Karnataka High Court
Avinash vs The State on 19 November, 2018
Bench: K.N.Phaneendra, K.Somashekar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.921/2016
BETWEEN:
AVINASH
S/O RAMACHANDRA,
AGED ABOUT 23 YEARS,
R/A NO.333,
NEW KANTHARAJ URS ROAD
AKSHAYA BHANDAR,
MYSURU-577001 ... APPELLANT
(By Sri. B LETHIF, ADV.)
AND:
THE STATE OF KARNATAKA
BY LAKSHMIPURAM POLICE
MYSURU,
MYSURU DISTRICT,
REPRESENTED BY SPEICAL PUBLIC PROSECUTOR,
HIGH COURT COMPLEX BUILDING,
BANGALORE-560001 ... RESPONDENT
(By Sri. VIJAYKUMAR MAJAGE, ADDL. SPP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND ORDER DATED 01.04.2016 AND SENTENCE
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DATED 04.04.2016 PASSED BY THE IV ADDL. S.J., MYSURU
IN S.C.NO.90/2012-CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 364(A) OF IPC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
K.N.PHANEENDRA, J., DELIVERED THE FOLLOWING:-
JUDGMENT
The present appeal is preferred by the accused/appellant who is convicted by the IV Additional Sessions Judge, Mysuru, in
S.C.No.90/2012, convicting the appellant for the offence under Section 364(A) of IPC and also sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/-, in default, to undergo simple imprisonment for one year and out of the fine amount, an amount of Rs.15,000/- was also awarded as compensation to P.W.2, the victim in the case.
2. We have heard the arguments of the learned counsel for the appellant as well as the learned Additional State Public Prosecutor for the State. 3
3. We have carefully reevaluated the oral and documentary evidence on record.
4. Before adverting to the re-appreciation of the evidence on record, it is just and necessary to have a brief factual matrix of this case.
5. It is the case of the prosecution that P.W.1 Mr.Veerabhadrappa had lodged a complaint as per Ex.P1 stating that his daughter by name one Pooja was studying second standard in Christ King Convent situated at JLB road, Mysuru. Everyday he used to leave her to the school and bring her back after the school hours. It is further stated that, on 24.9.2011 he left her to the school. At about 11.30 a.m. he went to the school for the purpose of bringing her back as it was Saturday. He came to know that some other person who was blackish in colour took her on a scooter at about 11.30 a.m. immediately after the school hours. He came back to his house 4 and enquired in the house and came to know that Pooja did not return to the house. By 11.45 a.m. he received a telephone call from a cell phone bearing No.7411890034, wherein the person who called to the mobile of P.W.1. told him that he has abducted the daughter of P.W.1 and he demanded some money from P.W.1 and he also told that he would give instructions as to how he has to pay the money and where he has to bring the money etc.,. Thereafter, P.W.1 went to the police station and lodged a report informing the above said incident. On the basis of the above said information, the police have registered a case in crime No.121/2011 for the offence under Section 364(A) of IPC. P.W.9 who is the investigating officer has in fact laid a trap and it is the further case that in the trap, accused No.1 was caught along with the bounty and the police have also recovered a mobile phone from the accused/appellant and also collected the data so far as the said telephone is concerned and found that, the accused was the 5 person who telephoned to P.W.1 demanding ransom of Rs.1,00,000/- at the initial stage and thereafter, at the request of P.W.1 the said amount was reduced to an amount of Rs.20,000/- with one gold chain.
6. It is the case of the prosecution that, during the course of trap, they recovered gold chain, Rs.20,000/- from the accused and as well a cell phone which was used by the accused for the purpose of demanding ransom. During the said trap the police have also recovered the said girl from accused No.3 by name Varun. It is the case that accused Nos.1 to 3 had conspired between themselves in order to abduct P.W.2 Pooja for the purpose of demanding ransom by putting P.W.1 on threat to kill Pooja, if the amount is not paid. After thorough investigation, the police found that there are sufficient materials to send the accused to trial. Accordingly, a charge sheet has been laid against the accused before the jurisdictional Court and also 6 charge sheet appears to have been laid against accused Nos.2 and 3 before the Juvenile Justice Board. The accused-Avinash was arrested on the same day on 24.9.2011 and it is submitted by the learned counsel that since then the appellant has been in judicial custody.
