Karnataka High Court
Mumtazbegam @ Mamatajbanu W/O. ... vs The State Of Karnataka on 27 July, 2023
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 2738 OF 2013
C/W
CRIMINAL APPEAL NO. 2588 OF 2013
IN CRIMINAL APPEAL NO. 2738 OF 2013
BETWEEN:
THE STATE BY VIDYAGIRI P.S.,
DHARWAD,
REPRESENTED BY ADDL. S.P.P.
DHARWAD.
...APPELLANT
(BY SRI. PRAVEEN UPPAR, HCGP)
Digitally signed
by AND:
ANNAPURNA
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL MAMATAJBEGAM @ MAMATJBANU
DANDAGAL Date:
2023.07.28 W/O MABUBSAB GOULI,
11:30:39 -0700
R/O.DHARWAD MICHIGAN COMPOUND,
NO. AT LINGASUR CHAVANI SANTHE BAZAR,
DIST: DHARWAD.
...RESPONDENT
(BY SRI. ANWAR BASHA B, ADVOCATE)
***
THIS CRIMINAL APPEAL IS FILED U/S 378 (1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL FOR THE OFFENCES
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P/U/S 464-A, DATED 20.02.2013 PASSED BY THE FAST TRACK-
I, DHARWAD, IN S.C.NO.135/2009 AND SET ASIDE THE
JUDGMENT OF ACQUITTAL U/S 364-A PASSED AGAINST THE
ACCUSED IN S.C.NO.135/2009 DATED 20.02.2013 ON THE
FILE OF THE FAST TRACK-I DHARWAD AND CONVICT THE
ACCUSED FOR THE AFORESAID OFFENCES BY PASSING
APPROPRIATE ORDERS.
IN CRIMINAL APPEAL NO. 2588 OF 2013
BETWEEN:
MUMTAZBEGAM @ MAMATAJBANU
W/O. MABUBSAB GOULI,
AGE: ABOUT 42 YRS, OCC: HOUSEHOLD WORK,
R/O. LINGASUR TALUKA,
CHAVANI SANTHE BAZAAR, DIST: RAICHUR.
...APPELLANT
(BY SRI. ANWAR BASHA B, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY VIDYAGIRI PS, DHARWAD.
REPRESENTED BY SPL. PUBLIC PROSECUTOR
...RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP)
***
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER,
SENTENCE PASSED IN S.C.NO.135/2009 BY THE Ist ADDL.
FAST TRACK COURT, DHARWAD ON 20.02.2013.
THESE APPEALS COMING ON FOR HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 31.05.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
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JUDGMENT
Criminal appeal No.2588/2013 is filed by the accused and criminal appeal No.2738/2013 is filed by the State challenging the judgment of conviction and order of sentence on the file of Fast Track-1 Dharwad in S.C.No.135/2009, dated 20.02.2013, preferred these appeals.
2. Parties to the both appeals are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that son of the complainant-Shridhar was studying in Basel Mission English Medium School situated at Station road Dharwad. On 23.09.2002 in between 10.45 a.m. to 11.00 a.m. from 1st standard 'C' Division where Shridhar was studying, accused got him out of the class on the pretext of offering juice. Accused for ransom has kidnapped Shridhar from School and kept in the house of C.W.20. On these allegations made in the complaint, investigating officer after completion of investigation filed the charge sheet.
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4. In response to the summons, accused appeared through counsel. The trial Court after being prima facie satisfied framed charge against accused for the offence punishable under Section 364(A) of IPC. Accused pleaded not guilty and claimed to be tried. Prosecution in order to prove the allegations made against the accused relied on the evidence of P.Ws.1 to 24 and document Exs.P.1 to 19, so also got identified M.O.Nos.1 to 6.
5. On closure of prosecution evidence, the statement of accused under Section 313 of Cr.P.C. came to be recorded.
Accused has denied all incriminating evidence appearing against her and claimed that false case is filed. Accused relied on the evidence of her sister as D.W.1. The trial Court after appreciation of evidence on record, convicted the accused for the offence under Section 365 of IPC and imposed sentence as per order of sentence.
