Partly allowed

Jagannath S/O Channabasappa Hulsure v. the State Karnataka through Rural Police Station

Karnataka HC13 Feb 2013CRL.A/3528/2008

Case brief

AI extract

What is this about?

Criminal Appeal against conviction of eleven accused for attempt to kidnap. Court held prosecution failed to prove case against nine strangers (Appellants 3-11) due to lack of identification, acquitting them. For the second appellant, conviction sustained but sentence reduced to match custody period.

What did the court decide?

Appellants 3-11 acquitted with refund of fines. Sentence of Appellant 2 reduced to the period spent in judicial custody (2 years 10 months) for Section 366 IPC read with Section 511 IPC.

Jagannath S/O Channabasappa Hulsure Vs the… — Child Sexual Offences (POCSO) | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2013

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BEFORE

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THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

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CRIMINAL APPEAL NO.3528 OF 2008

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BETWEEN :

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Jagannath, S/o. Channabassappa Hulsure, Aged 28 years, Occupation: Coolie, Resident of Gorta-B.

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Shivarudrappa, S/o. Manik Rao Kodage, Aged 25 years, Occupation: Hotel Business, Resident of Mangalpeth, Bidar.

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Ramesh, S/o. Kashinath Biradar, Aged 38 years, Occupation: Business, Resident of Mangapeth, Bidar.

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Parameshwar, S/o. Shankar Rao Gadgi, Aged 22 years, Occupation: Driver, Resident of Mangapeth, Bidar.

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Basavaraj, S/o. Mallikarjun Bidramshetty,

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Aged 22 years, Resident of Mangalpeth, Bidar.

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*Shakeel Ahmed, S/o. Nazeer Ahmed, Aged: 21 years, Coolie, Resident of Bakkalwada, Bidar. 7. Shashikanth, S/o. Gurappa Harurgeri, Aged 30 years, Resident of Mangalpet, Bidar. 8. Vaijinath, S/o. Sanganna Madival, Aged 37 years, Resident of Mangalpeth, Bidar. 9. Ramesh, S/o. Sidramappa Reddy, Aged 38 years, Coolie, Resident of Pakkalwada, Bidar. 10.Sreementh, S/o. Baburao Gouda, Aged 33 years, Resident of Mangalpeth, Bidar. … APPELLANTS.

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(By Shri Avinash A. Uploankar, Advocate)

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AND:

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The State of Karnataka, Through Rural Police Station, Basavakalyan, District: Bidar. … RESPONDENT.

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(By Shri Sanjay A. Patil Additional State Public Prosecutor)

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*Corrected vide Court order dated 27.04.2015

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This Criminal Appeal is filed under Section 374 (2) of the Cr.P.C. praying to allow this appeal and set-aside the judgment and order of conviction and sentence dated 30.09.2008 passed by the Additional Sessions Judge, Bidar, in Sessions Case No.91/2006 and acquit the accused No.2 to 11 of the charges with which they were held guilty.

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This appeal coming on for hearing, this day, the Court delivered the following:

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J U D G M E N T

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Heard the learned counsel for the appellants and the

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learned Additional State Public Prosecutor.

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The present appellants were accused Nos.2 to 11 in the

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case brought against them for offences punishable under Sections 143, 147, 448, 504, 506, 366, 511 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’ for brevity).

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The facts leading up to this case are as follows:

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Accused No.1 who was absconding at the trial and

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therefore the case having split up against him and who is now facing trial before the court below, and Accused No.2, were

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living opposite the house of the complainant at Hulsoor in Basavakalyan Taluk, Bidar District. It transpires that they had subsequently moved to Hyderabad. However, they continued to visit the village of the complainant often to meet their parents and incidentally, would also visit the complainant and it transpires that intimacy had developed between the complainant’s daughter Leelavathi and Accused No.1 Somnath. It is alleged that on one occasion, Somnath had persuaded Leelavathi to accompany him to Hyderabad and she had willingly gone along with him to Hyderabad and it transpires that she had called her father – complainant from Hyderabad and the father had taken exception to her being taken to Hyderabad and had followed her there and brought her back to the village. It was claimed by Accused No.1 that he had in fact married Leelavathi and therefore, the complainant should send her along with him. Therefore, fearing that Accused Nos.1 and 2 would kidnap her, had kept Leelavathi in his relative’s house at Ladha village for a month. Thereafter, since Accused No.1 had

