Karnataka High Court
Sri Jayarama vs The State Of Karnataka on 13 July, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.459 OF 2018
BETWEEN:
Sri. Jayarama
S/o. Nanjegowda @ Nanjappa,
Aged about 60 years,
R/at, Chattanahalli village,
Santhebachalli Hobli,
K.R. Pete taluk
Mandya district - 571234.
..Petitioner
(By Sri. Pratheep K.C., Advocate)
AND:
The State of Karnataka
Rep. by Shravanabelagola Police
Station, Hassan District,
Rep. by its
State Public Prosecutor
High Court of karnataka
Bengalore - 01.
.. Respondent
(By Sri. K. Nageshwarappa, High Court Govt. Pleader)
****
Crl.R.P.No.459/2018
2
This Criminal Revision Petition is filed under Section 397 read
with 401 of the Code of Criminal Procedure, 1973, with the
following prayer:
" Wherefore, it is prayed that, this Hon'ble court may be
pleased to call for the records in C.C.No.187/2011 on the file of
Senior Civil Judge and JMFC at Channarayapatna, peruse the
same, allow the revision petition and set aside the judgments
dated 10-11-2017 passed by the IV Additional District and Session
Judge at Hassan in Crl.A. No.123/2017 and in C.C.No.187/2011
dated 17-06-2017 passed by Senior Civil Judge and JMFC at
Channarayapatna and acquit the petitioner for the offence
punishable under Sections 369 of the IPC in the interest of justice
and equity.
This Criminal Revision Petition having been heard through
physical hearing/video conferencing hearing and reserved on
06-07-2022, coming on for pronouncement of Orders this day, the
Court made the following:
ORDER
The present petitioner was accused in Criminal Case No.187/2011, in the Court of the Senior Civil Judge and J.M.F.C., Channarayapatna, (hereinafter for brevity referred to as "the Trial Court"), who, by the judgment of conviction and order on sentence dated 17-06-2017 of the Trial Court, was convicted for the offence punishable under Section 369 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and was sentenced accordingly.
Crl.R.P.No.459/20183
Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.123/2017, in the Court of the 4th Additional District and Sessions Judge, Hassan District (Sit at Channarayapatna) (hereinafter for brevity referred to as the "the Sessions Judge's Court"), which, after hearing both side, dismissed the appeal, by confirming the judgment of conviction and order on sentence passed by the Trial Court. It is challenging the judgments passed by both the Trial Court as well the Sessions Judge's Court, the accused/petitioner herein has preferred the present revision petition.
2. The summary of the case of the prosecution in the Trial Court was that, on the date 30-10-2009, at about 6:00 p.m., near the shop of PW-4 - Satisha at Hosahalli, within the limits of the complainant Police Station, the accused kidnapped a child by name Harshita, who is the daughter of PW-3 - Pratibha, with an intention to take away the silver leg Crl.R.P.No.459/2018 4 chain which she was wearing and thus has committed an offence punishable under Section 369 of the IPC.
3. The accused appeared in the Trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the alleged guilt against the accused, the prosecution got examined in all thirteen (13) witnesses from PW-1 to PW-13, got marked documents from Exs.P-1 to P-7(a) and produced one Material Object as MO-1. However, neither any witness was examined nor any documents were got marked on behalf of the accused.
4. The respondent - State is being represented by the learned High Court Government Pleader.
5. The Trial Court and the learned Sessions Judge's Court's records were called for and the same are placed before this Court.
Crl.R.P.No.459/20185
6. Learned counsel for the accused/revision petitioner and learned High Court Government Pleader for the respondent - State are physically appearing in the Court.
7. Heard the learned counsels from both side. Perused the materials placed before this Court including the impugned judgments passed by both the Courts and also the Trial Court and learned Sessions Judge's Court's records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
9. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:
Whether the impugned judgments of conviction and order on sentence passed by the Trial Court as well the Sessions Judge's Court, holding that the accused (petitioner herein) has committed the alleged offence punishable under Section 369 of the Indian Crl.R.P.No.459/2018 6 Penal Code, 1860, warrants any interference at the hands of this Court?
10. It was the argument of the learned counsel for the petitioner (accused) that there is no satisfactory evidence to establish that the alleged kidnapped girl was below the age of ten years, as such, one of the essential ingredients of Section 369 of the IPC is not fulfilled, thus, the said offence is not made out against the accused /petitioner herein. It was his other point of argument that, the alleged recovery of the alleged silver leg chain from the possession of the accused has also not been proved. However, the Trial Court, without noticing the shortcomings in the evidence led by the prosecution, has erroneously held the accused guilty of the alleged offence.
