Karnataka High Court
State Of Karnataka vs Gopinaidu @ Gopi on 5 December, 2012
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF DECEMBER, 2012
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUANTH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRLIMINAL APPEAL NO.1634/2007 (A)
BETWEEN
State of Karnataka
By Ashoknagar Police Station.
...Appellant
(By Sri.PM.Nawaz., Addl. SPP)
AND:
1. Gopinaidu @ Gopi
S/o. Muniyappa
28 years, r/at No.17,
8th Main Road, 3rd Cross road,
New Gurrappanapalya, Bangalore.
2. Sampath
S/o. Narayanappa, 33 years
R/at 9th Cross road
Guddada House
Someswaranagara
Siddapura, Bangalore.
3. M.Devaraj,
S/o. Munivenkatappa, 28 years
R/at No.247, 14th Cross Road
HMT Extension
Mattikere, Bangalore.
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4. Madan, S/o. Eswara
28 years, r/at No.204
4th Cross Road, 1st Main Road
Guttepalya Siddapura
Jayanagara, 1st block,
Bangalore.
5. Jabiulla @ Jabi
S/o. Late Shami, 22 years
R/at Salauddin House
Bilal Mosque Side
Guttepalya, Siddapura
Bangalore.
(deleted since absconding) ... Respondents
(By Sri.H.V. Subramanya, Adv., for R.1 to R.4)
This Crl.A. is filed under Section 378 (1) & (3)
Cr.P.C. by the State P.P. for the State praying to grant
leave to file an appeal against the judgment dated
16.5.2007 in S.C.No.133/2004 on the file of the
Addl.S.J., F.T.C - X, Bangalore City acquitting the
respondents/accused Nos.3 to 6 for the offences P/U/S.
364(A), 342 and 324 r/w Section 120 (b) of IPC.
This Crl.A. coming on for hearing this day,
H.S.Kempanna J,. delivered the following:-
JUDGMENT
This appeal is by the State challenging the judgment and order dated 16.05.2007 passed in S.C.No.133/2004 by the Fast Track Court - X, Bangalore City, acquitting the respondents/accused for the offences punishable under Sections 364 (A), 342, 324 r/w. 120 (b) of IPC.
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2. The brief facts of the case are:
The accused/respondents along with accused No.7 were tried on the charges for the offences punishable under Sections 364 (A), 342, 324 r/w. Section 120 (b) of IPC. It is alleged that the accused/respondents along with Accused Nos.1, 8 to 11, absconding accused, and accused No.2, who died after committing the offence and accused No.7, who absconded during the pendency of the trial, on 09.06.2003 at about 11 a.m. had kidnapped PWs.7 and 14 from Best Computers Office situated at No.35, Residency Road, Bangalore, under the guise that they are CCB Police Officers, thereafter, took them in a Tata Sumo vehicle to a house situated in Shanti Layout situated near Kanaka Vinayaka Temple at Ramamurthy Nagar wrongly confined them in the said house, assaulted them with cricket bat, thereafter, they threatened them to call on their office and direct to bring cash of Rs.25 lakhs as a ransom for their release and further they removed them from the said place in 4 another Tata sumo vehicle and took them to a farm house near Huskur Road at Kammasandra village, there they wrongly confined them and took an amount of Rs.45,400/- along with cheque book and seal, which they secured by making PW.7 to call on his office and thereby, they had committed the aforementioned offences.
3. It is the case of the prosecution that PW.5 - Harilal Mirchi Ravath is running a shop by name Best Computers situated at No.35, Residency Road, Bangalore. He is carrying on his business in computers. PW.7 is his brother and PW.14 is his cousin.
4. It is further the case of the prosecution that on 9.6.2003 at about 11.00 a.m. when PWs.7 and 14 along with PW.13, CWs.4, 5 and 6 were in the shop, two persons came to the shop and made enquiries as to who are Bharat and Vikas. They also told them that they are from CCB Office and they wanted to talk to them. Accordingly, when PWs.7and 14, who were in the shop 5 after identifying themselves as Bharat and Vikas, went with the said two persons near Tata sumo vehicle, which had been parked at a some distance from the shop. After going near the vehicle, they found three more persons in the said vehicle. Thereafter, two persons asked them to board the Tata sumo vehicle and after they boarded the vehicle, they took them to a house situated at Shanti Layout near Kanaka Vinayaka Temple at Ramamurthy Nagar. At the said place, they confined them in a room. Thereafter, accused No.1 - Ashok, who is absconding, assaulted with a cricket bat and also demanded ransom of Rs.25 lakhs for the release of PWs.7 and 14. At that point of time, as PW.7 had Rs.12,000/- cash in person, he handed over the same. Thereafter, PW.7 was asked to call on his cell phone to his office and get cash, cheque book and seal. In response to the same, PW.7 called up to his office to CW.4 - Narendra and told him that a person would come to the shop and to send the cash available in the office and also the cheque book and seal with the said 6 person. Accordingly, sometime later PW.7 again received a call from CW.4 to his cell phone stating that a person has come to the shop and whether he could hand over the cash, cheque book and seal to him. PW.7 told him to hand over the same. Accordingly, CW.4 handed over the cash of Rs.33,000/- which was in the office along with cheque book and seal to the said person, who had also come with another person. Thereafter, CW.5 was sent along with the said persons. But the said two persons after taking him to some distance asked him to get back and thereafter, they left the said place.
