Karnataka High Court
Sri. Mehapal vs The State Of Karnataka By on 20 November, 2018
Equivalent citations: 2019 (1) AKR 325, (2019) 3 KCCR 2026
Bench: K.N.Phaneendra, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRL.A. NO. 1288/2015 (C)
BETWEEN
SRI. MEHAPAL
AGED ABOUT 35 YEARS
S/O VIJAYRAM NARAVAJARIY
R/AT HIRAPURA GRAMA
WITHIN THE LIMITS OF GOORMI
POLICE STATION, BIND DISTRICT
MADHYAPRADESH STATE - 803 107
... APPELLANT
(BY SRI. B. V. PINTO, ADVOCATE)
AND
THE STATE OF KARNATAKA BY
BASAVESHWARNAGAR POLICE
STATION, REP. BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 028 ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
OF CONVICTION DATED 06.08.2015 AND ORDER OF
SENTENCE DATED 12.08.2015 PASSED BY THE LXII
ADDL. CITY CIVIL AND S.J., BENGALURU IN
S.C.NO.680/2012 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNSHABLE
UNDER SECTIONS 364-A, 346, 323, 506 R/W 34 OF IPC.
2
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, K.N.PHANEENDRA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant (Accused No.1 in the charge sheet) herein has challenged the judgment of conviction DATED 06.08.2015 and order of sentence dated 12.08.2015 passed against him by the 62nd Additional City Civil and Sessions Judge (CCH-63), Bengaluru, in SC No.680/2012 convicting the accused for the offences punishable under section 364-A 346 323 and 506 IPC and sentencing him to undergo imprisonment for life for the offence punishable under section 364-A of IPC and rigorous imprisonment for six months for the offence punishable under Section 346 r/w. 34 of IPC, and simple imprisonment for three months for the offence punishable under Section 323 r/w. 34 of IPC, and also simple imprisonment for one month for the offence punishable under section 506 r/w. 34 of IPC.
2. We have heard the learned counsel for the appellant and also the learned SPP for the respondent- State.
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3. We have carefully perused the judgment of the trial Court and also the oral and documentary evidence produced for consideration of the court.
4. Before adverting to the grounds urged by the learned counsel for the appellant/accused, it is just and necessary to have the brief factual matrix of the case.
5. A person by name Ramdas (not examined before the court) lodged a report before Basaveshwaranagar Police Station vide Ex.P2 stating that, his brother-in-law by name Lakkappa @ Ashok Kumar (PW.8), was abducted by some unknown person and he was taken to some unknown places and he received an information from his brother-in-law (PW.8) on 08.02.2010 at about 7.00 am. from the Mobile Phone of PW.8 in No.988007556 to his mobile number; that the said persons, who have abducted or taken away PW.8- Lakkappa @ Ashok Kumar, were demanding a sum of Rs.5.00 Lakhs for his release etc.; On the basis of the said information, the respondent-Police have registered a case in Crime No.57/2010 for the offence punishable 4 under section 364-A of IPC and started investigation in the matter.
6. During the course of investigation, the Police found that, Accused No.2 in the charge sheet by name Santhosh @ Vinod was the person who deceitfully persuaded PW.8, who is an Astrologer, to go over to Madhya Pradesh in order to help-out the friend of Accused No.2 by name Rajesh and requested PW.8 to advise Rajesh regarding Vastu, as his industry was not running smoothly. The accused No.2 after persuading PW.8 to that effect taken him to Madhya Pradesh particularly to Gwaliar at Madhya Pradesh and then to the place called Megaon and there, Accused Nos.1, 3 & 4 have joined their hands with Accused No.2 and demanded ransom from PW.8 and in that regard, they threatened PW.2 with dire consequences of killing him and also assaulted him and thereby they all demanded of Rs.50.00 Lakhs from PW.8 and in turn PW.8 telephoned to his brother-in-law Ramdas in order to fetch that money. It is also the case of the prosecution that, the accused persons have decided to reduce the amount from 50.00 Lakhs to Rs.30.00 Lakhs initially and 5 thereafter to Rs.20.00 Lakhs and then to Rs.10.00 Lakhs and finally to Rs.5.00 Lakhs.
7. On receiving such information, the Police traced the places where actually Accused No.2 stayed, on the basis of telephonic conversion and with reference to connecting towers of the telephone numbers it was detected that Accused No.2 had been to Bhind District in Madhya Pradesh and in fact on 14.02.2010 they found PW.8 along with Accused No.1 and others and they rescued PW.8 from Accused Nos. 1 to 4 and brought him back to Bengaluru.