6. Appellant/accused in Criminal appeal No.2588/2013 challenged the judgment of conviction for the offence under Section 365 of IPC contending that the observations and finings recorded by the trial Court based the evidence P.Ws.1 to 3 and -5- CRL.A No. 2738 of 2013 Connected cases:
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P.W.9 are without appreciation of material evidence in their cross examination. The evidence of P.Ws.10 and 14-classmates of P.W.9 and P.W.11-class teacher is only related to P.W.9 found missing from the class and nothing else. Further, the evidence auto driver-P.W.13 is also confined to dropping of P.W.9-victim to school and their evidence cannot be of any assistance to the case of prosecution to prove the charges leveled against accused. The evidence of P.Ws.5, 6, 17, 18, 21 and 24 in view of their inconsistent of evidence regarding tracing of accused, apprehending on the basis of caller ID fixed to the house of complainant is totally unreliable, on such evidence no conviction can be sustained. The approach and appreciation of oral and documentary evidence by trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to set-aside the judgment of trial Court. Consequently, to acquit the accused from the charges the charges leveled against her.
7. The State has filed criminal appeal No.2738/2013 questioning of acquittal of accused for the offence under Section 364(A) of IPC contending that the trial Court has not properly appreciated the evidence of P.Ws.1 to 3, 17 and 18 -6- CRL.A No. 2738 of 2013 Connected cases:
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and their evidence has been conveniently ignored by trial Court, who have deposed to the effect that accused demanded ransom for release of P.W.9. There is sufficient evidence placed on record by the prosecution to attract the penal action in terms of Section 364(A) of IPC is appreciated. Therefore, trial Court was not justified in acquitting the accused for the offence under Section 364(A) of IPC and hence prayed for allowing the appeal and convicted the accused for the offence under Section 365 of IPC.
8. In response to the notice in both appeals, the respondent appeared through counsel.
9. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that on 23.09.2002 complainant at about 1.00 p.m. received phone call from his wife stating that school teacher informed that their son did not come to School. On receiving such information P.W.1-complainant rushed to the house and thereafter both complainant and his wife went to Basel Mission English Medium School. On enquiry, it was revealed that their son-Shridhar was missing and only school bag is remained on -7- CRL.A No. 2738 of 2013 Connected cases:
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the seat. In spite of due search, son of complainant-P.W.1 was not traced and he has filed missing complainant. On the same day evening, the complainant received threatening call to his landline No.779368 demanding ransom for release of his son. The complainant informed said fact to Vidyagiri police station and they fixed caller ID and also sent two staff to attend caller ID. On 24.09.2002 at about 11.00 A.M. the same lady called complainant through landline No.779368 and asked the complainant to come alone along with cash of Rs.2,00,000/- near Unkal cross, otherwise, threatened for the life of his son. The complainant has informed said fact to the police. On 25.09.2002, at about 11.00 A.M. the complainant received call from the Commissioner Office informing that his son and accused are traced. The complainant with his wife and daughter-Krutika, went to commissioner Office and their son-
Shridhar was at police and Police informed them they have arrested the accused to whom the complainant identified as maid working in the house of Rajeev Kabbur. The complainant identified M.O.Nos.1 to 5 belongs to his son. Thus, prosecution alleges that accused has kidnapped the son of complainant Shridhar from lawful custody and demanded ransom for his -8- CRL.A No. 2738 of 2013 Connected cases:
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release. The prosecution to prove the allegations against the accused mainly relies on the material evidence of P.Ws.1 and 2-parents of victim and P.W.3-daughter of complainant, P.W.9- victim. The second set of evidence is in the form of P.Ws.10 and 14-classmates and P.W.11-class teacher of victim-Shridhar and P.W.13-Auto driver, who has dropped P.W.9-victim to the school. The prosecution to prove the tracing of accused and victim relied on the evidence of P.Ws.5, 6, 17, 18 and 24. The evidence of these witnesses will have to be appreciated in the light of the case made out by the prosecution.