11. Learned High Court Government Pleader, in his argument, with more emphasis, repeatedly submitted that, the evidence of PW-4 and PW-5 proved the alleged offence of kidnapping the girl Harshita by the accused. He further Crl.R.P.No.459/2018 7 submitted that the recovery of silver leg chain at MO-1 has been established by the evidence of PW-6 and PW-13. He also submitted that, PW-1 and PW-3 have said that the kidnapped girl was going to Baby sitting School, as such, she was aged below four years.
Finally stating that the accused has not stated as to how the leg chain at MO-1 came into his possession, as such, an adverse inference has to be drawn in the matter against the accused, the learned High Court Government Pleader relied upon a judgment of the Hon'ble Apex Court in the case of Prahlad Vs. State of Rajasthan reported in (2019) 14 Supreme Court Cases 438. With this, he submitted that the impugned judgments passed by both the Courts below do not warrant any interference at the hands of this Court.
12. Among the thirteen (13) witnesses examined by the prosecution, PW-1, PW-2 and PW-3 are the material witnesses, who spoke about the accident.
Crl.R.P.No.459/20188
13. PW-1(CW1) - Sri. Pradeep is the complainant/ informant in this case, who has stated that, Baby Harshita is his neice, i.e. the daughter of his sister Pratibha and was studying in Baby Sitting in Good Citizens School at Hadenahalli. Everyday, he used to pickup Harshita from her house and drop her to the School vehicle near the shop of Satisha. Further, every evening, he used to pick up the girl Harshita from near the shop of Satisha and drop her back on his motor cycle to her house. On the date 30-10-2009, there was some delay in he coming to the shop of Satisha for picking up the said girl. At 5:30 p.m., on the said date, his sister Pratibha telephoned him, stating that her daughter Baby Harshita had not come home. He went near the shop of Satisha and by enquiry with Satisha came to know that some unidentified person has secured a chocolate to said girl Harshita and took her towards Hosahalli Road. He stated that when he proceeded in Hosahalli Road for about 6 to 7 kms. and enquired a person there near Korakalu Matha, he was Crl.R.P.No.459/2018 9 informed that an unidentified person had brought the child in an auto rickshaw driven by CW-2 and when he has been taking out the ornaments from the person of Harshita, at that time, he has been caught and detained. The witness stated that he saw that both the accused and Harshita were there. He enquired the accused and came to know that he was a person by name Jayarama, a resident of K.R. Pete. The witness has stated that, in that connection, he has lodged a complaint with the Police as per Ex.P-1. He has identified the leg chain of Harshita at MO-1. He was subjected to a detailed cross- examination, wherein he adhered to his original version.
14. PW-2 (CW-2) - Manju has stated that, being an autorickshaw driver, earlier, when he was driving his autorickshaw in the route between Hirisave and Shravanabelagola, on the date 30-10-2009, between the time 5:30 p.m. to 6:00 p.m. near a Peepal tree at Shravanabelagola, where a shop is located, the accused drove Crl.R.P.No.459/2018 10 his autorickshaw along with the child stating that, he wanted to go to Hosahalli. However, the passenger did not get down at Hosahalli place, but stated that he intended to go to Sundalli, where also he did not alight but told that he would alight at Juttanahalli. Before they could reach Juttanahalli, the accused got down near Korakalu Matha and took that girl towards a lonely place and on enquiry by this witness about the child, the accused had stated that she was his grand daughter. The witness further stated that since there was one more passenger in the autorickshaw, who was supposed to go about 100 meters away from there, he dropped her there and being suspicious about the other passenger (accused) who got down with the child, he asked CW-3 - Suresha to join him who was there in Juttanahalli Auto Stand and both of them came back near Korakalu Matha. There, they saw that accused had removed the leg chain worn by the child. The witness stated that, after taking the accused and the child to a nearby house and noticing the identity card which was with the child, he Crl.R.P.No.459/2018 11 informed the Police. The Police came to the spot and took the accused into their custody. The witness stated, thereafter the Police drew the spot panchanama as per Ex.P-2, to which, he has put his signature. Nothing could be elicited in favour of the accused in his cross-examination, on the other hand, he has stated that, since he now and then used to take the said child in his autorickshaw, he knew the said child. He has further stated that, when he saw the leg chain worn by baby Harshita, it was in the pocket of the accused.
