Karnataka High Court
State Of Karnataka vs Venkatanarasappa on 13 September, 2012
Bench: Dilip B.Bhosale, S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR.JUSTICE DILIP B.BHOSALE
AND
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
CRIMINAL APPEAL NO.493/2007 (A)
BETWEEN:
State of Karnataka,
By Dibburahalali Police. ... Appellant
(by Sri.N.S.Sampangiramaiah, HCGP)
AND:
1. Venkatanarasappa,
S/o Chikkanarasappa,
Aged 50 yrs.,
2. Ramanna s/o Venkatanarasappa,
Aged 35 yrs.,
3. Jayaramappa @ Jayappa,
Venkatanarasappa,
Aged about 27 yrs.,
4. Ramesh Venkatanarasappa,
Aged about 24 yrs.,
5. Doddananjappa
S/o Kamsala Ramanna, 60 yrs.,
6. Prakash s/o Doddananjappa
Aged about 30 yrs.,
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7. Nagaraja @ Venkatesha
S/o Doddananjappa @ Gangappa,
Aged about 30 yrs.,
8. Ramanna s/o late Narasimhappa
Aged about 40 yrs.,
All are r/o Gadiminchenahalli
Village, Sidlaghatta Taluk,
Kolar District. ... Respondents
(by Smt.S.Susheela, Adv., for Sri.P.L.Nanjundaswamy)
This Criminal Appeal is filed under Section 378 (1) &
(3) of Cr.P.C. against the judgment dated 30.11.2006 passed
by the Principal District and Sessions Judge, Kolar in
SC.No.122/2003 acquitting the respondents/accused for the
offence p/u/Sections 341, 366, 342, 376, 344 and 114 r/w
Sections 149 and 114 of IPC.
This Criminal Appeal coming on for hearing this day,
the court delivered the following:
ORAL JUDGMENT; (DILIP B. BHOSALE J),
The State has come up in this appeal against the judgment and order dated 30.11.2006 rendered by the Principal Sessions Judge, Kolar, in SC.No.122/2003 by which all the accused were acquitted of the offences punishable under Sections 341, 366, 342, 376, 344 and 114 read with Sections 149 and 114 of IPC.
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2. The respondents/accused were charged and tried on the allegation that they all together abducted Venkatarathnamma (for short 'victim') on 28.4.2002 at 8.00 pm., with the common object to force her for illicit intercourse with accused No.4 and took her to Tirupathi, Andhra Pradesh. The incident occurred on 28.4.2002. The father of the victim lodged complaint with the police, naming accused Nos.1 to 7 on 1.5.2002. On the basis of the complaint, the investigation was set in motion and ultimately the victim and accused No.4 were traced by the Investigating Officer. They were found at Tirupathi in the house of one Naguramma-PW.14. Thereafter, the victim and accused No.4 were produced before the Investigating Officer (PW.17) by the ASI and P.C.No.303 on 2.7.2002 and 4.7.2002 respectively. After completing the investigation, the charge sheet was filed and the accused were committed to the Sessions Court.
3. The Sessions Court framed the following charges:
"That you on 28.4.2002 at about 8.00 pm., at Gadiminchenahalli village in sidlaghatta Taluk, in prosecution of the common object of committing kidnap and to commit rape on CW.2 -4- A.Venkatarathnamma, aged about 16 years, you A1 wrongfully restrained CW.2 A.Venkatarathnamma, D/o Aswathappa during village festival, from proceeding further, in which direction she had a right to proceed and thereby committed the offence U/s 341 r/w 149 of IPC within the cognizance of Sessions Court.
2. That on the above said date, time and place in prosecution of the above said common object, you the accused persons, abducted CW2 Kumari Venkatarathnamma, D/o Aswathappa, with the common object to force her for illicit intercourse with A4, and took her to Tirupathi, Andhra Pradesh and thereby you committed the offence U/s 366 r/w 149 of IPC within the cognizance of this court.
3. Further, you wrongfully confined CW2 A.Venkatarathnamma, the minor girl from 28.4.2002 for a period of two months in the rented house belonging to CW 21 Nagooramma and CW 22 Krishnaiah at Tirupathi and you thereby committed an offence punishable U/s 342 and 344 r/w 149 of IPC and within the cognizance of Sessions Court.
