Karnataka High Court
Smt Lalitha C/O Gangadharaiah vs State Of Karnataka By Vijayanagara ... on 7 August, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRL. A. Nos.2160/05 & 2190/05 (C)
IN CRL.A.NO.2160/2005
SMT. LALITHA
C/O GANGADHARAIAH,
AGE 30 YEARS
NO.167, 4TH CROSS,
MAGADI MAIN ROAD,
AGRAHARA DASARAHALLI,
BANGALORE. ... APPELLANT
(BY SRI T.S.GURUNATH, ADV.)
AND
STATE OF KARNATAKA BY
VIJAYANAGARA POLICE. ... RESPONDENT
(BY SRI G.M.SRINIVASAREDDY, HCGP)
IN CRL. A.No.2190/2005
BETWEEN:
1. SMT.AISHA GULSHAN,
C/O KIFAYATHULLA,
AGED 24 YEARS,
R/O ADAVIKONE,
SHIRUR, KUNDAPUR TQ.
UDUPI DISTRICT.
2 SRI SIDDIQ MUSTHAK,
S/O ABDUL RAHAMAN,
AGED 34 YEARS,
ADAVINAKONE, SHIRUR,
2
KUNDAPUR TALUK,
UDUPI DISTRICT. ... APPELLANTS
(BY SRI K.N.SUBBA REDDY, ADV.)
AND
STATE PUBLIC PROSECUTOR,
FOR STATE OF KARNATAKA,
BY STATE BY VIJAYANAGAR
POLICE STATION. ... RESPONDENT
(BY SRI G.M.SRINIVASA REDDY, HCGP)
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
374(2) CR.P.C. BY THE ADVOCATE FOR THE APPELLANTS
AGAINST THE JUDGEMENT DATED 21/22.10.2005 PASSED BY
THE ADDL. S.J., FAST TRACT COURT-X, BANGALORE CITY IN
S.C.NO.299/05 CONVICTING THE APPELLANTS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 363 OF IPC AND
SENTENCING THEM TO UNDERGO S.I. FOR 2 YEARS AND TO
PAY FINE OF RS.1,000/- EACH AND I.D. OF PAYMENT OF FINE
TO UNDERGO S.I. FOR 3 MONTHS.
THESE CRIMINAL APPEALS COMING FOR HEARING ON
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Criminal Appeal No.2160/05 is by accused No.1 and Criminal Appeal No.2190/05 is by accused Nos.2 and 3 in S.C.No.299/2005 before the Fast Track Court - X, Bangalore City. They were tried for the offences punishable under Sections 366, 372, 373, 506 r/w Section 34 of IPC. After full-pledged trial, the appellants were convicted for the offence punishable under Section 3 363, while they were acquitted for other charges. They were sentenced to undergo imprisonment for a period of 2 years and to pay a fine of Rs.1,000/- each and in default of payment of fine, to undergo simple imprisonment for 3 months. Aggrieved by the said conviction and order of sentence accused Nos.1 to 3 are in appeal before this Court.
2. I have heard the learned counsel appearing for the appellants and the learned Government Pleader appearing for the respondent-State.
3. In the facts and circumstances of the case, the points that arise for my consideration are: -
(a) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?"
(b) Whether the learned Sessions Judge is justified in convicting the appellants accused Nos.1 to 3 for the offence punishable under Section 363 of IPC?4
4. The case of the prosecution in brief, is as under;
PW-1 is a close relative of PW2 Kumari Asha. PW- 2 was staying with PW1 and his wife in Vijayanagar, Bangalore City. She was studying in 3rd standard in G.N.Vidya Mandir, Vijayanagar during the year 2000- 2001. On 19.9.2000 as usual in the morning she left the house to the school and did not return in the evening. PW 1 and his wife in the evening searched for PW2 but she could not be traced. Therefore on 20.09.2000, PW1 lodged a report as per Ex.P1 before the jurisdictional Vijayanagar Police Station regarding missing of PW2. Based on the report, police registered case and took steps to trace the whereabouts of the missing girl. During the investigation, handbills were issued showing the photographs of PW2 and also by furnishing details about her. Informations were also sent to the different police stations in the State. However, nothing was heard about PW2 till about 1st week of January, 2001. PW5 David, Police Sub 5 Inspector of Vijayanagar Police Station during the 1st week of January 2001 sent PW1 to the native place of PW2 to see whether the girl has gone there. However, it was revealed that she has not gone there. On 20.01.2001 PW1 received information about the missing girl having been shifted to some other place. On 3.2.2001 PW5 received information that the missing girl used to visit the Banashankari Stores and STD Booth run by Accused No.1 and Accused No.1 giving eatables to PW2. On suspicion PW5 interrogated accused No.1 who confessed having sold PW2 to accused No.2 for consideration. Thereafter, PW5 secured accused No.2, who on interrogation revealed that missing girl has been kept in the house of her brother accused No.3 in Shirur near Mangalore. Thereafter, PW5 alongwith PW1, accused No.2 and others went to Shirur and in the house of the accused No.3 traced missing girl and a mahazar was drawn as per Ex.P3. Thereafter missing girl along with accused Nos.2 and 3 was brought to Bangalore and PW5 based on his suo-moto report Ex.P4 6 registered the case in crime No.683/2000 and took up investigation.