7. After securing the presence of the accused, the learned trial Judge framed charges against the accused for the offence under Section 364(A) of IPC. The prosecution in order to prove the guilt of the accused examined as many as 10 witnesses P.Ws.1 to 10 and got marked Exs.P1 to P20 and also material objects M.Os.1 to 8 and closed its case. The accused was also examined under Section 313 Cr.P.C. Except denying the total case of the prosecution the accused has not taken any specific defence and not lead any evidence on his side. After hearing both the parties, the trial Court has recorded the judgment of conviction and sentenced the accused accordingly. 7
8. Learned counsel for the appellant strenuously contends before the Court that, the entire prosecution case shows that it is based on circumstances and those circumstances have not been proved beyond reasonable doubt. The so called recovery has not been established. The recovery of the girl, mobile, gold chain as well as Rs.20,000/- at the instance of accused has not been proved beyond reasonable doubt. The investigating officer also has not taken any steps to ascertain the voice of the accused/appellant that matched with the voice through which P.W.1 was threatened over phone. The recovery of cell phone from accused is also not established as the recovery panchas have totally turned hostile to the prosecution. Even the police constable examined before the Court also does not speak about the recovery of all these articles. Therefore, except the evidence of the Investigating Officer, nothing remains for consideration of this Court with regard to recovery. Even the evidence of 8 P.Ws.1 and 2 are also shaky and same cannot be relied upon for the purpose of laying conviction judgment against the accused. Therefore, learned counsel pleaded for acquittal of the accused.
9. Per-contra, Sri.Vijaykumar Majage, learned Additional State Public Prosecutor submitted that, though there are certain discrepancies in the investigation and also the evidence before the Court, but the core of the prosecution has been established by the prosecution beyond reasonable doubt. The conduct of the accused play a dominant role in this case. He was very well known to P.Ws.1 and 2 and taking of the said child along with him has been established beyond reasonable doubt. Even the recovery of incriminating articles at the instance of accused has also been established by the evidence of P.W.9, the investigating officer. There is no material elicited in the course of cross-examination as to why the Investigating officer has to be disbelieved. 9 Therefore, the Court has to believe the evidence of Investigating Officer. The prosecution has also proved the aspect of demand of ransom, recovery of girl at the instance of accused No.1 and also recovery of gold chain and Rs.20,000/- as well as the mobile used by accused No.1 for demanding ransom threatening P.W.1 with dire consequences of killing his daughter. Therefore, the trial Court considering the above said factual aspects and both oral and documentary evidence, rightly convicted the accused for the above said offence and rightly sentenced him accordingly. As such, there is no room or scope to interfere with the said judgment of conviction and sentence passed by the trial Court.
10. After hearing the above said arguments, we have carefully once again re-evaluated the entire material on record. On careful perusal of the entire material on record, the points that would arise for consideration of this Court are:
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(i) Whether the prosecution has proved the case beyond reasonable doubt for the offence under Section 364(A) of IPC against the accused as projected by it?
(ii) Whether the judgment of conviction and sentence passed by the trial Court requires any interference at the hands of this Court?
11. In order to answer the above said points, it is just and necessary for us to re-look into the materials on record.
12. The evidence of the prosecution discloses that P.W.1-Veerabhadrappa is the complainant and none other than the father of the victim. P.W.2-Pooja is the victim girl who also categorically stated about as to what happened on 24.9.2011 till she was secured by the police. P.W.3-Lokesh is the brother- in-law of P.W.1 who is a formal witness. He only stated that on some days he used to leave Pooja to 11 the school and bring her back. On 24.9.2011, he informed to P.W.1 that he did not go to school to bring back Pooja from school. P.Ws.4 and 5 Shivakumar and Krishnegowda are panch witnesses to almost all the material mahazars drawn in the case i.e., Exs.P2 to P4. P.W.6 Siddaraju is another friend of P.W.1. According to him, he was present with P.W.1, when P.W.1 received threatening call and demand call from accused-Avinash. P.W.7 Satisha is the police constable-218. He is one of the raiding party. He has also spoken about the conduct of the accused at the time of raid and recovery of the victim girl. P.W.8 Siddaraju is the person who registered a case on the complaint lodged by P.W.1 in Crime No.121/2011 as per Ex.P1 and dispatched the FIR Ex.P12 to the jurisdictional Magistrate. P.W.9 is the investigating officer. P.W.10 is the person who conducted test identification parade so far as accused is concerned from P.W.2.
