Karnataka High Court
Hanumegowda vs State Of Karnataka on 28 July, 2023
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NC: 2023:KHC:26307-DB
CRL.A No. 1434 of 2016
C/W CRL.A No. 53 of 2016
CRL.A No. 185 of 2016
CRL.A No. 186 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1434 OF 2016
C/W
CRIMINAL APPEAL NO. 53 OF 2016
CRIMINAL APPEAL NO. 185 OF 2016
CRIMINAL APPEAL NO. 186 OF 2016
In Crl.A.No.1434/2016
Between:
State of Karnataka
By Vivekanagara Police Station
Digitally signed Bengaluru
by SRIDEVI S Represented by
Location: HIGH State Public Prosecutor,
COURT OF High Court of Karnataka
KARNATAKA
Bengaluru-560047
...Appellant
(By Smt. Rashmi Jadhav, HCGP)
And:
1. Umesha
S/o. Kumaraswamy
Aged about 31 years
Residing at No.66/2
3rd Main, Jnanajyothinagara
Sunkadakatte,
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NC: 2023:KHC:26307-DB
CRL.A No. 1434 of 2016
C/W CRL.A No. 53 of 2016
CRL.A No. 185 of 2016
CRL.A No. 186 of 2016
Near Sollapuram Temple
Magadi Main Road, Bengaluru-40
2. Rajendra
S/o. Jayanna
R/at No.7, Jyothi Nagara
Chandralayout, Bengaluru-560040
3. Hanumegowda
S/o. Kullegowda
Aged about 39 years
R/at No.105, Poovaiah Block
Manarayanapalya, R.T.Nagara
Bengaluru-32
4. Venkatesh
S/o. Kullegowda
Aged about 39 years
R/at No.105, Poovaiah Block
Manarayanapalya, R.T.Nagara
Bengaluru-32
...Respondents
(By Sri Hashmath Pasha, Senior Advocate for
Sri N.A.Kariappa, Advocate for R1 to R4)
This Criminal Appeal is filed u/s.377 Cr.P.C. praying to
modify the order of sentence imposed dated 05.01.2016 passed
by the LXVIII Additional City Civil and Sessions Judge,
Bengaluru City (CCH-69) in S.C.No.252/2011 and
S.C.No.193/2013 - and imposing adequate sentence against
the respondents/accused for the offence p/u/s 341, 342,
364(A), 506(B) r/w 34 of IPC and etc.
In Crl.A.No.53/2016
Between:
1. Hanumegowda
S/o. Kullegowda
Aged about 36 years
R/at No.105, Poovaiah Block
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NC: 2023:KHC:26307-DB
CRL.A No. 1434 of 2016
C/W CRL.A No. 53 of 2016
CRL.A No. 185 of 2016
CRL.A No. 186 of 2016
Manarayana Palya, R.T.Nagar
Bengaluru-560032
2. Venkatesh
S/o. Kullegowda
Aged about 36 years
R/at No.105, Poovaiah Block
Manarayana Palya, R.T.Nagar
Bengaluru-560032
...Appellants
(By Sri Hashmath Pasha, Senior Advocate for
Sri N.A.Kariappa, Advocate)
And:
State of Karnataka
By Vivek Nagar Police Station
Bengaluru-560047.
(Represented by learned
State Public Prosecutor)
...Respondent
(By Smt. Rashmi Jadhav, HCGP)
This Criminal Appeal is filed u/s.374(2) Cr.P.C. praying to
set aside the judgment and order dated 05.01.2016 passed by
the LXVIII Additional City Civil and Sessions Judge, Bengaluru,
(CCH-69) in S.C.No.252/2011 and 193/2013 - convicting the
appellant/accused No.3 and 4 for the offence p/u/s 341, 342,
364-A, 506-B r/w section 34 of IPC and etc.
