Karnataka High Court
Sri Yallappa @ Parashuram vs The State Of Karnataka on 30 September, 2024
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NC: 2024:KHC-K:7529
CRL.A No. 200133 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.200133/2021
BETWEEN:
SRI YALLAPPA @ PARASHURAM
S/O SRI SHIVAPPA BALUR
AGE: 25 YEARS,
OCC: COOLIE,
R/O TIKKUNDI, TQ. JATH,
DIST. SANGLI
(MAHARASHTRA STATE)
...APPELLANT
(BY SRI R.S. LAGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH INDI P.S.,
INDI,
Digitally signed by
SHAKAMBARI REPRESENTED BY
Location: HIGH ADDL. STATE PUBLIC PROSECUTOR,
COURT OF
KARNATAKA HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
...RESPONDENT
(BY SRI GOPALAKRISHNA B. YADAV, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO CALL FOR RECORDS IN SPL.
CASE (POCSO) NO.15/2015 PASSED BY ADDL. SESSIONS
JUDGE F.T.S.C.-I (POCSO), VIJAYAPURA, AND PERUSE THE
SAME AND SET ASIDE THE ORDER OF CONVICTION
INCLUDING FINE PASSED UNDER SECTIONS 366 AND 344 OF
IPC DATED 24.05.2021 AND ACQUIT THE APPELLANT.
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CRL.A No. 200133 of 2021
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) Appellant-accused has called in question the judgment of his conviction and order of sentence dated 24.05.2021, passed in Spl. Case No.15/2015 by the Additional Sessions Judge FTSC-I (POCSO), Vijayapara, (for short 'trial Court').
2. The trial Court after full fledged trial found the accused-appellant guilty of committing the offences under Sections 366 and 344 of IPC and passed the following order of sentence:
" I. The accused is hereby sentenced to undergo Imprisonment for 10 years of which First Five years shall be Rigorous Imprisonment and followed by simple Imprisonment for the rest of term for the offence committed under Section 366 of Indian Penal Code. The accused is further liable to pay a fine of Rs.25,000/=.
II. Further the accused is hereby sentenced to undergo rigorous Imprisonment for a period of 3 -3- NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 years, for the offence committed under Section 344 Of Indian Penal Code. The accused is further Sentenced to pay fine of Rs.10,000/=.
III. The Sentence of imprisonment shall run concurrently.
IV. The accused being found guilty on two counts of offence punishable under Section 366 and Section 344 of Indian Penal Code punishable for a period of more than 3 years is not entitled to be considered under Section 360 of the Code of Criminal procedure.
V. The accused is entitled for set-off for the period of imprisonment undergone during investigation, inquiry, or trial."
3. The records of this appeal reveal that, the accused was charge sheeted by the respondent-Police for the offences under Sections 366, 344 and 376(2)(n) of IPC and Sections 3(a), 4, 5(1), 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO'). Insofar as the offences alleged against accused-appellant under the aforesaid POCSO Act, accused was not found guilty and accordingly he was acquitted. The State being aggrieved by the said acquittal has not preferred any appeal. Therefore, the order of acquittal -4- NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 of the accused as regards the offences of POCSO Act has attained finality.
4. Parties to this appeal are referred to as per the rank before the trial Court for the purpose of convenience.
5. According to the case of the prosecution, the father of the victim girl by name Dhundapa lodged a complaint on 22.03.2015 as per Ex.P15 alleging that, sometimes prior to filing of complaint, the appellant-accused resident of Tikkundi Village of Jath Taluk met the complainant while harvesting in a sugarcane fields, became acquainted with the family of the complainant by name Muktabai and the victim girl, who was aged 16 years then. It is specifically stated that, they all went to Yaragatti Village in Belagavi Taluk, Belagavi District for harvesting work and later on came to Ahirsangh Village of Indi Taluk for harvesting the sugarcane crop in the field of one Kumbar. As the appellant-accused was known to the family of the complainant, he started visiting the family members of the complainant. It is alleged by the complainant that, on 21.01.2015 as the complainant had some work, he went to his village, his wife on 22.01.2015 called him through mobile and -5- NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 stated that in the midnight on the previous day, i.e., on 22.01.2015 at 01:00 a.m., the accused-appellant had abducted their daughter - victim girl. Immediately, he rushed to the place where his wife was residing and on inquiry by the neighbors, he came to know about abductions of his minor daughter, the victim. He did a search and thereafter he went to the Police Station and filed a complaint on 22.01.2015 at 07:30 p.m., before the respondent-Police. Based upon the said complaint, a crime was registered in Crime No.39/2015 of Indi Police Station for the offences under Section 366 of IPC.