5. During the investigation he recorded statement of PW2 and other witnesses. He also recorded voluntary statement of the accused. Pursuant to the voluntary statement of the accused No.1, uniform clothes and school bag belonging to PW2 were seized from the house of accused No.1 under Mahazar Ex.P8 and thereafter accused were subjected to the judicial custody. After completing investigation, charge sheet came to be laid against accused Nos.1 to 3. Upon committal of the case, accused Nos.1 to 3 pleaded not guilty of the charges levelled against them. Hence, the prosecution got examined P.Ws 1 to 11 and got marked Exs.P 1 to P12 and M.Os. 1 to 6. During their examination under Section 313 of Cr.P.C, the accused denied all the incriminating circumstances appearing against them in the evidence of prosecution witnesses. However, they did not chose to lead any defence evidence. The defence of accused was one of total 7 denial and that of false implication in the background of A1 filing a private complaint against PW5. As noticed supra, after hearing both sides and on assessment of oral and documentary evidence, the learned Sessions Judge by the judgment under appeal convicted the appellants for the offence punishable under Section 363 while acquitting them for other charges.
6. The learned counsel for the appellants vehemently contended that entire case of the prosecution is false and concocted and the prosecution has utterly failed to prove the alleged kidnap of PW2 from the lawful guardianship, therefore, the judgement of conviction recorded by the trial court is highly perverse and is liable to be set aside. The learned counsel after taking me through the evidence of the material witnesses, contended that the evidence of material witnesses is highly inconsistent and discrepant with regard to the alleged missing of girl from 19.09.2000. He contended that even according to the evidence of PW2 the victim girl, she had not gone to the 8 school 3 to 4 days prior to the date of the alleged incident and during that period she was in her friend's house and this fact has not been disclosed either in the complaint or in the evidence of PW1 before the court. Under these circumstances, the evidence of PW2 falsifies the story of the prosecution that on 19.5.2001 PW2 was kidnapped while she was going to the school. He further contended that even according to PW1 and PW2, on the date of the alleged incident, PW2 was accompanied by her grand father while going to the school and the grand father had left her inside the school, if that is accepted, there was no way for PW2 to come out from the school so as to be kidnapped by the accused No.1. He further contended that the prosecution has not placed not even an iota of evidence to show that PW2 stayed with the accused No.3 at Shirur for nearly 5 months and though few of the residents in the neighbourhood of A3 at Shirur had been cited as witnesses in the charge sheet, none of them have been examined, therefore, non examination 9 of any of the residents from Shirur is fatal to the case of prosecution. According to the learned counsel, non examination of grand father of PW1 is also fatal. He contended that the alleged recovery of uniform and school bag from accused No.1 under Mahazar Ex.P8 has not been proved in accordance with law since the independent witness to the mahazar Ex.P8 has not supported the case of the prosecution and PW1 has not deposed anything about the said recovery. He also contended that uniform clothes said to have been recovered from the house of the accused No.1 under Ex.P8 does not tally with the description of the uniform worn by the PW2 on the date of the alleged incident. Therefore, the recovery of school uniform under Ex.P8 does not advance the case of the prosecution. He contended that the admission on the part of PW5, the investigating officer that accused No.1 had filed a private complaint against him, is a strong circumstance to indicate that PW5 has implicated the accused falsely in the case only to avoid prosecution against him, 10 therefore, the whole case of the prosecution is a deliberate falsehood and these aspects are completely lost sight by the learned Sessions Judge. Therefore, the judgement suffers from infirmity as such it is liable to be set aside.
