Karnataka High Court
The State By vs Imrankhan Alias Mohammed on 28 November, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A. No.560 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A NO.560 OF 2017 (A)
BETWEEN:
THE STATE BY
KOTE POLICE
SHIVAMOGGA
...APPELLANT
(BY MR.V.S.VINAYAKA, HCGP)
AND:
1. IMRANKHAN ALIAS MOHAMMED
DASTAGIR KHAN
S/O.MOHAMED NASRULLA KHAN
29 YEARS, DIPLOMA STUDENT OF
JNNC COLLEGE
R/O.OLD BAR LINE ROAD
NEAR VIJAYA CLINIC
SINDHI COLONY
SHIVAMOGGA
2. ASDULLA
S/O LATE ABDUL MUJEEB
40 YEARS
REAL ESTATE AND BROKER WORK
R/O. OLD BARLINE ROAD
SHIVAMOGGA
3. MAHMED GAFFAR SHARIFF
S/O.K.AKBAR SHARIF
51 YEARS, AGRICULTURIST
R/O.JOSEPH NAGARA
1ST CROSS, B.H.ROAD
SHIVAMOGGA
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CRL.A. No.560 of 2017
4. AJMAL PASHA
S/O.LAT ABDUL KHADEER
31 YEARS
DRIVER WORK
R/O.MANJUNATHA LAYOUT, 2ND CROSS
SHIVAMOGGA
5. WAHEED KHAN
S/O.JALEEL KHAN
29 YEARS
WORKER IN MOBILE SHOP
R/O PENSION MOHALLA
2ND CROSS
SHIVAMOGGA
6. AKRAM
S/O.LATE AMEERSAB
40 YEARS
MUTTON BUSINESS
R/O.ANNANAGRA, MAIN ROAD
SHIVAMOGGA
...RESPONDENTS
(BY SRI.P.B.UMESH, FOR
MR.R.B.DESHPANDE, ADVOCATE)
------
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) &
(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 10.11.2016 PASSED
BY THE COURT OF THE PRL. DIST. AND S.J., SHIVAMOGGA FOR THE
OFFENCE P/U/S 364A, 354B, 324, 326, 506 R/W 34 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR HEARING AND
RESERVED ON 10.08.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY ANIL B. KATTI, J., DELIVERED THE
FOLLOWING:
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CRL.A. No.560 of 2017
JUDGMENT
Appellant/State feeling aggrieved by the judgment of Trial Court on the file of Principal District and Sessions Judge, Shivamogga in S.C.No.169/2015 dated 10.11.2016 preferred this appeal.
2. Parties to the appeal are assigned with the ranks as referred in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that complainant Heena Kousar is the daughter of CW.4 Smt. Fasiya Tahasin and they were residing at Old Barline Road, Sindhi Colony, Shivamogga. The marriage of complainant PW1 was performed with Abdul Aziz about 9 years back and the couple led marital life for about 5 to 6 years. Thereafter there was dissolution of marriage between them and Heena Kousar was residing with her mother and grandfather.
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On 10.5.2015 at 7.00 p.m. PW.1 Heena Kousar was proceeding by walk from the house to mobile shop for purchasing currency to her mobile. At that time accused Nos.1 to 4 called PW.1 Heena Kousar as they wanted to talk to her. When she went to them to enquire, they immediately closed her mouth, dragged in Maruthi Vehicle bearing No.KA.14/N-1150, further forced her to contact PW.2 Abdul Raheem over mobile for getting him near Mahadevi Talkies at Vidhyanagara. Accordingly due to threat, she called PW.2 Abdul Raheem over mobile and asked him to come near Mahadevi Talkies immediately. When PW.2 Abdul Raheem came in his car, he was forcibly taken into Maruthi Omni and both were kidnapped by accused Nos.1 to 4 under the pretext that they have illicit relationship with each other. In the vehicle they forced PW.2 Abdul Raheem for removing his shirt and then his banian was torn, PW.1-Heena Kousar was dragged with an intention to outrage her modesty. PW.1 Heena Kousar was assaulted and obscene photographs were taken in the mobile, further they were threatened to pay -5- CRL.A. No.560 of 2017 Rs.50,00,000/-, otherwise they will circulate the photographs through the Whatsapp.
The vehicle was driven to the garden land of accused No.3 situated near Dummalli, PW.1 Heena Kousar and PW.2 Abdul Raheem were taken to the Farm House when they refused to pay the money demanded by accused Nos.1 to 4. The prosecution further alleges that accused Nos.1 to 4 assaulted them with club and coconut hood, thereby voluntarily caused hurt to them. Thereafter, they secured accused No.5 and accused No.6 and demanded payment of Rs.2,50,000/-, further administered threat to kill PW.1 Heena Kousar and PW.2 Abdul Raheem if they failed to give money. PWs.1 and 2 in order to safe-guard their lives agreed to pay the amount. Accused took them in the said Maruthi Van and left near the house of PW.1 and went away from the said place.
PW1 Heena Kousar went to her house and informed the said fact to her mother and uncle i.e. CW.4 and CW.5 respectively who took her to Mc.Gan. Hospital for treatment. PW.2 Abdul Raheem was also treated in the -6- CRL.A. No.560 of 2017 very same hospital and then referred to Nanjappa hospital for further treatment. The PSI of Kote police station, Shivamogga on receiving the MLC intimation visited the hospital and recorded the complaint of PW.1 Heena Kousar. On the basis of which, case was registered in Crime No.69/2015 for the offences punishable under Section 364A, 324, 354B, 506 R/w Section 34 of IPC. The Investigating Officer on completion of investigation filed the charge sheet.
4. In response to the summons, accused Nos.1 to 6 have appeared before the Court through their counsel. The Trial Court on prima facie being satisfied of the charge sheet materials, framed the charges for the offences alleged against them. Accused Nos.1 to 6 pleaded not guilty and claimed to be tried. Prosecution to prove the allegations against the accused relied on the evidence of PWs. 1 to 12 and the documents Exs.P1 to P39, so also got identified MOs. 1 to 3.
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5. On closure of the prosecution evidence, the statement of accused under Section 313 Cr.P.C. came to be recorded. Accused Nos.1 to 6 denied all the incriminating material evidence appearing against them and claimed that false case is filed. The Trial Court after appreciation of evidence placed on record by the prosecution acquitted all the accused from the charges leveled against them.
