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Karnataka High Court · body

2007 DIGILAW 220 (KAR)

STATE OF KARNATAKA v. CAUVERAPPA

2007-03-28

V.G.SABHAHIT

body2007
( 1 ) THIS appeal by the State is directed against the judgment of acquittal passed by the Court of XXII Addl. City Civil and Sessions Judge, Bangalore City in Sessions Case No. 451/2000, dated 30-1-2002 wherein accused Nos. 1 and 3 to 5, the respondents herein have been acquitted of the offence punishable under S. 366, 342 and 506 r/w 149, Indian Penal Code. ( 2 ) THE essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows : it is the case of the prosecution that PW-1 the complainant, the mother of PW-2 lodged a complaint before Adugodi Police Station on 21-3-1997 at about 10 p. m. as per Ex. P-1. PW-11 is the Head Constable who registered the said complaint, prepared the FIR as per Ex. P-8, went to the spot and prepared mahazar as per Ex. P-2. It is averred in the complaint that the accused are known to the complainant and they are the residents of her parents village. On 20-3-1997, the Complainant and her daughter Manjula (PW-2) had gone to attend the marriage of her brother-in-law, maddurappa's son at Corporation Samudaya bhavana in Adugodi-Koramangala Road. At about 10 p. m. , when herself and her daughter were sitting together in the said Samudaya bhavana, Cauverappa came and told that he wanted to talk to Manjula and took Manjula outside the Community Hall. About five minutes thereafter, pw-3 Shivashankar came and informed her that accused Nos. 1 to 4 had kidnapped her daughter Manjula in the Autorickshaw bearing No. CAS 213 driven by accused No. 3 Krishnappa. She got alarmed and she searched for PW-2, her daughter manjula. She went to Chikkabegur and searched there suspecting that she might have gone there. Her daughter could not be found there. Therefofe, she filed a complaint before the Police. It is the further case of the prosecution that PW-2 was found in the house of sister of accused No. 1 by PW-9 on receiving credible information and at about 6. 15 p. m. on 5-4-1997, PW-9 had been deputed to search for the accused and PW-2. He found that in the Auto-Rickshaw, accused No. 1 cauverappa and PW-2 were sitting and accused no. 5 was driving the Auto-Rickshaw and he apprehended them and produced them along with the Auto-Rickshaw before the. 15 p. m. on 5-4-1997, PW-9 had been deputed to search for the accused and PW-2. He found that in the Auto-Rickshaw, accused No. 1 cauverappa and PW-2 were sitting and accused no. 5 was driving the Auto-Rickshaw and he apprehended them and produced them along with the Auto-Rickshaw before the. After completion of the investigation, charge-sheet was filed against accused Nos. 1 to 5, case was split-up against accused No. 2 as he was not available for trial and during the course of evidence, the accused pleaded not guilty and claimed to be tried for the offence punishable under Sections 366, 342 and 506 r/w 149, Indian Penal Code. However, since it was found that the offence committed was triable by the Court of Session, the matter was committed to the Sessions Court and thereafter, PWs. 1 to 11 were examined and Exs. P-1 to P-8 and Mos 1 and 2 were got marked by the prosecution to bring home the guilt of the accused. The defence of the accused is one of denial. It is the case of the accused that a false complaint has been foisted at the instance of the brother of PW-2 and that accused have not committed any offence. ( 3 ) THE trial Court after considering the contentions of the learned SPP and the learned counsel appearing for the accused held that the prosecution has failed to prove that the accused have committed the offence punishable under ss. 366, 342 and 506 Indian Penal code r/w 149, Indian Penal Code by its judgment dated 30-1-2002 and being aggrieved by the said judgment of acquittal, the State has preferred this appeal. I have heard the learned SPP and the learned Counsel for the respondents. ( 4 ) HAVING regard to the contentions urged, the points that arise for determination in this appeal are as follows :- (1) Whether the judgment of acquittal passed by the trial Court calls for interference in this appeal? (2) What order ? ( 5 ) I answer the above points as follows :- (1) The judgment of acquittal passed against accused Nos. 3, 4 and 5 is entitled to be confirmed and the judgment of acquittal passed against accused No. 1 is liable to be set aside and accused No. 1 is found guilty of the offence under Sections 366, 342 and 506 indian Penal Code. 3, 4 and 5 is entitled to be confirmed and the judgment of acquittal passed against accused No. 1 is liable to be set aside and accused No. 1 is found guilty of the offence under Sections 366, 342 and 506 indian Penal Code. (2) Accused No. 1 is liable to be sentenced for the offence under Sections 366, 342 and 506, Indian Penal Code as per the final order for the following reasons. I have been taken through the evidence of pws 1 to 11 and contents of the document got marked by the prosecution. PW-1 is the complainant. She is the mother of PW-2. She has reiterated the averment made in the complainant in her examination-in-chief and has further deposed that accused No. 1 had come to her house about one Week next before the date of incident and had proposed for marriage of her daughter Manjula PW-2 to Accused No. 1. The complainant had refused for the said proposal and in view of the same, the accused have kidnapped her daughter with an intention to compel her to marry accused N o. 1. She has identified Mo.