8. On the basis of the above said materials and factual aspects, the Police after thorough investigation, submitted the charge sheet against Accused Nos. 1 to 4. But, Accused Nos. 2 to 4 were found absconding and the charge sheet has been laid against Accused No.1 showing Accused Nos. 2 to 4 as absconding.
9. Accused No.1 was arrested on 14.02.2010 and brought him to Bengaluru and subjected him to investigation in connection with this case. The trial Court 6 after securing the presence of the accused, framed charges against him for the above said offences.
10. The prosecution in order to bring home the guilt of the accused, examined as many as 11 witnesses viz., PW.s 1 to 11 and got marked Exs.P1 to P10 and no Material Objects were produced before the trial Court. The accused did not choose to lead any evidence on his side, though he was given an opportunity after examination under Section 313 of Cr.P.C. As such, the trial Court after hearing both sides, appreciated the evidence on record and convicted and sentenced the accused/ appellant accordingly, as noted above.
11. Sri. B.V. Pinto, learned counsel for the appellant/accused, has seriously contended before the court that, except the evidence of PW.8 and the Investigating Officer, no other materials are available to actually show that Accused No.2 has abducted PW.8 and Accused Nos. 1, 3 & 4 have threatened him with dire consequences of killing him and Accused No.1 made demand for ransom either with PW.8 or with anybody, particularly Ramdas, so as to attract Section 364-A of 7 IPC. He also contends before the court that, the Investigating Officer has not taken any pains either to secure the original mahazars, under which the victim was recovered or to show that any material objects were seized or recovered at the instance of any of the accused persons, or he examined any of the witnesses from Madhya Pradesh, who were present at the time of drawing up of mahazars. Therefore, only oral evidence of PW.8 and the Investigating Officer is available to the court and that itself do not create any confidence in the mind of the court so as to draw an inference that the prosecution has proved the case beyond all reasonable doubt. Therefore, the learned counsel submits that, the accused/appellant is entitled for acquittal.
12. Per contra, the learned Additional SPP has strenuously contended before the court that, the conduct of PW.8 and Accused No.1 has to be looked into by the court. Admittedly Accused No.2 is the person who was very well known to PW.8 (victim) and on deceptive persuasion, PW.2 went along with Accused No.2. But Accused No.1 and others who were the associates of Accused No.2 kept PW.8 along with them and they have 8 threatened him with dire consequences of killing him and caused grievous hurt to him. There is no reason for all these persons to do such acts against PW.8 who is totally an unknown and stranger to them. Vice-versa, Accused Nos. 1 to 4 are totally strangers to PW.8 and there is no reason for him to falsely implicate the accused in the crime. Therefore, though there are serious lapses on the part of the Investigating Officer, nevertheless, the evidence of PW.8 is trust worthy for acceptance and therefore, the learned SPP contended that, the prosecution has proved the case beyond reasonable doubt and therefore, there is no room for interfering with the judgment of conviction rendered by the trial Court.
13. After going through the entire materials on record, the points that would arise for consideration by this court are,-
i) Whether the prosecution has proved the offences alleged against the accused under Sections 364-A, 346, 323 and 506 of IPC beyond all reasonable doubt or whether it proved any other offence being committed by the appellant/accused?9
ii) Whether the sentence passed by the trial Court is proper and appropriate?
14. In order to answer the above said points, it is just and necessary for us to go through the materials on record. -
14.1 PW.1-Ravikumar is a formal witness to Mahazar-Ex.P1 which was drawn near the shop of PW.8. PW.3-Lokesh is the another witness, who also speaks with regard to receiving of some information from the wife of PW.8 implicating only Accused No.2 with regard to the demand and taking away PW.8 to Madhya Pradesh. PW.4 -Karthik also similarly says and implicates Accused No.2 as per the information received by him from the wife of PW.8 that Accused No.2 demanded a sum of Rs.50.00 Lakhs etc. PW.5- was also a relative of PW.8 and he also similarly speaks, whatever PWs.2, 3 & 4 have spoken.
14.2. PW.6-Mallesh is also a person, who knows about PW.8 since long and he also came to know about the abduction of PW.8 through CW.1-Ramdas and there was a demand for ransom for his release or otherwise 10 PW.8 would be killed. But there is no full information alleged to have been received by this witness (PW.6).