4. That you A4 you committed rape on CW 2 Kumari Venkatarathnamma, a minor girl without her consent and much against her will for a period of two months from 28.4.2002 in the rented house belonging to CW 21 Nagooramma and CW22 Krishnaiah at Tirupathi and thereby committed the offence U/s 376 of IPC within the cognizance of Sessions court.
5. Further, you the accused Nos.1 to 3, 5, 6, 7 and 8, abetted and instigated the accused No.4 in committing the rape on CW2 and -5- thereby committed the offence U/s 114 of IPC within the cognizance of this Court."
4. Before the Sessions Court the prosecution examined 18 witnesses and placed several documents on record and so also 5 material objects in support of its case. We have carefully gone through the judgment of the trial Court and so also the entire evidence led by the prosecution with the assistance of the learned Counsel for the parties. The complainant-PW.1 and the victim/Venkatarathnamma (PW.2) are the star witnesses in the instant case. We have carefully gone through the evidence of both these witnesses.
5. PW.1 has stated that on 28.4.2002 at 8.30 pm., the victim was getting ready to go to Maheshwara Temple. When she was about to leave for temple, accused No.1 went to his house and requested him to send his daughter with him. He told PW.1 that his daughter Parvathamma would go with the victim to the temple. PW.1 and other family members allowed her to go with accused No.1. Thereafter, she did not return till 9.30 pm. One Narasimhareddy (PW.3) and Narayanaswamy (PW.4) went to his house and told him that -6- somebody took away his daughter in a car. He, therefore, started searching her in surrounding villages. He tried to trace his daughter for two days, but all his efforts were in vain. Therefore, on 1.5.2002 he lodged complaint (Ex.P1) at 7.15 pm. PW.17 after recording the complaint registered a crime bearing No.22/2002. PW.1, thereafter, identified all the accused before the Court stating that he knew them. He also gave the description of the dress worn by his daughter and the ornaments on her person while leaving the house. He then states that two months after filing of the complaint, he came to know that his daughter was in Tirupathi in Yerumitta colony. After receiving this information he along with Narasimhareddy (PW.3) with two police personnel went there. He does not give the date on which he went to Tirupathi. At Tirupathi they found his daughter and accused No.4 in one rented shed owned by Naguramma (PW.14). He states that police apprehended both of them and they returned to Dibburahalli Police Station. This is the version of PW.1 in his examination-in-chief. -7-
In the cross-examination, he states, when accused No.1 took the victim to his house, his wife and other relatives were present. He admits in the cross that he did not go to the house of accused Ndo.1 to ask him about the victim. He also admits that on the same day night at 9.30 pm., Narasimhareddy (PW.3) and Narayanaswamy (PW.4) told him about the abduction of his daughter in a car. To one question in the cross he replied that he did not think of giving complaint soon after they (PWs.3 and 4) told him about his daughter being abducted in a car. We do not find anything further in the cross-examination worth taking note of.
6. The evidence of the victim (PW.2) is also on similar lines. Till she left the house she corroborates the version of PW.1. Then, she states that her ornaments were removed forcibly by accused No.7. In the cross-examination, she did not give any particulars as to exactly when her ornaments were forcibly removed by accused No.7. Then, she states that both (accused Nos.4 and 7) forced her to go to Pawnbroker Shop (PW.15) and pledge her ornaments. For -8- the ornaments the Pawnbroker paid Rs.1000/- cash. Then, she states that accused Nos.4 and 7 used to ill-treat her, abused her and were not providing her food. She, however, has categorically stated that they did not force intercourse with her. There she came to know from the accused that she was abducted for ransom.