In Crl.A.No.185/2016
Between:
Umesha
S/o. Kumaraswamy
Aged about 26 years
R/at No.66/2, 3rd Main,
Jnanajyothi Nagar,
Sunkada Katte,
Near Sollapuradamma Temple,
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NC: 2023:KHC:26307-DB
CRL.A No. 1434 of 2016
C/W CRL.A No. 53 of 2016
CRL.A No. 185 of 2016
CRL.A No. 186 of 2016
Magadi Main Road,
Bengaluru-560040
(Now in Judicial Custody
Central Prision, Bengaluru)
...Appellant
(By Sri Hashmath Pasha, Senior Advocate for
Sri N.A.Kariappa, Advocate)
And:
State of Karnataka
By Vivek Nagar Police Station,
Bengaluru-560047
(Represented by learned
State Public Prosecutor)
...Respondent
(By Smt. Rashmi Jadhav, HCGP)
This Criminal Appeal is filed u/s.374(2) Cr.P.C. praying to
set aside the order dated 05.01.2016 passed by the LXVIII
Additional City Civil and Sessions Judge, Bengaluru (CCH-69) in
S.C.No.252/2011 and S.C.No.193/2013 - convicting the
appellant/accused No.1 for the offence p/u/s 364(A), 341, 342,
506(B) r/w section 34 of IPC and etc.
In Crl.A.No. 186/2016
Between:
Rajendra
S/o. Jayanna
Aged about 27 years
R/o No.7, Jyothinagara,
Chandralayout,
Bengaluru
Now R/at No.19, 9th 'A' Cross,
Bhuvaneshwari Nagar,
Sulthan Palya,
R.T.Nagar Post,
Bengaluru-32
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NC: 2023:KHC:26307-DB
CRL.A No. 1434 of 2016
C/W CRL.A No. 53 of 2016
CRL.A No. 185 of 2016
CRL.A No. 186 of 2016
(Now in Judicial Custody,
Central Prison, Bengaluru)
...Appellant
(By Sri Hashmath Pasha, Senior Advocate for
Sri N.A.Kariappa, Advocate)
And:
State of Karnataka
By Vivek Nagar Police Station,
Bengaluru-560047
(Represented by learned
State Public Prosecutor)
...Respondent
(By Smt. Rashmi Jadhav, HCGP)
This Criminal Appeal is filed u/s.374(2) Cr.P.C. praying to
set aside the order dated 05.01.2016 passed by the LXVIII
Additional City Civil and Session Judge, Bengaluru in
S.C.No.252/2011 and S.C.No.193/2013 - convicting the
appellant/accused No.2 for the offence p/u/s 364(A), 341, 342,
506(B) r/w section 34 of IPC and etc.
These Criminal Appeals having been heard & reserved on
27.06.2023, coming on for pronouncement this day, Sreenivas
Harish Kumar J., pronounced the following:
JUDGMENT
All these appeals are disposed of by common judgment as they arise from common judgment in Sessions case Nos.252/2011 and 193/2013 on the file of LXVIII Addl. City Civil and Sessions Judge, CCH-69, Bengaluru ('trial court' for short). -6-
NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016
2. The trial court having found accused nos.1,2,3 and 4 guilty of offences punishable under sections 341, 342, 364(A) and 506(B) read with section 34 IPC sentenced each of them to imprisonment for a period of ten years and fine of Rs.2,000/- with default imprisonment for two months in relation to offence under section 364(A) IPC; fine of Rs.500/- with default imprisonment for ten days for the offence under section 341 IPC; simple imprisonment for two months for the offence under section 342 IPC and simple imprisonment for two years with fine of Rs.500/- with default imprisonment for 15 days for the offence under section 506(B) IPC.
3. Crl.A.No.1434/2016 is filed by the State under section 377 of the Code of Criminal Procedure ('Cr.P.C.' for short) seeking enhancement of sentence. All the accused have preferred the appeals challenging the judgment of -7- NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 conviction. Crl.A.185/2016 is filed by accused no.1, Crl.A.186/2016 is filed by accused no.2 and Crl.A.53/2016 is filed by accused nos.3 and 4.