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13. P.Ws.1 and 2 have in fact fully supported the case of the prosecution. P.W.1 has reiterated the contents of Ex.P1 and has further deposed that a person demanded ransom of Rs.1,00,000/- from him and he told him that, he is not having the said amount. Thereafter he reduced the amount to Rs.80,000/- but, P.W.1 told him that he has got only Rs.20,000/- and one gold chain. In that context, it is alleged that the person who telephoned to P.W.1 has threatened P.W.1 with dire consequences of killing his daughter if the ransom is not paid. Further it is stated that, the said person told P.W.1 to bring the amount and keep the same underneath a small bridge situated near Srirampura and thereafter, he would release the daughter of P.W.1. Accordingly, P.W.1 lodged the complaint and police laid a trap, to nab the accused. The police personnels, P.Ws.4 and 5 along with P.W.1 had been to the said place and P.W.1 kept the said amount and gold chain underneath a small bridge. At that time, the 13 accused-Avinash came to that particular place and the police caught the said person and recovered the said amount as well as the gold chain from him and have also recovered two mobiles at the instance of accused Nos.1 and 2 and drew up the mahazar as per Ex.P2 at the spot. It is further stated that accused No.1 took the police and all the witnesses to nearby place where accused No.2 was waiting and who was requested by accused No.1 to watch the surrounding place and inform accused No.1 as to where P.W.1 would keep the said bounty so that they can take the said bounty later. It is also stated by P.W.1 that accused Nos.1 and 2 also took the police and the witnesses to the place where accused No.3 has kept the victim girl along with him near a petty shop near Mathru Mandali and accordingly, the police and witnesses went there and recovered the girl from accused No.3. Having stated so, he further stated that he took the accused along with him in a Santro car to the Lakshmipuram police station and 14 there the police have recovered the chain and as well as two mobiles from accused No.1 and conducted a spot mahazar as per Ex.P2 and the signature of P.W.1 was marked as Ex.P2(a). Therefore, in the examination-in-chief itself there is a doubt created whether the said mahazar Ex.P2 was written at the spot itself or after P.W.1 and his friend brought the accused persons to the Lakshmipuram police station. Though lot of questions have been put in the course of cross-examination, but nothing worth has been elicited so as to discard the total evidence of this witness.
14. The defence of the accused is disclosed in the course of cross-examination. There is no dispute with regard to identification of the appellant/accused in view of the suggestions made to P.Ws.1 and 2 in their cross-examination. It is suggested that the accused was residing in a house belonging to P.W.1. He was also studying and during vacation accused 15 used to sit in the shop of P.W.1 who was selling bags in his shop. It is suggested that P.W.1 demanded the parents of the accused to send the appellant to the work in his shop. As they refused P.W.1, with an intention to lay a false claim against the accused, he filed a false complaint against the accused. Therefore, it is clear from the evidence of P.W.1 that P.W.2 was missing from the school on that particular day. In this background, the evidence of P.W.2 play a dominant role. Before adverting to the evidence of P.W.2 it is imperative to note that even after arrest of accused No.1 and seizure of mobile as alleged from accused No.1, the police have not taken any efforts to get the voice of Avinash identified by P.W.1 so as to confirm that the said voice belonged to the accused only and threat was given by accused and ransom demand was also made by accused.
15. Be that as it may. The evidence of P.W.2 discloses that on that particular day she had been to 16 the school left by his father at 8.00 a.m. She further deposed that at 11.30 a.m. accused Avinash came near her school on a motorcycle and told that, her father told him to bring her back from the school. On hearing him, she did not suspect him but sat on the motorcycle and he took her. While moving on the motorcycle she observed that two more persons who were waiting for the accused on the road also joined accused No.1 and sat on the motorcycle. Out of those three persons, one person (accused No.3 Varun) took her to some place and provided her with breakfast and also took her near a petty shop and made her to sit on a stone. When she was sitting there, the police came there and took her from the custody of accused No.3. She categorically stated that she knew Appellant Avinash since long and he actually took her along with him on that particular day.
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16. Though lengthy cross-examination has been made so far as this witness is concerned, except putting suggestions that accused did not take her on that particular day, nothing has been elicited and there was no denial that P.W.2 do not know anything about this accused and that, on that particular day only she saw the accused etc., Therefore, the evidence of P.Ws.1 and 2 clearly discloses that prosecution was able to establish that on that particular day, accused No.1 took P.W.2 Pooja along with him at about 11.30 a.m. knowing fully well that the said girl was a minor and she was in the lawful custody of P.W.1 and was aged about 9 years at that particular point of time studying in a school.