6. During the course of investigation, the victim was traced, who was in the company of the accused and thereafter, the Investigating Officer conducted the investigation by visiting the scene of offence, recorded the statement of the victim, arrested the accused, sent him for medical examination. On completion of the investigation, the I.O. filed the charge-sheet, not only under the provisions of the Indian Penal Code, but also under the provisions of the POCSO Act.
7. Before the trial Court, to prove the guilt of the accused, prosecution in all examined 21 witnesses as PWs.1 to -6- NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 21 and got marked 30 documents as Exs.P1 to P30 and closed prosecution evidence.
8. The learned trial Court after hearing the arguments and on evaluation of the evidence placed on record, found the accused guilty of committing the offences under sections 366 and 344 of IPC and sentenced him as noted above. This is how now the accused is before this Court challenging the said judgment of his conviction and order of sentence.
9. To prove Ex.P1 - spot panchnama, the prosecution relied upon the evidence of PW1 - Hanamanth Kambar. According to the case of prosecution, PW1 was very much present when the panchanama as per Ex.P1 was conducted, but he has been turned hostile. The prosecution also examined PW2 - Dundappa Harijan, the complainant - father of the victim girl, who has reiterated the contents of the complaint in his evidence on oath. He speaks with regard to his occupation as a sugarcane cutter and working with his family members. He also speaks with regard to the kidnapping of his daughter, who was aged 15 years then. He suspected the accused, since inspite of search by him, he could not secure the presence of -7- NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 both victim girl and the accused-appellant. He has been partly declared as hostile witness. Though lengthy cross-examination is directed to PW2 with regard kidnapping the victim girl, but he is a hearsay witness to the case of the prosecution. Therefore, much value cannot be attached to the evidence of this PW2 with regard to the offences alleged. His evidence can be accepted to the extent that, he lodged a complaint of abduction or kidnapping of the victim girl. Who has kidnapped and when kidnapped, there is no evidence placed on record. his answers in the cross-examination shows that, he has given a clear go by to the case of the prosecution. He has been further cross- examined by the prosecution. Though he speaks with regard to the kidnapping, but nothing worth is stated by him about commission of the offence so alleged against the accused.
10. PW3 is the victim girl. Though she states so many facts in her statement under Section 161 Cr.P.C. and under Section 164 of Cr.P.C., recorded before the Judicial Magistrate First Class, Indi, but while examining before the Court, she has been turned hostile. She never says in her examination-in- chief that, it was accused-appellant who kidnapped her and committed sexual assault on her. Thus, as she has been -8- NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 turned hostile, she was declared as a hostile witness and was cross-examined by the prosecution. But nothing worth is elicited from her mouth. Likewise, the prosecution examined PW4 - Hussainbasha, the Pancha to Ex.P6, PW5 - Pundalik Karur, co-pancha to Ex.P6, PW6 - Prabhakar Valikar, Pancha to Exs.P8 to 10, PW8 - Gurupadapa Byagelli to Ex.P1, PW9 - Rajakumar Valekar, pancha to Exs.P8 to P10, PW10 - Parashuram Bhavimani, scribe of the complaint, PW11 - Sanjeev Harijan has seen the victim girl in the Police Station and he has given a statement before the police. All these witnesses have not supported the case of the prosecution and they have been turned hostile. Nothing worth is elicited from the mouth of these witnesses so as to disbelieve their version given the examination-in-chief. Therefore, the evidence of these PWs.4, 5, 6, 8 to 11 becomes inconsequential to the case of the prosecution.
