Bangalore District Court
The State Of Karnataka vs Raj Ganesh on 18 September, 2017
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
Dated this the 18th Day of September 2017
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bangalore
SPECIAL C.C. No. 201/2016
COMPLAINANT:
The State of Karnataka
By Basaveshwara Nagar Police Station,
Bangalore.
[Public Prosecutor-Bangalore]
/ VERSUS /
ACCUSED:
Raj Ganesh,
S/o Shanmugam, 25 years,
R/at. C/o. Ganesh P.G.No.82,
5th Phase, Thimmaiah Road,
West of Chord Road,
Rajaji Nagar.
Permanent resident of
No.B-1, Housing Unit,
S.I.H.S. Colony,
Singnallur Post,
Coimbatore District,
Tamil Nadu State.
[By Sri.M.K.,-Advocate.]
2 Spl.C.C.No.201/2016
1 Date of commission of offence 22-11-2014
2 Date of report of occurrence 23-11-2014
3 Date of arrest of Accused
Date of release of Accused ON BAIL
Period undergone in custody
by Accused
4 Date of commencement of evidence 10-08-2017
5 Date of closing of evidence 21-08-2017
6 Name of the complainant Krishna Kumar
7 Offences complained of Section 363 of IPC
8 Opinion of the Judge Accused is
acquitted
9 Order of Sentence As per the
final order
JUDGMENT
This charge sheet filed by Police Sub-Inspector of Law & Order, Basaveshwara Nagar Police Station-Bangalore against the accused for the offence punishable under Section 363 of I.P.C.
2. Since it is a case of kidnap of minor girl, as such the name of the victim girl is no where shown in the course of judgment as mandated under Section 227(A) of Cr.P.C. However her name is referred to as ' victim girl' wherever 3 Spl.C.C.No.201/2016 her name is necessary.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
That on 22-11-2014 the victim girl was on the way towards her college from her house situated at Mahaganapathi Nagar, 6th Phase, 1st Stage, No.97/1, by walk. At that time the accused forcibly took the victim girl by way of kidnap to Chennai. As a result the complainant lodged complaint against the accused for the offence punishable under Section 363 of IPC.
4. The Investigation Officer has investigated the same and filed charge sheet against accused for the offence punishable under Section 363 of I.P.C. Thereafter, after filing charge sheet, the case proceeded against the accused. Initially he was produced before the committal Court and was enlarged on bail. Thereafter the copy of charge sheet furnished to the accused as contemplated under Section 207 of Cr.P.C. Since the victim girl is minor, the committal 4 Spl.C.C.No.201/2016 Court passed an order for committing the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, for further proceedings. In turn the said case was made over to this Court.
5. After receiving the record by this Court, the summon was issued to the accused. In pursuance of said summons, the accused appeared before the Court and enlarged on bail before this Court. Thereafter, the learned advocate for the accused submitted no arguments before framing charge. As a result, the charge was framed and the contents of the charge read over and explained to the accused in Kannada. The accused pleaded not guilty and submits crime to be tried. Thereafter the case against accused set down for prosecution evidence.
6. The prosecution in order to establish the guilt of the accused has examined in all 4 witnesses as Pw.1 to Pw.4, got marked 5 documents as Ex.P1 to Ex.P5 and closed its side evidence. As could be seen from the evidence 5 Spl.C.C.No.201/2016 of Pw.1 to Pw.4, the victim girl not supported to the case of the prosecution, the other witnesses not fully supported the case of the prosecution. In view of available incriminating evidence appeared against the accused, he was examined under Section 313 of Cr.P.C., by recording his statement. He denied the alleged incriminating evidence appeared against him. He has complied the provisions of Section 437-A of Cr.P.C, by executing personal bond and surety. Thereafter arguments heard from both the sides and the matter is set down for judgment.
7. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1. DgÉÆæAiÀÄÄ ¢£ÁAPÀB22-11-2014gÀAzÀÄ ¨É¼ÀUÀÉÎ 7.00 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è ¨ÉAUÀ¼ÀÆgÀÄ £ÀUg À À, §¸ÀªÉñÀégÀ£ÀUgÀ À ¥ÉÇðøï oÁuÁ ¸ÀgÀºÀ¢ÝUÉ ¸ÉÃjzÀ ªÀĺÁUÀt¥Àw £ÀUg À ,À 6£Éà ¥Éøï, 1£Éà ºÀAvÀ, £ÀA.97/1gÀ ªÀģɬÄAzÀ £ÀqÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÝ ¸ÁQë-1 PÀȵÀÚPÀĪÀiÁgïgÀªg À À ªÀÄUÀ¼ÁzÀ C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¸ÁQë-2£ÀÄß §®ªÀAvÀªÁV C¥ÀºÀj¹PÀÉÆAqÀÄ ZÉ£ÉßÊUÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÄÁÃV ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ 363 gÀr zÀAqÀ¤ÃAiÀĪÁzÀ C¥ÀgÁzÀs J¸ÀVgÀÄvÁÛgÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªÀgÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¹gÀÄvÁÛgÉAiÉÄ?
2. AiÀiÁªÀ DzÉñÀ?6 Spl.C.C.No.201/2016
8. My findings on the above points are as under:-
Point No.1: In the Negative.
Point No.2: As per the final orders for the following:
REASONS
9. Point No.1: Perused the entire record, exhibited documents, oral testimony and arguments canvassed by the learned advocate for the accused and the learned Public Prosecutor.
10. In order to prove the alleged offence against the accused the prosecution examined in all 4 witnesses as Pw.1 to Pw.4, got marked 5 documents as Ex.P1 to Ex.P5 and this Court perused the same.
11. As per the prosecution case, Pw.1 is the complainant and father of the victim girl, Pw.2 is the victim, Pw.3 is the grand father of the victim girl and Pw.4 is the aunt of the victim girl. Except that none of the witnesses appeared before the Court to give evidence. The Investigation Officer not stepped into the witness box in 7 Spl.C.C.No.201/2016 spite issuance of witness summons and body warrant to him, hence his evidence taken as NIL. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the alleged offence against the accused.
12. In order to establish the alleged offence against accused the prosecution is required to prove that the accused forcibly took the victim girl by way of kidnap and took her to Chennai on 22-11-2014 when she was on the way towards her college from her house situated at Mahaganapathi Nagar, 6th Phase, 1st Stage, No.97/1, by walk and thereby committed offence punishable under section 363 of I.P.C. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the aforesaid ingredients of the alleged offence against the accused beyond all reasonable doubt.
13. Before venturing into scan the available materials evidence on record, it is necessary to mention the 8 Spl.C.C.No.201/2016 very definition of offence under Section 363 of IPC. Section 363 of I.P.C. defines that:
"Punishment for kidnapping-whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine."
14. By going through the evidence of Pw.1-the complainant and also father of the victim girl-Krishna Kumar, he has deposed that his daughter-the victim girl was born on 17-06-1998. In the year 2014, she was studying at Carmel PU College, in 1st PU in Basaveshwara Nagar. He knows the accused person. He was residing at Shiva Nagar as Paying Guest near his house. On 22-11- 2014 at about 07.00 a.m., his daughter-the victim girl went to College, but she didn't return home in the evening, the accused taken her for sight seeing to Chennai. On the next day i.e., on 23-11-2014 he has lodged missing complaint. Ex.P1 is the missing complaint given by him on 23-11- 2014. On perusal of Ex.P1 it is clear that, he has suspicion 9 Spl.C.C.No.201/2016 about the accused who was working in Bangalore and native of Coimbatore. The said complaint lodged about 10.30 p.m., and the police registered the case in Crime No.521/2014 for the offence punishable under section 363 of IPC. Thereafter the police conducted mahazar as per Ex.P2 and his signature is Ex.P2(a). After one week the victim girl was traced at Chennai in Triplican and brought both the accused and the victim girl to Bangalore. At the time of kidnap the victim girl was minor. Further he has deposed that he has produced Ex.P3 and Ex.P4.
15. The accused tested the veracity of this witness by eliciting some commission and omission and denied the allegations which are against to his defense as false. He has admitted that the accused was working in an advertising company. He came to know about the incident in the evening, as a result he has attempted to trace out his daughter by asking at his friends and relatives, but his daughter not traced out. After giving complaint, on 25-11- 2014 the police came near his house and conducted 10 Spl.C.C.No.201/2016 mahazar. Again he has deposed that on 22-11-2014 he was at Chennai and came know the facts and circumstances over phone at about 08.00 p.m. He left Chennai and reached Bangalore in the early hours of morning and after that he made attempt to trace out his daughter and lodged complaint in the evening. But no such facts and circumstances stated in his complaint in respect of the same, but the police trapped the mobile of the accused and came to know that he is in Chennai. On 28-11-2014, the police went to Chennai along with this witness and brought his daughter and the accused on 29-11-2014. The accused kept his daughter at Triplicane and he used to visit her in the Ladies Hostel every day in the morning.