7. On the other hand, the learned Government Pleader sought to justify the judgment under appeal, contending that the learned Sessions Judge, on proper appreciation of oral and documentary evidence, has recorded the finding of guilt as against accused Nos.1 to 3 and since the findings recorded by the learned Sessions Judge are sound and reasonable regard being ad to the evidence on record, the judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court. He further contended that the evidence of PW2 who is the victim would clearly establish the offence of kidnap by accused No.1 and later handing over the victim girl to accused No.2 who in turn handed over her to accused No.3 and this part of evidence of PW2 is corroborated by other 11 witnesses who came to Shirur and rescued PW2 from the house of accused No.3 and thus prosecution has proved its case for the offence punishable under Section 363 of IPC. Therefore, he sought for dismissal of the appeal.
8. I have bestowed my anxious considerations to the submissions made on both sides. I have perused the records secured from the Trial Court.
9. There appears to be no serious dispute that at relevant point of time. PW2 was studying in Navajeevana Vidya Mandir Senior Primary School, Vijayanagar, Bangalore in 3rd standard. Ex.P1 is the report submitted by PW1 on 20.09.2000 about missing of PW2 from the house from 19.9.2000. Ex.P2 is publication issued by the Police Sub Inspector, Law and Order, Vijayanagar Police Station, Bangalore with photograph of PW2 and also providing other information regarding PW2. There also appears to be no serious dispute that during that period PW2 was staying with PW1 and his wife in their house which was situated in 12 Provident Fund Layout, Marenahalli Vijayanagar, Bangalore.
10. As noticed supra, though the appellants accused persons were charged for various offences, the trial court did not find satisfactory evidence with regard to the offence under Sections 372, 373, 368 of IPC and therefore they were acquitted of those charges. The State has not filed any appeal against that part of the judgement of acquittal. Therefore, the crucial question would be, whether prosecution has proved alleged kidnap of PW2. The evidence on record no doubt established that on the date of alleged incident PW2 was aged about 8 or 9 years and she was under the guardian ship of PW1. If the evidence placed on record establishes that on 19.9.2000, PW2 had been taken out of her guardianship by PW1, the Trial Court would be justified in answering the said point in the affirmative. For considering the correctness of the finding of the trial court I have carefully gone through the oral evidence of material witnesses.
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11. Before examination of PW2 the learned trial judge has put preliminary question to ascertain whether she was capable of understanding the questions and giving rational answers and on satisfaction, the witness was permitted to be examined. No doubt, in her examination in chief, PW2 to some extent has reiterated the case of the prosecution. According to her evidence accuse No.1 was running telephone booth near house of PW1 which was on the way to her school. She has further stated that accused No.1 used to call her and give chocolate, biscuits etc,. According to her, grand father Vacha Naik had accompanied her on that day to drop her at the school and at that time accused No.1 called her and gave chocolate. It was her further say that her grand father asked her as to who was she, for which she told him that she (accused No.1) always gives her chocolates. She has further stated that her grand father left her at the school and then she went to the STD booth of the accused No.1. It is her further say that accused No.1 threw away the food brought by her 14 from the house gave her different food and put on her different clothes by removing the school uniforms and the uniform clothes as well as school bag were kept in the STD shop. She has further stated that accused No.1 sent her to the house of accused No.2 from where she was taken to a hair cutting saloon, her hair was cut, thereafter accused No.2 took her to a village and left her in the house of accused No.3 where she stayed for about 5 months. According to her, at that place she was sent to a Urdu medium school by changing her name as "Shamina". According to her, after several months police came there along with PW1 and accused No.2, brought her back to Bangalore. In the cross examination it is elicited from her that once the student entered the school they will not be allowed to go out of the school and to take a student out of school, only the parents/guardian have to request the school authorities. She has further admitted that she was at the house of another person 3 to 4 days prior to the incident and the person in whose house she was staying 15 for 3 to 4 days was not known to the accused in this case. She has further stated in the cross- examination that, on that day grand father left her at the school i.e., inside the school. It is further elicited from her that the colour dress worn by her was belonging to her. In the re-examination, since the learned public prosecutor wanted to get some clarification with regard to her stay for about 3 to 4 days earlier to the incident, the Court permitted the prosecution to put further questions. During such examination she has stated that she had gone to the house of a friend prior to the incident and by that time, she was not knowing accused No.1 and since she had gone to her friend's house she did not attend the school for 3 to 4 days. Thus, admittedly, PW2 had not attended the school 3 to 4 days prior to the date of the alleged incident. The attendance register extract produced