17. Now, coming to other important aspects, to ascertain whether the prosecution was able to establish that accused actually demanded ransom and also threatened P.W.1 with dire consequences of killing his daughter. Of course, P.W.1 has stated in 18 his evidence that, some person over phone threatened him with dire consequences of killing his daughter if an amount of Rs.1,00,000/- is not given to the said person. Before adverting to the further evidence of the witnesses in this regard, we would like to examine Section 364(A) of IPC. In order to prove the guilt of the accused under Section 364(A) of IPC, the prosecution has to establish the ingredients of Section 364(A) of IPC. For the purpose of easy understanding, the said provision is extracted below.
"364A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or (any foreign State or international inter- governmental organization or any other person) to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
Therefore, in order to attract this provision, there should be kidnap or abduction of any person and 19 keeping the person in detention after such kidnapping or abduction and there should be a threat to cause death or hurt to such person abducted or the conduct of the accused should give rise to a reasonable apprehension that such person may be put to death or hurt or even cause hurt or death to such person in order to compel any person to do or abstain from doing any act or to pay a ransom. Therefore, it is for the prosecution to establish beyond reasonable doubt that the accused was the person kidnapped PW2 and demanded the ransom from P.W.1 and also threatened P.W.1 with dire consequences of killing P.W.2, if the said ransom is not paid.
18. The evidence of P.W.1 probabalised and corroborated from other surrounding circumstances of the prosecution case has to be looked into. In this background, we would like to examine the evidence of 20 other witness. P.W.3 as we have stated at the initial stage itself is only a formal witness.
19. P.Ws.4 and 5 are the material witnesses. According to the prosecution, these two witnesses were also present throughout when the Investigating Officer laid a trap against the accused persons. As we have narrated, along with these two persons, P.W.1 and P.W.7, all of them went to the place where the accused wanted P.W.1 to keep the ransom amount along with gold chain and it is the case that after the accused has taken the bounty kept by P.W.1, the police have nabbed him and recovered the said articles from the accused and drew up the mahazar as per Ex.P2. Thereafter accused No.1 showed accused Nos.2 and 3 and the police have recovered mobile from accused Nos.1 and 2 and as well as recovered the girl from accused No.3. But these two witnesses have turned hostile to the prosecution case.
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20. P.W.4, though initially turned hostile to the prosecution denying the incriminating materials against the accused, so far as going to the spot and recovery of the articles at the instance of accused Nos.1 to 3 and as well as the other material things, he has stated that P.W.1 has been doing bag repair work and the shop of P.W.1 is near the shop of this witness and he knew that P.W.2 Pooja was studying in the school and P.W.1 used to leave her to the school and used to pick her back everyday. It is stated that on 24.9.2011 at 10.00 or 11.00 a.m., P.W.1 told this witness that Pooja was missing from her school then he guided him to lodge a complaint. Thereafter, it appears, the complaint was lodged. But, so far as the remaining aspects with regard to going to the spot along with P.W.1 and other witnesses and recovery of articles at the instance of the accused and also recovery of the girl, this witness has turned hostile to the prosecution. 22
21. The prosecutor has treated this witness as hostile and he supported the case to some extent that P.W.1 has told before this witness that he received a phone call from some person that Pooja was kidnapped by him and she would be released on payment of ransom, otherwise, she would be killed and also he told that the said person demanded ransom and ultimately, the ransom was settled at Rs.20,000/- with a gold chain and that P.W.1 must keep the said amount and chain underneath a small bridge situated on Gorur village road. Except that he has not supported the case of the prosecution so far as Exs.P2 to P4. Even during the course of cross- examination the whole of his statement and the contents of mahazar Exs.P2 to P4 were confronted to this witness, in spite of that, he has not supported the case of the prosecution.
22. P.W.5 is another witness, who is none other than the close friend of P.W.1. In fact P.W.1 was 23 running a shop in a premise of this witness and this witness is the owner of the said premise. He also reiterated the factual aspects with regard to missing of Pooja and information given to him by P.W.1 and also demanding of ransom by somebody etc., But for the reasons best known to this witness, he also did not support the case of the prosecution so far as Exs.P2 to P4 and also statement of this witness given before the police. Therefore, this witness who is also the material witness has turned hostile to the case of the prosecution. As such, it creates a serious doubt with regard to the recovery of incriminating articles at the instance of accused No.1 and that the accused was the person who actually demanded ransom from P.W.1 and gave threat to P.W.1 with dire consequences of killing P.W.2 if the said demand of ransom is not paid.