16. For that the victim girl deposed that she has no mother, she is having father. In the year 2014 she was studying 1st PU at Carmel College in Basaveshwara Nagar. She came to know that the accused in Chennai when she left the house due to depression. When she was standing at railway station in Chennai, she asked the help of the 11 Spl.C.C.No.201/2016 accused and the accused brought her and kept her in P.G., except that nothing happened with her and the accused not kidnapped her. After some time the police came to P.G., and taken her to Bengaluru and left her at Balakiyara Bala Mandira. The accused was also brought by the police to Bengaluru and except that no such incident taken place. At no point of time the accused kidnapped her. She has not given any statement before Judge. If this piece of evidence taken into consideration, the victim girl not supported the case of the prosecution and also the evidence of Pw.1. The prosecution treated her as hostile to the prosecution and suggested each and every statement as per Ex.P5, for that she has clearly denied the same and deposed that she has not given any statement as per Ex.P5 before police. Through the evidence of the victim girl, the prosecution fails to establish the alleged offence against the accused beyond all reasonable doubt.
17. By going through the evidence of Pw.3- C.S.Venkatesh-the grand father of the victim girl, he has 12 Spl.C.C.No.201/2016 deposed that about 2-3 years back, the victim girl, came in contact with the accused, after coming to know the said fact, they have scolded her, except that he doesn't know anything about the alleged incident and the case of the prosecution. The prosecution treated this witness as hostile to the prosecution and suggested the contents of statement, for that he has admitted the same. He has also admitted that at the time of alleged incident his grand daughter was 17 years old. But in the cross-examination, the accused tested his veracity by eliciting some commission and omission and also elicited that:
"£À£Àß ªÉÄÁªÀÄäUÀ¼ÀÄ ªÀÄvÀÄÛ DgÉÆæ WÀl£É £Àq¬ É ÄvÀA É zÀÄ ºÉüÀĪÀ ¢£ÀzÀ »A¢£À 2-3 ªÀµÀðUÀ¼À°è ¦æÃw¸ÀÄwÛzÀÝgÀÄ JA§ÄzÀgÀ «µÀAiÀÄ £À£ÀUÁågÀÄ ºÉýgÀĪÀÅ¢®è, £Á£ÀÄ ¸ÀºÀ CzÀ£ÀÄß £ÉÆÃrgÀĪÀÅ¢®è. £À£Àß ªÀÄUÀ ¦üAiÀiÁð¢UÉ £ÉÆA zÀ¨Á®Q ªÀģɬÄAzÀ ºÉÆgÀlÄ ºÉÆÃVgÀĪÀ «µÀAiÀĪÀ£ÀÄß AiÀiÁgÀÄ w½¹zÀgÀÄ JA§ÄzÀgÀ «µÀAiÀÄ £À£ÀUÉ w½¢gÀĪÀÅ¢®è."
Further on 02-12-2014 at about 11.00p.m., the complainant came and told that the accused kidnapped the victim girl and traced her in Triplicane, Wales Road, Ladies Hostel at Chennai. Except that he doesn't know anything 13 Spl.C.C.No.201/2016 about the alleged incident. If this piece of evidence is taken into consideration, it is a hear say evidence and unless and until the prosecution proves through material witness evidence, it is not safe to accept hear say evidence, even though this witness doesn't know anything about the alleged offence. He has clearly stated that he has not given any statement before the police, only on the say of his son he came to know the said fact. Further he has also admitted that the police not enquired him and recorded his statement. When such being the case, question of believing the evidence of this witness does not arises. Through the evidence of this witness the prosecution fails to establish the alleged offence against the accused beyond all reasonable doubt. Further this witness is an interested witness and unless and until prosecution produces corroborative, cogent, other independent eye-witnesses, it is not safe to accept the evidence of this witness against the accused.
