Karnataka High Court
Subbu @ Subramani vs State By Ramamurthynagar Police on 10 July, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10th DAY OF JULY, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1157/2013
BETWEEN:
Subbu @ Subramani
S/o Sonnappa
Aged about 40 years
No.244, 24th Cross, 1st Main
Talarpet, Bagaluru, Krishnagiri
Tamilnadu State.
... Appellant
(By Sri Pavankumar G., Advocate for
K. Venkatramana (Babu), Advocate)
AND:
State by Ramamurthynagar Police
Represented by SPP, SPP Office,
High Court Building,
Bangalore.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the judgment
dated 26.12.2011 (27.12.2011) passed by the
Presiding Officer, Fast Track Court-VII, Bangalore
District, Bangalore in S.C.No.875/2010 convicting
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the appellant/accused for the offence punishable
under Section 364A r/w Section 34 of Indian Penal
Code.
This Criminal Appeal coming on for hearing this
day, BUDIHAL R.B. J. delivered the following:-
JUDGMENT
This appeal has been preferred by the appellant/accused being aggrieved by the judgment and order of conviction and sentence dated 26.12.2011/27.12.2011 passed by the Presiding Officer, Fast Track Court-7, Bangalore District in S.C.No.875/2010, wherein the appellant/accused has been convicted for the offence punishable under Section 364-A r/w Section 34 of the IPC and the appellant/accused was sentenced to life imprisonment and to pay a fine of Rs.1,000/- and in default of payment of fine amount, he shall undergo simple imprisonment for three months.
2. Brief facts of the prosecution case as per the complaint averments are that PW1 Smt.Yashoda, the mother of the victim filed the complaint under Ex.P1 -3- on 12.2.2010 stating that she is residing along with family member in the address mentioned in the complaint and she is the house wife. She is having the daughter Kum.Vaishnavi aged 5 years and son Jithesh @ Appu aged three years.
3. On 11.2.2010 evening at 4.30 p.m. both the children of the complainant were playing in front of the house. After 10-15 minutes the mother of the complainant came and saw that children were not there and accordingly she told the complainant that children were missing. Herself, her mother and the neighbourers made the search of all the places, even then the children were not traced. When they were so searching PW4 Sri. Arun @ Abhi who is the tenant in the house of the complainant told that he has seen the accused persons along with the children in front of the bar, he also told that he raised a suspicion and wanted to enquire with Subbu @ Subramani accused person as to why he has taken the children with him, but by the time he went to the said place the accused -4- person along with children boarded the auto rickshaw and went towards Kasturi Nagar passing in front of the Karthik Bar. PW4 also stated before the complainant that he wanted to chase the accused person, as he was not having any vehicle with him, it was not possible for him. Then the complainant and others made the search at Kasturi Nagar, Chennasandra, Beneganahalli, NGF and on all other places. But even then the accused and children were not at all traced. For some reason the accused person kidnapped the children. Therefore, he prayed to take appropriate legal action against the accused person.
4. On the basis of said complaint case came to be registered in Crime No.34/2010 for the offence punishable under Section 363-A of IPC. After completion of investigation, the Investigating Officer filed the charge sheet against the accused person for the offence punishable under Section 364-A r/w Section 34 of IPC.
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5. After hearing both sides, the learned Fast Track Judge prepared the charge as against the accused person and when the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried. Accordingly, charge was framed. His plea was also recorded and matter was set down for trial.
6. In support of its case, the prosecution in all examined 12 witnesses and produced 10 documents. The accused has been examined under Section 313 of Cr.P.C. and incriminating material was read over to him by framing questionnaire and the answers of the accused person were recorded in the said statement. On the side of the defence, neither any witnesses were examined nor any documents were got marked. Thereafter, arguments of both sides were heard and after considering both oral and documentary evidence placed on record, ultimately, the learned Fast Track Court Judge held that prosecution has proved its case beyond all reasonable doubt and convicted the -6- appellant-accused for the offence punishable under Section 364-A r/w Section 34 of IPC and has been sentenced to life imprisonment and also to pay fine of Rs.1,000/- and in default of payment of fine, simple imprisonment for 3 months.
7. Being aggrieved by the judgment and order of conviction and sentence, so also, challenging the legality and correctness of the said judgment, on the grounds as mentioned at ground Nos.4 to 10 of the memorandum of appeal, the appellant-accused is before this Court in this appeal.
8. We have heard the arguments of learned counsel for the appellant-accused and also the learned Additional State Public Prosecutor appearing for the respondent-State.