23. What remains further is the evidence of P.W.7 and the Investigating Officer. Of course, P.W.7 24 is one of the police personnels who was working as police constable in Lakshmipuram police station during that particular time. He says that, he received the information about the demand made by Avinash to P.W.1. Immediately, he joined the raiding party and went along with other police personnel, Investigating officer i.e., P.W.9 and also the panch witnesses P.Ws.4 and 5 to the spot i.e., near Gorur Nala on Gorur road. It is stated that P.W.1 according to the direction of the person who demanded the ransom, kept a bag containing one gold chain and Rs.20,000/- underneath a cement bridge. It was about 5.00 p.m. A person came near the said place in a Hero Honda Splendor Plus motor cycle bearing No.KA02 HB 9323 and was making attempt to take away the money and child and at that time itself the police caught that person and enquired him. On enquiry, the said person disclosed his name as Avinash, S/o Ramachandra (appellant) and he told that he had abducted P.W.2 and also demanded the 25 money etc., Appellant also told that he made accused No.2-Pramoda to stand nearby the said place and the said person was also taken to custody by the police and those two persons have also told that accused No.3 one Varun was keeping the girl near a petty shop at Mathru Mandali circle. The raiding party went there and near a cycle puncture shop, accused No.3 was keeping the said girl P.W.2-Pooja and police have recovered the said girl at that particular point of time.
24. Though this witness has identified the accused person before the Court as the person who came to that particular place for the purpose of taking away the bounty, but this witness has not stated that the accused has actually taken away the said bounty and thereafter, he was arrested and those items were recovered at the instance of this accused. Nor he has stated about the recovery of any mobile phone at the instance of accused No.1 or 26 accused No.2 as narrated in Exs.P2 and P3 and the mahazars alleged to have been drawn at the spot. In the course of cross-examination very peculiarly, he has admitted that on that particular day the person who came to the place was caught by the police and he do not know what was the colour of the dress worn by that particular man and the police have not made any personal search on the body of accused No.1 and he also do not know whether any person has checked the accused person. Therefore, this witness also does not say anything about drawing of mahazar Exs.P2 and P4 at that particular point of time and recovery of any articles at the instance of the accused.
25. Of course, P.W.9 is the investigating officer who has categorically stated about laying of the trap and recovery of incriminating articles i.e., M.Os.1 to 5 at the instance of the accused. The evidence of P.W.9, so far as the drawing up of mahazars as per 27 Exs.P2 to P4 has not been fully supported by any of the witnesses examined before the Court including P.W.1. P.Ws.4 and 5 who are the material witnesses as stated above, they are very close to P.W.1. There is no reason as to why they have to turn hostile to the prosecution. Even as we have narrated that P.W.1 himself has stated that immediately after finding accused Nos.1 to 3 and Pooja, they took all of them in a Santro car of P.W.1 to Lakshmipuram police station. There, the police have recovered the chain and amount and two mobiles and drew up the mahazar. Though he stated that the mahazars were drawn at the spot, but in view of the doubtful statement of this witness that he actually brought the accused to the police station, it creates a serious doubt, because the material witnesses P.Ws.4 and 5 have turned hostile and P.W.7 has not given complete picture with regard to seizure of these articles. 28
26. P.W.6-Siddaraju to some extent has supported the evidence of P.W.1 stating that when P.W.1 received a telephone call demanding an amount of Rs.80,000/-, this witness was very much present with P.W.1 and P.W.1 in turn told this witness that he received a phone call from somebody wherein the said person has demanded an amount of Rs.80,000/- and also threatened P.W.1 with dire consequences of killing P.W.2. Though this witness has stated so, but his evidence is not corroborated by the evidence of P.W.1 himself. P.W.1 never stated that at any point of time this witness was with him and that he disclosed the demand and threatening call of anybody to this witness. Therefore, the evidence of this witness is isolated and it cannot be relied as gospel truth in the absence of corroborative evidence from P.W.1 himself.
27. P.W.10 is the person who conducted the test identification parade of the accused-Avinash 29 wherein it is stated that, in the identification parade P.W.2 has identified the accused. In our opinion, the said identification itself is a farce because P.Ws.1 and 2 have categorically stated that, even much earlier to the incident they were knowing the accused, the accused was visiting the shop of P.W.1 and he has also stated that on some occasions the accused Avinash used to take the girl to the school and bring her back. Therefore, the question of identification of accused by P.Ws.1 and 2 does not arise, so far as this case is concerned.