10. The evidence of P.Ws.1 and 2 who are parents of victim-P.W.9, would go to show that they have spoken about their daughter-P.W.3-Krutika and son-Shridhar-P.W.9 are studying in Basel Mission English Medium School. On 23.09.2002, P.W.1-complainant received phone call from his wife stating that school teacher informed that their son did not come to the school. On receiving such information P.W.1- complainant rushed to the house and thereafter both P.Ws.1 and 2 went to the school. On enquiry, they found that only school bag was on the seat and their son-Shridhar was missing and he was untraced in spite of their due search. Therefore, -9- CRL.A No. 2738 of 2013 Connected cases:
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P.W.1 filed missing complaint. On the same day, P.W.1 received threatening call from unknown lady to his landline No.779368 for demeaning money for release of his son, who is in their custody. The complainant informed the said fact to Vidyagiri police station and they fixed caller ID to the landline phone number of complainant and sent police staff. On
24.09.2002 at about 11.00 a.m unknown lady called complainant over phone and asked the complainant to come alone along with cash of Rs.2,00,000/- near Unkal cross. Thereafter, threatened with dire consequences to the life of his son, if the same is informed to the police, the complainant also informed said fact to the police.
11. On 25.09.2002 at about 11.00 a.m. P.W.1- complainant received phone call from the Commissioner office stating that his son and accused were traced. On hearing of the same P.Ws.1 to 3 are went to the Commissioner officer and their son-P.W.9 was with Police and lady was in custody of police and complainant identified her as maid attending in the house of his neighbor-Rajeev Kabbur. PWs.1 to 3 identified the M.O.Nos.1 to 5 belongs to P.W.9-victim.
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12. The victim-P.W.9 has also deposed to the effect that himself and his sister-Krutika were dropped to the school in auto rickshaw of P.W.13 that his sister used to leave him to the class than go to her class. Further, they used to have launch together. On 23.09.2002 accused came to his class and took him out of class stating that she will give juice at 10.45 A.M. P.W.9-victim accompanied her, since she is known to him as she was working as maid in the neighboring house. Accused in an auto rickshaw carried P.W.9-victim. Accused secured landline phone number from P.W.9 and provided the dress for removing the school uniform and P.W.9-victim was playing with other neighboring children. After two days, the police traced the victim and accused and were carried to the commissioner office. The evidence of these material witnesses is consistent of P.W.9 was kidnapped by accused from his class room after P.W.13 dropped the P.W.9-victim and P.W.3 to the school. The son of complainant was not traceable from 23.09.2002 till 25.09.2002 in between the said period P.W.9 was in the custody of accused. The evidence P.Ws.10 and 14 classmates of victim and P.W.13-Auto driver and P.W.11-class teacher of P.W.9-victim would also corroborate the evidence of P.Ws. 1 to
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3 that P.W.9 was found missing from the 1st standard 'C' Division. P.W.10 has deposed to the effect that one aunty came to class room before the prayer and took Shridhar on the pretext of offering juice. Class teacher-P.W.11 on coming to the class noticed that only the school bag of Shridhar is found and he did not return. P.W.10 has informed one aunty has carried Shridhar by offering juice to him. P.W.14 another classmates corroborates the evidence of P.W.10. P.W.11-class teacher also deposed to the effect that while taking attendance Shridhar was absent. Therefore, she has mentioned as "A" in the attendance register. During Tiffin time P.W.3 had came to the class and asked P.W.11 about her brother and she told that he has not come to school. The evidence of these witnesses P.Ws.10, 11, 13 and 14 would speak to the effect that Shridhar was not found in 1st standard 'C' Division and one aunty picked up from the class room by offering to provide the juice as per the evidence of P.Ws.10 and 14. The defence counsel though has subjected to the above referred witnesses to a lengthy cross examination, nothing worth material has been brought on record, so as to discredit their evidence except some minor discrepancy during their evidence. The prosecution to prove
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that it is accused, who has kidnapped P.W.9 from the class room and tracing victim-P.W.9 and accused from the house of Fatima in Anand Nagar Hubli, relies on the evidence of P.Ws.5 and 6. The P.Ws.5 and 6 is only confined to having accompanied to Vidyagiri police staff to Anand Nagar of Hubli and went to the house where they traced the accused and victim-P.W.9. On taking them into custody brought to Vidyagiri police station and accordingly gave report as per Ex.P.3.