11. PW7 - Muktabai is the mother of the victim girl. Though she states with regard to abduction of her daughter by the accused, she states that, now the victim girl is married and she has delivered two children. She further states that, she never says with regard to the commission of the offence by the -9- NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 accused-appellant. In her examination-in-chief, she simply states so many evidence by way of questions and asnwers. But her evidence would not help the case of prosecution. PW10 - Parashuram Bhavimani is a scribe, he speaks with regard to the scribing of the complaint only. Therefore, the evidence of this witness would not help the case of the prosecution.
12. PW12 - Rajkumar Bhimasya Harijan is a person who has heard the audio in the Court and he states that now the victim girl is married. He further states that, the victim girl along with her parents used to go for employment of harvesting the sugarcane crop. He identifies the accused. As for his evidence, he is a resident of Savadasanga Village. With regard to the commission of the offence, nothing is stated by him. According to him, the victim girl was taken by the accused to Maharashtra and from there she was brought back. Except this nothing is stated.
13. PW13 - Sidrama Shrimantha Naikodi is also similar witness, who deposes similarly with that of the evidence of PW12. He has deposed so much of ignorance and he has been declared as hostile witness by the prosecution. But nothing
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NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 worth his elicited in the cross-examination. Likewise, PW14 - Shrishail Balappa Savadi also has been turned hostile.
14. PW15 - Mahadev Sabu Savadi also has heard the audio. He states that he was working with the victim girl as well as the parents of the victim girl at the time of harvesting, but has been turned hostile. So also PW16 - Mudukappa Vithal Kambar, the eyewitness, who was co-worker along with the parents of the victim girl and PW17 - Malikarjun Saibanna Naikodi, also a co-worker, PW18 - Gangadhar Mededar, PW17. All these witness have been turned hostile and nothing worth is elicited to prove that, it was accused who abducted the victim girl. Therefore, evidence of these witnesses also would not help the case of the prosecution.
15. PW18 - Gangadar Medadar was the Headmaster of the School, where the victim girl had studied in between 2015 and 2016 and he has issued the Birth Certificate entered in the School Registers as per Ex.P22. This fact is not disputed by the defence. More so, as stated supra, the trial Court has not found the guilty of the accused for the offence under the
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NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 POCSO Act. The evidence of PW22 is to be believed to the extent of issuing Ex.P22 only and not of its contents.
16. PW19 Mahadev Shirharti was the then C.P.I. of Indi Police Circle, who conducted investigation and recorded the statements of the witnesses and filed charge-sheet against the accused. He being Investigating Officer has done his duties. In the absence of corroborative evidence led by the prosecution, the evidence of the Investigating Officer becomes formal in nature.
17. The prosecution also examined PW20 - Renuka Jakanur, the Police Inspector, who was working as a PSI at the relevant time. She has conducted part of investigation and as for the directions of the Superior Officer, she took the victim girl to the Court for recording the statement before the Magistrate. As victim herself has not supported the case of prosecution, the contents of Ex.P4 are not proved in accordance with law.
18. PW1 - Vijaykumar Sinnur was a chargesheeting officer. In the absence of relevant acceptable evidence, the evidence of this witness becomes formal in nature.
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19. All the witnesses, except the official witnesses, like Police Officers, have been turned hostile, the trial Court has found the accused guilty of committing the offences under Sections 366 and 344 of IPC. It is submitted that in Para 77 of the judgment, a strange observation is made by the trial Court drawing presumption under Section 29 of the POCSO Act, when the accused-appellant is not found guilty for the offences under the provisions of the POCSO Act. When the accused is not found guilty for the said offences under the provisions of POCSO Act, the question of drawing any presumption under Section 29 of the said Act does not arise at all. Quite interestingly, the learned trial Court observed in Para 77 as under.
