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2009 DIGILAW 786 (KAR)

Thimmappa @ Channaraju v. State of Karnataka

2009-10-15

ARALI NAGARAJ

body2009
Judgment :- The accused Nos.1 and 2 in Sessions Case No.23/1997 on the file of the learned Addl. District and Sessions Judge. Hassan have challenged in this appeal the Judgment and Order dt.26th September 2003 passed in the said case convicting these accused – appellants for the offence punishable under Sec.372 R/W Sec.34 IPC and sentencing each of them to undergo Rigorous Imprisonment for a period of five years and to pay fine of Rs.2,000/-with default sentence of simple imprisonment for a period of another six months. 2. The present appeal was filed by accused – appellants on 25.11.2003 and it came to be listed for the first time on 8.12.2003. None represented the appellant on the said date. Therefore, it came to be adjourned to 6.1.2004 on which date, the learned State Public Prosecutor was directed to take notice on behalf of the respondent – State and the appeal came to be admitted, and records were called for. 3. Thereafter, the appeal did not see the light of the day till 12.3.2009 on which date the arguments were heard in part and the appeal was ordered to be listed on 13.3.2009 for further arguments. On 28.5.2009 this appeal came to be released from part heard. Thereafter, this appeal came to be listed on 30.6.2009, on which date it was noticed that despite this appeal coming up for final hearing from 3.6.2009. on each date of hearing, the learned counsel for the appellants had remained absent and therefore, bailable warrants were ordered to be issued against the appellants for Rs.10,000/-each requiring them to appear before this Court on 25.8.2009. 4. On 25.8.2009 Smt. M.D. Anuradha Urs and Sri A. Ramesh Gowda, the learned advocates appeared for the appellants and arguments of Sri Ramesh Gowda, the learned counsel for the appellants were heard in part and the appeal came to be adjourned to 27.8.2009, on which date, both the accused – appellants appeared before this Court and submitted that since they completed their term of sentence of imprisonment and also paid the fine imposed on them by the Trial Court, they came to be released from the prison. 5. 5. In view of the above submission of the appellants, Sri Satish Girji, the learned High Court Government Pleader, submitted that as on this date, since both the accused have completed their term of sentence of imprisonment and have also paid fine, the present appeal filed by them challenging the judgment and order of conviction and sentence passed by the Trial Court has become infructuous and therefore, the same may be dismissed accordingly. As against this submission Sri A. Ramesh Gowda, the learned counsel for the appellants submitted that though this appeal has become infructuous, these appellants had been falsely implicated in the said case and therefore, arguments on merits be heard and appeal be disposed of on merits because, the Judgment and Order of conviction and sentence, if allowed to remain on record, would badly affect the future of these accused – appellants. Accepting these submissions, this appeal came to be listed on 14.9.2009 for final hearing. Arguments of Sri Ramesh Gowda, the learned counsel for the appellants and also arguments of Sri A.V. Ramakrishna, the learned High Court Government Pleader are heard on merits and perused the impugned Judgment and Order of conviction and sentence and also the entire material found in the original records obtained from the Trial Court. 6. Stated in brief the case of the prosecution could be gathered from Ex.P4 complaint filed by the complainant, namely PW.2 Chaluvaiah, the father of victim girl, is as under: .(a) On 25.11.1996 Monday at about 5 p.m. both the accused Nos.1 and 2 who were known to the complainant, came to him and told that they had seen a boy for his daughter Savithri (PW.3 victim girl) at Bangalore and therefore, if the complainant and his daughter could accompany them to Bangalore, they could see the boy. Believing his words the complainant and his daughter Savithri both accompanied both the accused. .