Narayanappa @ Narayanaswamy Vs State by R T Nagar

MANASA D/O. LATE MUNIHANUMAIAH, AGED ABOUT 36 YEARS, R/AT NO.288, VINAYAKA NILAYA, LAKSHMINARAYAN SWAMY TEMPLE ROAD, AMRUTHAHALLI, SAHAKARNAGAR POST, BANGALORE - 560 092.

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…RESPONDENTS

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(BY SMT. RASHMI JADHAV, ADDL. SPP FOR R1

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SRI. DINESH KUMAR .K., ADVOCATE FOR R2)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 30.01.2013 PASSED BY THE P.O., F.T.C.(SESSIONS)-XI, BANGALORE IN S.C.NO.805/2006 -

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NC: 2025:KHC:25603 CRL.A No. 220 of 2013

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HC-KAR

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CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 365 OF IPC. AND ETC.,

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THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant being accused No.1 in SC.No.805 of 2006 on the file of the learned Fast Track (Sessions) Judge, Bangalore, is impugning the judgment of conviction and order of sentence dated 30.01.2013, convicting him for the offence punishable under Section 365 of IPC, and sentencing to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- with default sentence.

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Brief facts of the case as made out by the prosecution are that, on 06.04.2006, at 2.00 p.m., accused No.1 along with accused Nos.2 to 9 had criminally conspired together, formed an unlawful assembly with common object to kidnap PW.3 from MLA layout, within the jurisdiction of R.T.Nagar Police Station, as there was land dispute between accused No.1 and CW.10the father of PW1, and thereby committed offences punishable under Sections 143, 144, 364(A) and 120-B read with 149 of IPC. While kidnapping the victim in the Scorpio Car bearing

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HC-KAR

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No.KA-50/M-1350, in order to destroy the evidence, accused No.1 has applied a sticker to the number plate of the Car to change the registration number as 'KA.43-N-909' and thereby committed the offence punishable under Section 201 of IPC.

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Accused No.1 was apprehended at the spot and produced before learned magistrate. Then he was remanded to custody. Investigation was completed, and the charge sheet came to be filed. In the meantime, the appellant was enlarged on bail.

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The learned Magistrate took cognizance of the offences and committed the matter to the Sessions Court. The Trial Court summoned the accused. He appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution has examined PWs.1 to P14, got marked Exs.P1 to 7 and identified MOs.1 to 21 in support of its contention. The accused has denied all the incriminating materials in his statement under Section 313 of Cr.PC, but has not chosen to lead any evidence in support of his defence.

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HC-KAR

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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 for the offence punishable under Section 365 of IPC, and accordingly passed the impugned judgment of conviction and order of sentence as stated above. Being aggrieved by the same, accused No.1 is before this Court.

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Heard Sri. M.T.Nanaiah, learned Senior Advocate for Sri. Balasubramanya B.N., learned counsel for the appellant, Smt.Rashmi Jadhav, learned Additional SPP for respondent No.1-State and Sri. Dinesh Kumar K. Rao, learned counsel for respondent No.2. Perused the materials on record including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is as under:

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"Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?"

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HC-KAR

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My answer to the above point is 'partly in the affirmative'

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for the following:

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REASONS

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It is the specific contention of the prosecution that accused No.1 along with accused Nos.2 to 9 had conspired together, formed an unlawful assembly, and kidnapped PW.3 as there was land dispute between the father of the victim girl and accused No.1. In committing such offence, he has concealed the real registration number of the car in which he kidnapped the victim and thereby committed the offence as stated above.

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In order to prove its contention, the prosecution has examined PW.1-the son-in-law of PW.5, who is witness to the seizure mahazar Ex.P4. PW.2 even though examined in part, later he was given up by the prosecution. PW.3 is the victimcomplainant who filed the first information as per Ex.P2. PW.4 is the eyewitness to the incident. PW.5 is the father of PW.3. PW.6 is the mahazar witness to Ex.P4 who is also cited as eyewitness to the incident. But he never tendered for his crossexamination. PW.7 is the Head Constable, PWs.8 to 10 are the Police Constables and PW.11 is the Police Sub-Inspector, who

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HC-KAR

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were on duty at the scene of occurrence and apprehended accused No.1, rescued PW.3 and took them to the police station. PWs.12 to 14 are the Investigating Officers.

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The prosecution has mainly relied on the evidence of PW.3-the victim-informant, who lodged the first information immediately after the incident as per Ex.P2. She has stated that, on the date of incident, when she was walking by the side of the road, accused No.1 along with other accused came in a Scorpio Car, forcibly kidnapped her. While the car was proceeding further, she was crying, upon witnessing her cries, the general public waylaid the car. The police came to the spot and rescued her. PW.4 was also present at the spot while accused No.1 was taken to the police station.