6. Appellant/State challenging the judgment of acquittal contended that Trial Court has not properly appreciated the evidence of injured witnesses, PW.1 - Heena Kousar and PW.2-Abdul Raheem. The evidence of both these witnesses is corroborated by the evidence of PW.9 Dr. V H Suragihalli, Mc.Gan. Hospital, on the same day of incident PW.1 Hina Kousar and PW.2 Abdul Raheem were examined and wound certificate Ex.P.22 with respect of PW.1 and the wound certificate of PW.2 Abdul Raheem Ex.P.21, followed with case sheet Ex.P.18 and the records of Nanjappa hospital Ex.P.20. PW.2 has suffered grievous injury shown in wound certificate Ex.P.21. The evidence -8- CRL.A. No.560 of 2017 of PW.4 Jayanna Gowda would go to show that three mobiles of accused Nos.1 to 3 respectively with Maruthi Van KA.14/N-1150 were seized under the panchanama Ex.P.8 and the photograph was taken at Ex.P.9, further MO.3 mobile of accused No.3 was containing the photographs of PW.1 Hina Kousar and PW.2 Abdul Raheem. There are absolutely no valid reasons to discard the oral testimony of injured witnesses PW.1 Hina Kousar and PW.2 Abdul Raheem which has been duly corroborated by the evidence of the doctors - PWs. 9 and 11, further the investigating aspect has been substantiated by the evidence of Investigating Officers, PWs.10 and 12. The Trial Court without properly appreciating the evidence on record erroneously recorded finding in acquitting all the accused from the charges leveled against them. Therefore, prayed for allowing the appeal and to set aside the judgment of acquittal passed by the Trial Court, consequently to convict the accused for the offences alleged against them.
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7. In response to the notice of appeal, respondents/accused Nos.1 to 6 have appeared through their counsel.
8. The Trial Court records have been secured and heard the arguments of both sides.
9. After hearing arguments on both sides and on perusal of Trial Court records, judgment and material evidence placed on record, the following points arise for consideration :
1) Whether the prosecution proved beyond all reasonable doubt that on 10.5.2015 at 7.00 p.m. while PW.1 Heena Kousar was proceeding from the house situated at Old Barline Road, Sindhi Colony, Shivamogga, accused Nos.1 to 4 abducted her in Maruthi Omni Van bearing KA.14/N-1150 and on threat Heena Kousar secured PW.2 Abdul Raheem, on his arrival both PWs 1 and 2 were carried in Maruthi van and taken obscene photographs in the Maruthi Van, further demanded ransom of Rs.2,50,000/- for their release with the assistance of accused Nos.5 and 6, thereby committed an offence under Section 364A R/w Section 34 of IPC ?
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CRL.A. No.560 of 2017
2) Whether the prosecution further proved beyond all reasonable doubt that accused Nos.1 to 4 made PW.2 to remove his shirt and torn his banian, thereafter inappropriately touched and dragged PW.1 Heena Kousar with an intention to outrage her modesty, thereby committed an offence under 354B R/w. Section 34 of IPC?
3) Whether the prosecution proved beyond all reasonable doubt that accused Nos.1 to 4 by means of club and coconut hood assaulted on PW.1 Heena Kousar and caused simple injuries, thereby committed an offence under Section 324 R/w Section 34 of IPC ?
4) Whether the prosecution further proved beyond all reasonable doubt that accused Nos.1 to 4 by means of club and coconut hood assaulted on PW.2 Abdul Raheem and caused grievous injuries, thereby committed an offence under Section 326 R/w. Section 34 of IPC?
5) Whether the prosecution further proved beyond all reasonable doubt that accused Nos.1 to 4 on securing accused Nos.5 and 6 administered threat to take away the life of PWs.1 and 2, in case if they failed to pay the ransom amount demanded by them, thereby committed an offence under Section 506 R/w Section 34 of IPC?
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CRL.A. No.560 of 2017
6) Whether the judgment of the Trial Court calls for any interference by this Court ?
10. Learned HCGP has argued that oral testimony of injured witnesses PW.1 Heena Kousar and PW.2 Abdul Raheem is consistent enough with regard to the manner in which they received injuries due to assault by accused in the garden land belongs to accused No.3. The said oral testimony is duly corroborated by the evidence of PW.9 Dr.Vivek Suragihalli and PW.11 Dr.Vishwanath with the wound certificate Ex.P.22 and Ex.P.21 respectively. The case sheet Ex.P18 and the records of Nanjappa hospital Ex.P.19 would substantiate that injury No.4 noted in Ex.P.21 wound certificate is opined to be grievous in nature. The evidence of PW.4 speaks about the recovery aspect and more particularly MO.3-mobile belonging to accused No.3 containing the obscene photographs of PW.1 Heena Kousar and PW.2 Abdul Raheem and the said fact is further corroborated by the evidence of Investigating Officers PW.10 and PW.12. As against the said evidence placed on record by the prosecution, the findings recorded
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CRL.A. No.560 of 2017by the Trial Court in acquitting the accused cannot be legally sustained.
11. Per contra, learned counsel for respondents has argued that there are not any allegations against accused Nos.5 and 6 and there is no reference of accused Nos.5 and 6 either in the complaint or in the FIR. The torn cloths of complainant PW.1 Heena Kousar and knife used for threatening PWs. 1 and 2 have not been seized by the Investigating Officer. Out of the three mobiles seized, the mobile of accused No.3 alone was marked and there is no evidence that it belongs to accused No.3. The spot panchanama Ex.P.6 is prepared after one month of the incident and the Investigating Officer has offered no any explanation for the said delay. There is not any evidence placed on record by the prosecution to substantiate the overt act of accused Nos.2, 5 and 6. The recovery evidence of PW.4 and that of the Investigating Officer PW.10 is not reliable. The Trial Court has rightly appreciated the material evidence placed before it and the
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CRL.A. No.560 of 2017findings recorded are based on the evidence on record, as such the same does not call for any interference by this Court.
12. The material witnesses relied by the prosecution to prove the incident and the injuries suffered by PW.1 Hina Kousar and PW.2 Abdul Raheem due to assault by accused Nos.1 to 4 in the moving Maruthi Van KA.14/N-1150 and in the garden land of accused No.3 is in the form of oral testimony of injured witness PW.1 Heena Kousar and PW.2 Abdul Raheem. The said oral testimony is sought to be corroborated by the evidence of PW.9 Dr.Vivek Suragihalli and PW.11 Dr.Vishwanath. The prosecution also seeks to rely on the oral testimony of PW.4 Jayanna Gowda to prove the recovery of mobiles from accused Nos.1 to 3 and the Maruthi Van bearing KA.14/N-1150, coupled with the evidence of the Investigating Officers, PW.10- Guruprasad and PW.12 - M S Deepak.