5. It is further the case of the prosecution that thereafter, the accused removed PWs.7 and 14 in another Tata Sumo vehicle to a farm house situated at Huskur village and there they wrongfully confined PWs.7 and 14. In the meanwhile, since PWs.7 and 14 did not return, PW.5 - the elder brother of PW.7 went to Ashoknagar Police Station and filed his complaint as per Ex.P.5 before PW.8 - ASI on the intervening night of 9.6.2003 and 10.6.2003 at about 1.00 a.m. PW.8 on the 7 basis of Ex.P.5 registered a case in Crime No.360/2003 for the offences punishable under Sections 363, 384 r/w. 34 of IPC and issued FIR to the Jurisdictional Magistrate as per Ex.P.7.
6. Thereafter, PW.8 proceeded to the shop of PW.5 situated at No.35, Residency Road, Bangalore, and there he drew up spot panchanama as per Ex.P.6 in the presence of Panch PW.5 and another. Thereafter, he handed over further investigation of the case to PW.15- the Police Inspector.
7. PW.15 - Police Inspector on taking over the investigation, deputed his staff to trace both PWs.7 and 14, who had been missing as per the complaint that had been filed till such time. Thereafter, PW.15 along with his staff was kept watch near the shop of PW.5 hoping that the accused would come to collect cash from the shop which they had demanded for the release of PWs.7 and 14. Accordingly, at about 9.30 a.m. while they were near the shop of PW.5, accused Nos.3 and 4 came near 8 the shop and they were apprehended by PW.15 and his staff.
8. Thereafter, PW.15 directed accused No.3 to contact the other accused on his cell phone and to request them to come to a particular point i.e. Uma theatre situated in Chamarajpet, Bangalore. Accordingly, Accused No.3 contacted accused No.2 - Raja and requested him to come near Uma Theatre situated at Chamarajpet.
9. Thereafter, it is the case of the prosecution that PW.15 along with his staff proceeded near Uma Theatre at Chamarajpet and kept watch for the accused. At about 3 p.m. while he was at the said place along with his staff, he noticed a Tata Sumo car bearing registration No.KA-10-M-2007 coming near Uma Theatre. He surrounded the said car and found A.5, A.6, A.7 in the said car along with PWs.7 and 14. He apprehended A.5 to A.7 and also took his custody both PWs.7 and 14. Thereafter, he brought PWs.7 and 14 9 and apprehended accused Nos.5, 6 and 7, who were in the Tata Sumo to the police Station. At the police station, according to the prosecution, PWs.7 and 14 identified A.3 to A.7 as the persons who had kidnapped them, wrongfully confined them and forced them to get cash from their shop. Thereafter, PW.15 arrested A.3 to A.7 and on their interrogation, he recorded the voluntary statement of A.3 as per Ex.P.11, in pursuance of which, he seized a cell phone belonging to him. Thereafter, he interrogated Accused Nos.4 and 5 and recorded their voluntary statements as per Exs.P.12 and P.13. As nothing was revealed in their statements, no further steps were taken pursuant to their statements. Thereafter, he arrested Accused No.6 and on his interrogation, he recorded voluntary statement as per Ex.P.14. In pursuance of the same, he seized the knife - MO.3 under the panchanama Ex.P.9.
10. After completing Ex.P.9, he arrested accused No.7 and on his interrogation, he recorded his voluntary statement as per Ex.P.15. As the information did not 10 reveal anything with regard to the discovery of any fact, no further steps were taken. Thereafter, on completion of arrest formalities of accused Nos. 3 to 7, he got them and remanded to judicial custody. PW.15 continuing the investigation recorded further statement of PWs.5, statements of PWs.4, 6, 7, 8, 9, 10, 11, 12, 13 , 14 and other witnesses in the case. He also got PWs.7 and 14 subjected to medical examination. In pursuance of which, they were examined by the Medical Officer - PW.16, who has issued wound certificate as per Ex.P.18 only in respect of PW.7. Thereafter, PW.15 during the course of investigation also seized two Tata Sumo vehicles bearing registration Nos. KA-010-M- 2007 and KA-02-B-5273 on 18.06.2003 and 20.06.2003 respectively, under the panchanama Exs.P.3 and P.17 in the presence of panchas PWs.3 and 11.