28. Be that as it may. Looking to the overall evidence, the fact remains that it is not proved as to who actually telephoned to P.W.1 on that particular day. Of course there is some strong evidence that, appellant was caught by the police during the raid. But still what remains is that whether the prosecution has established beyond reasonable doubt that accused is the person who telephoned to P.W.1 30 demanding ransom, and the recovery of money, gold chain, motorcycle and cell phone from accused Nos.1 and 2 is also doubtful, because the evidence is so shaky and not sufficient to draw a conclusive inference that there was a recovery from the accused. In the absence of the same, what has been established by the prosecution is that, the accused has actually taken the girl from the school on that particular day and thereafter, the said girl was recovered by the police. In between this, there is no material to show that the accused alone was the person who telephoned to P.W.1. Of course, the Investigating Officer has collected Exs.P17 and P18, which are the call details of the telephone which was alleged to have been recovered at the instance of accused No.1 and as well as the cell phone of P.W.1. Though it co-relates to each other, but the call details shows that the cell bearing No.9480441829 belonging to P.W.1 received the call from the mobile bearing No.7411890034. But no material is placed that the 31 accused person has actually telephoned through 7411890034. In the evidence of the Investigating officer, it is also found that the investigating officer has ascertained during the course of investigation that the cell phone bearing No.7411890034 belong to one Pasha and accused was not the owner of the said SIM or telephone. But the prosecution has failed to examine the said Pasha before the Court. Doubt arises as to whether the said call was done by Pasha or any other person or the accused herein. In the absence of test voice identification by the police as that of accused who talked with P.W.1 on that day and in the absence of the evidence of Pasha before the Court, it is very difficult to conclusively draw any inference that the accused was the person who actually demanded ransom or threatened P.W.1 with dire consequences of killing P.W.2, if such ransom is not paid to him. Therefore, we are of the opinion that the prosecution though placed certain materials before the Court, but failed to establish the 32 ingredients of Section 364(A) of IPC against the accused beyond any reasonable doubt.
29. On careful perusal of the entire evidence, though the prosecution has not established the case against the accused for the offence under Section 364(A) of IPC, but it has established that on that particular day on 24.9.2011, the accused had been to the school of P.W.2 and took her along with him. A strong evidence of P.W.2 is available to the prosecution and in the course of cross-examination as we have already appreciated, nothing has been elicited so as to discard the evidence of P.W.2. The said girl Pooja was aged 7-9 years as on that particular date. The accused knowing fully well that the said girl was minor and was in legal custody of P.W.1, took her along with him to various places as stated by P.W.2. Therefore, taking of a minor girl without authorization of the legal guardian itself is an offence, which attracts Section 363 of IPC. 33
30. Therefore, we are of the opinion that in the absence of any explanation by the accused as to why he took the said girl on that particular day without the permission of her legal guardian and in the wake of the positive evidence by the prosecution, we are of the opinion that the prosecution has in fact proved the guilt of the accused under Section 363 of the IPC. Though the charges have not been framed by the trial Court for the offence under Section 363 of IPC, the said offence being lesser offence compared to Section 364(A) of IPC, the Court can convict the accused for the said offence even in the absence of any charge, as the evidence is available so far as the said offence is concerned. Hence, we are inclined to set aside the judgment of the trial Court, so far as the conviction and sentence passed by the trial Court for the offence under Section 364(A) of IPC and modify the same for the offence under Section 363 of IPC. In the above said facts and circumstances, we answer the points 34 formulated by us accordingly and proceed to pass the following order:
ORDER
i) The appeal is partly allowed. Consequently, the Judgment of conviction and sentence passed by the IV Additional Sessions Judge, Mysuru in S.C.No.90/2012 for the offence under Section 364A of the Indian Penal Code is hereby set aside. However, the accused is convicted for the offence under Section 363 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of seven years. He shall also pay a fine of Rs.20,000/-, as ordered by the trial Court and in default, he shall undergo simple imprisonment for a period of two months.
ii) The accused is entitled for set-off under Section 428 of Code of Criminal Procedure.
If he has already undergone the period of punishment, he shall be released forthwith, if he is not required in any other case.
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iii) The Registry is hereby directed to communicate this order to the concerned Jail authorities forthwith.
Sd/-
JUDGE Sd/-
JUDGE bkp