4. The prosecution case is about kidnapping PW.5 Shiva Mruthunjaya Sharma on 13.5.2010 for ransom at about 15.30 hours when he was traveling in an autorickshaw. It is stated that all the accused stopped the autorickshaw by coming in a Maruti van, pulled him into the said vehicle and on the way they demanded for Rs.10 lakhs for his release. They told PW5 inside the van that they were from the press and they had taken photographs and video graphs his visiting prostitute's house and if their demand was not satisfied, he would be killed. PW5 agreed for giving them Rs.1,00,000/-. He withdrew money of Rs.14,500/- from two ATM counters. He was taken to a place called Bharani residency where he was confined wrongfully. On 14.5.2010, when -8- NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 PW5 came to HDFC bank at Gandhi Bazar along with the accused, they fled away from that place seeing the police.
5. PW.9, the wife of PW.5 reported about missing of her husband on 14.5.2010 and later on the offences under section 341, 342, 364A and 506B read with section 34 IPC were included in the FIR registered by Thyagarajanagar Police in Cr.No.71/2010. Later on FIR was transferred to Viveknagar Police Station within the limits of which PW5 was said to have been kidnapped. After completion of investigation the police filed charge sheet for the above offences. Initially the charge sheet was registered as S.C.252/2011 against all the accused. As accused no.2 to 4 remained absconded, the charge sheet against them was ordered to be split and hence a separate charge sheet against them was filed in S.C.193/2013. After securing the presence of -9- NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 accused no.2 to 4, the trial court ordered for holding common trial in both the cases.
6. PW1 to 15 were the witnesses examined by the prosecution and Exs.P1 to P26 were the documents and MO 1 to 3 were the material objects marked during the trial for establishing the prosecution case. After conclusion of trial, the trial court found the accused guilty of the offences charged against them and sentenced them as mentioned above.
7. Assailing the findings of the trial court, Sri. Hashmath Pasha, learned senior counsel for the accused argued that if the entire evidence of all the witnesses is assessed in right perspective, a clear conclusion can be drawn that the ingredients of the offence punishable under section 364A and other offences charged against the accused are not established at all. The
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 offence under section 364A attracts punishment of death or imprisonment for life and therefore higher degree of proof was required. If the evidence of PW.5 the prime witness is perused it becomes very clear that he tried to suppress something and in order to escape himself from an awkward position, he gave a different colour stating that he was kidnapped. His evidence does not disclose that he was kidnapped by the accused for ransom. It appears that he knew the accused very well and this becomes very clear from his own evidence that he had dinner with the accused at Bharani Residency and stayed there over night. His telephone call or message to PW11 shows that he wanted money for the treatment of his friend. That apart, there are many lapses in the investigation. When PW5 came to HDFC bank, Gandhi Bazar along with the accused, PW11 would come to that place with the police. Accused were
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 very much there, but the police would not make any attempt to apprehend them. There is a clear evidence to this effect by police officer examined as PW13. Moreover though PW5 did not complain of sustaining any injury, he was taken to hospital on 15.5.2010 for medical examination and at that time, he would give history that he was assaulted on 13.5.2010 at 6.00 p.m. by unknown people. But his evidence in chief clearly shows that he came to know the names of the accused on 13.5.2010 itself when he was in the car with the accused. It has come in the evidence that the wife of PW5 made a call to him to ascertain about his whereabouts and PW5 also made a telephone call to PW11 and also sent a text message for arranging money. The police did not collect call details and data of the message. The police also did not collect footages from CCTVs installed at ATM counters where PW5 is said to have
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 withdrawn money. In this view the testimonies of the witnesses do not inspire confidence for being acted upon to record conviction against the accused. Thus the trial court has erred in holding the accused guilty of the offences.
8. Sri. Hashmath Pasha further argued that after the charge sheet was ordered to be split against accused 2 to 4, the recording of evidence commenced against accused no.1 on 16.6.2012. After accused 2 to 4 were traced and brought before the court, the trial court ordered for holding common trial in S.C.252/2011 and S.C.193/2013. By this time many witnesses had been examined and the same evidence was used for holding accused 2 to 4 guilty of offences. That means the substantial part of the evidence was not recorded in the presence of accused 2 to 4 and this was in violation of section 273 of Cr.P.C. With these points he argued for setting aside the
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 judgment of the trial court and acquitting the accused.