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CRL.A. No.560 of 2017
13. On careful perusal of material evidence placed on record, it would go to show that the foundation of prosecution case revolves around the alleged illicit relationship of PW.1 Heena Kousar with PW.2 Abdul Raheem. The prosecution out of the complaint allegations Ex.P.1 and the evidence of PW.1 Heena Kousar, PW.2 Abdul Raheem alleges that accused Nos.1 to 4 have abducted them from the respective places alleged in the complaint Ex.P.1 to create evidence of their illicit relationship with an intention to demand ransom money for their release. In prosecution of their such intention after abducting PW.1 Heena Kousar and PW.2 Abdul Raheem, took their photographs while traveling in the Maruthi Van and also in the garden land of accused No.3. Accused Nos.1 to 4 have threatened to circulate the photographs through Whatapp and Facebook, if demanded ransom money is not paid. The material witnesses relied by the prosecution on the said allegations are PW.1 Heena Kousar PW.2 Abdul Raheem and the allegations made in the complaint Ex.P.1.
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CRL.A. No.560 of 2017
14. It is alleged in the complaint filed by complainant PW.1 Heena Kousar that after divorce, she is residing with her mother and at 7.00 P.M. on the day of incident, she left the house for getting currency to her mobile on Barline road. At that time accused Nos.1, 2 and 4 called her and by closing her mouth, she was pushed in the car, further enquired as to whether she knew Rehman and she has illicit relationship with him. PW.1 denies the said allegation, but on the threat of knife point was made to secure Adbul Rehman over phone near Mahadevi Talkies. On his arrival made him to get down from the car and he was picked up in Maruthi van then proceeded towards Sahyadri College road. After traveling about 6 to 7 kms., they made them to get down from the car and she was assaulted by means of club and coconut hood over her thigh, so also she was slapped on her cheek. Thereafter, her cloth was torn and made to put her hands on the shoulder of Abdul Rehman, thereafter took photographs and demanded ransom of Rs.50,00,000/- or else they will
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CRL.A. No.560 of 2017circulate their photographs in Whatsapp and Facebook. They further threatened to throw acid, in case if her maternal uncle did not withdraw the case filed against them. Thereafter, they left both of them near the house of complainant and she on informing her family members was taken to Mc.Gan. hospital, Shivamogga. On arrival of police to the hospital, she filed the complaint Ex.P.1.
15. The prosecution has to prove that PW.1 Smt.Heena Kousar and PW.2 Abdul Raheem were kidnapped for ransom in terms of Section 364A of IPC. The Hon'ble Apex Court in Shaik Ahmed vs. State of Telangana reported in (2021) 9 SCC 59 after considering the earlier judgments concluded that the essential ingredients to convict the accused under Section 364A IPC which are required to be proved by the prosecution are as follows :
(1) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and
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(2) 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;
(3) Causes hurt or death to such person in order to compel the Government or any Foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom Thus, after establishing the first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either condition Nos.2 or 3 has to be proved, failing which, conviction under Section 364A cannot be sustained. In view of the principles enunciated by the Hon'ble Apex Court in this judgment, the evidence placed on record by prosecution in the form of evidence of PW.1 Smt.Heena Kousar and PW.2 Abdul Raheem with other evidence will have to be appreciated.
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CRL.A. No.560 of 2017
16. PW.1 Heena Kousar who is complainant and injured witness deposed to the effect that after her divorce, she is residing with mother CW.4- Fasiya Tahasin and grandfather, Abdul Jabbar Shariff. She knew accused No.1 who is residing in the ground floor of their house and accused No.2 is residing by the side of the house, so also accused Nos.3 to 5 are residing in Pension Mohalla and she does not know where accused No.6 is residing. There is a civil dispute with respect to the house in which accused No.1 is residing between Amanulla Sheriff and accused No.1.
On 10.5.2015 at 7.00 p.m. she was going on the road to the mobile shop for getting currency to her mobile. When she reached near Girls Hostel, accused Nos.1 to 4 were standing by the side of Maruthi Omni van and told that they want to talk with her. When she came to them to enquire, accused No.1 by closing her mouth pushed in the Maruthi Van and accused No.3 caught hold her in the van, accused No.4 was in the driving seat. The van proceeded towards Vidyanagar Sahyadri College. Accused
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CRL.A. No.560 of 2017have asked her to call PW.2 Abdul Raheem over phone on the pretext that she is having illicit relationship with him at knife point under threat. On such threat, PW.1 Heena Kousar called PW.2 Abdul Raheem over phone and asked him to come near Vidyanagar Talkies as she is in trouble.
After 5 to 10 minutes PW.2 Abdul Raheem came in his Maruthi Swift car and the accused under pretext of talking to him, got him inside the van and they carried them to the garden land of accused No.3. While so proceeding, accused asked to remove the shirt and banian of PW.2 Abdul Raheem and asked to put the hands of PW.1 Heena Kousar on the shoulder of PW.2 Abdul Raheem and taken the photographs. Accused have threatened PW.2 Abdul Raheem to give Rs.50,000,000/- otherwise they will circulate their photographs in the Whatsapp and Face book.
After reaching to the garden land of accused No.3, accused No.3 by hands assaulted on the cheek and eyes over PW.1 Heena Kousar and further assaulted by means of coconut hood on her hands and shoulder. At that time,
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CRL.A. No.560 of 2017accused Nos.1 and 4 caught hold her and accused No.3 by means of club assaulted on her thigh. Accused have torn her clothes and taken photograph with PW.2- Abdul Raheem, accused No.1 by means of hands and club was assaulting PW.2 and threatened to give Rs.50,00,000/- or else they will release the photographs.
Thereafter, accused over phone secured accused Nos.5 and 6, further at the instance of accused No.6 reduced the ransom amount to Rs.2,50,000/- and at about 12.30 a.m. the accused carried PWs 1 and 2 in their Maruthi van and left them near the house of PW.1. On informing about the incident to her uncle CW.5 Shabbir Ahamed and she was shifted to Mc.Gan. Hospital, Shivamogga for treatment, where she filed complaint, Ex.P.1 on arrival of police.
17. The evidence of another injured witness PW.2 - Abdul Raheem would go to show that on 10.5.2015 while he was in the office received phone call from PW.1 Heena Kousar at 7.30 p.m. and she asked him to come to Mahadevi
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CRL.A. No.560 of 2017Talkies urgently. He went to the said place and two persons stopped his car and pulled him in the Maruthi Omni vehicle, wherein PW.1 Heena Kousar was already sitting in the Maruthi Van, further he identifies accused No.5 and another black colour boy wearing check shirt, accused No.4 having pulled him in the Maruthi van.
