Dismissed

State of Karnataka, v. Raju @ Kirankumar

Karnataka HC5 Dec 2022CRL.A/100303/2016

Case brief

AI extract

What is this about?

A criminal appeal against an acquittal of an accused for kidnapping and outraging the modesty of a woman. The High Court upheld the acquittal due to the absence of the complainant and hostile testimony of material witnesses, finding the prosecution evidence insufficient.

What did the court decide?

The appeal by the State is dismissed and the impugned judgment of acquittal is confirmed.

State of Karnataka, Vs Raju @ Kirankumar — Cheating and Forgery | Karnataka HC (2022)

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CRL.A No. 100303 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH CRIMINAL APPEAL NO. 100303 OF 2016 (A)

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BETWEEN:

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STATE OF KARNATAKA, REPRESENTED BY THE POLICE SUB-INSPECTOR, HIREKERUR POLICE STATION,TQ: HIREKERUR, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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…APPELLANT

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(BY SRI. RAMESH B. CHIGARI., HCGP) AND:

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RAJU @ KIRANKUMAR S/O. HALAYYA MATHAD, AGE: 25 YEARS, R/O: MASUR, TQ: HIREKERUR.

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…RESPONDENT

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Digitally signed by VIJAYALAXMI M BHAT Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. Date: 2022.12.17 15:44:51 +0530

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(BY SRI. NITIN BOLBANDI., ADVOCATE (AMICUS-CURIAE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 12.08.2016 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AT HAVERI (SITTING AT RANEBENNUR) IN SESSION CASE NO.46 OF 2013 AND TO CONVICT THE RESPONDENTS/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 366 AND 354(A) R/W. SECTION 34 OF IPC.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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CRL.A No. 100303 of 2016

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JUDGMENT

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This appeal is filed by the appellant being aggrieved by the judgment and order of acquittal dated 12.08.2016 in S.C. No.46/2013 on the file of II Additional District and Sessions Judge, Haveri (sitting at Ranebennur). The Trial Court acquitted the accused No.2 for the offences punishable under Sections 366 and 354(A) r/w. Section 34 of Indian Penal Code (for short hereinafter referred to as “IPC”).

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2. Brief facts of the case;

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On 05.03.2013 at about 9:30 p.m., adjacent to the Bus

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stand compound wall at Masur village, the complainant after finishing the canteen work, she was waiting there to go to her house, accused Nos.1 and 2 with a common intention to commit an offence, brought the passenger auto rickshaw bearing its registration No.KA-27/A/8688 and pulled the complainant into the Auto. The accused No.2 sat beside and held her and closed her mouth tightly, the accused No.1 was driving the said Auto and he took turn towards channel road via Thippaikoppa road, being feared for life and modesty, the complainant jumped out of the Auto rickshaw and sustained

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CRL.A No. 100303 of 2016

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injuries, by that time the passerby rescued her and caught hold the accused persons along with auto red-handedly and when they enquired, they have disclosed their names. Thereafter, she lodged a complaint on 06.03.2013. Police registered the case in Crime No.43/2013 for the offences punishable under Sections 363, 354-A read with section 34 of IPC.

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The prosecution in order to prove the case

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examined PWs.1 to 8 and also got marked Ex.P.1 to Ex.P.11.

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The Trial Court after considering all the oral and documentary evidence of all the witnesses passed order of acquittal against the accused No.2. The case against accused No.1 stood abated due to the death of accused No.1 during the pendency of the proceedings. The State being aggrieved by the said order of acquittal, has preferred this appeal seeking to set aside the judgment and order of acquittal passed by the Trial Court.

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Sri. Ramesh B. Chigari, learned High Court

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Government Pleader submits that, the judgment and order of acquittal passed by the Trial Court is contrary to the facts and

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CRL.A No. 100303 of 2016

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law. Hence, it is liable to be set aside. It is further submitted that, even though, in the absence of evidence of CW.1, the other witnesses, official witnesses and also the doctor supported the case, it is relevant and their evidence should have been considered by the Trial Court to convict accused No.2. It is further submitted that, the act of kidnapping and also outraging the modesty of women should be viewed seriously by the Courts, instead of asking strict proof. It is further submitted that, the evidence of PW.4 and his report at Ex.P.7 clearly discloses the injury sustained during the period of offences. There might be several reasons to the victim in not attending the Court to give her evidence, however, the other independent witnesses have supported. The Trial Court failed to appreciate the evidence of other witnesses. Therefore, the impugned judgment is liable to be set aside.