15. PW-3 (CW-4) - Pratibha, who is the mother of the alleged kidnapped child Harshita has stated that, her daughter Harshita was studying in baby sitting in Good Citizens School at Hadenahalli. She further stated that, PW-1 is her elder brother who used to take her daughter Harshita from her house and get her boarded to the School vehicle near the shop of Satisha and in the evening, he used to pick her up and drop her back to her home. On the date Crl.R.P.No.459/2018 12 30-10-2009, since Baby Harshita did not come even at 5:30 p.m., though regularly she used to be back before 5:00 p.m., she telephoned to her brother (PW-1) who, after confirming that Baby Harshita had not returned to her home, went near the shop of Satisha and enquiring him, proceeded to Korakalu Matha, where he found the accused and their child Harshita. She also stated that when she saw her child Harshita, the leg chain worn by her was not in her legs. In her cross- examination, she admitted a suggestion as true that she is only a hear-say witness and that she has seen her child on the said date, only after she was brought back to the home by her brother, as such, she has not seen the incident as an eye witness.
16. The next set of witnesses are PW-4(CW-5) - Satisha and PW-5 (CW-6) - Gireesha. Both these witnesses have stated that the Police had drawn a panchanama near the shop of Satisha as per Ex.P-3, which was the place of kidnap of Crl.R.P.No.459/2018 13 the child. Thus, the evidence of PW-1 to PW-3 alone speaks about the alleged kidnapping of the girl Harshita and the alleged role of the accused in the said incident. Whereas, the evidence of PW-4 and PW-5 only speaks about the Police drawing a scene of offence panchanama at the alleged place of kidnap of the child Harshita as per Ex.P-3.
17. However, the learned High Court Government Pleader for the respondent - State, in his argument repeatedly submitted that, the evidence of PW-4 and PW-5 proves the alleged offence of kidnapping by the accused, despite the Court repeatedly bringing to his notice that, they are the panchas for the alleged scene of offence panchanama, who have not even whispered anything about the alleged act of alleged kidnapping of Kum. Harshita. Still, the learned High Court Government Pleader insisted that, his submission that their evidence i.e. of PW-4 and PW-5 proves the offence of Crl.R.P.No.459/2018 14 kidnapping against the accused be taken on record. Accordingly, his specific submission is taken on record.
18. In the cross examination of PW-1 to PW-3, it is not denied that Baby Harshita was the daughter of PW-3 - Pratibha and that PW-1 - Pradeep is the elder brother of PW-3. It is also not denied that every day, PW-1 used to drop the said girl Harshita to board her School vehicle near the shop of Satisha and in the evening pick her up back and drop her to her home. The evidence of PW-1 and PW-3 that, on the date 30-10-2009, PW-1 had dropped the child Harsihita to School vehicle in the morning near the Shop of Satisha and that she was found missing in the evening as she did not return home upto 5:30 p.m., is also not denied.
19. PW-3 has stated that, seeing that her daughter had not come home even at 5:30 p.m., she telephoned to her brother (PW-1) and enquired with him. It is thereafter the said PW-1 proceeded to the shop of Satisha and enquiring Crl.R.P.No.459/2018 15 there and getting the information from the people, went to the Korakalu Matha, a lonely place at a distance of about 6 kms. to 7 kms. from the place of the shop of Satisha (PW-4) and on enquiry with the local people there, he came to know that the accused had brought the said child Harshita to the said place and had removed the leg chain worn by her and was beginning to remove her ear rings, however, was caught by the people there and was detained.
20. Though an attempt was made in the cross-
examination of PW-1, to weaken his statement made in his examination-in-chief in that regard, however, the witness adhered to his original version. On the other hand, he has given more information about the details collected by him before proceeding to the place called Korakalu Matha and he approaching the said place where Harshita and accused were said to have been detained by some people there. An attempt was made in his cross-examination by making a suggestion to Crl.R.P.No.459/2018 16 the witness that, the said witness and accused had enmity, as such, PW-1 was giving false evidence, however, the said suggestion was not admitted as true by the witness.
21. The other witness who has strongly supported the case of the prosecution and who is the star witness in the case of the prosecution case is, PW-2 - Manju, an autorickshaw driver. As analysed above, he has stated that, the accused along with the child Harshita had travelled in his Autorickshaw and extending the place of their alightment, the accused ultimately got down near Korakalu Matha, as such, by the conduct of the accused and also noticing that the child with whom he was travelling had also occasionally travelled in his autorickshaw, PW-2 got suspicious about the behaviour of the accused and after dropping a co-passenger at a distance of about 100 metres away at a place called Juttanahalli, he, accompanied by another auto driver by name Suresha came near Korakalu Matha, only to see that the accused had already Crl.R.P.No.459/2018 17 removed the leg chain worn by the child Harshita and was in the said place.