14.3 PW.7-Nagaraj is also another witness and he is a close relative of PW.8 and he is also a hear-say witness, as he states that, he came to know about the abduction of PW.8 and also after the complaint being filed by CW.1, the Police took him and one Ashwathanarayana (CW.11) to Madhya Pradesh. This particular person states that he also went to Madhya Pradesh along with the Police particularly to 'Bind District' on the basis of the detection of telephone towers pertaining to the cell-phones of the accused persons. It is also further stated that, they all went to 'Megaon' village and searched for PW.8 and ultimately, when they were within the jurisdiction of Gormi Police Station, they observed two persons taking away PW.8 on a motor cycle. Immediately, the Police fired towards air and intercepted the said motor cyclists and they captured PW.8 and also caught two persons at the spot. He also stated that, there were exchange of gun shots between the accused as well as the Police. He also identified Accused No.1 caught by the Police on that day, who was 11 present before the trial court, along with PW.8. In the course of his cross-examination, in fact nothing worth has been elicited except stating that, he is a hear-say witness sofar as abduction of PW.8 and as well as demand made by the accused persons. It is further stated that, he has seen Accused No.2-Santhosh, as the said person was often visiting the shop of PW.8. Except suggesting that the Wife of PW.8 has not stated anything before this witness, but very strangely it is narrated in the evidence of this witness sofar as this witness going to Bind district to Megaon village within the jurisdiction of Gormi Police Station to secure PW.8. These factors have not been subjected to any cross-examination at all. Therefore, it goes without saying that, there is no reason to disbelieve the evidence of this witness coupled with the evidence of PW.8 and the Investigating Officer sofar as the detection of PW.8 and securing and arrest of the appellant/accused. In this background, the evidence of PW.8 also plays a dominant role.
14.4. PW.8 is the star witness to the prosecution. He has categorically stated that Accused No.2 was very well acquainted with him since 2009 and Accused No.2 12 repeatedly used to reqest this witness to visit his friend- Rajesh's office at Madhya Pradesh regarding Vastu, as his industry was not running smoothly. The above said Rajesh had also visited the shop of PW.8 once at Bengaluru along with Accused No.2 about 15 days prior to PW.8 going to Madhya Pradesh along with Accused No.2. He further deposed that on 05.02.2010 after informing the family members, on deceptive persuasion of Accused No.2, he went to Gormi District in Madhya Pradesh in train at about 7.30 p.m. and they reached Megaon on 07.02.2010 at 7.00 a.m. and Gwaliar and from there to Bhind District. In fact Rajesh was unable to receive them on that day, but he had sent a two wheeler with one person (A1) to pick-up PW.8 and Accused No.2. A1 was riding the motor cycle and A2 was sitting behind, as PW.8 was seated in the middle. The said vehicle was proceeded to a farm house. All the three of them went by walk to a hut situated in a forest and there were two more persons by name Ramothar (A3) and Sathyanarayana (A4). On seeing all the Accused at that strange place and also on seeing Accused No. 1 was having two pistols with him and he was talking to 13 Accused No.2, PW.8 got afraid. It was also deposed that Accused No.1 threatened him with dire consequences of killing him by shooting and asked PW.8 to remove his clothes and in fact snatched gold chain and three gold finger rings and a watch along with Rs.8,000/- . It is also stated that, one Ramothar, another accused demanded ATM and other Cards. When PW.8 said that he was not having any such cards, the accused - Ravikumar kicked him on the chest and another accused person assaulted on his head with a club. As he tried to escape he was chased by all the Accused Nos. 1 to 4 and one of the accused pretended to push him into the Well situated nearby and whereas others pretended to rescue him and likewise repeatedly they ill-treated and harassed him on that particular night.
15. This witness was cross-examined and he stated that he knew Santhosh. Further he deposed with regard to the demand of ransom and he stated that subsequently, he asked Accused No.2 why they treated him in such a fashion, then Accused No.2 replied that they are doing so for money and thereafter he started demanding Rs.50.00 lakhs for his release. In turn PW.8 14 informed the same to Ramdas on 08.02.2010 and ultimately the ransom was scaled down to 5.00 lakhs from Rs.50.00 lakhs. When the facts stood thus, on the complaint lodged by CW.1-Ramdas, the police along with the witnesses, went to Madhya Pradesh on 14.02.2010 in search of PW.8 and ultimately they captured Accused No.1 and also PW.8. However, the Police could not able to catch the other accused persons.