"The defence especially, is cast with burden to disprove the acts presumed by court regarding commission of offence as contemplated under Section 29 of the Protection of Children from Sexual Offence Act, 2012. Just for the reason that the witnesses have turned hostile the accused cannot lean back to relax that he has nothing to prove. He has burden to disprove. Just for the reason that witnesses have turned hostile I cannot discard the evidence under Ex.P-8, Ex.P-9 and Ex. P-10 coupled with Ex.P-23, Ex.P.-24 and Ex.P-25
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NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 as accused equally failed to lodge in their defence contrary to the facts of these Mahazars regarding the stay of accused with the victim in these places. These witnesses did not bring forth the reason for them to affix their signature had the document been falsified."
20. The reason for observing as above is not properly explained either at the commencing of Para 77 or subsequent to the same. Though the learned trial Court found the accused guilty of committing the offences under Sections 366 and 344 of IPC, first of all, the prosecution has to prove the ingredients of the said offences. The ingredients are that, whoever kidnaps or abducts any human with intention that, she may be compelled, etc. The essential ingredients of kidnapping of a minor girl are as under:
"Kidnapping the complainant out of India and taking and enticing a minor out of lawful guardianship without such guardian's consent apart, the ingredients of Section 366 are:
(a) that the accused induced the complaint or compelled by force to go from any place;
(b) that such inducement was by deceitful means;
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(c) that such abduction took place with the intent that the complainant may be seduced to illicit intercourse;
(d) that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. When the complainant is found to have gone from one place to another voluntarily, no offence is made out."
21. The offence under the old IPC is cognizable. None of the ingredients stated supra have been proved in accordance with law by the prosecution. Though the name of the accused- appellant is appearing in the FIR alleging that it was accused who abducted and kidnapped his daughter who was a minor girl, examined as PW3, but he has been turned hostile so also victim girl.
22. The learned trial Court convicted the accused for the offence under Section 344 of IPC. Section 344 of IPC speaks with regard to wrongful confinement for ten or more days. According to the evidence of victim girl, she herself went along with the accused-appellant and resided with him. Though the other witnesses state that, she was brought from Maharashtra, there is no evidence that, she was wrongfully
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NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 confined by the accused. No such evidence is coming forth from any of the witnesses. But the learned trial Court based upon the surmise and conjectures by observing in Para 77 has found the accused guilty of committing the aforesaid offences. The whole approach of the learned trial Court is apparently incorrect and without application of the judicious mind. Without proper appreciation of the evidence, the learned trial Court convicted and sentenced accused when victim girl herself has been turned hostile, the complainant has not supported the case of prosecution, the Panchas have been turned hostile and none of the witnesses who were in the company of the family of the complainant at the time of alleged abduction have been turned hostile. Believing the evidence of the I.O., trial Court has passed the impugned judgment. Even the Doctor who has medically examined the victim girl is also not examined by the prosecution, which is fatal to the case of prosecution. Thus, learned trial Court has not properly appreciated the evidence placed on record by the prosecution in proper perspective. Just believing the story so stated by the I.O., and also based upon the statements recorded by the police, the Court cannot convict the accused and impose sentence. Apparently, the trial Court
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NC: 2024:KHC-K:7529 CRL.A No. 200133 of 2021 has not applied its judicious mind in coming to a conclusion. Therefore, the impugned judgment is devoid of any merits and it has to be interfered with by this Court. The only answer would be that the prosecution has utterly failed to prove the guilt of the accused with legal evidence. Because of that, the accused is entitled for acquittal.
23. Resultantly, I pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment of conviction and order of sentence dated 24.05.2021 in Spl. Case No.15/2015 by the Session Judge FTSC-I (POCSO), is hereby set aside.
iii) Consequentially, the accused is acquitted of the charges under Section 366 and 344 of IPC. His bail bond stands cancelled. He is set at liberty.
iv) A fine amount, if any, paid or deposited by the accused be refunded to him
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CRL.A No. 200133 of 2021
digitally after collecting necessary
documents.
v) Send back the trial Court records along
with the copy of this judgment forthwith.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SBS List No.: 1 Sl No.: 8 CT: PS