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2013 DIGILAW 950 (KAR)

STATE OF KARNATAKA v. M. S. SHIVA @ ESHWAR

2013-08-20

H.S.KEMPANNA, N.K.PATIL

body2013
JUDGMENT H.S. KEMPANNA, J.-The State has preferred this appeal challenging the judgment and order dated 17.10.2006 passed in S.C. No. 202/2003 by the Addl. Dist. & Sessions Judge, Fast Track Court-IX, Bangalore, acquitting the respondent/accused of the offence punishable under Section 36 4A of IPC. 2. The respondent/accused came to be tried on the charge for the offence under Section 364A of IPC. It is alleged that on 01.12.2002 at about 4.00 p.m. in front of the house of Chandrappa at Doddabidarkallu, the accused kidnapped the minor girl-Kum. Meghana with an intention to compel PW.2-father of the victim to pay ransom of Rs. 4,75,000/- for releasing her and thereby he has committed the aforementioned offence. 3. It is the case of the prosecution, PW.2 is the father of the victim minor girl-PW.14, who was aged about six years and was prosecuting her studies in 1st standard at Gurushri Vidyalaya. PW. 13 is the mother and PW. 15 isthe wife of PW.2. PW.1 is the brother-in-law of PW.2. They are all residents of Doddabidarkallu coming within the jurisdiction of Peenya Police Station. 4. It is further the case of the prosecution, the accused had been engaged by PW.2 for construction of his house as the accused was a mason by avocation. On 01.12.2002 at about 4.00 p.m. the accused kidnapped PW. 14-minor daughter of PW.2 while she was in front of the house at Doddabidarkallu and took her to Krishnagiri and stayed there in SLV lodge. PWs.4 and 7, who are the shop keepers at Chikkabidarkallu had seen the accused taking the victim minor girl on his cycle. Among them, PW.7 claims that he saw the accused taking the victim girl at about 4.30 p.m. on 1.12.2002 towards Nelagaradanahalli. 5. It is further the case of the prosecution, thereafter on 1.12.2002 PW.1- brother-in-law of PW.2 filed a missing complaint as per Ex.P.1 before PW.19- PSI of Peenya Police Station. On the basis of the same, a casein Crime No. 640/2002 came to be registered of a missing miner girl namely, PW. 14-Kum. Meghana. About eight days later, according to the prosecution, the accused telephoned to the residence of PW.2 and informed the wife of PW.2 namely, PW.15 that he has kidnapped their daughter and if he is paid a sum of Rs. 4,75,000/-, he would release the victim. In response to the same, PW. 19 proceeded to Krishnagiri along with PW. 14-Kum. Meghana. About eight days later, according to the prosecution, the accused telephoned to the residence of PW.2 and informed the wife of PW.2 namely, PW.15 that he has kidnapped their daughter and if he is paid a sum of Rs. 4,75,000/-, he would release the victim. In response to the same, PW. 19 proceeded to Krishnagiri along with PW. 11 and there he apprehended the accused and minor girl. Thereafter, he brought back the victim girl and the accused to Peenya Police Station. In the meantime, PW.2-father of the minor girl lodged a complaint as per Ex.P.2 before PW. 12- PSI. On the basis of Ex.P.2, PW. 12 registered the case for the offence under Section 364A of IPC in the original Crime No. 640/2002, which had been registered earlier by PW.19- PSI. Thereafter, PW.12 arrested the accused and on completion of the arrest formalities he got him remanded to Judicial custody. During the course of investigation, he also seized the cycle on which the victim girl had been carried by the accused, drew up spot panchanama as per Ex. P. 4 in front of the house of PW.2 in the presence of the panch PW.3 and another panchanama in the lodge at Krishnagiri as per Ex.P. 5 in the presence of PWs.5 and 6. He also recorded further statement of PWs.1, 2 and statements of PWs.9, 13, 14, 15, 17 and 18. Thereafter, on completion of the investigation he submitted final report against the accused before the Jurisdictional Magistrate, who in turn committed the case of the accused to the Court of Sessions, which on receipt of the records secured the presence of the accused, framed charge against him as aforesaid, to which accused pleaded not guilty, but claimed to be tried. 6. The prosecution in support of its case in all examined PWs.1 to 19 and got marked Exs.P.1 to P.9. The accused has not got marked any defence exhibits during the course of examination of the prosecution witnesses. 7. After the closure of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances that were put to him found in the evidence of the prosecution witnesses. Thereafter, he was called upon to enter on his defence and to lead any evidence that he may have in support there of. 7. After the closure of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances that were put to him found in the evidence of the prosecution witnesses. Thereafter, he was called upon to enter on his defence and to lead any evidence that he may have in support there of. He submitted that he has no defence evidence to lead, on the other hand, he filed his written statement as contemplated under Section 233 of Cr.P.C. Total denial of the prosecution case is the defence of the accused. 8. The learned trial Judge on consideration of the oral and documentary evidence placed on record came to the conclusion that the prosecution has failed to establish the charge levelled against the accused beyond reasonable doubt, accordingly, by the impugned judgment and order acquitted the respondent/accused of the charge leveled against him. 9. The State being aggrieved by the said judgment and order of acquittal is in appeal before this Court. 10. Learned High Court Government Pleader assailing the impugned judgment and order contended the trial Judge without appreciating the evidence of PWs.2, 4, 7, 13 and 15 in its right perspective has committed an error in acquitting the accused. According to him, the evidence of aforementioned witnesses is consistent with regard to the accused having taken the minor girl-PW.14 on 1.12.2002 . That is further fortified from the evidence of PW.14-minor girl herself who claims that the accused had taken her and had kept her in a lodge at Krishnagiri, which had not been assailed in any manner. The trial Judge without appreciating this evidence coupled with the evidence of PWs. 17 and 18-Room Boys, who have consistently stated that the accused had stayed with the victim girl in the room in SLV lodge at Krishnagiri, has erroneously acquitted the respondent/accused, which is contrary to the evidence on record. Therefore, a case for interference is made out. 11. Per contra, learned counsel appearing for the respondent/accused supported the impugned judgment and order of acquittal of the trial Court. 12. In view of the aforementioned facts, evidence and documents placed on record, the point that arises for our consideration is:- "Whether the impugned judgment and order of acquittal calls for any interference?" 13. 11. Per contra, learned counsel appearing for the respondent/accused supported the impugned judgment and order of acquittal of the trial Court. 12. In view of the aforementioned facts, evidence and documents placed on record, the point that arises for our consideration is:- "Whether the impugned judgment and order of acquittal calls for any interference?" 13. It is the case of the prosecution that on 1.12.2002 the accused kidnapped the minor girl-PW.14, who is the daughter of PW.2, in front of his house at Doddabidarkallu, took her on a cycle and thereafter to Krishnagiri and there he stayed with the minor girl in SLV lodge. On the very day, according to the prosecution, PW.1-brother-in-law of PW.2 has filed the complaint as per Ex.P1 before PW.19- PSI reporting the missing of minor victim girl. PW. 19 on the basis of the said complaint Ex.P.1, registered a case in Crime No. 640/2002 and took up investigation. The evidence on record reveals, on 11.12.2002 PW.19 on receipt of the information of the accused staying with the victim girl in a lodge at Krishnagiri proceeded to Krishnagiri along with his staff accompanied by PW. 11 and there he apprehended the accused and also the victim girl on the very day and brought them back to Peenya Police station. In the meantime, PW.2 filed his compliant as per Ex.P.2 before PW.19- PSI. The evidence of PW.13-grand mother of the victim reveals that on 01.12.2002 she saw the accused taking the victim at about 4.00 p.m. She has further claimed that about four days thereafter a telephone call was received from the accused stating that he has taken the victim girl and kept her with him and he would release her only on payment of ransom of Rs. 4,75,000/-. 14. Further we have the evidence of PW.2, himself who says about 2 days after the victim girl was taken by the accused, the accused called him and informed him that unless he pays a sum of Rs. 70,000/-, which he had been taken to secure a site along with interest of Rs. 4,05,000/-, he would not release his daughter. 15. Further we have the evidence of PW.2, himself who says about 2 days after the victim girl was taken by the accused, the accused called him and informed him that unless he pays a sum of Rs. 70,000/-, which he had been taken to secure a site along with interest of Rs. 4,05,000/-, he would not release his daughter. 15. Further we have also the evidence of PW.15-wife of PW.2, who says about eight days after the victim was taken by the accused, they received a phone call to their residence, in which the accused informed her that the victim is kept by him in Krishnagiri and she would be released subject to they paying the amount of Rs. 4,75,000/- . 16. The above evidence of these three witnesses clearly goes to show that there is inconsistent version with regard to as to when the victim girl was taken by the accused and the day on which the accused made the demand. Apart from the same, we have the evidence of PWs.4 and 7-the shop keepers . Though they claim that they had seen the accused taking the victim on 1.12.2002 on his bicycle, they have not informed either PW.2 or PW.13 or PW.15 who are father, grand-mother and mother of the victim. The demand made by the accused for ransom payment is inconsistent, which we have already adverted to above. Further the evidence of PW.7 discloses that about four days after the victim was taken by the accused, he saw the police and people having gathered in front of the house of PW.2 and at that time the accused was with them. If this evidence of PW.7 is taken into consideration, the claim of the prosecution that the victim had been taken by the accused and she had been kept in SLV lodge at Krishnagiri becomes doubtful. Further the complaint Ex.P.2 has been filed by PW.2-father of the victim girl, after she was apprehended with the accused at Krishnagiri. The victim girl, according to PW.19, was brought back to Peenya police station at about 2.20 p.m. on 1.12.2002 and the complaint has been filed at about 3.20 p.m. on the very day, which could not have been filed by that time. 17. The victim girl, according to PW.19, was brought back to Peenya police station at about 2.20 p.m. on 1.12.2002 and the complaint has been filed at about 3.20 p.m. on the very day, which could not have been filed by that time. 17. In view of the aforementioned discrepancies, which is forthcoming from the evidence of PWs.2, 13and 15 coupled with the fact of PW.7's admission that he had seen the accused in front of the house of PW.2 along with the police i.e. four days after the accused alleged to have kidnapped the victim girl, in our view, the same does not inspire confidence to place any reliance on them. The learned trial Judge on appreciation of the entire material on record has come to the right conclusion in holding that the prosecution has failed to establish the charge leveled against the accused beyond reasonable doubt, which in our view having been based on the evidence does not suffer from any infirmity calling for interference in this appeal. Accordingly, we do not find any merit in the appeal and it is dismissed.