9. Smt. Rashmi Jadhav argued that section 364A IPC contemplates that if a threat of causing hurt was given to a person for the purpose of ransom, the accused can be held guilty. In this case, the evidence of PW5 shows that the accused threatened to hurt him in order to obtain ransom. Inside the car into which PW5 was dragged in, the accused told him that they had the photographs and videographs to show that he had visited a house of prostitute and therefore he should give them money as demanded. They also wanted details of his wife and children, but PW5 intelligently avoided to give the details. His act was that of a wise man who would act or take decisions according to circumstances. If he did not shout when he was pulled into the car or at the places where he was taken, it was only for the
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 purpose of saving himself. His evidence is very much believable. PW9 is the wife of PW5. As she did not come to know the whereabouts of her husband, she went to the police station on the next day along with PW11 and lodged missing complaint. PW11 also establishes the fact of receiving a call from PW5 for arranging Rs.10,000/- and then a message to come over to bank with money and cheque book. To this effect the police officers have also given evidence. There was recovery of two mobile phones and cash of Rs.4,800/- at the instance of the accused and in this view it cannot be said that the prosecution case has not stood established.
10. She further argued that for the offence under section 364A IPC, the prescribed sentence is either imprisonment for life or death. This being the sentencing structure the trial court imposed imprisonment for just ten years and the trial court
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 has committed an error in awarding inadequate sentence. For this reason the appeal filed under section 377 IPC is to be allowed and the appeals filed by the accused are to be dismissed.
11. Keeping in mind the points of arguments, we have perused the entire evidence, both oral and documentary. If we peruse the judgment of the trial court, we find that it has just referred to the evidence of each witness and given a overall conclusion that the prosecution was able to prove its case beyond reasonable doubt because none of the witnesses was found to have been discredited in the cross examination. Except this we do not find any proper reasoning. In our opinion the trial court has not properly appreciated the evidence and it is possible to draw conclusions different from what the trial court has drawn.
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016
12. The prime witnesses are PW5, 9, 11, 13 and 14. We may not refer to the evidence of witnesses to panchanamas as they do not have any substantial bearing on the prosecution case. The prosecution case is about kidnapping of PW5 for ransom. When PW5 did not return home on the night of 13.5.2010, PW9, his wife would first telephone to her husband and receiving switch off response at the other end, she would contact PW11 Amith, who was working as Manager in the office of PW5. The reply she got at that time is important. PW11 informed her that a friend of PW5 had been admitted to hospital and therefore it was not possible for him (PW5) to return home on that night. Inspite of that she continued to make calls to her husband throughout night, but she could not speak to him. Therefore on the next day she went to police station with PW11 and gave a missing complaint as per Ex.P7. Her evidence
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 further discloses that she again went to police station on that afternoon and at that time she found her husband in the police station and came to know from him that he had been kidnapped. She has stated that when she was in the police station her husband sent a text message to PW11 to bring the cheque book.
13. The evidence of PW5 discloses that on 13.5.2010 he visited the office of HP Company at Kormangala in connection with his business and from there he went to a shop called Sony World. Thereafter he went to HDFC bank ATM counter, withdrew money and then went to a massage parlour. Seeing the atmosphere in the parlour being uncongenial, he came out and went to a pan beeda shop to buy a cigarette. He caught an autorickshaw to return to his office at Basavanagudi. On the way a white colour Maruti van overtook his autorickshaw and stopped it.
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 Four persons alighted from the van and forcibly made him sit inside the van. As the van started moving, one of the four told him that they were from the press and they had seen him visiting a prostitute's house and therefore asked him to obey them. If one person held a camera in the front, the other put pressure on his neck and told him that if he did not obey them, he would be put into trouble. PW5 has stated that by that time he came to know the names of the four persons as Umesh, Rajendra, Venkatesh and Hanumegowda (all the accused) PW5 did not disclose the name of his wife, children and parents when the accused persons asked about it and simply told them that he had come to Bengaluru from Delhi on a business visit. At that time the accused demanded for Rs.10 lakhs for his release. He bargained and then they reduced the demand for Rs.3 lakhs. PW5 told that he did not have that much of money
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 and ultimately they agreed for Rs.1 lakh. He was then taken to HDFC bank ATM counter at Sadashivanagara and there they withdrew Rs.14 or 15 thousand from the account of PW5. Thereafter PW5 contacted PW11 over the phone and asked for availability of money with him. He asked the accused to take him to his office. As they came near the office, they saw a big crowd and therefore drove the car towards Mysuru road. At last they all went to a hotel called Bharani Residency near Wonderla and they had meal there. PW5 contacted his Delhi office and requested for arranging for Rs.75,000/-. They all stayed over night at the hotel. PW5 stayed with accused no.1 and 2 in a room in that hotel.