This witness, in his cross-examination, has given more details as to how he got suspicious about the conduct of the accused and made it clear that the child Harshita was known to him since she had travelled in his autorickshaw earlier. He has also stated that, he made enquiry with the accused about his alleged relationship with the child and was told that the said child was his grand daughter, however, he did not believe the said statement of the accused. He has shown the reason of his returning back to the said place, stating that since he got suspicious about the conduct of the accused, he had to come back only to see that the said accused had brought the child only to take away the leg chain worn by her, which according to this witness, was found in the pocket of the accused. Thus, even though the evidence of PW-3 is a hear- say about the alleged incident, but the evidence of PW-1 and PW-2 clearly establishes that the child Harshita was found in Crl.R.P.No.459/2018 18 the custody of the accused, in the evening of the date 30-10-2009.
Undisputedly, the accused, was, in no way, related to the said child. The evidence of PW-1 and PW-3 that, every day, PW-1 was dropping the child Harshita to the School vehicle near the shop of Satisha and was picking her up back from the same place in the evening, as such, on the date 30-10-2009 also, he had dropped the girl in the morning to the School vehicle near the shop of Satisha, has remained un- denied. Therefore, it is proved beyond doubt that, on the said date, even though PW-1 was expected to pick the child Harshita back from near the shop of Satisha while she was alighting in School vehicle, however, on the said day, there was some delay in he going there near the shop of Satisha and in the meantime, the accused had taken that girl by getting her a chocolate from the shop of PW-2 - Satisha and taken her in the autorickshaw of PW-2 to a lonely place called Korakalu Matha, which was at a distance of about 6 kms. to Crl.R.P.No.459/2018 19 7 kms. away from the shop of Satisha. Therefore, the accused taking the child Harshita with him without the knowledge or consent of her parents and lawful guardians, stands established.
22. The main point of argument of the learned counsel for the petitioner (accused) was that, the age of the girl Harshita has not been proved to be below ten years, as such, the offence under Section 369 of the IPC has not been proved.
Section 369 of the IPC, as one of its ingredients, makes it essential that, the age of the alleged kidnapped child must be under the age of ten years. Admittedly, in the case on hand, none of the witnesses examined by the prosecution have spoken about the specific age of the kidnapped girl Harshita, as on the date of the incident. Though the Investigating Officer could have secured her School Certificate or Date of Birth Certificate, however, he has not produced the same before the Court. It is taking advantage of the same, Crl.R.P.No.459/2018 20 the learned counsel for the petitioner vehemently submitted that proof of the age of the kidnapped girl Harshita has not been established by the prosecution.
23. PW-1, PW-2, PW-3 and PW-4 have stated that, the kidnapped girl Harshita was a child. No doubt, none of them have stated the exact age of the child, but PW-1, who is the maternal uncle of the said child and PW-3 - the mother of the child have specifically and categorically stated that the child Harshita was studying in Baby sitting in Good Citizens School at Hadenahalli. Though neither the date of Birth Certificate nor the School Certificate regarding the age of the girl has been produced, the un-denied statements of PW-1 and PW-3 that baby Harshita was studying in Baby sitting, would itself go to show that, she was aged below ten years as on the date of the incident. Since the regional age limit to study in baby sitting which is an early Schooling prior to Lower Kinder Garden (LKG) and Upper Kinder Garden (UKG) would be below Crl.R.P.No.459/2018 21 the age of four years, thus, it is established that, as on the date of incident, the kidnapped girl Harshita was aged below ten years, as such, one of the essential ingredients of Section 369 of the IPC is made out.
24. The finding that, the prosecution has established that it was the accused who kidnapped the child Harshita, is further corroborated by the evidence of PW-10 and to some extent by the evidence of PW-11.
25. PW-10 (CW-14) - Krishnegowda, the then Police Constable of the complainant Police Station has stated in his evidence that, as per the information received by his Station, on the date 30-10-2009 that, the localites had detained the accused near Korakalu Matha Road, himself and the Head Constable (HC-184) accompanied their Police Sub-Inspector and all of them went to the said place and enquired the person who was detained there. The detenue stated his name as Jayarama S/o. Nanjappa. He was taken into custody by the Crl.R.P.No.459/2018 22 Police Sub- Inspector and was returned to the Police Station. The identification of the accused was not objected in his evidence.