13. P.W.6 has deposed to the effect that on 24.09.2002 himself and P.C.No.2153 were given with the photograph of victim-P.W.9 and asked them for reporting to DCP office. On the instruction of DCP both of them were watching near public STD booth. On that day, they did not find any person contacted complainant. On 25.09.2002, the lady about 30 years of age went to STD booth for making call and after call she came out of telephone booth. The police staff followed her and went to house, where they found victim-P.W.9 matching with the photograph in their possession. On questioning accused disclosed that her name as Mamtaz Begum. Thereafter, accused and victim were brought to the Commissioner Office, wherein she disclosed that said house is belongs to her aunt.
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14. P.W.17 and 18 are the police staff attended the caller ID fixed to the landline number of complainant. They have deposed to the effect that on 24.09.2002 P.W.17 was deputed to the house of complainant for watching caller ID and at about 12.30 p.m. an unknown lady called complainant over phone and asked complainant to arrange for money of Rs.2,00,000/- and his son is in her safe custody. P.W.17 informed the said fact to the complainant and his Superior Officer. P.W.18 also deposed to the effect that at about 6.30 p.m. call was received and an unknown lady called complainant over phone and asked to bring cash of Rs.2,00,000/- at about 12.00 p.m in the mid night near Unkal lakh. Further, threatened that if, same is informed to police, they will kill his son. P.Ws.17 and 18 have also deposed to the effect that the caller was calling from telephone No.207077. The evidence of P.W.22-owner of STD booth has also deposed to the effect that there are three landline phones in his STD booth No.220287, 207077, 303635. The fact that P.W.22 is the owner of the STD booth and the unknown caller from landline No.207077 called to the landline number of complainant and the said fact has not been denied by the defence. The evidence of investigating
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officer P.W.24 also substantiated the said fact. Therefore, from the above referred evidence of PW.6, 17, 18, 22 and 24, it is evident that it is the accused who has called from the STD booth of P.W.22 through the landline No.207077 to the landline number of complainant and demanded ransom from the complainant for release of his son.
15. It is in the evidence of P.W.6 that after accused called the complainant through landline from STD booth of P.W.22 himself and P.C. 2153 followed the lady and CCB inspector along with staff were also watching lady, she went to the house in Anand Nagar of Hubli. They found kidnapped boy in the house whose face was matching with the photograph given to him. On enquiry, accused disclosed her name as Mamtaz Begum. Thereafter, they brought accused and the son of complainant to Commissioner of Police office. Wherein P.Ws.1 to 3 were called and they identified the boy shown to them as son of complainant. The victim was delivered to the custody of his parentnts-P.Ws.1 and 2. Thus, from the said evidence on record, it is evident that victim-P.W.9 was out of the custody from his parents from 23.09.2002 till he was traced with accused on 25.09.2002. The accused has kidnapped
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victim-P.W.9 from Basel Mission English Medium School, 1st standard 'C' division and carried the victim-P.W.9 from school to house in Anand Nagar of Hubli. P.W.23, who is neighbor of Fatima has not supported the case of prosecution. However, she deposed to the effect that the Fatima was her neighbor and her daughter was also resided by next to her house. The mother and the daughter were residing separately. P.W.23 in her cross examination by learned public prosecutor has admitted that the accused was visiting to the house of Fatima. Leaned counsel for accused has argued that P.W. 23 neighbor of Fatima has not supported the case of the prosecution having seen accused brought the victim to the house of Fatima and kept in confinement. However, Fatima has not been examined by the prosecution. Therefore, there is reasonable doubt whether accused has kidnapped and kept P.W.9 in confinement in the house of Fatima and the said benefit has to be extended to the accused. The evidence P.W.6, would go to show that they followed the lady from STD booth of P.W.22 to house of Fatima in Anand Nagar Hubli. The P.W.6 found victim-P.W.9 in the house of Fatima which he identified on the basis of photograph in his possession. P.W.5 has arrested accused from
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said house and brought the accused with victim-P.W.9 to the commissioner office. There is absolutely no any reasons to disbelieve the evidence of P.Ws.5 and 6 that the victim P.W.9 was kept in the house of Fatima in Anand Nagar, Hubli, and victim-P.W.9 is found in the house of Fatima. Thereafter, both of them were brought to Commissioner Office. There is nothing worth material evidence was brought on record to discredit their evidence. Therefore, non-examination of Fatima and P.W.23 neighbor has not supported the case of the prosecution cannot be valid ground to discredit the evidence of P.Ws.5 and 6.