14. On the next day PW5 telephoned to his office staff and asked them to come over to HDFC Bank, Gandhibazaar. Thereafter, he and the accused came to the bank. Accused no.1 took him
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 inside the bank and by that time his office manager i.e., PW11 had come to that place. PW5 received the cheque book and Rs.10,000/- from him and then sent him back. Very soon 3 or 4 person came to that place and seeing them accused No.1 and another ran away from that place. PW5 came to know that the police personnel from Tyagarajanagara police station had come to that place. Then he went to police station and gave a written report to the police as per Ex.P11.
15. From the evidence of PW11 what is discernible is that after PW5 went to Koramangala in the afternoon on 13.10.2005, he received a call from him around 6.30 pm and was asked to arrange Rs.10,000/-. He arranged for money and waited till 07.30 pm, but nobody came to take money. Therefore he closed the office and went home. Around 09.00 pm, the wife of PW5
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 telephoned him and inquired about her husband and at that time he conveyed to her about the request made by PW5 for Rs.10,000/-. On the next day the wife of PW5 came to the office and both of them went to Tyagarajanagara police station where she gave a missing complaint. When he was in police station, he received a message from PW5 that he should come over to HDFC Bank, Gandhibazaar, with Rs.10,000/- and cheque book. The police saw that message. He went to the bank around 02.30 pm and the police also followed him in civil dress. PW5 introduced accused No.1 to him. Then he handed over the cash and cheque book to PW5 and returned to his office. He came to know later on that PW5 had been kidnapped.
16. Now on collation of evidence of PWs.5, 9 and 11, it is possible to opine that from the answers given by PW5 in the examination-in-chief
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 itself it is possible to arrive at a conclusion that his evidence is difficult to be believed. The reasons are, it is his clear evidence in his examination-in-chief that after he was dragged inside the car, he came to know the names of the accused. He doesn't speak of any assault made by the accused on him, all that he has stated is that he was threatened to be killed and one of the accused put pressure on his neck. But on 15.05.2010, the police would take him to hospital for medical examination. PW1 is the doctor who examined him. He noticed presence of 4 injuries and he mentioned the same in Ex.P.1. When PW5 did not state that the accused assaulted him, it is wondering that the doctor would notice 4 injuries. It is not that the doctor's evidence should not be believed, but the testimony of PW5 becomes doubtful in the light of evidence given by PW1. Moreover by the time PW5 went to hospital, he
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 was aware of the names of all the accused, that means he could have revealed the names of the accused before PW1 when he gave history. But conspicuously in Ex.P.1 it is written that assault by unknown people. This is the first aspect that shakes the evidence of PW5.
16.1. Since PW5 did not support something more expected of him, he was treated hostile partly by the public prosecutor and he was also further examined in chief. In the further examination-in-chief, his clear answer is that when Amit, i.e., PW11 came to meet him with money, PW5 showed accused No.1 to Amit and told that he i.e., Umesh was his friend and wanted money for medical expenses. If accused No.1 was introduced to Amit as the friend of PW5, then the whole story of the prosecution that PW5 had been kidnapped for ransom further becomes weak. It is not understandable as to why PW5 would
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 introduce the first accused as his friend, if really he had been kidnapped. At least at that time, he could have brought to the notice of PW11-Amit that he had been kidnapped by the accused. He has also answered in the cross examination that when the accused pushed him inside the Maruti van, he did not scream for help. His clear evidence is that he stayed over night at Bharani Residency and he did not approach anybody there for help.
