha from the hands of the accused. Thereafter, as noticed earlier, the victim girl herself joined by her rescuer had been to the Police Station. As such, the alleged non-registration of any complaint by PW-5 is neither fatal to the case of the prosecution nor imbibes any doubt in the case of the prosecution.
40. Regarding the motive behind the commission of the crime, all the material witnesses including Crl.A.No.63/2014 49 PW-4, PW-5 and PW-6 have given their evidence. It has come in their evidence that the younger sister of present victim girl Usha was also kidnapped earlier and was forcibly married to one Sri.Manja of the same village. As such, the parents of the present victim girl were scared that their elder daughter i.e. the present victim girl also might be kidnapped by the accused for which they had made her to stay in her grand parents' house. In fact, the mother of the victim girl, i.e. PW-7
- Eramma has given the details in that regard in her brief evidence.
41. A perusal of the evidence of prosecution witnesses also goes to show that from accused' side, a suggestion was made to PW-7 - the mother of the victim girl that, their younger daughter was also kidnapped and wedded. The witness volunteered to say that except the two accused persons in this case, Crl.A.No.63/2014 50 all the other accused were involved in the said earlier kidnap also, and that has remained not denied in her cross-examination. Thus, the previous history of kidnap of the sister of the victim girl and her forcible marriage to one Manja of the same village Pillanagere and the act of the accused No.1 of he openly saying in the village that he would marry the victim girl Usha, have made it clear that the motive behind the proven crime by the accused was forcibly taking away (abduction) the victim girl with them and to forcibly marry her to accused No.1. It is in that regard, the evidence of PW-4 further corroborates the said motive, who has stated that after making her to sit in the car under the watch of three of the accused, the remaining accused had left the place to purchase tali and flowers and had stated that the victim girl should marry accused No.1. Thus, the motive behind the Crl.A.No.63/2014 51 commission of the crime is also proved by the prosecution.
42. Thus, the evidence of prosecution witnesses, more particularly, PW-4, PW-5 and PW-6 have made it clear and prove the guilt of the accused beyond reasonable doubt that, all the accused in furtherance of their common object of forcibly taking away the victim girl Usha against her will and to force her to marry accused No.1, had abducted her in the evening of 01-10-2011 from Veerannana Benahalli village to Shivamogga.
43. Though the said victim girl claims her age to be of 17 years as on the date of incident, since the prosecution could not able to prove the age, the Trial Court has rightly considered the said act not as a kidnap but as an abduction and acquitted the accused Crl.A.No.63/2014 52 of the alleged offence punishable under Section 366A of the IPC and has convicted them for the offence punishable under Section 366 of IPC.
I find no error in the said appreciation of evidence by the Trial Court in holding the accused guilty of the offences punishable under Sections 143, 366 read with Section 149 of IPC. As such, the judgment of conviction does not warrant any interference at the hands of this Court and accordingly, requires to be confirmed.
44. When the quantum of sentence ordered by the Trial Court against the accused is considered, learned counsel for the appellants submits that the sentence of imprisonment imposed upon the accused is on the higher side, as such, the same may be Crl.A.No.63/2014 53 confined to fine amount and the accused be set at liberty.
45. The said submission of the learned counsel is seriously opposed by the learned High Court Government Pleader.
46. The Trial Court has sentenced each of the accused to undergo simple imprisonment for two months for the offence punishable under Section 143 of IPC and to undergo rigorous imprisonment for four years for the offence punishable under Section 366 read with Section 149 of IPC and to pay a fine of `5,000/- and in default to further undergo rigorous imprisonment for three months.
47. The sentencing policy is that the sentence ordered must be proportionate to the gravity of the Crl.A.No.63/2014 54 proven guilt of the accused. It must not be either exorbitant or for name sake.
48. In the instant case, even though the accused have been convicted for the guilt of abduction of PW-4 the victim girl, but within two hours of the alleged abduction and without any physical injury or any other harm to the victim girl, in any manner, she was rescued by the maternal uncle of the victim girl. In such a situation, I am of the view that the sentence of rigorous imprisonment for four years ordered by the Trial Court for the offence punishable under Section 366 read with Section 149 of IPC is slightly on the higher side. As such, the same requires to be reduced. Thus, in order to bring it to the proportionate sentence of imprisonment, the period of rigorous imprisonment requires to be reduced to three years. It is only for the purpose of reducing the Crl.A.No.63/2014 55 period of sentence of imprisonment, the appeal deserves to be allowed in part.
Accordingly, I proceed to pass the following:-
ORDER [i] The appeal filed by accused/appellants is allowed in part.
[ii] Though the judgment of conviction passed by the learned I Additional Sessions Judge at Shimoga in Sessions Case No.12/2013 dated 13-01-2014, convicting the present appellants/ accused for the offences punishable under Sections 143, 366 read with Section 149 of IPC is confirmed, but the order on sentence of imprisonment dated 25-01-2014 for the offence punishable under Section 366 read with Section 149 of IPC is reduced, modified Crl.A.No.63/2014 56 and confined to three years rigorous imprisonment for each of the accused.
[iii] However, the order on sentence dated 25-01-2014 regarding the fine amount payable by each of the accused which is fixed at `5,000/- for the said offence and the sentence of imprisonment for simple imprisonment for two months for the offence punishable under Section 143 of IPC and also the order on compensation payable to the victim girl under Section 357 of the Code of Criminal Procedure, 1973, remains unaltered.
[iv] Both sentences shall run concurrently. [v] It goes without any specific order that the accused are entitled for the benefit under Section 428 of the Code of Criminal Procedure, 1973. Crl.A.No.63/2014 57
Registry to transmit a copy of this judgment along with Trial Court records to the Trial Court immediately.
Sd/-
JUDGE BMV*