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PW.4 is the eyewitness to the incident. He stated that, when he was coming on the motorcycle along with PW.6 as pillion rider from R.T.Nagar towards Mekri Circle, he noticed that a Scorpio Car was proceeding, and the victim was crying. Thereafter, he followed the Scorpio vehicle, near Cauvery Theatre the car was blocked, the police came to the spot and accused No.1 was caught by the police, while the other accused

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HC-KAR

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ran away from the scene of occurrence. It is elicited from this witness that he had married PW.3 later and it was a love marriage. But nothing has been elicited from the witness to contend that, at the time of incident either he was in love with PW.3 or he had already married her. The witness specifically states that much after the incident, he came in contact, developed love and married subsequently. Therefore, the version of PW.4 cannot be disbelieved simply because he married PW.3 later.

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PW.6 stated that even though he had accompanied PW.4 and had witnessed the kidnap, he never tendered himself for cross-examination. Hence, his evidence cannot be taken into consideration. PW.7 is the Head Constable, PWs.8 to 10 are the Police Constables and PW.11 is the Police Sub-Inspector who were at the spot when the car was waylaid, accused No.1 was apprehended, PW.3-the victim was rescued and all of them were taken to the police station, and the mahazar as per Ex.P4 was drawn and weapons were seized. All these official witnesses have deposed supporting the case of the prosecution and no motive or ill-will was suggested against them to falsely

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HC-KAR

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implicate accused No.1. Under such circumstances, I do not find any reason to reject the version of PW.3-the victim herself. PW.4-the eyewitness, PWs.7 to 11 are the official and eyewitnesses to the incident. When the evidence of these witnesses is consistent with commission of the offence by accused No.1-the appellant herein and their versions were not contradicted during cross-examination, I do not find any reason to disbelieve their version. Therefore, I am of the opinion that the accused is liable for conviction under Section 365 of IPC. Even though the accused was charged for the offence punishable under Section 364(A) of IPC, the prosecution has not proved such kidnapping for the purpose of ransom. Hence, the accused is liable for conviction under Section 365 of IPC.

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Learned Senior Advocate contended that no split up charge sheet came to be filed against accused Nos.2 to 9 who are said to have been involved in commission of the offence. Under such circumstances, the appellant is also entitled to be acquitted. I do not find any reason to support such contention. Even though the Investigating Officer who appeared before the Court, filed the report to the effect that no separate or split-up

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HC-KAR

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charge sheet was filed against accused Nos.2 to 9, the same cannot be a ground to acquit the accused looking in to the nature and seriousness of the offence and the materials placed before the Court by the prosecution.

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It is pertinent to note that even though the prosecution has alleged commission of so many other offences by the accused which are punishable under Sections 143, 144, 364(A), 120B and 201 read with 149 of IPC, none of these offences were proved by the prosecution. The materials on record squarely attracts Section 365 of IPC, for which the appellant is liable for conviction.

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I have gone through the judgment of conviction and order or sentence passed by the Trial Court. It has taken into consideration all these materials on record and has rightly formed the opinion that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 365 of IPC. I do not find any reason to interfere with the same.

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HC-KAR

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The Trial Court sentenced the accused to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/-, with default sentence. Section 365 of IPC prescribes the maximum sentence up to seven years. It does not prescribe minimum sentence. The incident had occurred during 2006, the impugned judgment came to be passed during 2013. The appeal is taken up for consideration in 2025. It is stated by the learned Senior Advocate for the appellant that, the appellant was in custody from 06.04.2006 to 03.03.2007 and from 30.01.2013 till 05.03.2013, that means to say he was in custody for about 12 months.

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Considering all these facts and circumstances, and also the fact that, the victim PW.3 is already married to PW.4 and they are leading their own life, I am of the opinion that, leniency may be shown while sentencing the accused. Therefore, the impugned order passed by the Trial Court, is liable to be modified. Accordingly, I answer the above point 'partly in the affirmative' and proceed to pass the following:

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ORDER

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i. The appeal is allowed in part ;

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HC-KAR

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ii. The impugned judgment of conviction dated 30.01.2013 passed in Sessions Case No.805/2006 by the learned Fast Track (Sessions) Judge at Bangalore, is hereby confirmed;

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iii. The order of sentence passed by the Trial Court for the offence punishable under 365 of IPC is modified as under:

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(a) The appellant-accused is sentenced to undergo imprisonment for a period of one year and to pay fine of Rs.5,000/-. In default of payment of fine amount, he shall undergo rigorous imprisonment for a period of three months for the offence punishable under Section 365 of IPC:

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(b) The accused is entitled for set off for the period of sentence he has already undergone.

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(iv) The Jail Authority is directed to verify the length of the imprisonment suffered by the accused and if in case, he has already served the sentence, and if fine amount is deposited to release the

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