7. In the cross-examination, she states that accused No.1 often used to go to their house and she also would go with him on such occasions. It is also revealed from her evidence as well as the evidence of PW.1 that her father (PW.1) and accused No.1 were friends. They are owners of adjacent lands. She then in the cross-examination states that she did not raise hue and cry at any point of time from the time of her abduction till they reached Tirupathi since she was threatened with dire consequences. Then, in the cross-examination, she states that her ornaments were removed by the accused (without naming which of the accused), on their way to Tirupathi. She also states in the cross-examination in answer to one of the questions that her ornaments were removed by accused No.7 -9- on their way from Vempalli to Madanapalli gate while they were walking. She was also confronted that part of her statement under Section 161 of Cr.P.C. It would be worth noticing the marked portion in her statement as Ex.D3. Before the police, she had stated that she had gone from Vempalli to Madanapalli with accused Nos.4 and 7 in bus; whereas, in her deposition, she states that they went from Vempalli to Mandanapalli on foot. She also states that she was confined in the house at Tirupathi and was not allowed to get out of the house even to make a telephone call.
8. Insofar as evidence of these two witnesses is concerned, we heard the learned Counsel for the parties and with their assistance examined the others evidence also. Insofar as the evidence of PW.1 is concerned, the conduct of PW.1 clearly shows that the facts narrated by him till he came to know about the abduction of his daughter through PWs.3 and 4 was not only unnatural but he concocted the story against the accused persons. If what is stated by PW.1 in his examination-in-chief is correct and if his daughter did not return till 9.30 pm., and if he was informed by two
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witnesses about her abduction in the natural course of event he would have rushed to the police to lodge a complaint or atleast he should have gone to accused No.1 to ask about the whereabouts of his daughter, on the contrary, he does not do either of the two. His conduct is neither natural nor genuine. He kept quiet not only that night but for two days and thereafter, on 1.5.2002 lodged complaint against the accused persons. In the complaint he named seven persons. He, however, has not stated as to how he came to know the names of seven accused or why did he name those seven persons as the accused who abducted his daughter. In his examination-in-chief PW.1 clearly stated that when Narasimhareddy (PW.3) and Narayanaswamy (PW.4) informed him about the abduction of his daughter that somebody took her away in the car they did not tell the names of accused persons. Even if it is assumed that they had disclosed the names of accused persons as reveals from the evidence of PW.4, he had only named accused Nos.4 and 7 as the persons who were seen with his daughter in the car. When the complaint was lodged by PW.1 both these
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witnesses were present. He also has not stated in his evidence nor the prosecution has offered any explanation as to why PW.1 did not approach accused No.1 who had taken his daughter from his house under the pretext that he would send her along with his daughter Parvathamma to the temple.
9. We have also seen the evidence of PWs.3 and 4. PW.3 was declared hostile. In the examination-in-chief he did not tell about giving information to PW.1 about abduction which he had allegedly seen on that night. PW.3 in his chief stated that he was going towards the village at 8.30 pm., when he saw accused Nos.3 and 4 taking the victim in a car. He, therefore, went to the house of PW.1 and informed him about the abduction. According to this witness, he named both the accused when he gave information to PW.1. PW.1 however states that PWs.3 and 4 told him that "somebody" took away his daughter in a car. In the cross, PW.4, states that he saw the car from a distance of about 200 feet, hence, he could not observe the number or colour of the car. The incident occurred at 8.30
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pm., in the night. We fail to understand as to how could he see the accused persons sitting in the car from a distance of about 200 feet. Even if it is assumed that, that is correct, still PW.1 does not support his version about accused Nos.4 and 7.
10. Then we come to another aspect, which is reflected in the evidence of PW.1, namely, tracing the victim at Tirupathi. He states that he along with PW.3 and two police personnel went to Tirupathi and there they found the victim and accused No.4 in one rented shed owned by one Naguramma (PW.14). The exact date on which they went to Tirupathi is not reflected either in the evidence of this witness or any other witnesses. From the evidence of PW.17 it reveals that they apprehended the victim and accused No.4 on 2.7.2002 and 4.7.2002 respectively. PW.1 states that when they went there, they found his daughter in the company of accused No.4 and accused No.7 was not with them at that time. PW.2 in her evidence states that three months after she went to Tirupathi, her father came to the house of Naguramma in which she was residing. When
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police reached Naguramma's house, she states accused No.7 was not present and accused No.4 only was present. During three months, she states that she wore only one pair of dress. It is in this backdrop, we have examined the others evidence, such as, the deposition of PW.3 and the Investigating Officer-PW.17.