Accused No.1 snatched his mobile and kicked over his chest, further asked him to remove his shirt. On removing shirt, his banian was torn and made him to put his hands on the shoulders of Heena Kousar, further taken photographs and demanded to give cash of Rs.50,00,000/- otherwise they will circulate their photographs in the face- book and whatsapp.
Accused have carried them to a garden land at a distance of about 5 to 6 kilometer and made both PWs 1 and 2 to get down from the van. Thereafter, asked him to sit on a chair and made PW.1 Heena Kousar to put her hands on PW.2 Abdul Raheem from the back of the chair, so also taken photographs. When PW.1 Heena Kousar started screaming, accused No.3 by means of coconut
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CRL.A. No.560 of 2017hood and accused No.1 by means of club assaulted on her. When he went to stop them, accused No.1 fisted on his left jaw due to which he sustained injuries. Accused No.3 asked him to give Rs.50,00,000/- and when he questioned, as to why he is required to pay the money. At that time accused No.2 demanded Rs.10,00,000/- and at about 12.00 in the midnight they secured accused No.6 and at his instance, demanded to give Rs.2,50,000/-. PW.2 having left with no other option, agreed for the same. Thereafter, the mobile and his car key was handed over to him which was brought at the said place. PW.2 on coming near bus-stand secured his son PW.8 Mohammed Mustakim and both of them went to Mc.Gan. hospital and his another son Mohammed Mousin came to the said hospital. PW.2 has further deposed to the effect that he was abducted for getting ransom money and identifies the photographs Exs.P4 and P5 and also MO Nos.1 and 2. The son of PW.2 Mohammed Mustakim, PW.8 has deposed about carrying his father to the hospital from the bus- stand and the incident was revealed to him by his father.
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CRL.A. No.560 of 2017
18. PW.1 Heena Kousar has admitted that there is a dispute between her maternal uncle Amanulla Sharif and accused No.1 with respect to the house occupied by accused No.1 in the ground floor, further she is staying with her mother and grandfather in the first floor. She has further deposed to the effect that suit is pending before the Court with respect to the house occupied by accused No.1 between her maternal uncle and accused No.1. The above referred oral testimony of PW.1 Heena Kousar and PW.2 Abdul Raheem would go to show that PW.1 Heena Kousar was kidnapped from the place near girls hostel and spoken about presence of accused Nos.1 to 4 in the said van which proceeded towards Vidyanagar Sahyadri college on the pretext that she was having illicit relationship with PW.2 Abdul Raheem. On threat of knife point, she was asked to contact PW.2 Abdul Raheem over phone. On receiving the call from PW.1 Heena Kousar, PW.2 Abdul Raheem came near Mahadevi Talkies. Thereafter, he was pulled into Maruthi omni vehicle, wherein PW.1 Heena Kousar was already sitting in the
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CRL.A. No.560 of 2017Maruthi van. The prosecution alleges that PW.1-Heena Kousar and PW.2-Abdul Raheem were kidnapped on the pretext of they having illicit relationship, further demanded ransom of Rs.50,00,000/-, otherwise they will circulate their photographs in the Facebook and Whatsapp. In order to establish such relationship, their photographs were taken while proceeding in the van, PW.1 and PW.2 have identified the photographs as Exs.P.2 and P.3.
19. The prosecution has relied on the oral testimony of PW.4-Jayannagowda who is the panch witness to the seizure panchanama Ex.P.8 for having seized the mobiles of accused Nos.1 to 3 and the white colour Maruthi vehicle bearing No.KA.14-N-1150 which was used for kidnapping PW.1-Heena Kousar and PW.2-Abdul Raheem and Ex.P.9 is the photograph. PW.4-Jayannagowda has further deposed that at the instance of accused Nos.1 and 3, club and coconut hood MOs. No.1 and 2 respectively were seized under the panchanama Ex.P.10 from the garden land belonging to the father of accused No.3. These two recovery panchanamas Exs.P.8 and P.10 were drawn on
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CRL.A. No.560 of 201712.5.2015 and the recovery under Ex.P.10 panchanama was at the instance of accused Nos.1 and 3. PW.7- Praveen was working in the garden land belonging to the father of accused No.3. PW.7-Praveen though has not supported the case of the prosecution, but admits that he is working in the garden land belonging to the father of accused No.3. During cross-examination by the learned Public Prosecutor on seeing the photograph shown to him at Ex.P.11 identified his presence in the photograph taken at the time of preparing panchanama and he has further admitted two persons appearing in the photograph are the Government officials in whose presence panchanama was prepared. Further he has also identified the person standing by the side of Sub-Inspector is accused No.1-Imran.
The above referred evidence of PW.7-Praveen and identifying the persons appearing in the photographs which was taken at the time of preparing panchanama Ex.P.10 has not been challenged by the defence by cross- examining the witness. Therefore, the said evidence of
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CRL.A. No.560 of 2017PW.7-Praveen which has not been disputed by the defence regarding the preparation of panchanama Ex.P.10 and he was appearing in the photograph Ex.P.11 has to be accepted. The drawing of the said panchanama at Exs.P.8 and P.10 has also been substantiated by the evidence of Investigating Officer, PW.12- M.S.Deepak. Therefore, from the said evidence on record, the prosecution has proved that PW.1- Heena Kousar and PW.2- Abdul Raheem were kidnapped from respective places. Thereafter, they were brought to the garden land belongs to the father of accused No.3.
Learned counsel for accused has argued that spot panchanama was prepared on 12.6.2015 after more than a month of the incident dated 10.5.2015. The prosecution has offered no explanation regarding the said delay caused in preparing the spot panchanama. It is true that there is a delay in preparing spot panchanama Ex.P.6 for more than a month from the date of incident. When the oral testimony of PW.1-Heena Kousar and PW.2-Abdul Raheem is consistent enough regarding the place from where they
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CRL.A. No.560 of 2017were kidnapped on the day of incident and there is nothing worth material has been brought on record to discredit their PW.1 and PW.2 evidence, the drawing of panchanama after more than a month cannot take away the case of the prosecution.