11. PW.15 during the course of investigation also drew up the scene of offence panchanama in the farm house at Huskur village as per Ex.P.16 in the presence of panchas and seized MO.2 - a club under the same. 11
12. PW.15 also drew up Ex.P.1 in the house situated at Ramamurthy Nagar in the presence of panchas PWs.1 and 2 and seized Mo.1 - Cricket Bat under the same. Thereafter, PW.15 made efforts to trace the other accused, who are at large.
13. PW.15 during the course of investigation also arrested Accused No.2 on 30.06.2003. After completing his arrest formalities, he got him remanded to judicial custody (the said accused expired while in the Judicial custody before filing of the final report). Further, as he was not able to secure the other accused, as the investigation had been completed, he submitted final report against the accused showing accused Nos.1, 8 to 11 as absconding and A.2 as dead in the case before the Jurisdictional Magistrate.
14. The learned Magistrate split up the case of accused Nos.1, 8 to 11 and committed the case of Accused Nos.3 to 7 to the Court of Sessions, which in turn, on receipt of the records, secured the presence of 12 the accused namely, A.3 to A.7, framed the charges as aforesaid, to which the said accused pleaded not guilty, but claimed to be tried.
15. After the charges were framed against accused Nos.3 to 7, accused No.7 jumped bail and as his presence could not be secured, the learned trial Judge split up the case as against A.7 and proceeded with the trail insofar as only A.3 to A.6 by order dated 24.5.2006.
16. The prosecution in support of its case in all examined PWs.1 to 17 and got marked Exs.P.1 to P.18 and MOs.1 to 4. The accused during the course of examination of the prosecution witnesses got marked Exs.D.1 to D.3.
17. After the closure of prosecution evidence, the accused were examined under Section 313 of Cr.P.C. They denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses. Thereafter, they were called upon to enter on their defence and to lead any evidence 13 that they have in support of their case. They submitted that they have no defence to lead. Total denial of the prosecution case is the defence of the accused.
18. The learned trial Judge on considering the evidence and documents placed on record came to the conclusion that the prosecution has failed to establish the charges leveled against the accused. Accordingly, by his judgment and order dated 16.5.2007 acquitted the respondents/accused of the charges leveled against them.
19. The State being aggrieved by the said judgment and order of acquittal is in appeal before this Court.
20. Sri. Nawaz, learned Additional State Public Prosecutor assailing the impugned judgment and order contended that the learned trial Judge without considering the evidence of PWs.7 and 14, who are the victims in the case, who have identified the respondents/accused as the persons who had kidnapped them and had made demand for ransom 14 after assaulting them, has come to the erroneous conclusion that their evidence is untrustworthy and has discarded the same without assigning any valid reason. He further contended that the evidence of the Investigating Officers and that of other witnesses in the case whose testimonies reveal that the accused were apprehended along with PWs.7 and 14 near the shop of PW.5 and at Uma Theatre situated at Chamarajpet, which has not been shaken in any manner in the cross examination, the same would go to show that the accused are the culprits, who have committed the offence as alleged and despite the same, the trial Judge without appreciating their evidence in a proper manner has come to an erroneous conclusion that the prosecution has failed to establish the charges leveled against the accused and therefore, the impugned judgment and order cannot be sustained and hence, a case for interference is made out.
21. Per contra, learned counsel appearing for the respondents/accused supporting the impugned 15 judgment and order contended that the evidence of PW.7, who is the victim himself, does not disclose that these respondents/accused were the accused who had actually kidnapped him and PW.14. His evidence also does not disclose that these accused were found either in the house at Ramamurthy Nagar or in the farm house at Huskur. Further his evidence is contrary to the evidence of PW.14, who has been examined about six months after examination of PW.7. Since the evidence of these two victims is inconsistent and does not corroborate with each other and as the evidence also does not disclose the participation of any of these accused as the culprits in this case, the learned trial Judge on an appreciation of the evidence of the prosecution witnesses including that of the Investigating Officers has come to the right conclusion in holding that the prosecution has failed to establish the charges leveled against the accused, the same does not call for any interference and accordingly, the appeal be dismissed.