11. PW.3 in his examination-in-chief states that he went to Tirupathi along with PW.1 and two police personnel and there, he found the victim and accused No.4 in one room. He states that they took them and came back to Dibburahalli Police Station. This witness was then declared hostile and was cross-examined by the Public Prosecutor. In the cross-examination, he states that he did not say the accused persons kidnapping the victim and information given to PW.1 in respect thereof. Apart from the evidence of PWs.1 and 3 there is no other evidence on record except the evidence of Investigating Officer who speaks about the visit of PWs.1 and 3 along with two police personnel to Tirupathi. The two police personnel who went to Tirupathi along with PWs.1 and 3 were not examined by the prosecution.
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12. PW.17 in his evidence states that on 2.7.2002 ASI Chowdappa and PC.No.303 produced the victim and her parents before him and the victim gave her statement. He then states that on 4.7.2002 the ASI and PC.No.303 produced accused No.4 before him. We are at loss to understand as to why the victim and accused No.4 were not produced before the Investigating Officer on one and the same day, if they were apprehended in the room at Tirupathi as alleged. No explanation whatsoever is forthcoming either in the evidence of Investigating Officer or in the evidence of any other witness as to why accused No.4 and the victim though were brought together from Tirupathi were not produced before the Investigating Officer either on 2.7.2002 or on 4.7.2002. None of the witnesses state as to on what date they were apprehended. The prosecution for the reasons best known to them chose not to examine the ASI and P.C.No.303 who were with PWs.1 and 3 at Tirupathi. This, undoubtedly, creates doubt as to whether the victim and the accused were together at Tirupathi when they were apprehended. In our opinion, the court below has rightly
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expressed the doubt about the prosecution case of abduction from the house of PW.1 and apprehending the victim and accused No.4 at Tirupathi. Both the circumstances, in our opinion, cannot be stated to have been proved beyond all reasonable doubt and the trial Court was right in recording its finding to that effect.
13. That takes us to consider the evidence in the nature of recovery of ornaments. The victim, as already observed earlier, had changed her version in respect of forcibly removing of her ornaments by accused No.4 or accused No.7. According to victim, the two ornaments were pledged with Pawnbroker at Tirupathi and they took Rs.1,000/- in cash. The Pawn Ticket issued by the Pawnbroker is placed on record at Ex.P11. When we perused the Pawn Ticket, we found that the victim had signed the same as Ratna and she admits it in her evidence. This falsifies the story of the prosecution that accused No.7 pledged her ornaments with the Pawnbroker. Similar is the case of the ornaments, which were allegedly pledged with Pawnbroker (PW.7) at Devanahalli. We have perused the small slip (Ex.P10) issued by PW.7. From a perusal of this
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slip, it reveals that the ornaments were pledged by one Venkatesh s/o Gangappa. It is not possible to connect the accused No.7 with this slip and/or the allegation of pledging these ornaments by accused No.7 with the Pawnbroker (PW.7). It is true that Pawnbroker (PW.7) in his evidence has stated that he knew accused No.7. But that by itself is not sufficient to hold that accused No.7 pledged the ornaments with him. Even if it is assumed that he did it, it would not be possible for us to connect him with the alleged kidnapping. We do not find any material against accused No.7 to connect him with the alleged incident. PW.4, who allegedly seen accused No.7, and he named him in his evidence, still it may not be possible in view of the fact that PW.1's evidence does not support that accused No.7 was seen by PW.4 on the night of 28.4.2002. It is in this backdrop we do not find any reason to interfere with the judgment and order passed by the trial Court acquitting all the accused.
14. We may also observe that in the course of arguments it was fairly submitted by the learned SPP that there is no case against the other accused, namely, accused
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Nos.2, 3, 5, 6 and 8. We also did not find any material against these accused except the fact that they were named in the complaint lodged by PW.1. PW.1, however, in his evidence did not state anything about these accused. Similarly, we did not find any material on record in support of the prosecution case under Section 376 as the victim herself in her evidence stated that the accused did not commit any sexual assault on her. In the circumstances, we find that the view taken by the trial Court appears to be just and proper and deserves no interference in this appeal filed against acquittal under Section 378 of the Cr.P.C. We do not find any manifest illegality in the judgment nor did we find the finding recorded by the trial Court perverse.
In the circumstances, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE nd/-