The complaint allegations Ex.P.1, the oral testimony of PW.1-Heena Kousar and PW.2-Abdul Raheem is consistent enough with regard to they having been kidnapped from respective places in Maruthi Van brought by accused Nos.1 to 4. Thereafter they have been carried in the said Maruthi Van to the garden land belongs to accused No.3. It is the contention of learned counsel for accused that evidence of PW.1-Heena Kousar and PW.2-Abdul Raheem cannot be relied to prove the alleged kidnapping of PW.1-Heena Kousar and PW.2- Abdul Raheem from the respective places as deposed by them, since they have given contrary evidence. There is also no evidence regarding role of accused No.2 in the alleged kidnapping of PW.1- Heena Kousar and PW.2-Abdul Raheem. It is the evidence of PW.1-Heena Kousar that accused Nos.1 to 4 were
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CRL.A. No.560 of 2017standing near hostel with parked Omni vehicle and they called her as they wished to talk to her. When she reached them to enquire, accused No.1 closed her mouth and pulled inside the van and accused No.3 caught hold her and accused No.4 was in the driving seat. PW.2-Abdul Rahim cannot have any knowledge about the active role of each accused in kidnapping PW.1-Heena Kousar from the place near Girls Hostel, as he was secured subsequent to the said incident. PW.2-Abdul Raheem has spoken about kidnapping him from the place near Mahadevi Talkies. PW.1-Heena Kousar has also deposed about kidnapping PW.2-Abdul Raheem from the said place and then both of them were carried to the garden land of accused No.3. The evidence of PW.1-Heena Kousar and PW.2-Abdul Raheem is consistent with regard to accused asking PW.2-Abdul Raheem to remove the shirt and made PW.1 Heena Kousar to put her hand on the shoulder of PW.2 Abdul Raheem and the photographs were taken Exs.P2 and P3, further they were carried to the garden land of accused No.3. All the above referred incident of kidnapping PW.1-Heena
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CRL.A. No.560 of 2017Kousar and PW.2-Abdul Raheem from the respective places, further taking the photographs Exs.P2 and P3 to create evidence of alleged illicit relationship between PW.1- Heena Kousar and PW.2-Abdul Raheem took place in presence of accused Nos.1 to 4 in Maruthi van, but still then accused Nos.2 and 4 who were also the inmates of Maruthi Van and accused No.4 was driving the said van remained as a silent spectators, further allowed the things to happen as desired by accused Nos.1 and 3. The said conduct of accused Nos.2 and 4 in joining their hands with accused Nos.1 and 3 would only demonstrate the fact that they have shared common intention with accused Nos.1 and 3 in kidnapping PW.1-Heena Kousar and PW.2-Abdul Raheem. The conduct of accused Nos.2 and 4 in view of the facts and circumstances brought on record by way of evidence of PW.1-Heena Kousar and PW.2-Abdul Raheem, would go to show that accused No.2 and 4 have participated in kidnapping PW.1 and PW.2. Therefore the contention of learned counsel for accused that accused No.2 and 4 have not participated in the commission of offence cannot be accepted.
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CRL.A. No.560 of 2017Learned counsel for accused has also argued that non seizure of torn clothes of PW.1-Heena Kousar and PW.2- Abdul Raheem, knife said to have been used by accused No.1 to threaten PW.1-Heena Kousar, further the delay in preparing the spot panchanama Ex.P.6 would create serious doubt about the case of the prosecution regarding the manner in which PW.1-Heena Kousar and PW.2-Abdul Raheem were alleged to have been kidnapped from the respective places as claimed during the course of their evidence. The non seizure of the above referred articles and delay in drawing spot panchanama Ex.P.6 cannot be a ground to disbelieve the consistent oral testimony of PW.1-Heena Kousar and PW.2-Abdul Raheem in abducting them from the respective places and having taken to garden land of accused No.3 which belongs to his father. Accused have taken PW.1-Heena Kousar and PW.2-Abdul Raheem to the garden land accused No.3 which was not a place known to them and made them to be at the said place till the midnight, where PW.1-Heena
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CRL.A. No.560 of 2017Kousar and PW.2-Abdul Raheem were physically assaulted by accused with MOs.1 and 2.
Looking to the oral testimony of PWs. 1, 2, 4 and 7 and the admitted dispute between maternal uncle Amanulla Sheriff and accused No.1 with respect to the house occupied by accused No.1 in the ground floor, it would go to show that kidnapping of PW.1-Heena Kousar and PW.2-Abdul Raheem was not for ransom money, but they were so taken to force them to pursue maternal uncle of PW.1-Heena Kousar i.e. Amanulla Sheriff to withdraw the case filed against accused No.1. In prosecution of such an intention, PW.1-Heena Kousar and PW.2 -Abdul Raheem were confined in a garden land belongs to accused No.3 till midnight which is an unknown place to them. Therefore the prosecution has failed to prove the offence under Section 364A of IPC. However, the above referred evidence on record squarely falls within the ambit of Section 365 of IPC.
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20. PW.1 Heena Kousar with respect to the assault incident has deposed to the effect that accused Nos.1 to 4 after taking them to garden land of accused No.3, accused No.3 by means of hands slapped on her cheeks, over eyes and by means of club and coconut hood assaulted over her hands and shoulder. Accused Nos. 1 and 4 caught hold her and accused No.3 by means of club assaulted on her thigh by means of club and coconut hood. She has further deposed to the effect that her clothes were torn and accused No.1 by hands and club assaulted on PW.2 Abdul Raheem.
PW.2 Abdul Raheem with respect to the assault incident has deposed to the effect that PW.1 Heena Kousar started shouting and accused No.3 by means of coconut hood assaulted on her, further accused No.1 by means of club assaulted on him, when he tried to stop accused No.1 fisted on his lower left jaw due to which he suffered injury and plate is inserted.
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21. The evidence of PW.9 Dr.V H Suragihalli would go to show that on 11.5.2015 at 1.30 a.m. he has examined Abdul Raheem who was accompanied by his son Mohammed Mustakim with the history of abduction and assault. On examination, he found the following injuries :
1. C/o. chest pain left side hit by legs
2. C/o. pain in both legs thigh
3. C/o. back ache
4. Pain and swelling of left cheek (Face)
5. C/o. body ache.
PW.9 is of the opinion simple soft tissue injuries and accordingly issued wound certificate Ex.P.21. On the same day, he has examined Smt. Heena Kousar accompanied with Mousin s/o. Abdul Raheem at 01.56 a.m. on 11.5.2015. On examination found the following injuries :
1. pain and swelling and redness of both side of face and local tenderness;
2. Pain and swelling and tenderness of right and left upper arms and local tenderness;
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3. C/o. her body ache;
4. C/o. pain and redness of left eye and swelling of vision and swelling of left eye.
PW.9 Dr.V H Suragihalli is of the opinion that simple soft tissue injuries and accordingly, issued wound certificate at Ex.P.22.