16. Accused examined her own sister as DW.1 and she has deposed to the effect that the accused Mamtaz Begum is her sister and she know Rajeev Kabbur (P.W.15) and they had the relationship of husband and wife for about 6 to 7 years, they were residing in Barakotri old house. There was difference among them over money dispute and accused was demanding her money back. The said Rajeev Kabbur was postponing the payment on one or the other pretext. The said Rajeev Kabbur apprehending that their relations will be known to his family and having such apprehension driven out his sister from the
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house, since then she is residing with her in Lingsur. Thereafter, police came to Lingsur to her house and carried Mamtaz Begum to police station. Subsequently, she came to know that she was falsely involved in this case. It is pertinent to note that accused did never complained at any point of time till the evidence of DW.1 that she was residing with her sister in Lingsur and police have brought her from Lingsur to the police station. The defence counsel has also not suggested the said fact to any of the prosecution witnesses. The alleged differences between accused and Rajeev Kabbur over money transaction has nothing to do with the complainant-P.W.1. Therefore, even if the claim of D.W.1 is accepted that accused has some difference with said Rajeev Kabbur cannot be valid ground or basis for P.Ws.1 or 5 and 6 to involve the accused in this case. Therefore, the defence of accused that she was falsely involved in this case due to difference of opinion with Rajeev Kabbur over money transaction has deposed by P.W.1- complainant cannot be accepted to disbelieve the above referred material evidence on record. Therefore, from the above referred evidence on record, the prosecution has proved beyond reasonable doubt that it is accused alone who has
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kidnapped the son of complainant from Basel Mission English Medium School 1st standard 'C' Division and carried him to the house of Fatima in Anand Nagar of Hubli by kidnapping and kept in confinement.
17. The trial Court for the reasons recorded in para Nos. 35 and 36 of it's judgment has observed and held that offences under Section 364(A) of IPC is not made by the prosecution out of the evidence placed on record and same squarely falls within the ambit of Section 365 of IPC. The State has challenged the judgment of trial Court in acquitting the accused for the offence under section 364(A) of IPC in the criminal appeal No.2738/2013.
18. Learned HCGP has argued that victim-P.W.9 was kidnapped by accused and demanded ransom by making phone call to complainant-P.W.1, P.Ws.1 to 3 and 6 have substantiated the fact that by making phone call to complainant demanded ransom. Therefore, the prosecution out of the material evidence placed on record has proved the guilt of accused for the offence under Section 364(A) of IPC and trial
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Court was not justified in acquitting the accused for said offence.
19. Per contra learned counsel for respondent in the said appeal has argued that there is no any concrete evidence that victim-P.W.9 was kidnapped for ransom and same does not meet the legal requirement to prove the offence under Section 364(A) of IPC.