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stopped threatening the complainant of such act of taking Leelavathi away, the complainant thought it was safe enough to bring her back home. It transpires that her marriage alliance was proposed with one Hanumanth of Bidar. However, the engagement was broken off. Then, it further transpires that Accused No.1 again recommenced threatening the complainant that he would take Leelavathi away and on 21.02.2006, it is alleged that Accused Nos.1 and 2 along with nine others, had come in a Tata Sumo vehicle bearing No. MH-04/F-9261 at about 4.30 p.m. to the house of the complainant, and Accused Nos.1 and 2 had trespassed into the house of the complainant. While abusing the complainant in foul language, demanded that he must send Leelavathi along with Accused No.1 without any protest, for otherwise, he would come to harm and that they would forcibly take her away. When the complainant resisted, the Accused No.1 is said to have dragged Leelavathi by her hand and tried to take her away, at which time, since there was a function going on at the very moment in the house of the

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complainant, there were several other relatives who immediately intervened, at which, knowing that they were out numbered, Accused Nos.1 and 2 tried to flee from the scene. Though Accused No.1 ran away, Accused No.2 could not, as he fell down and was caught hold of by the complainant’s relatives and he sustained injuries and thereafter was taken to Hospital for treatment and thereafter, taken to the police, who had, on the basis of the information furnished by Accused No.2 who had named the other accused apart from Accused No.1, had instituted proceedings against all of them.

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After further investigation, the court of the Magistrate committed the case to the Sessions Court and ultimately, charges were framed against them and since they had pleaded not guilty and claimed to be tried, the prosecution went to trial. The charge was split up against Accused No.1, as he was not traced as on the date of the trial. The prosecution examined PWs 1 to 10 and marked Exhibits P1 to P4 and MO-1 to substantiate the

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case. On the basis of the said evidence and after recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C’, for brevity), the Trial Court framed the following point for its consideration:

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“Whether the prosecution has proved the guilt of all the accused persons (including the A-1) have formed unlawful assembly and with common object used criminal force and committed rioting and trespassed into the house of complainant on 21.2.2006 at 4.30 p.m and abused the complainant and gave provocation to him so as to cause the break of public peace and gave threat to the life of the complainant and attempted to abduct the daughter of the complainant by name – Leelavati and thereby committed the offences punishable under Sections 143, 147, 148, 448, 504, 506, 366 and 511 read with Section 149 of IPC?”

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The Trial Court answered the same in the affirmative, except the offence of rioting, and convicted the accused under

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the several provisions, imposing varying terms of imprisonment and fine, the maximum punishment being imprisonment for 10 years under Section 366 IPC, apart from fine on several counts. The court below has referred to the evidence of the complainant as well as PW-1 at length, to conclude that the prosecution had established the case beyond all reasonable doubt against all the accused. It is that which is under challenge in the present appeal.

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The learned counsel for the appellants would take this Court through the record to demonstrate that, assuming all the allegations in the complaint are to be accepted, whether the evidence tendered before the court was sufficient to hold that the prosecution had proved its case beyond all reasonable doubt. Even according to the complainant, Leelavathi was familiar with the Accused Nos.1 and 2, as they were neighbours and that Leelavathi and Accused No.1 had developed close friendship with each other and it was also not disputed that Leelavathi had gone away with Accused No.1 on an earlier occasion and had

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lived with him in Hyderabad for several days, before she had contacted the complainant on telephone, and it was thereafter that she was brought back home by the complainant. This would indicate that there was no action taken by the complainant insofar as the earlier incident where Leelavathi and Accused No.1 had stayed together at Hyderabad. It is also the complainant’s case that the accused was claiming to have married Leelavathi and photographs had also been produced, to show that Leelavathi was wearing a taali, in proof of the marriage with the complainant. Therefore, it was understandable that the Accused No.1 had been insisting that Leelavathi should be sent along with him, which the complainant was resisting. Hence, in order to put an end to the demands by Accused No.1, to claim that Leelavathi was his wife and that she should be sent along with him, a false case has been foisted against him. In the bargain, the present accused Nos.2 to 11 have been implicated and therefore, there is no substance of any motive or other reason as to the involvement of Accused

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Nos.2 to 11. The claim that on the date of the incident, the present accused having come in a Tata sumo vehicle and having trespassed into the house of the complainant and further having threatened him with dire consequences if he did not willingly send Leelavathi along with them, and thereafter having attempted to drag her away, and having been chased away by the other people gathered there, is a claim which was required to be established by the prosecution, beyond all reasonable doubt. Though Accused No.2 was earlier the neighbourer of the complainant, Accused Nos.3 to 11 were total strangers to the complainant. It is the not the case of the complainant that he had known or recognized anyone of them. So also, PW-7 – Leelavathi, did not claim to know any of the Accused Nos.3 to 11. The manner in which it is stated that the accused had come in a Tata Sumo vehicle on the date of the incident, is not clear. It is not clear as to who saw them, whether both the complainant as well as Leelavathi saw them arrive and alight from the vehicle. PW-7 – Leelavathi has not stated that all the accused