22. PW.11 Dr.Vishwanath, Surgeon of Nanjappa Hospital, Shivamogga has deposed to the effect that on 12.5.2015 at 10.25 p.m. Abdul Rehman was brought to the hospital for treatment with the history of abduction and assault. On examination found left lower jaw bone was fractured and surgery was conducted by applying titanium plate. Case sheet Ex.P.33 and the X-Ray sheets Exs.P34 to P.36 with two C.T.Scan reports Exs.P37 and P.38 are also produced. PW.11 is of the opinion that if a person is fisted and assaulted by means of MO Nos.1 and 2 then the fracture of lower jaw bone can occur.
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23. The evidence of PW.1 Heena Kousar and PW.2 Abdul Raheem would go to show that they have suffered injuries noted in Ex.P.22 and Ex.P.21 respectively. They have been examined by PW.9 Dr V S Suragihalli in Mc.Gan. hospital, Shimoga and PW.11 Dr. Vishwanath in Nanjappa Hospital treated PW.2 Abdul Raheem for bone fracture in the left lower jaw and after surgery titanium plate was applied for correcting the fractured bone which is evidenced from the case sheet Ex.P.33 and X.Ray sheets Exs.P.34 to P.36 followed with C.T.Scan reports at Exs.P.37 and P.38. The said fracture wound is opined to be grievous in nature.
24. The defence though has subjected both the doctors PWs.9 and 10 to cross-examination, nothing worth material has been brought on record, so as to discredit their evidence that PWs 1 and 2 suffered the injuries as noted in the wound certificate, Exs.P.22 and P.21 respectively. Looking to the date and time of incident on 10.5.2015 and she was left near her house at about 12.30
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CRL.A. No.560 of 2017in the midnight as per evidence of PW.1 Heena Kousar and she being examined before the doctor at 01.56 a.m. on 11.5.2015, further PW.2 Abdul Raheem on reaching to the bus stand secured his son PW.8 Mohammed Mustakim and both of them went to Mc. Gann hospital who was also treated by the very same doctor PW.9 on 11.5.2015 at 01.30 a.m. would go to show that there is no any possibility of PW.1 Heena Kousar and PW.2 Abdul Raheem suffering injuries in the intervening period. Much less no any material evidence has been brought on record during the course of their cross-examination regarding possibility of they suffering injuries as noted in Ex.P.22 and Ex.P.21 respectively in any other place than the incident of assault that took place in the garden land of accused No.3.
25. Learned counsel for respondents argued that there is no reference of accused Nos.5 and 6 either in the complaint Ex.P.1 or in the FIR Ex.P.23. The overt act of accused Nos.2, 5 and 6 in inflicting any injuries or in administering threat to PWs.1 and 2 has not been brought
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CRL.A. No.560 of 2017on record by the prosecution. It is only PW.2 has stated in the cross-examination that he demanded to give Rs.10,00,000/-. This fact has never been deposed by PW.2 in his examination-in-chief nor the same is certified by the evidence of PW.1 Heena Kousar. According to the case of the prosecution also accused Nos.5 and 6 were alleged to have been secured to the garden land of accused No.3 by making phone call. It is the evidence of PWs.1 and 2 that at the instance of accused No.6, accused have agreed to release them by accepting Rs.2,50,000/-. However, other than the evidence of PWs.1 and 2 to prove the above referred role of accused Nos.5 and 6 in negotiating the amount has not been corroborated by any other evidence on record. The evidence of PW.1 Heena Kousar is totally silent as to active role of accused No.2 in inflicting the injuries to PWs.1 and 2.
There is no reference of accused Nos.5 and 6 in the complaint filed by PW.1 Heena Kousar Ex.P.1 and FIR Ex.P.23 regarding involvement of accused Nos.5 and 6. On 12.5.2015 accused Nos.1 to 4 were arrested vide
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CRL.A. No.560 of 2017report of CW.17 Ex.P.24. The evidence of Investigating Officer PW.10 Guruprasad is silent on what basis accused Nos.5 and 6 are involved in this case. It appears from the evidence of PW.10 Guruprasad that on the basis of voluntary statements of accused Nos.1 to 4 issued directions to CW.17 Yashwanth PC.1479 to produce accused Nos.5 and 6. In pursuance of such directions, CW.17 Yashwanth PC.1479 has produced accused Nos.5 and 6 before the Investigating Officer PW.10 Guruprasad. The said alleged disclosure made by accused Nos.1 to 4 while they were in police custody is inadmissible and cannot form basis for involving accused Nos.5 and 6 in this case, unless the said fact is corroborated by other evidence placed on record by the prosecution. However, the prosecution has not produced any other material to show the involvement of accused Nos.5 and 6 for the offences alleged against them. The above referred evidence of PWs.1 and 2, coupled with the evidence of the doctors PWs.9 and 11 with the wound certificate Exs.P.22 and P21, respectively would go to show that there is
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CRL.A. No.560 of 2017evidence only against accused Nos.1, 3 and 4 in actual participating in inflicting injuries to PWs 1 and 2 as referred above.
26. The question is as to whether grievous injury suffered by PW.2 Abdul Raheem would attract the penal action in terms of Section 326 of IPC. On going through the evidence of PWs.1 and 2, it would go to show that PW.1 has deposed to the effect that accused No.1 assaulted PW.2 by means of hands and club. Whereas, PW.2 has specifically deposed to the effect that accused No.1 fisted on the left lower jaw due to which plate was inserted. The evidence of PW.11 Dr.Vishwanath would go to show that left lower jaw bone was fractured and by surgery applied Titanium plate and connected the fractured bone. The prosecution has suggested to PW.11 Dr.Vishwanath that if a person is fisted and assaulted by means of MOs.1 and 2 then left lower jaw can be fractured. It is not the evidence of PW.2 that accused No.1 by means of Mos.1 and 2 assaulted over his left jaw. The wound certificate Ex.P.21
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CRL.A. No.560 of 2017discloses other injuries suffered by PW.2 and those injuries must have been caused if he is assaulted by means of MOs.1 and 2. However, it is a specific evidence of injured PW.2 Abdul Raheem that accused No.1 fisted over his left jaw and the same corresponds with the evidence of PW.11 Dr.Vishwanath and the documents produced by him Exs.P.33 to P.38. Therefore, prosecution by above referred evidence on record has proved that PW.2 has suffered injuries as noted in the wound certificate Ex.P.21 and injury No.4 is opined to be grievous in nature by PW.11 Dr. Vishwanath. PW.2 due to fisting of accused No.1 suffered fracture of bone of left lower jaw. In order to attract penal action in terms of Section 326 of IPC, it must be proved that PW.2 Abdul Raheem has suffered grievous hurt by dangerous weapons or means as enumerated in the said proviso. Therefore, it cannot be said that PW.2 Abdul Raheem suffered grievous hurt by dangerous weapons or means, since admittedly PW.2 Abdul Raheem suffered grievous hurt due to fisting of accused No.1. Hence, the offence squarely falls within the ambit of
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CRL.A. No.560 of 2017Section 325 of IPC. PW.1 Heena Kousar and PW.2 Abdul Raheem also suffered injuries due to assault by means of MOs.1 and 2 and those injuries referred in wound certificate referred in Ex.P.22 and P.21 respectively attract penal action in terms of Section 324 of IPC.