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Per contra, the learned Amicus Curiae justifying the judgment of acquittal passed by the Trial Court. It is alleged that, CW.1 has been kidnapped in an Auto and accused Nos.1 and 2 have tried to outrage her modesty. The Trial Court inspite of giving notice and issued Non-Bailable-Warrant against CW.1, she remained absent. Hence, it would be unsafe to

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CRL.A No. 100303 of 2016

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convict the accused on the basis of the evidence of other witnesses. The complainant has not appeared before the Court and PW.3 who is stated to be an eyewitness and said to be present at the spot of the incident, has not supported the case. Even though, he was treated as hostile and subjected to crossexamination, nothing is elicited to support the case of the prosecution. Therefore, the prosecution has failed prove the alleged incident, the accused No.2 is entitled for benefit of doubt. Accordingly, the Trial Court has rightly acquitted the accused No.2. Therefore, the appeal filed by the appellant does not survive for consideration. Hence, it is liable to be dismissed.

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After having heard the learned counsel for the

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parties and also perused the documents available on record, the points which arise for my consideration are as under;

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i) Whether the judgment and order of acquittal passed by the Trial Court is justified ?

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ii) Whether the appellant-State made out grounds to interfere with the said order of acquittal passed by the Trial Court?

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CRL.A No. 100303 of 2016

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To answer the above points, it is relevant to refer the role of each of the witnesses and also relevant documents. CW.1 is the complainant. She was supposed to state that, she was kidnapped by accused Nos.1 and 2 and escaped from the auto during such escape, she sustained injuries, but, she remained absent and not led her evidence.

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PW.3 supposed to state about the incident, he was present at the place of occurrence, but, turned hostile and not supported. PW.2 is said to be an eyewitness to the incident, but, he has turned hostile. PW.4 is the doctor who treated the victim and issued wound certificate as per Ex.P.7, he has supported the case of the prosecution. PW.5 is the A.S.I., who registered the FIR. PW.6 who is one of an eyewitness to the incident, has turned hostile. PW.7 is the owner of the canteen and admitted that, the complainant was working in his canteen. Except admitting that the complainant was working in his canteen, he did not support the case of prosecution. PW.8 is an Investigating Officer, has spoken with regard to the investigation. He stated to have conducted spot panchanama in presence of PW.2 and PW. 3 and drawn spot panchanama and submitted the charge sheet after investigation.

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CRL.A No. 100303 of 2016

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It is relevant to refer the evidence of PW.4. PW.4 states that, on 06.03.2013 at about 2:30 p.m., one Renukawwa Somalingappa Muduru, aged about 28 years, had come to the hospital along with the police for treatment. She has stated that, when she was traveling in an Auto, she had been subjected to molestation, had she not escaped from the Auto, she would have been subjected to rape. Hence, she jumped out of the Auto and sustained injuries. On recording the statement of the victim, he has noticed several injuries and issued wound certificate as per Ex.P.7. Though, he was subjected to cross-examination, nothing is elicited to discard the evidence. The evidence of the doctor is an opinion with regard to the incident and it is not a conclusive proof. In the absence of the evidence of the victim-CW.1, the Court cannot base the conviction on the basis of the evidence of the Doctor. Therefore, the evidence of the Doctor looses its significance. The material witnesses have not supported the case of the prosecution. Therefore, the order of acquittal recorded by the Trial Court deserves to be upheld.

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In the light of the observation made above, the point No.1 answered in the ‘affirmative’ and point No.2

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CRL.A No. 100303 of 2016

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answered in the ‘negative’. Hence, I proceed to pass the

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following:

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ORDER

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i) The appeal filed by the State stands dismissed.

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ii) The impugned judgment and order of acquittal dated 12.08.2016 in S.C. No.46/2013 on the file of learned II Additional District and Sessions Judge, Haveri (sitting at Ranebennur) stands confirmed.

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iii) The submissions rendered by Sri.Nitin Bolbandi, learned Amicus-Curiae is placed on record.

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iv) The legal services authority is directed to pay the remuneration of Rs.5,000/- to Sri.Nitin Bolbandi, learned Amicus-Curiae for his effective assistance in this case.

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Sd/JUDGE

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List No.: 1 Sl No.: 25

State of Karnataka, v. Raju @ Kirankumar

Case brief

What is this about?

What did the court decide?

State of Karnataka, v. Raju @ Kirankumar

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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