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had entered the house. She has only referred to Accused Nos.1 and 2. The complainant though has mentioned that all the accused had come into the house, there is no mention about how they left and whether the complainant had recognized and saw anyone of the Accused 3 to 11. Hence, to conclude that there was a common intention amongst all the accused and in the face of the said accused having been identified by name by either the complainant or PW-7 Leelavathi, the names having been gathered through Accused No.2, admittedly, would not be sufficient to implicate Accused Nos.3 to 11, on the face of it. Insofar as Accused No.2 is concerned, the learned counsel would point out that the court having held that the case against Accused No.2 was established beyond all reasonable doubt, as he had fallen to the ground and therefore, was unable to escape when he and Accused No.1 were prevented from dragging Leelavathi out of the house, and thereafter on the basis of the evidence, the court having found that the case against the said accused was established beyond all reasonable doubt, even if

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can be sustained, the incident only resulted in the Accused Nos.1 and 2 attempting to kidnap Leelavathi. Admittedly, they were unsuccessful. If there was only an attempt to kidnap and the victim was not actually kidnapped, it could not be said that the Appellant No.1 – Accused No.2, could be punished for kidnapping, as contemplated under Section 366 IPC. The court itself having invoked Section 511 IPC and since no punishment is prescribed for any attempt to commit an offence punishable under Section 366 IPC, the benefit of Section 511 IPC, would have to be allowed in imposing punishment and assuming that the maximum punishment was attracted for the offence under Section 366 IPC, if Section 511 IPC is applied, the punishment that could be imposed on Accused No.2 was only for five years. It is pointed out that the Accused No.1 had remained in custody during the trial. But however, after the judgment of the Trial Court, this Court had granted bail, while suspending the sentence. In any event, the said accused was in custody for a period of 2 years and 10 months. The learned counsel would

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submit that, as there was no offence made out under Section 366 IPC, in that, there was only an attempt of kidnap PW-7 – Leelavathi, and they had failed to do so, the court having proceeded to impose the maximum punishment that was possible, was disproportionate to the role of Accused No.2 in the incident, even assuming that the same has been established against him. Therefore, he would submit that this Court would have to reconsider the quantum of punishment that is imposed on the accused No.2, having regard to his age. He is aged about 28 and is a married man. Hence, he would plead to reconsider the quantum of punishment, having regard to the substantial period that he has spent in custody and that the punishment for the offence of attempt to kidnap could be considered under Section 511 IPC, corresponding to the period that he has spent in custody, as the maximum punishment was not attracted even if it was an offence punishable under Section 366 IPC.

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Given the consensual conduct of Leelavathi in having accompanied Accused No.1 on and off, and thereafter the

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accusation of kidnapping having been brought against Accused No.1 and when the role of the present Accused No.2 was only to accompany his brother to possibly lend moral support and therefore, would plead that the appeal be allowed, while acquitting Accused Nos.3 to 11, on the footing that they were never identified by the complainant or PW-7, or any other witness, except having been named by Accused No.2, in the circumstances referred to hereinabove.

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While the learned Additional State Public Prosecutor would vehemently oppose the appeal and would submit that the limited grounds on which the learned counsel for the appellant seeks acquittal of Accused Nos.3 to 11 and the concession that is sought insofar as the quantum of punishment imposed on Accused No.2, cannot be considered at all, as insofar as Accused No.2 is concerned, though it is true that the court has imposed the punishment under Section 366 IPC, even if it is treated as an attempt to kidnap and not kidnapping itself, it cannot be

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accepted that the punishment could be any less than half the maximum punishment that is awarded, and since the facts and circumstances of the case would indicate that the accused No.2 had definitely taken an active part in the kidnapping of the victim, it cannot be said that there is any room for lenience either because the appellant is married, or because he is young in age. Secondly, insofar as Accused Nos.3 to 11 are concerned, the only ground sought to be made out is that there was no possibility of clear identification of the accused, as they were strangers to both the complainant and the victim Leelavathi, and the court having proceeded merely on the statement of Leelavathi that she was able to recognize the accused, by itself was not sufficient to implicate, cannot be accepted. There is a positive statement of the witness, which has not been shaken in cross-examination. She has been cross-examined at length at this aspect of the matter and hence, to negate the positive evidence of the said witness as to the identification of Accused

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Nos.3 to 11, is not warranted and therefore, would submit that the appeal be dismissed.