27. The prosecution also alleges that accused Nos.1 to 4 have inappropriately touched PW.1 Heena Kousar and dragged by holding her clothes, further used criminal force with an intention to disrobe her. PW.1 Heena Kousar in her entire examination-in-chief does not whisper about the said allegations. It is only alleged in the complaint that her clothes were torn. The said assertion of PW.1 Heena Kousar in the complaint Ex.P.1 occurred in the incident that took place in the garden land of accused No.3. However, the evidence of PW.2 is totally silent of accused having torn the clothes of PW.1 Heena Kousar with an intention to disrobe her. The evidence of Investigating Officer PW.10 Guruprasad who on receipt of the complaint Ex.P.1 registered the case as per Ex.P.23 is also silent
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CRL.A. No.560 of 2017about accused having torn the clothes of PW.1 Heena Kousar, nor any torn cloth of PW.1 Heena Kousar is seized in this case. Therefore, the prosecution from the evidence placed on record has failed to prove that accused have used criminal force on PW.1 Heena Kousar and torn her cloth with an intention to disrobe her, so as to attract penal action in terms of Section 354B of IPC.
28. The prosecution also alleges that all the accused have administered threat to take away the life of PWs.1 and 2, if money is not given as demanded by them. The mere reference in the complaint Ex.P.1 that by showing knife accused have threatened and the bare statement of PWs.1 and 2 of such alleged threat is not enough to attract the penal action in terms of Section 506 of IPC.
29. In this context it is profitable to refer the judgment of Hon'ble Apex Court in the case of Manik Taneja and another Vs. State of Karnataka and another reported in (2015) part 7 SCC 423, has an occasion to examine the ingredients of Section 503 and 506 of IPC as under:
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" 11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 IPC is as under:
"Section 503. Criminal intimidation - whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intend to cause alarm to that person, or to cause that person to do any act which he is not bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.- A threat to injure a reputation of any deceased person in whom the person threatened is interested, is within this Section".
A reading of the definition of "Criminal Intimidation", would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom threatened person is interested and the threat must be with the intend to cause alarm the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do".
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30. The Hon'ble Apex Court in the latest judgment in Mohammad Wazid and Ors. Vs. State of U.P. and Ors. Reported in 2023 Live Law SC 624, wherein it has been observed and held that, 'a bare perusal of Section 506 of IPC makes it clear that a part of it relate to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that accused had an intention to cause alarm to the complainant.'
31. On careful perusal of the principles enunciated in both the aforementioned judgment of Hon'ble Apex Court, it is evident that in order to satisfy the ingredients of criminal intimidation, there has to be a threat of injury to person, reputation or property of the complainant by the accused which would be sufficient to draw an inference that the accused with an intention to cause alarm to that person or cause that person to do any act which he is not legally bound to do or to omit to do so to avoid the execution of such threat. The evidence placed on record by the prosecution in the form of PW.1 Heena Kousar and PW.2
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CRL.A. No.560 of 2017Abdul Raheem, coupled with the complaint allegations Ex.P.1 does not meet the legal requirement attracting penal action in terms of Section 506 of IPC.
32. Learned counsel for respondents during course of arguments has pointed out the omission that PW.1 Heena Kousar has not stated before the doctor who assaulted on her and not spoken anything about PW.2 Abdul Raheem having taken treatment in the same hospital. PW.1 Heena Kousar has also not stated in the complaint Ex.P.1 that accused No.1 closed her mouth and accused No.3 caught hold her, further accused No.4 was in the driving seat. The said omissions does not take away the case of the prosecution, since the evidence of PW.1 Heena Kousar and PW.2 Abdul Raheem is consistent with regard to they having been carried in the Maruthi van to the garden land of accused No.3.
33. Learned counsel for the respondents also pointed out the contradictions in the evidence of PW.1 Heena Kousar and PW.2 Abdul Raheem i.e. (1) PW.1 Heena Kousar
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CRL.A. No.560 of 2017evidence speaks about after arrival of PW.2 Abdul Raheem, they picked up in the van. Whereas, PW.2 Abdul Raheem states that accused Nos.4 and 5 stopped his car and pulled him in Maruthi Omni. (2) PW.1 Heena Kousar claims her cloth was torn, but PW.2 Abdul Raheem has not deposed anything to that effect. (3) PW.1 Heena Kousar deposed to the effect that accused took both of them in van and left near the house of accused No.1, whereas the evidence of PW.2 Abdul Raheem is contrary and he claims that his mobile and car key was brought to the garden land and handed over to him then he came driving the car to the bus stand. The said contradictions are bound to occur when the witnesses are giving evidence sufficiently after long time, much less the said contradictions do not go to root of the case of the prosecution which would be sufficient enough to outrightly reject the evidence of injured witnesses PW.1 Heena Kousar and PW.2 Abdul Raheem.
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34. Learned counsel for respondents has argued that spot panchanama as per Ex.P.6 is prepared by the Investigating Officer PW.12 M S Deepak after one month of the incident and further recovery evidence of PWs.4 and 10 is not reliable. It is further argued that MO.3 mobile alone is marked and there is no evidence to show that it belongs to accused No.3.
It is in the evidence of PW.10 Guruprasad who registered the case as per Ex.P.23 that accused Nos.1 to 4 were arrested and produced before him on 12.05.2015. During enquiry accused Nos.1 to 4 given voluntary statement Exs.P.25, P.26, P.27 and P.28 and sent requisition to DDPI office for sending the panch witnesses. CW.12 Jayannagowda and CW.13 Maheshwarappa were secured, accused Nos.1 to 3 have produced their mobile and the Maruti van KA.14/N-1150 were seized under the panchanama Ex.P.8. It is only the mobile of accused No.3 was containing the photographs of PWs.1 and 2 and the same was marked as MO.3, the photographs marked as
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CRL.A. No.560 of 2017Ex.P.2 and P.3. The other two mobiles of accused Nos.1 and 2 were released to them.