9. Learned counsel for the appellant-accused submits that though the offence has been committed on 11.2.2010, there is a delay of 31 hours in submitting the FIR before the Court and this delay -7- has not been properly explained by the prosecution. Further, though it is the case of the prosecution that two children were kidnapped by the accused person, the children were not at all cited as witnesses or examined before the Court. He also submits that P.W.4 is a planted witness by the prosecution to suit the case of the prosecution. So far as the recovery aspect is concerned, the evidence of P.Ws.8 and 9 is quite contrary to the contents of Ex.P2 and other evidence placed on record. It is also submitted that the though as per the case of the prosecution the accused has shown the place to which the children were taken and at his instance the children were recovered, but the alleged voluntary statement is not at all marked during the course of trial. He further submitted that there is no material placed by the prosecution to show that the alleged kidnapping is for a ransom. Further, the evidence of P.W.12, the panch witness to Ex.P7, will not inspire the confidence of the Court that it is worth believable. Further, the prosecution has produced inconsistent -8- and totally contradictory material with regard to apprehending the accused person. All these aspects were not properly considered and appreciated by the learned Fast track Judge and that he has read the evidence wrongly and convicted the appellant- accused for the offence punishable under Section 364-A of IPC. Further, no ingredient or requirement of said section are complied with by the prosecution by placing acceptable material during the course of trial. Hence, the learned counsel has submitted to allow the appeal and to set aside the order of judgment and conviction passed by the Court below. Alternatively, he has also submitted that for the sake of appreciation if the prosecution material is accepted, it will not make out a case for the offence under Section 364-A of IPC, at the most, the offence may fall under Section 363 of IPC i.e., Kidnapping Simplicitor. Accordingly, it is submitted that at least to the said extent the judgment and order of conviction of the Court below is to be modified. -9-
10. Per-contra, learned Additional State Public Prosecutor submits that so far as kidnapping of the two children is concerned, the prosecution has relied upon the last seen theory, in that light the evidence of P.W.4 clearly shows that he has personally seen the accused person bringing these two children along with him to the Karthik Bar. In the cross-examination of P.W.4 nothing has been elicited from his mouth to disbelieve his evidence. No doubt, so far as the place of apprehending the accused is concerned there may be some inconsistency, but when the children were taken along with the accused and it is witnessed by P.W.4 whose evidence is worth believable, it is for the accused person to explain what has happened thereafter. Further, it is the accused person who has shown the place to which he took the children. Hence, the oral as well as documentary evidence produced by the prosecution inspires the confidence of the Court and this has been rightly appreciated by the learned Fast Track Judge. No illegality has been
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committed in accepting the said material and coming to the conclusion that the accused has committed the alleged offence. Hence, there is no merit in the appeal and the same is to be dismissed.
11. We have perused the grounds urged in the memorandum of appeal, judgment and order of conviction of the Court below and the oral and documentary evidence placed by the prosecution before the trial Court. We have also considered the oral submissions made by learned counsel on both sides at the bar.
12. The prosecution case as per the complaint averments Ex.P1 is that the appellant-accused has kidnapped the children of the complainant and subsequently, the children were traced. We have perused the contents of the complaint. To prove the said aspect the prosecution has examined the mother of the children. She deposed that P.W.4 Arun informed her that he has seen the accused person along with the children. He tried to chase them, but
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in the meantime, the accused boarded an autorickshaw along with children at Karthik Bar and therefore, he was not able to catch hold the accused person along with the children. No doubt, the information furnished by the complainant in the complaint shows that she is not the eyewitness to the incident and she has narrated as per the say made by P.W.4.
13. We have perused the oral evidence of P.W.4-Arun who is the tenant in the house of complainant. He has stated that he knows the accused person as he used to come to Karthik Bar where P.W.4 is working to consume liquor. As such, he is having acquaintance with him. He further deposed that about 1 to 1 ½ years back the accused along with the children came to Karthik Bar and ordered for chapathi and by the time P.W.4 went inside to give instructions to prepare chapathi and came back, accused person was getting down from the steps and crossed the road and boarded an
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autorickshaw and along with the children, one more person was also present in the autorickshaw. The autorickshaw proceeded towards N.G.F road. Then he phoned to his wife Radhika and informed that accused had consumed liquor and took the children of P.W.1 and proceeded in the autorickshaw. In the midnight at 12.00 a.m. he completed his work and returned to his house. Then he came to know that the children when they were playing in front of the house were kidnapped by the accused person. On the next day police called him to the police station and enquired with him and recorded his statement and on the next day, the police traced the accused person and brought back the children from the accused person.
In the cross-examination he deposed that he has not produced any agreement to show that he is the tenant in the house of P.W.1. He does not know how many persons were there in the house of P.W.1. He cannot say how many persons visit to Karthik Bar and Restaurant everyday and who visit the Bar
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regularly. There are many workers in the said Bar. He cannot say about the dresses worn by the children. He does not know the autorickshaw number. When he informed to his wife over phone it was 5.00 p.m. He denied the suggestion that he has not at all seen the accused person and that he never came to his Bar. He denied the suggestion that he does not know anything about this case and the accused never brought the children to the Bar and from the said Bar he has not at all boarded the autorickshaw along with the children and as P.W.1 is the owner of the house where he is the tenant, he is giving false evidence.