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Given the above facts and circumstances and having closely examined the record and the rival contentions of the parties, it is the case of the complainant that it was Accused No.1 who was intimate with his daughter and wanted to have her for his wife, and it was also admitted by the complainant that there was an occasion when his daughter, without his consent, had gone with Accused No.1 either by compulsion or otherwise, and had stayed with him in Hyderabad for at least four days. It is thereafter that the complainant had brought her back to the village. This would indicate that there was a semblance of a close physical relationship between the victim and Accused No.1. Accused No.1 thereafter having tormented the family in seeking to take away Leelavathi, is certainly evident, since the complainant apparently was not willing to allow Leelavathi to go with Accused No.1. The incident itself having occurred, is

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established by the evidence against Accused No.2 and the fact that Accused No.1 has been absconding, but however that a trial against him is on, would have to run its course. The findings against Accused No.2 in the present case, is on the basis of the evidence tendered herein, which has established his presence at the scene. However, there was certainly an attempt of kidnapping Leelavathi, which has failed. Though the court below has convicted Accused No.2 on several counts, the maximum punishment that is imposed is for the offence punishable under Section 366 IPC. As rightly pointed out by the learned counsel for the appellant, Section 366 IPC, provides the punishment for the offence of kidnapping. Kidnapping, as defined under Section 360 IPC, requires that a person is taken away without the consent of that person. Kidnapping or inducing a woman to compel her marriage, is visited with the maximum punishment, which may extend to ten years. The act of kidnapping was however not completed in the present case on hand. The act of the Accused No.2 therefore, would at best be

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termed as an attempt to kidnap, in which event, Section 511 of the Code, would be attracted. Therefore, the court below having convicted the Accused No.2 and having imposed the maximum punishment of 10 years, is inexplicable. Given the motive and role of the Accused No.2, the quantum of punishment again is disproportionate. Assuming that the charges against the Accused No.2 have been proved with all certainty, the punishment that could be imposed by way of imprisonment is certainly not the punishment that has been imposed by the court below.

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Having regard to the totality of circumstances, in the

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opinion of this Court, insofar as Accused No.2 is concerned, the maximum punishment that could be imposed would be in the area of the period that he has spent in judicial custody, which is for a period of 2 years and 10 months. That, in the opinion of this Court, is adequate punishment for the guilt that can be attributed to the role played by Accused No.2. Insofar as

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Accused Nos. 3 to 11 are concerned, the case against them is that they had accompanied Accused Nos.1 and 2 in a vehicle and had come to the house of the complainant on the date of the incident. The manner in which they have participated in the incident is vague and doubtful. According to the victim, it is only Accused Nos.1 and 2 who had alighted from the vehicle and trespassed into their house. According to the complainant, all 11 of them had barged into the house. But, the further statements would indicate that it is only Accused Nos.1 and 2 who had tried to drag the victim out of the house and on seeing the several people gathered in the house for the function that was on, they had tried to get away from there. It was accused No.2 who was unfortunate to be caught, while Accused No.1 and other accused had fled. Since Accused Nos.3 to 11 were admittedly strangers to the complainant as well as the victim, the victim having recognized every single one of them and having identified them, is inconsistent with normal human memory and recollection, to be able to identify all of them, with certainty. If

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they had come in a group and were moving in and out of the house with some urgency, it is difficult to accept that the complainant or the victim were able to register all their physical features and be able to identify them. The victim having identified them in the Police Station on the next day, is only to support the complaint and the prosecution case. It cannot be readily accepted that the victim identified all the accused, namely Accused 3 to 11, with certainty. Hence, merely because the prosecution claims that Accused No.2 had named these Accused Nos.3 to 11 and this was corroborated by the complainant and the victim having identified them, cannot be readily accepted in holding that the prosecution had established their case beyond all reasonable doubt. In any event, there is no overt act attributed to them with any consistency. Even the allegation that they had all trespassed into their house, is not consistently stated by the witnesses. This would indicate that, even if they had come in the vehicle, the question of abetment or their active participation in the actual crime, is doubtful. It is

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also not on record as to whether these Accused Nos.3 to 11 who are said to have come in a vehicle, had also accompanied in the vehicle, or had run away from there. The record is not clear on this aspect as well. Though the vehicle has been confiscated by the court in its final judgment, there is no other record available to connect the vehicle with the accused either. Therefore, to hold that the prosecution had established its case against all the accused, even in respect of an offence punishable under Section 366 IPC, when such an offence is not made out even against Accused No.2, is difficult to accept. Hence, the court below was in error in holding that the prosecution had established its case against Accused Nos.3 to 11, beyond all reasonable doubt.

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Accordingly, the judgment insofar as Accused No.2 is

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concerned, is modified to hold that the punishment insofar as the offence punishable under Section 366 IPC is concerned read with Section 511 IPC, is reduced to the period that he has spent in judicial custody, namely for two years and 10 months. In the

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result, in respect of the offence punishable under the various other sections under which he was convicted, would be irrelevant, as he has already spent the time in custody in respect of those offences. Insofar as Accused Nos.3 to 11 are concerned, the judgment of the court below is set-aside. The accused shall be acquitted. The amount of fine paid by the respective accused shall be refunded.

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Sd/JUDGE

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Jagannath S/O Channabasappa Hulsure v. the State Karnataka through Rural Police Station

Case brief

What is this about?

What did the court decide?

Jagannath S/O Channabasappa Hulsure v. the State Karnataka through Rural Police Station

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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