17. Whatever PW11 has stated about receiving a call from PW5 and his being asked to arrange Rs.10,000/-, is probable to be accepted. But his clear evidence is that when he was in the police station, he received a message from PW5 that he should come over to HDFC Bank, Gandhibazaar with a cheque book and cash of Rs.10,000/-. He went to that place and there PW5 introduced accused No.1 to him. PW11 doesn't say that at that time itself he came to know about
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 kidnap and came to know about it lateron. He too was treated hostile partly and subjected to cross examination by the public prosecutor. He did not admit the suggestions about the prosecution case of kidnap at all. He has clearly refuted the suggestions that when he met PW5 and the first accused, he disclosed about the arrival of police to that place and then accused No.1 ran away and fled in the Maruti van along with other accused.
18. Therefore from the evidence of PWs.5, 9 and 11, it is possible to draw an inference that PW5 appears to have suppressed something. It is not understandable as to why he did not disclose to PW11 that he had been kidnapped. In fact evidence of PW9 shows that when she contacted PW11 during the evening of 13.05.2010, he was aware that a friend of PW5 had been hospitalized and for that reason PW5 would not go
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 home on that night. That means PW5 had given wrong information to PW11 that his friend had been hospitalized. If really he had been kidnapped that fact could have been informed to PW11 then itself. Another aspect is PW5 would stay with the accused at Bharani Residency after having meal; this is another factor to look at the conduct of PW5 with askance.
19. Then comes the role of PW13 and PW14, the police officers. Very curiously the evidence of PW13 indicates that accused no.1 had called PW11 and asked him to come over near HDFC bank, Gandhi Bazar with cheque book and cash of Rs.10,000/-. This statement is in contrast with evidence of PW5 and PW11. At about 3.00 p.m., PW11 and PW13 came near the bank, at that time PW11 showed to PW13 a car in which PW5 and four persons were sitting. PW13 had all the opportunity to apprehend the accused, but he did
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 no such effort. In the cross examination also, he clearly admitted that the police personnel did not make any effort to catch hold of four accused persons when they took to their heels. It was not difficult for the police to catch them, for Gandhi Bazar was a busy place with too much of slow moving traffic and signal posts were also there. In fact he would admit a suggestion that they could have chased the car, but did not do so. The evidence of PW14 has come almost in the same manner. It is so curious to note that PW13 has admitted a suggestion that no complaint in regard to missing of PW5 had been received at the police station. This suggestion does not appear to be a stray one. Then very importantly, the investigating officer did not think it necessary to collect call details of the telephonic conversations between PW5 and PW11 and CCTV footages at ATM
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 counters. They also did not collect the text message sent by PW5 to PW11.
20. As argued by Sr. Hashmath Pasha, the trial against accused no.2 to 4 is hit by section 273 Cr.P.C. Case against accused no.2 to 4 was ordered to be split and consequently separate charge sheet was filed and it was registered as S.C.No.193/2013. By the time split up charge sheet was filed trial against accused no.1 had commenced. After tracing of accused no.2 to 4 and their production before the court, the trial court should not have ordered to continue the trial against accused no.2 to 4. Although some of the witnesses might have been examined in the presence of accused no.2 to 4, the evidence that had been recorded till then in their absence should not have been used against them. It is a clear mandate under section 273 Cr.P.C. that evidence shall be recorded in the presence of the accused
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 or their pleader. This being the case, the trial court committed a grave error in placing reliance on the evidence which was recorded in the absence of accused no.2 to 4.
21. Analysis of evidence leads to draw conclusions against the prosecution. It is quite strange that with this kind of evidence, the trial court found it fit to convict the accused. The impugned judgment cannot be allowed to sustain. Therefore from the above discussion, the following:
ORDER Crl.A.No.1434/2016 is dismissed. Crl.A.Nos.53/2016, 185/2016 and 186/2016 are allowed. The judgment dated 05.01.2016 passed by the trial court in S.C.Nos.252/2011 and 193/2013 are set aside. All the
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NC: 2023:KHC:26307-DB CRL.A No. 1434 of 2016 C/W CRL.A No. 53 of 2016 CRL.A No. 185 of 2016 CRL.A No. 186 of 2016 accused are acquitted of the offences charged against them. Their bail bonds are cancelled.
Sd/-
JUDGE Sd/-
JUDGE SD,KMV List No.: 1 Sl No.: 1