(b) The accused brought the complainant and his daughter to Konanur village. They left Konanur village in a bus. The said bus reached a place by about 5 or 6 a.m. The accused told the complainant that the said place was Bangalore. Then both the accused took the complainant and his daughter in another bus. The said bus reached another place during that night. They left Konanur village in a bus. The said bus reached a place by about 5 or 6 a.m. The accused told the complainant that the said place was Bangalore. Then both the accused took the complainant and his daughter in another bus. The said bus reached another place during that night. Then the accused No.1 made the complainant and the accused No.2 to sit at a place and took the girl Savithri with him. Two hours thereafter, accused No.1 Thimmappa alone returned. When the complainant asked him as to whereabouts of his daughter, the said accused told him that he had left her in the house of an aged women and he would take him (complainant) also to the said house. Thereafter, he accused took the complainant into the town, made him to roam here and there till 9 p.m. and then asked him to sit at a place and went away. Even after lapse of considerable time, none of the accused returned to the complainant. Thereafter, some how complainant returned Konanur and from there to his village on 9.12.1996 and then lodged the said complaint. 7. On appreciation of the oral evidence of PWs.1 to 7 documents at Exs.P1 to P6, the Trial Court recorded its findings that the prosecution proved its case against both the accused for the offence punishable under Sec. 372 R/W Sec.34 of IPC and therefore, by its impugned Judgment and Order, convicted both of them for the said offence and imposed sentence on them as stated in the impugned order of sentence. 8. It is the case of the prosecution, as found in the charge framed against both the accused Nos.1 and 2, that on 25.11.1996 both the accused Nos.1 and 2 took with them Kum. Savithri, aged about 16 years, the daughter of the complainant and also the complainant, making them to believe that they (the accused) were taking them to Bangalore for showing a boy for her but they took the complainant and the said girl to Mumbai and sold her to CW.6 Rathnamma for a sum of Rs.8,000/-for the purpose of prostitution or illicit intercourse and thus, both the accused committed an offence punishable under Sec. 372 R/W Sec.34 of IPC. 9. 9. PW.2 complainant Chaluvaiah, the father of the victim girl, has stated in his evidence that about 8 or 15 days prior to the marriage of his daughter PW.3 Savithri, both the accused came to him and told that there was a bride groom for the said girl at Bangalore earning salary of Rs.5,000/-per month and the complainant could see the boy at Bangalore. It is further deposed by him that about three days thereafter, both the accused again came to him took him (complainant) and his daughter Savithri to Bangalore saying that they would show the said boy to them and, after they reached Bangalore, the accused made them to board another bus and they (accused) took them in the said another bus to another city and there, both the accused asked the complainant to sit there and then accused No.1 took the girl Savithri with him and sometime thereafter, he only returned to the complainant and told him that he had left her in the house of an aged women and telling so both the accused left the complainant there only and went away. He has further deposed that somehow he returned to his village and thereafter lodged his complaint before the police. This evidence of PW.2 complainant does not in any way establish that the said girl was sold by the accused to CW.6 Smt. Rathnamma for Rs.8,000/-as alleged in the charge framed against the accused. 10. PW.3 Kumari Savithri is the victim girl. Though she has sated in her evidence that herself and her father both were taken together by the accused from their village to Bangalore and from there to Mumbai as deposed by her father, she has not deposed further that the accused No.1 sold her to either CW.6 Rathnamma or to any other person at Mumbai for Rs.8,000/-for the purpose of prostitution or for the purpose of subjecting her to illicit intercourse. Further, this PW.3 victim girl has stated in her evidence that the accused No.1 left her in the house of one Rathnamma and so many girls were there in the said house and the said Rathnamma used to ill treat and compel her to enter into the rooms of male persons and therefore, as she could not tolerate the ill treatment, she used to go into the rooms of male persons. But she has not whispered anything in her evidence as to the said Rathnamma carrying on prostitution and the girls in the said house being subjected to prostitution or illicit intercourse with any person. She has also not stated in her evidence that during the period of 15 days, during which period she was made to stay in the said house, she was compelled to have illicit intercourse with any person. 