16. From reading of the above said evidence, it is evident that, Accused No.1 was very well known to Accused No.2 and he received Accused No.2 and PW.8 in Madhya Pradesh particularly at Gwaliar and took them to Gormi District and threatened PW.8 with dire consequences of killing him. But absolutely there is no allegation in examination chief itself by PW.8 that Accused No.1 in any manner was with Accused No.2 when the demand of Rs.50.00 Lakhs put forward by Accused No.2. It is also the allegation that Accused No.1 threatened PW.8 with dire consequences of life knowing fully well that Accused No.2 has abducted PW.8 for the reasons best known to Accused No.2. There is no evidence in the evidence of PW.8 or in the evidence of 15 any other persons that Accused Nos.1 & 2 have previously conspired with each other and for the purpose of demanding ransom Accused No.2 has taken away this witness and the same was well within the knowledge of Accused No.1. The evidence also discloses that Accused No.2 never demanded any amount in the presence of any other accused persons.
17. It is specific that, subsequently after Accused Nos. 1 to 4 ill-treated and harassed PW.8, he asked Accused No.2 as to why he was brought to that particular place, then only Accused No.2 told that they were doing so for demanding ransom. Therefore, there is absolutely no evidence with regard to demanding of ransom by Accused No.1 (Appellant). Even in the course of cross examination, it is suggested to PW.8 and the same was admitted that, at no point of time Accused No.1 has demanded any amount from him and also never stated in his evidence that Accused No.1 has demanded any amount either from PW.8 or from any other members of the family of PW.8. But, on the other hand, in the course of cross examination, PW.8 has categorically admitted that Accused No.1 did not ask for 16 any money over phone from him or he had not telephoned to any of the family members of PW.8. But, on the other hand, Accused No.2 demanded ransom and in turn, he informed the same to CW.8-Ramdas.
18. The Investigating Officer has also in his evidence reiterated the above said factual aspects. He has stated that at no point of time,PW.8 has complained to this witness that Accused No.1 has demanded any ransom from PW.8 or Accused No.2 demanded for money in the presence of Accused No.1 or any other persons, but Accused No.2 has demanded ransom from PW.8. On the other hand, he has categorically admitted that Accused No.1 never demanded any amount from PW.8 or from any of the family members of PW.8.
19. Therefore, from the above said evidence, it is crystal clear that even accepting the entire case of the prosecution as it is, there is proof with regard to Accused No.2 deceptively or deceitfully persuading PW.8 to take him to Madhya Pradesh and thereafter he met Accused Nos.1, 3 & 4 and kept PW.8 along with Accused Nos.1, 3 & 4 and it is the specific allegation of PW.8 that Accused 17 No.1 has threatened PW.8 with dire consequences of killing him and also fired in the air showing pistols and also kicked him. Except confining PW.8 wrongly in a hut and threatening him with dire consequences after abducting him and assaulting him, there is no evidence available sofar as Accused No.1 is concerned with regard to he having knowledge that Accused No.2 has brought this PW.8 for the purpose of demanding ransom and there is no material that there was any conversation between Accused Nos. 1 & 2 prior to or in the presence of PW.8 that Accused No.2 has brought PW.8 for the purpose of demanding ransom. Therefore, it cannot be implied or inferred by this court that Accused No.1 was also knowing the mind of Accused No.2 in bringing PW.8 to Madhya Pradesh for the purpose of demanding any ransom. In the absence of such material before the court, the conviction of the accused (appellant) cannot be held to be justified for the offence punishable under section 364-A of IPC. Though there is some material to show that there was an abduction and illegal confinement of PW.8, sofar as Accused No.1 is concerned, but there is no material with regard to the demand of any ransom, as 18 per the requirement of Section 364-A of IPC. Therefore, we are of the opinion that, the prosecution though has proved the offence under Section 367 of IPC and as well as 323 of IPC, it has not proved the offence under Sections 364-A and 506 of IPC.
20. As could be seen from the offence under Section 367 of IPC, in our opinion, the said provision is attracted sofar as the offence committed by Accused No.1 is concerned. The said provision says that,-
"Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine."