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22. Taking into consideration the aforesaid facts, evidence, documents on record and the rival contentions, the points that arise for our consideration are:-
1) Whether the prosecution has established that these accused/respondents along with other accused had kidnapped PWs.7 and 14 from Best Computers shop bearing No.35, situated at Residency Road, Bangalore, belonging to PW.5 and thereafter had confined them in a house at Ramamurthy Nagar, lather in a farm house at Huskur and also demanded ransom of Rs.25 lakhs for their release and in pursuance of the same, they had received a sum of Rs,.45,400/-
as alleged in the charge.
2) Whether the impugned judgment and order of the trial Court calls for any interference?
23. Re-point No.1:-
The prosecution in order to connect the accused with the alleged offence has mainly relied upon the evidence of PWs.7 and 14 who are the victims, who according to the prosecution had been kidnapped by the 17 accused from the Best Computers Shop situated at No.35, Residence Road, Bangalore belonging to PW.5.
24. PW.7 in his examination-in-chief has stated that when he was taken to Ramamurthy Nagar, about 4 to 5 persons came there. The persons, who demanded Rs.25 lakhs from him, are not before the Court and the accused persons are not among the persons who demanded Rs.25 lakhs from him. His evidence further discloses that it was absconding accused No.1 - Ashok who had made demand of Rs.25 lakhs and it is he, who assaulted with cricket bat. His evidence also discloses that it was absconding accused No.1, who forced him to call on his office and direct to bring cheque book and seal from his shop. His evidence does not disclose the number of Tata Sumo vehicles, in which he and PW.14 were abducted. His evidence also discloses that they were taken for food to a Daba by the accused. Both PWs.7 and 14 have not raised any hue and cry while taking food at Daba stating that they had been kidnapped by the accused persons. Apart from this, 18 PW.1 is the person in whose room or house PWs.7 and 14 had been wrongfully confined. PW.1 has not supported the case of the prosecution. Likewise, PW.12
- the panch for the panchanama drawn up at Huskur Farm house and the owner of the said farm house does not identify the accused persons as the persons who had brought PWs.7 and 14 or he also does not identify PWs.7 and 14 being the persons who had been brought to the farm house on the intervening night of 9.6.2003 and 10.6.2003. Though the Investigating Officer has recorded the statement of the watchman of Huskur Farm House who has been cited as CW.15 in the charge sheet has not been examined in the case. Apart from this, though the prosecution claims that the accused had abducted PWs.7 and 14 in Tata Sumo bearing Registration No.KA-10-M-2007, but the said vehicle has not been seized till 18.6.2003. The driver of the said vehicle has been examined as CW.10 in the case. He is also not examined by the police immediately after the occurrence. Likewise, another vehicle which according 19 to the prosecution had been used in the commission of the offence i.e. Tata Sumo bearing Registration No.KA- 02-B-5273 has been seized by the police on 20.6.2003 under the panchanama Ex.P.17. The owners of the said car have not been examined by the Investigating Officer.
25. It is on record, as per the evidence of PW.15 - Investigating Officer, accused Nos.5, 6 and 7 were apprehended when they were in the tata sumo vehicle bearing registration No.KA-10-M-2007 on 10.6.2003 near Uma Theatre at Chamarajpet, Bangalore. On that very day, no steps have been taken by the Investigating Officer to seize the said vehicle and as already pointed out, the said vehicle has been seized later at the police station on 18.6.2003 under the panchanama Ex.P.3. The other vehicle has been seized on 20.6.2003. But as to why the police did not seize the vehicles immediately is not explained by the Investigating Officer - PW.15. Apart from this, the panch witnesses, who have been examined in this case to show that PWs.7 and 14 had been wrongfully confined in a house at Ramamurthy 20 Nagar and Huskur farm house, have not supported the case of the prosecution. Further the evidence of PW.14 does not corroborate the testimony of PW.7 in respect of abduction and ransom demanded by the accused. His evidence is quite contrary to the evidence of PW.7. Though he has been examined six months later, his evidence does not corroborate with that of the evidence of PW.7. In view of the admission of PW.7 stating that accused are not the persons who were responsible for their abduction, it is difficult to believe the theory of the prosecution as projected during the course of trial. On careful examination of the evidence of the prosecution witnesses, in our view, it does not inspire any confidence to place any reliance on their testimony having regard to the inconsistency and inbuilt infirmity in their evidence. In that view of the matter, we have no hesitation to hold that the prosecution has failed to establish the charges leveled against these accused persons.
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26. Re-point No.2:-
The learned trial Judge on appreciation of the evidence and documents placed on record in its right perspective has come to the right conclusion in holding that the prosecution has failed to establish the charges leveled against the accused. The said finding being based on facts and evidence, does not suffer from any infirmity or illegality, calling for interference in this appeal. Accordingly, we do not find any merit in this appeal and it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SA