14. In the evidence of P.W.4 he has clearly stated that he has seen the accused person going along with the two children. It is stated by him that accused had brought the children to Karthik Bar and placed order for chapathi and thereafter, he left the said place in an autorickshaw. Though he has been lengthily cross-examined by the defence and he has
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stated that he cannot say about the persons coming to the said Bar and the autorickshaw number, but so far as the accused person bringing two children to the Bar is concerned, his version is consistent even in the cross-examination and he denied the suggestion that accused person has not brought the children to the said Bar and is deposing falsely. Therefore, the evidence of P.W.4 with regard to accused person coming to the Bar along with the children is worth believable and nothing has been elicited from his mouth during the cross-examination to disbelieve his evidence.
15. P.W.1 in her evidence has stated that on the date of incident herself, her mother and the children were at the house. Children were playing in front of the house and at that time, accused was talking to the mother of the complainant and as the cow was brought at that time, her mother went to the hind portion of the house in order to milk the cow and after half an hour when she came back and saw
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that the children were not there and she informed the same to the complainant who was inside and thereafter they searched for the children. This evidence of P.W.1 also corroborates the evidence of P.W.4. P.W.1 has seen the accused person in front of her house on the date of incident and that he was talking to the mother of the complainant. Even looking to this material there is consistency in the evidence of P.W.1 and P.W.4.
16. It is argued by the learned counsel for the appellant-accused that though the alleged incident has taken place on 11.2.2010, there is a delay of 31 hours in submitting the FIR before the Magistrate Court. No doubt, the endorsement made by the Magistrate on the FIR is dated 13.2.2010. But as per the evidence of P.W.4 he informed the complainant in the midnight at 12.00 a.m. about he seeing the accused person along with the children and bringing them to Karthik Bar and thereafter, complaint came to be filed. The materials also show that even after
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P.W.4 informing the complainant in the midnight at 12.00 a.m. on 11.2.2010, as per the evidence of P.W.2 Jayamma also they made search at different places to trace the children as well as the accused person and thereafter on 12.2.2010 they filed the complaint. Looking to these factual matrix of the case, though there is some delay, when the witnesses have explained the same that after making search at different places for the accused as well as for the children, the complaint came to be filed, the entire case of the prosecution cannot be thrown out only on the ground that there is some delay. When two children of the complainant have been kidnapped, naturally it causes apprehension in the mind of the parents and they will be in a panicky mood. Therefore, the contention of the defence that there is a delay and it has not been properly explained cannot be accepted at all.
17. With regard to the place of apprehending the accused is concerned, it is true that as per the
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case of the prosecution three versions are available. Firstly, it is stated that the accused person was apprehended by public and from that place he was brought, secondly, it is stated that P.Ws.8 and 9 apprehended the accused person and the third version is that the children were in the safe custody of one Akkaiahamma. Therefore, from which place exactly the accused person was apprehended and arrested by the police has not been satisfactorily explained by the prosecution and there is inconsistency in the evidence of prosecution witnesses. But so far as the accused person taking the children along with him i.e., last seen theory of the prosecution that the children were with the accused person and thereafter tracing of the children, there is a satisfactory evidence placed by the prosecution. Therefore, only on the ground that there is some inconsistency with regard to the place from which the accused person was apprehended, the other acceptable material cannot be rejected by the Court.
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18. Though the charge is under Section 364-A of IPC, perusing the entire prosecution material, both oral and documentary, there is no material placed by the prosecution that the kidnapping of the children of the complainant is for ransom. In this connection, we have perused the contents of the complaint. The mother of the children i.e., P.W.1 complainant has not at all specifically stated in the complaint that the said act of the accused person is for ransom. What she has mentioned in the complaint that with some ulterior motive he has kidnapped the children. Even perusing the oral evidence of prosecution witnesses they have not stated in their evidence specifically that the kidnapping of the children by the accused person is with an intention to extract money from the complainant. In the absence of such material to comply with the requirement of Section 364-A of IPC, it cannot be said that the prosecution has proved its case so far as the alleged offence under Section 364-A of IPC is concerned. This aspect has not been
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properly appreciated by the trial Court and in the absence of such material has proceeded to hold that the accused has committed the offence under Section 364-A of IPC and sentenced him to life imprisonment. Perusing the material on record, we are of the opinion that the case of the prosecution will attract Section 363 of IPC i.e., kidnapping or taking away the children without consent of the lawful guardians or enticing the children to go along with him. Hence, we proceed to pass the following order:
The appeal is partly allowed. The judgment and order of conviction passed by the City Fast Track (Sessions) Judge, Bengaluru City, (F.T.C.No.VII) dated 26.12.2011 passed in S.C.No.875/2010 is hereby modified. The accused-appellant is convicted for the offence under Section 363 of IPC instead of the offence under Section 364-A of IPC and is sentenced to undergo imprisonment for a period of 7 years and to pay a fine of Rs.1,000/-, in default of
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payment of fine, to undergo simple imprisonment for a period of two months.
Learned counsel for the appellant-accused submits that appellant is in custody from past 8 years and 4 months. Hence, the concerned prison authorities are hereby directed to release the appellant-accused forthwith, if he is not required in any other case.
Registry is hereby directed to send the operative portion of this order to the concerned prison authorities immediately.
Sd/-
JUDGE Sd/-
JUDGE AP/bkp