-1 as the Thali which was forcibly tied by accused No. 1 to PW-2. She has further deposed that on the date of incident, her daughter was wearing a Necklace, a Jhumki (Mad) and the said ornaments have been taken by accused No. 1 and the value of the said ornaments is Rs. 20,000/ -. It is elicited in the cross-examination of PW-1 that all the accused are known to her since the date of her birth and were related to her. Accused No. 1 came and took her daughter pw-2 from the Samudaya Bhavana. She was engaged in performing shastra in the samudaya Bhavana. She has denied the suggestion that she has not seen accused No. 1 taking PW-2 outside the Samudaya Bhavana. There is a Police Station opposite to Samudaya bhavana at Adugod. She has denied the suggestion that since there was no good relationship between the accused and Shivashankar, a false case has been foisted at his instance. She has also denied the suggestion that she is deposing falsely that accused No. 1 voluntarily came proposing marriage with him. There is a Police Station opposite to Samudaya bhavana at Adugod. She has denied the suggestion that since there was no good relationship between the accused and Shivashankar, a false case has been foisted at his instance. She has also denied the suggestion that she is deposing falsely that accused No. 1 voluntarily came proposing marriage with him. ( 6 ) PW-2 is the daughter of PW-1 and she has stated in her evidence that on 20-3-1997 when the incident took place, herself and her parents were in the Adugodi Corporation samudaya Bhavana to attend the marriage of the son of Maddurappa. At about 10 p. m. , when the marriage ceremony was being performed, she was sitting near her mother and at that time accused No. 1 came there and told that he wanted to talk to her and he took her near the gate of Samudaya Bhavana and near the gate accused Nos. 2, 3, 4 and 5 were present. Accused No. 1 gagged her mouth and thereafter all the accused put her inside the auto-Rickshaw forcibly and took her to Bank quarters near Alasur and she was confined in a room and the room was locked and the said quarter was in the occupation of the sister of accused No. 1. She was kidnapped in the auto-Rickshaw bearing No. CAS 213. Accused No. 1 was compelling her to marry him and about one week thereafter, he forcibly tied thali to her neck and she was confined in the room for fifteen days and thereafter, Police came to the house and took her to her parents house. The ornaments which PW-2 was wearing were taken by accused No. 1 Cauverappa and she has produced Thali which was tied by accused No. 1 to her neck as per MO-1 and she has identified MO-2 as Auto-Rickshaw in which she was kidnapped. It is elicited in the cross-examination of PW-2 that there were several persons in the Samudaya bhavana which is by the side of the main road. When accused No. 1 called her, accused Nos. 2 to 5 were on the main road. It is not true to suggest that the accused have not kidnapped her in the Auto-Rickshaw. The accused took her to the house of the sister of accused No. 1 manjula where the sister of accused No. 1 was staying with the members of the family. 2 to 5 were on the main road. It is not true to suggest that the accused have not kidnapped her in the Auto-Rickshaw. The accused took her to the house of the sister of accused No. 1 manjula where the sister of accused No. 1 was staying with the members of the family. There are residential houses near the said house. She has further deposed that she did not make any attempt to ask for help from the neighbours as she was confined in the room and the room was locked. She was there for about 15 days in the house of the sister of accused No. 1 and the sister of accused No. 1 gave her food. It is further elicited that accused No. 1 forcibly tied thali to her neck and at that time, the sister of the accused and her family members were present. She has denied the suggestion that she did not protest when accused No. 1 tied thali to her neck and about 15 days after the thali was tied, she stayed in the house of the sister of accused No. 1 and Police came to the house at about 6 p. m. to the house of sister of accused No. 1 and they were in uniform and she was taken to the Police Station. She has denied the suggestion that Thali is concocted for the purpose of case and a false complaint has been foisted against the accused. ( 7 ) PW-3 has stated in his evidence that on 20-3-1997 at about 10 p. m. , he was in the samudaya Bhavan at Adugod. He knows the accused and PWs 1 and 2. He saw the accused taking PW-2 in an Auto-Rickshaw and he informed PW-1 about the same. He denied the suggestion in the cross-examination that he is deposing falsely that a false complaint