At the instance of accused Nos.1 and 3, MOs.1 and 2 were seized from the place shown by them. The said place is behind the house in the garden land belongs to accused No.3. The incident in question took place in the garden land of accused No.3. Therefore, under these circumstances the delay in drawing spot panchanama Ex.P.6 by the Investigating Officer PW.12 by itself cannot take away the case of prosecution. There is ample material evidence on record in the form of oral testimony of PW.1 Heena Kousar and PW.2 Abdul Raheem that the incident took place in the garden land belongs to accused No.3. The overt act of accused Nos.1, 3 and 4 in inflicting injuries to PW.1 Heena Kousar and PW.2 Abdul Raheem stands proved by the prosecution out of the above referred evidence placed on record.
35. The prosecution out of the evidence on record has proved beyond all reasonable doubt that accused Nos.1 to
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CRL.A. No.560 of 20174 have committed the offence punishable under Section 365 R/w Section 34 of IPC and accused Nos.1, 3 and 4 have committed offence punishable under section 324, 325 R/W Section 34 of IPC. In so far as accused No.5 and 6 are concerned, there is no evidence placed on record by the prosecution except stating that they alleged to have reduced the ransom amount. The prosecution has failed to prove that PW.1 Heena Kousar and PW.2 Abdul Rahim were kidnapped from respective places for ransom. Therefore, the acquittal of accused Nos.5 and 6 by the Trial Court does not call for any interference. The Trial Court without properly appreciating the evidence on record committed error in acquitting all the accused for the offences alleged against them. In view of the reasons recorded as above, the prosecution has proved the guilt of accused Nos.1 to 4 for the offence punishable under Section 365 R/w Section 34 of IPC and guilt of accused Nos.1, 3 and 4 for the offences punishable under Section 324 and 325 R/w Section 34 of IPC and to that extent
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CRL.A. No.560 of 2017interference of this Court is required. Consequently, we proceed to pass the following:
ORDER Appeal filed by the appellant/State is hereby partly allowed.
The judgment of the Trial Court on the file of Principal District and Sessions Judge, Shivamogga in S.C.No.169/2015, dated 10.11.2016 is hereby partly set aside.
Accused No.1 to 4 are convicted for the offence punishable under section 365 R/w section 34 of IPC.
Accused Nos.1, 3 and 4 are convicted for the offences punishable under Section 324 and 325 R/w Section 34 of IPC.
The acquittal of accused No.1 to 4 for the offences punishable under Sections 354B, 364A and 506 R/w.
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section 34 of IPC and acquittal of accused Nos.5 and 6 for all the offences charged against them, passed by the Trial Court stands confirmed.
Call on to hear the quantum of sentence.
SD/-
JUDGE SD/-
JUDGE
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HEARING ON SENTENCE Heard both sides on quantum of sentence. Learned HCGP for appellant/State submits that accused have kidnapped PW.1 Heena Kousar and PW.2 Abdul Raheem and due to assault of accused, they have suffered simple and grievous injuries respectively. Therefore, the act of accused in kidnapping and causing injuries, further the evidence on record demonstrate that accused Nos.1 to 4 are not entitled for any leniency with respect to the offences proved against them. Per contra, learned counsel for respondents submits that accused Nos.1 to 4 are young in age and they have no any criminal antecedents and they may be released on Probation of Offenders Act, 1958.
It is the sentencing policy that the sentence ordered must be proportionate to the proved offence against the accused. The imposition of sentence shall be neither exorbitant nor flee bite sentence. In the present case, accused Nos.1 to 4 are found guilty for the offence punishable under Section 365 R/w. Section 34 of IPC and
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accused Nos.1, 3 and 4 are found guilty for the offences punishable under Section 324 and 325 R/w. Section 34 of IPC. Looking to the facts and circumstances of the case, coupled with the allegations against accused Nos.1 to 4 in kidnapping and inflicting injuries to PW.1 Heena Kousar and PW.2 Abdul Raheem, we are of the opinion that accused Nos.1 to 4 are not entitled to the benefit of Probation of Offenders Act. Hence, we proceed to pass the following :
ORDER ON SENTENCE Accused No.1 - Imrankhan @ Mohammed Dastagir Khan s/o. Mohamed Nasrulla Khan, aged 29 years, II year Diploma student of JNNC College, R/o. Old Barline road, Near Vijaya Clinic, Sindhi Colony, Shivamogga;
Accused No.2 - Asdulla s/o. Abdul Mujib, aged 40 years, Real Estate and Broker work, R/o. Old Barline road, Shivamogga;
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Accused No.3- Mahmed Gaffar Shariff, s/o.K.Akbar Sharif, 51 years, Agriculturist, R/o.Joseph Nagara, 1st Cross, B.H.Road, Shivamogga and Accused No.4 - Ajmal Pasha, s/o.late Abdul Khadeer, Age : 31 years, Occ : Driver, R/o.Manjunatha Layout, 2nd cross, Shivamogga; are sentenced to undergo simple imprisonment for four years and pay a fine of Rs.5,000/- each and in default of payment of fine, shall undergo further simple imprisonment for three months for the offence under Section 365 r/w. Section 34 of IPC.
Accused Nos.1, 3 and 4 as referred above are sentenced to undergo S.I. for a period of two years and pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo additional simple imprisonment for three months for the offence under Section 324 r/w. Section 34 of IPC.
Accused Nos.1, 3 and 4 as referred above are also sentenced to undergo simple imprisonment for four years and to pay a fine of Rs.5,000/- each and in default of
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payment of fine, to undergo additional simple imprisonment for six months for the offence under Section
325 r/w Section 34 of IPC.
The sentence of imprisonment as ordered above are ordered to run concurrently.
Accused Nos.1 to 4 are entitled for the benefit of set- off under Section 428 of Cr.P.C. for the period having undergone by them in judicial custody, if any, in the matter.
On realisation of fine amount, the entire fine amount is ordered to be paid to PW.1-Heena Kousar and PW.2 Abdul Raheem equally as compensation who are the victims of the crime.
Accused Nos.1 to 4 shall surrender before the Sessions Court within 30 days from today to serve the sentence.
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CRL.A. No.560 of 2017Accused Nos.1 to 4 are entitled for free copy of this judgment immediately.
Registry to transmit a copy of this judgment along with Sessions Court records to the concerned Sessions Court immediately for compliance.
SD/-
JUDGE SD/-
JUDGE rs