and marked as Ex.P10 would support this fact. Ex.P10 clearly shows that from 15th September PW2 remained absent. PW2 has categorically admitted that by that time she was not 16 knowing the accused No.1. If this were to be true, there was no occasion for PW2 to go to the shop of A1 and A1 offering Chocolates, Biscuits etc. The fact of PW2 staying in her friend's house for 3 to 4 days prior to the alleged date of incident has not been spoken to by PW1 either in the missing report Ex. P1 or in his evidence before the Court. The grand father of PW2 who said to have accompanied PW2 to school on that day has neither been cited as a witness in the charge sheet nor has been examined before the Court. He is a material witness to show that PW2 was dropped at the school on that day. The non-examination of grand father of PW2 assumes greater importance in the light of the evidence of PW2 that on that day while going to the school accused No.1 called her and so she went to shop of accused No.1. This indicate that grand father of PW2 had knowledge about PW2 going to the shop of the accused No.1 and accepting chocolates, biscuits etc given by accused No.1. Examination of grand father of PW2 would have established the acquaintance between 17 the accused No.1 and PW2. However, for the reasons best known to the prosecution, grand father of the PW2 has not been examined. The perusal of the entire evidence of PW2 indicate that the witness has not come out with the full truth. Though she states in examination-in-chief that accused No.1 gave her colour dress after removing uniform, in the cross-examination she has admitted that colour dress worn by her belong to her. This raises greater suspicion regarding the alleged kidnap. In this context the alleged recovery of the school uniform from the house of accused No.1 assumes much importance. According to PW5, the uniform and school bag was recovered from the house of Accused No.1 under mahazar Ex.P8. However, witness examined to prove Ex.P8 namely PW10 has not supported the case of the prosecution. Therefore, the evidence of PW10 is of no help to the prosecution to prove Ex.P8. However it is necessary to note that the uniform said to have been seized under Ex.P8 is Blue colour shirt and skirt, whereas as admitted by PW1, 18 PW2 and PW6 - the head master of the school, the uniform prescribed in the school was white shirt and blue skirt. Even in the report Ex.P1, the cloth worn by the missing girl had been shown as white and blue. If on the date of the alleged incident, PW2 had worn white shirt and blue skirt uniform and if that uniform had been changed in the shop of accused No.1 by providing her a colour dress, it is not forthcoming as to how white shirt became blue shirt. Therefore, the recovery of blue uniform shirt under Ex.P8 cannot be connected to the uniform worn by PW2. It is pertinent to note that though according to the case of the prosecution, for about 5 months PW2 was in the house of the accused No.3 in Shirur near Mangalore and was attending Urdu medium school, no evidence to substantiate the same is produced. The persons residing in the neighbourhood of accused No.3 at Shirur would have been the best persons to speak about presence of PW2 in the house of Accused No.3 for 5 months. It is not as if PW2 had been made to remain inside the house of accused No.3 19 throughout this period of about 5 months. On the other hand, even according to the PW2, she was going to Urdu medium school and her name also had been changed. However, the investigation officer, for the reasons best known to him, has not collected any evidence in this regard. No persons from the neighbourhood of the accused No.3 was examined before the Court. The prosecution has also not placed any evidence to establish that accused No.3 owned any house nor had taken any house on rent in Shirur near Mangalore. Of course, the evidence of PW1, PW5 and police constable examined as PW9 would indicate that they went to the house of accused No.3 along with accused No.2 and from the house of accused No.3 they rescued PW2. However, in the absence of any acceptable evidence to show that PW2 was in the house of accused No.3 in Shirur for about 5 months, this part of the evidence of the PW1, 5 and 9 itself cannot be a ground to come to the conclusion that PW2 had been kidnapped. 20
12. Perusal of the judgement under appeal indicate that the learned Sessions Judge has jumped to the conclusion that there was kidnap of PW2 even after holding that the case of the prosecution that accused No.1 sold to PW2 to accused No.2, for a consideration of Rs.30,000/- is not proved.
13. Having regard to the facts and circumstances of the case and evidence on record, I am of the considered opinion that the evidence placed by the prosecution with regard to the alleged kidnap is not consistent and cogent. It suffers from inherent infirmity and it does not inspire the evidence of the Court. It is highly unsafe to place reliance on the evidence of PW2 with regard to alleged kidnap. Therefore, in my opinion, the learned Sessions Judge is not justified in convicting the appellants/accused for the offence punishable under Section 363 of IPC. The judgement under appeal therefore suffers from perversity, illegality as such it cannot be sustained. Accordingly, the appeals are allowed. The judgement of conviction and order of 21 sentence dated 21.10.2005 passed by the FTC-X, Bangalore City, in S.C.No.299/2005 convicting the appellants for the offence punishable under Section 363 of IPC is hereby set-aside. The appellants are acquitted of the said charge also. The bail bond and surety bond executed by the appellants stand discharged. The fine amount, if any, deposited by the appellants are ordered to be refunded to them.
SD/-
JUDGE KLY/