is lodged at his instance as he is inimically disposed towards accused. PW-4 is the owner of the Auto-Rickshaw and he has stated in his evidence that on 20-3-1997 he had not given auto-Rickshaw to accused No. 1. He has been treated as hostile and permitted to be cross-examined by the Public Prosecutor. PW-6 is the Head-Master of the school in which PW- 2 studied and Ex. PW-4 is the owner of the Auto-Rickshaw and he has stated in his evidence that on 20-3-1997 he had not given auto-Rickshaw to accused No. 1. He has been treated as hostile and permitted to be cross-examined by the Public Prosecutor. PW-6 is the Head-Master of the school in which PW- 2 studied and Ex. P-4 shows the date of birth of PW-2 as 2-1-1978 and nothing has been elicited in the cross-examination to disbelieve her evidence regarding date of birth of PW-2. PW-7 has not supported the case of the prosecution. PW-8 is a panch for the mahazar ex. P-5 and he has not supported the case of the prosecution. PW-9 is the Police Constable who apprehended accused No. 1 and PW-2 and accused No. 5 along with Auto-Rickshaw which he was driving. PW-10 has not supported the case of the prosecution and nothing has been elicited in the cross-examination to support the case of the prosecution. PW-11 was working as Head-Constable in Adugodi police Station. ( 8 ) IT is clear from the above said evidence of PWs 1 to 3 that their evidence is consistent, cogent and reliable insofar as it relates to the fact that accused No. 1 Cauverappa came and took PW-2 Manjula, daughter of PW-1 with him. The evidence of PWs 1 to 3 which is truthful and reliable would further show that accused No. 1 took PW-2 in the Auto Rickshaw. PW-1, the complainant has only spoken to about the presence of accused No. 1 and the fact that he took her daughter PW-2 outside the Samudaya Bhavana and PW-3 has spoken to about the presence of other accused and in the absence of material regarding formation of unlawful assembly and the fact that they have committed the offence in furtherance of common object, their evidence does not prove beyond reasonable doubt that any offence has been committed by accused Nos. 4 and 5 and the case is split up against accused No. 2 as he was not available. 4 and 5 and the case is split up against accused No. 2 as he was not available. The evidence of PWs 1 to 3 clearly proves beyond reasonable doubt that the accused No. 1 had proposed to marry PW-2 and PW-1 had refused for the said proposal and PW-2 was kidnapped by accused No. 1 in the Auto-Rickshaw driven by accused No. 5 from the Adugodi Samudaya bhavan to the house of his sister and there he compelled her to marry him and forcibly tied thali and wrongfully confined her in a room in the house in the occupation of his sister. The non-examination of the Investigating officer is not fatal to the case of the prosecution in the present case as the evidence of PWs. 1 to 3 is truthful and reliable and even according to the facts elicited in the cross-examination, it is clear that PW-2 was taken to the house of the sister of accused No. 1, thali was tied to her neck by accused No. 1 in the verandah of the house and it is suggested that pw-2 did not protest for accused No. 1 tying thali to her neck and the said suggestion has been denied by PW-2 and there is no suggestion to the effect that accused No. 1 did not tie thali to the neck of PW-2. On the other hand, it is elicited in the cross-examination that accused No. 1 forcibly tied thali to the neck of PW-2 and mere fact that there is sbme exaggerations in evidence of PWs 1 and 2 regarding the fact that accused No. 1 has taken the ornaments which PW-2 was wearing would not by itself disproves their evidence regarding accused No. 1 kidnapping PW-2 with an intention of compelling her to marry him and to wrongfully confine her and there is no contradiction in the material particulars regarding the fact that accused No. 1 kidnapped PW-2 in the Auto-Rickshaw and took her to the house of his sister and wrongfully confined PW-2 Manjula in his sisters house and forcibly tied thali and wherefore, above said proved and the material on record clearly proves beyond reasonable doubt trial accused no. 1 kidnapped PW-2 with an intention of compelling her to marry him and to wrongfully confine her and threaten her and tied thali to PW-2 and the said proved facts constitute offence punishable under S. 342 for having wrongfully confined PW-2 in the house of his sister and kidnapping PW-2 with an intention of compelling her to marry him and forcibly tying thali to the neck of PW-2 arid thereby committed the offence punishable under Section 366 and threatened her to marry him, thereby committed an offence punishable under Section 506, Indian Penal Code and wherefore, the trial Court has proceeded on the basis that there is inconsistency in the evidence of PWs 1 to 3 and noted the fact that inconsistencies do not relate material fact of kidnapping of PW-2 by accused No. 1 and confining PW-2 in the house of sister of accused No. 1 and compelling PW-2 to marry accused No. 1 and wherefore, the trial Court has failed to consider the facts elicited