26. PW-11 (CW-3) - Suresha, though was shown to be an eye witness and the person accompanying PW-2, however, he stated that, on the date of incident, when he was driving his autorickshaw from Belagola to Hirisave, having seen a gathering, he stopped there and saw that the Police were enquiring the accused. With respect to the accused taking away the leg chain and ear rings of a child, he stated that, he has not seen the incident happening. He was treated as hostile and the prosecution was permitted to cross-examine him. Though in his cross-examination, he has not admitted suggestions made to him by the prosecution, however, he admitted one suggestion as true that, when the accused revealed his identity in the enquiry in the spot the maternal uncle of the child took up the child with him, stating that he Crl.R.P.No.459/2018 23 would lodge a complaint in the Police Station. The said statement has not been specifically denied in the cross- examination by the witness. Therefore, at the spot of the alleged offence of taking away the leg chain of the child near Korakalu Matha, the accused, keeping the custody of the child with him and the general public including PW-2 detaining the accused etc. would further corroborate the evidence of PW-1, and PW-2, as analysed above, as such, the said fact stands proved.
27. It was also the argument of the learned counsel for the petitioner that the alleged recovery of the chain from the possession of the accused at MO-1 has not been established by the prosecution. In that connection, the prosecution has examined PW-6 and PW-8 as the panchanama witnesses for the panchanama at Ex.P-4, which panchanama is said to have been drawn at the time of seizure of the silver leg chain at MO-1. The said witnesses did not support the case of the Crl.R.P.No.459/2018 24 prosecution. Though they admitted that they had put their signatures and identified them at Ex.P-4(a) and P-4(b), however, both of them have stated that, they have put their signatures at different places than the one mentioned in the panchanama. Even after treating them hostile, the prosecution could not get any support from them.
28. Though PW-6 and PW-8, the panchas for the alleged seizure panchanama have not supported the case of the prosecution regarding recovery, still, the evidence of other material witnesses, more particularly of PW-2 supports the case of the prosecution.
As analysed above, the witness (PW-2) has specifically stated that, when he saw the kidnapped child in the custody of the accused, near Korakalu Matha Road, the accused had removed the leg chain worn by the child. The witness has identified the said chain at MO-1. He reiterated the same even in his cross-examination and categorically stated that Crl.R.P.No.459/2018 25 when he saw the accused, the leg chain of the child which he had removed from the possession of the child was in his pocket. The said statement that the chain at MO-1 was in the pocket of the accused was not denied in his further cross- examination. The said evidence of PW-2 was put to the accused while recording his statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."). Except stating that the said statement is not true, the accused has not given any explanation as to how come the said chain came to be in his possession. Similarly, the evidence of PW-13 (CW-15) - Investigating Officer that, the said chain at MO-1 was seized from the possession of the accused by drawing a seizure panchanama as per Ex.P-4, though was denied by the accused, but, no where the accused has given any reason or explanation in his statement under Section 313 of the Cr.P.C., as to how come the said chain came to be in his possession. Crl.R.P.No.459/2018 26
It is on this point, the learned High Court Government Pleader for the respondent relied upon the decision of the Hon'ble Apex Court in Prahlad's case (supra), wherein the Hon'ble Apex Court, in the case before it, which was for the offences punishable under Sections 376 and 302 of the IPC, in paragraph 11, was pleased to observe as below:
"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
Thus, when the accused is required to speak about certain incriminating statements made against him, if he keeps quiet or maintains silence, it leads to an adverse inference against him. Thus, in the instant case also, the evidence of PW-2 and PW-13 that the leg chain was with the Crl.R.P.No.459/2018 27 accused and that it was seized from his possession, though denied, but having not been appropriately reasoned by the accused under Section 313 Cr.p.c., an adverse inference can be drawn against him. Further, no where the accused has given any reason as to how come he took the custody of the child and took her from near the shop of Satisha upto Korakalu Matha road. These aspects clearly go to prove that the accused, apart from kidnapping the girl Harshita, had also intention to take away the valuables which she was wearing and in that regard, he was successful in taking the silver leg chain which she was wearing. Thus, the prosecution was successful in proving the alleged guilt against the accused.
29. Since it is after proper appreciation of the evidence placed before them in their proper perspective, both the Trial Court as well the Sessions Judge's Court have convicted the accused and confirmed the conviction respectively for the offence punishable under Section 369 of the IPC and have Crl.R.P.No.459/2018 28 sentenced him proportionate to the gravity of the proven guilt against him, I do not find any reason to interfere in them.
Accordingly, I proceed to pass the following:
ORDER [i] The Criminal Revision Petition stands dismissed.
[ii] The petitioner/accused to surrender before the Court of the Senior Civil Judge and J.M.F.C., Channarayapatna, within forty-five (45) days from today and to serve the sentence.
Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge's Court along with their respective records immediately.
Sd/-
JUDGE BMV*