(emphasis supplied) Therefore, what this provision clearly says that if any person is shown to have been abducted and subjected to put in danger and being subjected to any grievous hurt after abducting, and in such an eventuality, the 19 provision of Section 506 IPC is not attracted, but Section 367 of IPC is attracted. To further make it clear, it can be understood that, if a person knowing fully well that a person was abducted and in spite of that, if he puts that particular person in danger and subject him to grievous hurt, in such an eventuality, Section 367 of IPC is attracted. That means, two necessary ingredients are to be established viz., one is, 'abduction of a person' and second is, 'after abduction, put such an abducted person in danger and subject him to grievous hurt or slavery or subject him to any threat or to create any fear of putting him in danger,". In such case, the offence under Section 367 is applicable.
21. Therefore, in order to attract the above said provision, the ingredient 'abduction' has to be established by the person. As noted above, so many witnesses have stated that, the witnesses have received information from the wife of PW.8 that, PW.8 was taken by one Santhosh to Madhya Pradesh. PW.8 has also categorically stated that he was persuaded by Accused No.2 to take him to Madhya Pradesh. Here, though there was no threat or force by Accused No.2, but the 20 conduct of Accused No.2 as stated by PW.8 clearly discloses the intension of Accused No.2 in taking PW.8 to Madhya Pradesh is only for demanding of ransom by keeping him in confinement etc. Therefore, the intention to deceive PW.8 is established on the part of Accused No.2 in taking PW.8 to Madhya Pradesh. Therefore, when Accused No.2 had taken PW.8 to Madhya Pradesh deceitfully and there, Accused No.1 received them. If at all, PW.8 was introduced to other accused persons as his relative or as his friend, there would not have been any threat or ill-treatment to PW.8 by other accused. Therefore, it clearly discloses that Accused No.1 was also having knowledge that, it is PW.8 who was illegally brought by Accused No.2 for the purpose well-known to Accused No.2. But demanding of ransom by Accused No.2 may not be within the knowledge of Accused No.1. Nevertheless, illegally taking PW.8 to Madhya Pradesh can be inferred that it was well within the knowledge of Accused No.1, because PW.8 has categorically stated that, Accused No.1 has threatened him with dire consequences of killing him and also he having two pistols with him and he also assaulted him and confined 21 him in a hut. Therefore, in our opinion, Section 506 of IPC is not attracted, because if any threat is given after abduction, then Section 367 is attracted; and without there being any abduction, if mere threat is given for any person, then only Section 506 will be attracted. Therefore, with this clarification and distinction, we are of the opinion that the offence under Section 367 of IPC is made out, and Section 506 in fact, is inbuilt in Section 367 of IPC. Therefore, we are of the opinion that the judgment of conviction and order of sentence passed by the trial Court in sofar as the offence under Sections 364(A) and 506 are bad in law and sofar as the other offences concerned, the order is proper and appropriate in the facts and circumstances of the case. However, we have also found that the accused has also committed the offence under Section 367 of IPC.
22. As the learned counsel submitted that, Accused No.1 was arrested on 14.02.2010 and he was subsequently produced before the court at Bengaluru on the basis of the body warrant taken out by the Police and as he was also arrested in connection with some other case of Gormi Police Station in Madhya Pradesh. 22 Therefore, it goes without saying that from 14.02.2010 the accused has been in Jail. Therefore, more than eight years have been elapsed from the date of his arrest in connection with this case or in connection with other case, which is a separate case. Therefore, we are of the opinion that, if the period has already undergone by the appellant/accused in connection with this case, it would meet the ends of justice. Therefore, with the above observation, we proceed to pass the following order:
ORDER The appeal is partly allowed. The judgment of conviction dated 06.08.2015 and order of sentence dated 13.08.2015 passed by LXII Additional City Civil and Sessions Judge (CCH-63) at Bengaluru in SC No.680/2012 against the appellant/accused-Mehapal is hereby set aside so far as the offence under Section 364- A and 506 of IPC are concerned. However, we confirm the judgment passed by the trial Court for the offence punishable under Sections 323, of IPC.
We also convict the appellant/accused for the offence punishable under section 367 of IPC and sentence him to undergo imprisonment for a period of seven years and also to pay fine of Rs.10,000/-, and in default of payment of fine 23 amount, he shall undergo simple imprisonment for a period of two months.
The appellant/accused is also entitled for the benefit of set off under Section 428 of Cr.P.C.
Sd/-
JUDGE Sd/-
JUDGE KGR*