in the cross-examination of PW-2 which itself would show that PW-2 was confined in the house of sister of accused No. 1 and accused No. 1 forcibly tied thali and compelled PW-2 to marry him and wherefore, the judgment of acquittal passed by the trial Court against accused No. 1 is liable to be set aside as the prosecution has proved beyond reasonable doubt that accused no. 1 kidnapped PW-2, took her to his sister's house with an intention of compelling her to marry him and forcibly tied thali and wrongfully confined her in the house of his sister and forced her to marry him and threatened her to marry him and thereby committed the offence under Sections 366, 342 and 506, Indian Penal Code. Insofar as other accused are concerned, the judgment of acquittal passed by the trial Court is entitled to be confirmed as there is no consistency in the evidence of PWs 1, 2 and 3 regarding the presence of the accused and about the fact that they formed into unlawful assembly in the commission of the offence in furtherance of common object of forming an unlawful assembly. Accordingly, I hold that the judgment of acquittal passed by the trial Court as against accused No. 1 is liable to be set aside and the prosecution has proved beyond reasonable doubt that accused No. 1 has committed the offence punishable under Sections 366, 342 and 506, Indian Penal Code and the judgment of acquittal passed against accused Nos. 3, 4 and 5 is entitled to be confirmed. Accordingly, i answer Point No. 1. Accused No. 1 has to be sentenced for the offence under Section 366, 342 and 506 Indian Penal Code. The offence under section 366, Indian Penal Code is punishable with imprisonment of either description for a term which may extend to 10 years and shall also be liable to pay fine. The offence under S. 342, Indian Penal Code is punishable with imprisonment of either description for a term which may extend to one year or fine of Rs. 1,000/- or with both. The offence under S. 506, Indian Penal Code is punishable with imprisonment for a term which may extend to two years or fine or with both. ( 9 ) LEARNED Counsel for the respondent- aceused No. 1 submitted that a lenient view may be taken having regard to the circumstances under which the offence has been committed and accused No. 1 has been found guilty and having regard to the conduct of the accused and the fact that he is aged about 24 years at the time of commission of the offence. The learned SPP submitted that appropriate sentence may be imposed for the said offence. ( 10 ) I have considered the contentions of the learned Counsel for the accused No. 1 and the learned SPP. Having regard to the circumstances under which the offence has been committed the conduct of the accused and other facts and circumstances bearing upon the question of sentence, I hold that interest of justice will be met by sentencing accused No. 1 to undergo S.. for one year and to pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo S.. for 3 months for the offence under S. 366, Indian Penal Code and to sentence the accused No. 1 to undergo S.. for 6 months and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo s.. 2,000/- and in default of payment of fine, to undergo S.. for 3 months for the offence under S. 366, Indian Penal Code and to sentence the accused No. 1 to undergo S.. for 6 months and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo s.. for 3 months for the offence under Section 342, Indian Penal Code and to sentence the accused No. 1 to undergo S.. for 3 months and to pay a fine of Rs. 1,000/- in default of payment of fine, to undergo S.. for 15 days for the offence under Section 506, Indian Penal Code and that all the sentences shall run concurrently. The accused is entitled for set-off for the period of detention undergone if any under Section 428 of the Cr. P. C. Accordingly, I pass the following :- order the appeal is allowed in part. The judgment of acquittal passed by the Court of XII additional City Civil and Sessions Judge, bangalore in Sessions Case No. 451/00, dated 30-1-2002 against Accused No. 1 is set aside and the accused No. 1 is found guilty of having committed the offence under Section 366, 342 and 506, Indian Penal Code. Accused No. 1 is directed to undergo S.. for one year and to pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo S.. for 3 months for the offence under Section 366, Indian penal Code and to sentence the accused No. 1 to undergo S.. for 6 months and to pay a fine of rs. 1,000/- and in default of payment of fine, to undergo S.. for 3 months for the offence under Section 342, Indian Penal Code and to sentence the accused No. 1 to undergo S.. for 3 months and to pay a fine of Rs. 1,000/- in default of payment of fine, to undergo S.. for 15 days for the offence under Section 506, indian Penal Code. The judgment of acquittal passed against accused Nos. 3, 4 and 5 by the trial Court is confirmed. The trial Court is directed to secure the presence of accused No. 1 and remand him to serve out sentence imposed upon him. The substantive sentence imposed upon the accused No. 1 shall run concurrently. Appeal partly allowed.