20. The mere kidnapping of victim-P.W.9 from the school and keeping out of custody of his parents and confining in the house of Fatima itself cannot be said as sufficient evidence to prove the offence under Section 364(A) of IPC. It is profitable to refer section 364(A) of IPC for ready reference which reads as follows:
"Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organization or any other person to do or abstain
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21. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in SHAIK AHMED VS. STATE OF TELANGANA reported in 2021 (9) SCC 59, wherein the Hon'ble Apex Court after analyzing the legal requirements of Section 364(A) of IPC concluded that essential ingredients to convict the accused under Section 364(A) of IPC which are required to be proved by prosecution are as follows:
(i) "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction"
(ii) "and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt,
(iii) or causes hurt or death to such person in order to compel the Government or any foreign State or international inter- governmental organisation or any other person to do or abstain from doing any act or to pay a ransom"
(iv) "shall be punishable with death, or imprisonment for life, and shall also be liable to fine." Thus, on establishing the first condition, one more condition has to be fulfilled, since after first condition the word used is "and", thus in addition to first condition either condition
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numbers 2 or 3 has to be proved, failing which conviction under Section 364(A) of IPC cannot sustained.
22. Hon'ble Apex Court in another latest judgment in RAVI DHINGRA VS THE STATE OF HARYANA reported in AIR 2023 SC 1243 by referring to the judgment of the SHAIK AHMED's referred above has held that condition Nos.1 envisage under Section 364(A) of IPC will have to be established by evidence on record, otherwise the conviction under Section 364(A) of IPC cannot be sustained. In both decisions of Hon'ble Apex Court referred above having appreciated the evidence on record concluded that the evidence does not make requirement of satisfying both the conditions enumerated under section 364(A) of IPC, the conviction for the said offence cannot be legally sustained. In the present case also, the evidence of prosecution witnesses would got to show that victim-P.W.9 was kidnapped by accused from his school and kept in confinement in the house of Fatima from 23.09.2002 till 25.09.2002 out of the custody of his parents- P.Ws.1 and 2 and victim-P.W.9 was abducted with intent secretly and wrongly fully to confine P.W.9, both accused and P.W.9-victim were traced from the house of Fatima and brought
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to the Commissioner of Police office. The evidence of victim- P.W.9 would go to show that he was treated well in the house where he was kept in confinement and he was provided cloth to change the uniform of the school, further he was playing with the neighboring children would go to show that there was no reasonable apprehension of P.W.9 may be put to death or hurt or causes hurt. Therefore, it can be said that the second condition to prove the offence under Section 364(A) of IPC has not been established by the prosecution in view of the principles enunciated in the aforementioned judgment of Hon'ble Apex Court. Thus, the evidence placed on record by prosecution would meet legal requirement for the offence under Section 365 of IPC. The trial Court has rightly appreciated the evidence on record and was justified in holding that the prosecution has failed to prove the offence under Section 364(A) of IPC and in holding the accused guilty for the offence under Section 365 of IPC.
23. Now coming to the question of imposition of sentence, the trial Court has imposed sentence of three years of simple imprisonment and fine of Rs.5,000/- in default of
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payment of fine, shall undergo simple imprisonment for three months.
24. Looking to the nature of evidence on record, the minor victim-P.W.9 was kidnapped from his school and kept in confinement in the house of Fatima in Anand Nagar, Hubli and other attending circumstance, in my opinion, the trial Court has rightly exercised judicial discretion in imposing punishment. Thus, the imposition of sentence being appropriate does not call for any interference of this Court. Consequently, proceed to pass the following:
ORDER The appeal filed by accused in Criminal appeal No.2588/2013 is dismissed.
The appeal filed by State in Criminal Appeal No.2738/2013 is dismissed.
Judgment of the trial Court on the file of Fast Track-I Dharwad, in S.C.No.135/2009 dated 20.02.2013 is confirmed.
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The registry is directed to transmit the records with the copy of this judgment to trial Court.
(Sd/-) JUDGE AC