18. By going through the evidence of Pw.4-Prabha, 14 Spl.C.C.No.201/2016 who is aunt of the victim girl, she has deposed that about two years back, she came to know about the accused and the victim girl talking with each other and at that time her age was 17 years and studying in 1st PUC. On one day the accused and the victim girl were talking with each other in the street, at that time she called upon them and enquired them and also advised them not to do such things. Thereafter she has informed to the parents of the victim girl and also the accused. After that she came to know that the victim girls not return home after she went to college. On the next day the complainant lodged complaint and the victim girl was traced out in a Ladies Hostel at Chennai and she came to know through police that the accused taken her to Chennai. Except that she doesn't know anything about the alleged incident. The accused person tested the veracity of this witness by eliciting some commission and omission and also elicited that:
" DgÀÉÆæ ªÀÄvÀÄÛ £ÉÆAzÀ ¨Á®QAiÀÄÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ©Ã¢AiÀÄ°è ªÀiÁvÀ£ÁqÀÄwÛzÀÄÝz£ À ÀÄß £ÉÆÃr CªÀj§âg£ À ÀÄß £Á£ÀÄ ªÀÄ£ÉUÉ PÀgÉvÀAzÀÄ CªÀjUÉ §Ä¢ÝªÁzÀ ºÉý CªÀj§âgÀ vÀAzÉ-vÁ¬ÄUÀÆ ¸ÀºÀ ¥sÉÆãï 15 Spl.C.C.No.201/2016 ªÀiÁr «µÀAiÀÄ w½¹zÉ JA§ÄzÀ£ÀÄß £Á£ÀÄ ¥ÉÇðøÀgÀ ªÀÄÄAzÉ ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è. "
When she has not stated the above said facts before police, question of considering her evidence in this case doesn't arises. Further it is her evidence that the grand parents of the victim girl came to her house and told about the accused and the victim girl and at that time she came to know about the alleged fact. She has not stated anything about the said fact before police. Moreover, she is also a hear say witness. Unless and until the prosecution produces corroborative and cogent, oral testimony of eye witness and other circumstantial evidence, it is not safe to accept the same and she is also an interested witness.
19. Viewing from the materials on record, this Court feels to observe that Pw.1 to Pw.4 are all interested witnesses. Moreover, the victim girl has not supported the case of the prosecution case. Further the Investigation Officer-Cw.8 has not stepped into the witness box and the other witnesses who are Panchas, the learned Public Prosecutor dropped them, since the evidence of Cw.2 and 16 Spl.C.C.No.201/2016 Cw.6 is a formal one.
20. The oral and documentary evidence placed on record by the prosecution is not sufficient to prove the alleged offence against the accused beyond all reasonable doubt. The defense of the accused and the facts and circumstances of the case including materials on record discussed above probablizes the defense of the accused rather than the case of the prosecution.
21. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.4 and documentary evidence as per Ex.P1 to Ex.P5, placed on record in respect of alleged offence is insufficient to prove that the accused forcibly took the victim girl by way of kidnap to Chennai on 22-11- 2014 when she was on her way towards her college from her house situated at Mahaganapathi Nagar, 6th Phase, 1st Stage, No.97/1, by walk and committed offence punishable under section 363 of I.P.C., beyond all reasonable doubt. Consequently I hold Point No.1 in the "Negative". 17 Spl.C.C.No.201/2016
22. Point No.2:- For the above said reasons and discussions on Point No.1, I hold that the accused is entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C, the accused is acquitted for the offences punishable under Section 363 of I.P.C. His bail bond and surety bond stand cancelled.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 18th Day of September 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Krishna Kumar Cw.1 10-08-2017 PW 2 Victim girl Cw.4 10-08-2017 PW 3 C.S.Venkatesh Cw.2 21-08-2017 PW 4 Prabha Cw.7 21-08-2017 18 Spl.C.C.No.201/2016 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Pw.1 10-08-2017 Ex.P 1a Signature of Pw.1 Pw.1 10-08-2017 Ex.P 2 Mahazar Pw.1 10-08-2017 Ex.P 2a Signature of Pw.1 Pw.1 10-08-2017 Ex.P 3 Copy of S.S.L.C. Pw.1 10-08-2017 Marks card Ex.P 4 Copy of T.C. Pw.1 10-08-2017 Ex.P 5 Statement of victim Pw.2 10-08-2017 girl Ex.P 5a Signature of victim Pw.2 10-08-2017 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION NIL LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE