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2020 DIGILAW 1515 (KAR)

Maruti v. State Of Karnataka

2020-07-28

M.G.UMA

body2020
JUDGMENT M.G.Uma, J. - Heard the learned Advocate for the appellant Sri. J.S.Shetty and learned Additional Government Advocate Sri. Shivaprabhu Hiremath for the State. 2. Brief facts of case are as follows:- It is the contention of the prosecution that the deceased Channamma was aged about 17 years, studying in Tavaragera Government Pre- University College. Accused Nos.1 and 2 were teasing and harassing her while going and coming from the college and therefore, the deceased started residing at Hiremannapur village in the house of her aunt-PW5-Manjula. The accused were advised by the elders and well wishers, but inspite of that accused Nos.1 and 2 kidnapped the minor girl from the lawful custody of PW4-the mother and taken her to Chinmai town in Andra Pradesh on 28/1/2009. The deceased had returned to the village on 12/2/2009 and on 13/2/2009, she had committed suicide by consuming milphoes pesticide in the land of PW7-Dyamavva. On 13/2/2009, at 6.00 p.m., on seeing her consuming the pesticide, she was shifted to Kanakagiri Government Hospital for treatment. In spite of the treatment, she died on 14/2/2009 at 5.45 a.m. Thereafter, a complaint was came to registered against accused Nos.1 and 2 and the first information was lodged by PW4- the mother of the deceased as per Ex.P5. After investigation, charge sheet was filed against accused Nos.1 and 2. 3. The Jurisdictional Magistrate took cognizance of the offence. After following the procedure the matter was committed to the Sessions Court for trial. The learned Sessions Judge after securing the presence of the accused Nos.1 and 2, framed the charges against the accused for the above said offences. The accused have pleaded not guilty and claimed to be tried. 4. The prosecution has examined PWs.1 to 11, got marked Exs.1 to 16 and identified MOs.1 in support of his contention. The accused have denied all the incriminating materials available on record in their statement recorded under Section 313 of Cr.P.C. The accused have not chosen to lead any evidence, but got marked Exs.D1 to D6 during cross examination of the prosecution witnesses. 5. The trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to convict and sentence accused No.1 for the offences as stated above, while acquitting accused No.2. 6. 5. The trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to convict and sentence accused No.1 for the offences as stated above, while acquitting accused No.2. 6. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, accused No.1 has preferred this appeal on various grounds. 7. The learned counsel for the appellant contended that prosecution has failed to prove the date of birth of the deceased and thereby her age at the time of her death. The prosecution failed to produce the SSLC marks card relating to the deceased to prove her date of birth and thereby withheld the best evidence. Under such circumstances, the prosecution failed to prove that the deceased was a minor when the incident had occurred. He further submitted that all the prosecution witnesses who supported the case of the prosecution categorically stated that there was four persons who were teasing and harassing the deceased. There is absolutely no reason as to why accused Nos.1 and 2 were chosen to file complaint. 8. He further submitted that all the material witnesses including the classmates of the deceased have not supported the case of the prosecution. There is absolutely no evidence to link these accused for the offence alleged against them. The evidence of PWs.2 to 6 is not helpful to prove the offence in question, kidnapping of the deceased and instigating her to commit suicide is never proved by the prosecution. The trial Court committed grave error in convicting the accused on the basis of the scanty evidence placed before it. Therefore, he prays for interference of this Court to set aside the impugned judgment of conviction and order of sentence and acquit the accused for the charges leveled against them. 9. Per contra, the learned AGA submitted that the evidence of PW1-the incharge Principal of the Government College along with Exs.P1 and P2 prove that the deceased was still a minor at the time of incident. PW4-the mother of the deceased given her evidence before the Court about teasing and harassing of the deceased by the accused. She also spoke about kidnapping of the deceased by the accused and the instigation to commit suicide. PW4-the mother of the deceased given her evidence before the Court about teasing and harassing of the deceased by the accused. She also spoke about kidnapping of the deceased by the accused and the instigation to commit suicide. Her version is corroborated by the evidence of PWs.5 to 7. Therefore, the trial Court rightly formed an opinion about the commission of the offence by this accused and convicted them. There are no grounds made out to interfere with the impugned judgment of conviction and order of sentence and prays for dismissal of the appeal as without merits. 10. I have gone through the materials placed before the Court including the Trial Court records. 11. The prosecution in order to prove the fact that the deceased was a minor on the date of incident, examined PW1-incharge Principal of the Government college in which the deceased was studying. He has produced Exs.P1 and P2 and stated that as per school records, the deceased Chennamma had born on 4/6/1992 and the said information was available in the transfer certificate. Even though the learned Advocate for the appellant contended that the best evidence was withheld by the prosecution by not producing the SSLC marks card, I do not find serious dispute about the fact that the deceased was studying in PUC and was a minor at the time of incident. The evidence of PW1 is not shaken during cross examination and there is no reason to disbelieve his version. Moreover Exs.P1 and 2 issued by Pw1 and his evidence in support of these documents is not shaken during cross examination. 12. Regarding the contention of the prosecution that these accused were teasing and harassing the deceased before the incident, the prosecution examined PWs.2 and 3 who are said to be eye witnesses to such teasing and harassing. Both these witnesses have not supported the case of the prosecution. PW4-the mother of the deceased lodged the first information as per Ex.P5. As per the first information, the deceased had informed PW4 that accused Nos.1 and 2 along with Sharanabasava and Gangadhara were teasing and harassing her and the said fact was informed to PW4 who advised all the four of them. Subsequently, the deceased was shifted to the house of PW6-the sister of PW4 who stays in Hiremannapur village. As per the first information, the deceased had informed PW4 that accused Nos.1 and 2 along with Sharanabasava and Gangadhara were teasing and harassing her and the said fact was informed to PW4 who advised all the four of them. Subsequently, the deceased was shifted to the house of PW6-the sister of PW4 who stays in Hiremannapur village. But inspite of that all the four persons named above continued to tease and harass the deceased. 13. Pw4 in her evidence deposed that accused Nos.1 and 2 Sharanabasava and Gangadhara were teasing and harassing the deceased and the same was informed by the deceased. Even though there is specific allegation against four persons and FIR was registered against them but charge sheet was came to be filed only against accused Nos.1 and 2. But however, PW4 in her evidence made allegation against Sharanabasava and Gangadhara for being teasing and harassing the deceased. Prosecution examined PW6-the sister of the deceased and PW5- the husband of the sister of PW4. They also spoke about the teasing and harassing of the deceased by all the four persons named above. But they state that they have not personally seen the accused teasing and harassing the deceased. On the other hand, the deceased had informed them about the same. 14. Regarding kidnapping of the deceased from the lawful custody of PW4, the prosecution is relying on the evidence of PW4-the mother, who stated that her daughter was found missing and later she came to know that accused Nos.1 and 2 have kidnapped her and taken to Andra Pradesh and kept her in the house of PW10- Chandralekha. This fact was informed to her by PW8. PW5-Bettappa Basappa Katapur, PW8- Hattimuni Kanakappa Nayak, PW9- Bhajarangbali Navabnayak have went to Hydarbad, visited the house of PW10 - Chandralekha and brought the deceased along with accused No.1 to Hiremannapur. The prosecution examined PWs.8, 9 and 10 to prove these facts. But unfortunately, all these witnesses have not supported the case of the prosecution. Therefore, except the hearsay evidence of PWs.4 to 6, no other material is available on record to connect these accused to the offence of kidnapping. 15. The prosecution in order to prove abatment by accused to commit suicide again relied on the evidence of PWs.4 and 7. According to PW4, the deceased consumed pesticide in a room situated in the land of PW7. 15. The prosecution in order to prove abatment by accused to commit suicide again relied on the evidence of PWs.4 and 7. According to PW4, the deceased consumed pesticide in a room situated in the land of PW7. As per the version of PW4, the deceased was talking when she was admitted to the Hospital and police have enquired regarding the incident. But PW7 states that the deceased has not stated anything regarding the reason for committing suicide. Even according to the case of the prosecution, the deceased was not in a position to talk when she was brought to the hospital and she has not explained about the reason for her to take the extreme step. 16. Pw4 in her evidence stated that even though the accused and two other persons were teasing and harassing the deceased since from about six months earlier to the incident, no complaint was filed against them nor there was any panchayath held in the village to advise them. During cross examination of this witness, she specifically admitted that her brother Shankrappa is serving in the police department. Her relative Hanamesh Naik is a member of Zilla Panchayat and his wife was the president of the Zilla Panchayat. If that is the situation, there is absolutely no reason as to why PW4 kept quite without informing any of them about the conduct of the accused and other two persons. There is also no reason as to why PWs.2 and 3- the classmates of the deceased have not supported the case of the prosecution. Even PWs.8 to 10 are also said to be relatives have also not supported the case of the prosecution. 17. If all these materials on records are taken into consideration, I do not find any link to connect this accused to the offence in question i.e. either for kidnapping the deceased or for abating to commit suicide. Even though the prosecution is successful in placing some materials in support of its contention, the same are not sufficient to prove the guilt of the accused beyond reasonable doubt. It is the trite of law that the suspicion however strong it may be, will not take the place of proof beyond reasonable doubt. Under such circumstances, naturally the accused will be entitled for benefit of doubt and they are to be acquitted. 18. It is the trite of law that the suspicion however strong it may be, will not take the place of proof beyond reasonable doubt. Under such circumstances, naturally the accused will be entitled for benefit of doubt and they are to be acquitted. 18. I have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has relied on the evidence of PWs.4 to 6 to form an opinion that the prosecution is successful in proving the guilt of this accused beyond reasonable doubt, even though it has acquitted accused No.2. 19. In view of the discussions held above, the opinion formed by the trial Court is erroneous and therefore, the impugned judgment of conviction and order of sentence is liable to be set aside. 20. Hence, I proceed to pass the following:- ORDER The appeal is allowed. The appellant/accused No.1 Maruti S/O Bhupathi Yelamageri is acquitted for the offences punishable under Sections 363 and 306 of IPC. The impugned judgment of conviction and the order of sentence dated 1.7.2011 passed by the learned District & Sessions Judge, Koppal, in S.C. No.62/2009 is set aside. The bail bonds of accused No.1 and that of the surety stands cancelled. The fine amount, deposited if any, is ordered to be refunded to accused No.1 on due identification.