11. PW.4 Chandregowda is the relative of the complainant. He claims to have gone to Mumbai alongwith PW.5 ASI and brought the victim girl from the house of the said Rathnamma. PW.5 ASI claims to have gone to the said place and brought the girl from the house of the said Rathnamma. Neither of these witnesses has deposed that the victim girl was sold by accused No.1 to the said Rathnamma for Rs.8,000/-for the purpose of prostitution or illicit intercourse with any one. They have not even stated in their evidence that the said house was used by the said Rathnamma for carrying on prostitution. 12. PW.1 is the medical officer, who examined the victim girl on 23.12.1996. Though she has deposed that the girl was used to sexual intercourse and she was aged about 18 years, her evidence is totally of no help to the prosecution to substantiate the charge leveled against the accused. PW.6 is Dr. Munir Ahamed, who examined the girl for ascertaining her age. He has deposed in his evidence that as on 7.1.1997 the girl was aged between 16 and 18 years. Thus, the evidence of PWs.1 and 6, the two medical officers is of no help to the prosecution to prove the charge against the accused. Besides this, the evidence of both the medical officers i.e., PWs.1 and 6, does not conclusively establish that the girl was under 18 years of her age, as on the date of the alleged offence. 13. The above being the nature of evidence of all the prosecution witnesses, namely PWs.1 to 7, I am of the considered opinion that the Trial Court committed serious error in convicting the accused Nos.1 and 2 for the offence punishable under Sec.372 R/W Sec.34 of IPC. 14. 13. The above being the nature of evidence of all the prosecution witnesses, namely PWs.1 to 7, I am of the considered opinion that the Trial Court committed serious error in convicting the accused Nos.1 and 2 for the offence punishable under Sec.372 R/W Sec.34 of IPC. 14. As observed by me supra, it could be seen from the various dates of hearing that, though this appeal was filed by these poor accused on 25.11.2003 and it came to be admitted on 6.1.2004 and, it is very unfortunate that it did not see the light of the day till 12.3.2009 i.e., for more than five years after it was admitted. For no fault of their own, the accused – appellants suffered the entire period of Rigorous Imprisonment for five years, despite they being entitled to an order of acquittal and this has resulted in failure of justice and violation of their fundamental rights viz: right to personal liberty and ‘right to speedy trial’ and ‘speedy disposal of the appeal’, by reason of they undergoing imprisonment. If such instances are allowed to be repeated, it may result in the loss of public confidence in our justice delivery system itself. Therefore, I feel that something needs to be done in the matter of ‘speedy disposal of Trials Criminal Appeals’ wherein the accused/convicts have been in prisons. 15. Further, in no way these appellants could be adequately compensated for the loss of their personal liberty by reason of their detention in the prior despite they being entitled to be acquitted of the offence alleged against them. However, in view of the fact that, in response to the bailable warrants issued against them in this appeal as their earlier counsel remained absent from the Court, they appeared before this Court through their present advocates, thereby incurred further expenses in prosecuting this appeal, despite their release from the prison on completion of their period of imprisonment, they deserve the awarding of some monetary compensation. 16. For the reasons aforesaid, the present appeal is hereby allowed. The impugned judgment and order dt. 26.9.2003 passed in SC No.23/1997 by the learned Addl. District and Sessions Judge, Hassan is hereby set aside. Both the appellant Nos. 1 and 2 are hereby acquitted of the offence punishable under Sec.372 R/W Sec.34 of IPC. 16. For the reasons aforesaid, the present appeal is hereby allowed. The impugned judgment and order dt. 26.9.2003 passed in SC No.23/1997 by the learned Addl. District and Sessions Judge, Hassan is hereby set aside. Both the appellant Nos. 1 and 2 are hereby acquitted of the offence punishable under Sec.372 R/W Sec.34 of IPC. The fine amount that has been paid by the accused in compliance with the impugned order of sentence shall be returned to them. Further, a sum of Rs.10,000/-is hereby awarded to each of the appellants as compensation. This amount shall be paid to them by the Government of Karnataka within 8 weeks from the date of receipt of this Judgment by the Chief Secretary, Government of Karnataka, Bangalore. The Registrar General shall send a copy of this Judgment to the said Chief Secretary forthwith. The Registrar (Judicial) is hereby directed to take all possible steps, including issuing of suitable guidelines to the concerned, in the matter of speedy disposal of Criminal Trials / Criminal Appeals in which the accused / appellants have been in prisons.