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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19TH DAY OF AUGUST, 2017

BEFORE

THE HON'BLE MR.JUSTICE ARAVIND KUMAR

CRIMINAL APPEAL NO.1217/2012

BETWEEN:

NAGESHA S/O KADLAPAPAIAH AGED ABOUT 23 YEARS R/AT YERRENAHALLI VILLAGE MOLAKALMURU TALUK CHITRADURGA DISTRICT PIN CODE-577 535

… APPELLANT

(BY SRI. C.N. RAJU, ADVOCATE)

AND:

STATE BY MOLAKALMURU POLICE, REP. BY SPP HIGH COURT OF KARNATAKA BANGALORE-01.

… RESPONDENT

(BY SRI. K. NAGESHWARAPPA, HCGP)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 24.09.2012 PASSED BY THE ADDL. S.J. (FTC), CHITRADURGA IN S.C.NO.22/2012-

CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 366A OF IPC.

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

JUDGMENT

Appellant-accused in S.C.No.22/2012 has preferred this appeal under Section 272(2) Cr.P.C. against judgment of conviction and order of sentence dated 24.09.2012 passed by Additional Sessions Judge (Fast Track Court), Chitradurga whereunder appellant has been convicted for the offence punishable under Section 366A IPC and has sentenced him to undergo five (5) years of simple imprisonment and to pay a fine of ` 25,000/- with default sentence of one (1) year simple imprisonment.

2. Facts in brief which has led to filing of this appeal are as under:

A Complaint came to be lodged by one Sri.Gowdara Dasappa - P.W1 on 24.10.2011 alleging that he is a resident of Marammanahally village, Molakalmuru Taluk; he is having three sons and three daughters and two daughters are already married and third daughter Kum.D Kamalamma, aged about 14 years was attending coolie work and when she had been to coolie work on 23.10.2011 to the poultry farm along with his uncle's daughter Kum.Puttamma had not returned home; on enquiry with Kum.Puttamma, she had informed that while they were returning in the evening, appellant had forcibly taken Kum.Kamalamma and as such they conducted search and could not trace Kum.Kamalamma and hence, they lodged a complaint of kidnapping of his daughter against appellant. Said complaint came to be registered in Crime No. 200/2011 for the offence punishable under Section 366A IPC. During the course of investigation, jurisdictional police apprehended the accused – appellant and remanded him to judicial custody and on securing the victim girl,

her statement was recorded whereunder she stated that accused had forcibly taken her with an intention to have sexual intercourse with her and thereby he has committed an offence punishable under Section 366A IPC.

3. After committal of the case to the jurisdictional Sessions Court, summons came to be issued to the accused and after accused hearing before charge, charge came to be framed against accused explaining the accusations and accused pleaded not guilty and claimed to be tried. Prosecution examined 14 witnesses and other witnesses came to be given up by the prosecution and in all, 14 documents were produced and they were got marked as Exs.P-1 to P-14. On behalf of accused, portion of statement of P.W.2 was marked as Ex.D-1 and statement of accused under Section 313 Cr.P.C. came to be recorded whereunder appellant pleaded total innocence and pleaded not

guilty. Learned Sessions Judge who heard the arguments, by judgment dated 24.09.2012 convicted the accused and by order of even date sentenced him to five (5) years of simple imprisonment and imposed a fine of ` 25,000/- with default sentence of one (1) year simple imprisonment. Being aggrieved by the same, appellant – accused is before this Court.

4. I have heard the arguments of Sri Raju C N, learned Advocate appearing for appellant and Sri Nageshwarappa, learned HCGP appearing for respondent-State. Perused the records.

5. Learned Advocate appearing for appellant has contended that trial Court erred in convicting the appellant for the offence punishable under Section 366A IPC despite prosecution having failed to prove the allegations against appellant. He would contend that there was delay in lodging the complaint namely, PW1

has admitted that complaint was filed only after the return of victim girl and even though there was no incident happened, a false complaint had been lodged. He would submit that in his evidence, PW1 has admitted that appellant had kidnapped his daughter for the purpose of marriage which fact has completely lost sight of. He would also draw the attention of the Court to the evidence of P.W.2 namely, victim girl who has admitted in her evidence that she had been abducted by appellant and kept her in the house of P.W5 – Sri Kataiah and appellant was also staying in the house of P.W.5 and she had escaped from the custody of appellant and proceeded to her father's house and thereafter P.W.1 had lodged the complaint and the evidence of P.W.5 would indicate that appellant had not accompanied the victim girl to the house of P.W.5. This amongst other grounds urged in the appeal, appellant

seeks for setting aside the judgment and has prayed for acquittal of the accused.

6. However, he would hasten to add that since sentence imposed on the appellant has virtually come to an end and is now serving only default sentence, this Court may take a lenient view and acquit the accused and order for releasing him forthwith. He would also submit that appellant being a coolie and had been leading a life of hand to mouth existence, had been unable to deposit the fine amount and but for this reason, appellant would have already been set free and on account of penury of appellant and the condition in which he is placed and being unable to deposit the fine amount, he would pray for a lenient view being taken by this Court and seeks for acquittal of the appellant or in the alternate, to reduce the sentence already undergone as it would suffice for the offence for which appellant has been convicted.

7. Per contra, learned HCGP would support the judgment and order of sentence passed by the trial Court and prays for rejection of the appeal.

8. In view of the fair submission made by learned Advocate appearing for appellant, this Court within the limited scope of examining as to whether sentence which has already undergone by the appellant would suffice, judgment under challenge is examined.

9. A bare perusal of the material on record including the evidence tendered by the prosecution and all the material evidence placed before Court by the prosecution would disclose that as on the date of alleged incident, victim girl was a minor girl. Her date of birth for the academic year 2003-04 indicated as 02.05.1997. Birth certificate – Ex.P-8 would also establish the fact that date of birth of victim girl was 02.05.1997. Thus, from the evidence on record, it would establish that

prosecution had proved that as on the date of incident that occurred on 23.10.2011, victim girl was aged about 14 years 5 months and 21 days.

10. Trial Court while examining as to whether there was an act of kidnap committed by the appellant, has noticed that while victim minor girl was returning from coolie work on the date of incident i.e., on 23.10.2011 at 6.00 p.m. near Duppihalla which is on Marammanahalli-Kondlahalli road, had been forcibly taken by appellant and this fact was informed by C.W.3 – Kamalamma to the parents of victim girl and she is the relative of victim girl and with whom she was normally accompanying to coolie work at the poultry Farm of Sri Keshavareddy and he has been examined as P.W.9. Said Kum.Kamala @ Puttamma– P.W.3 is an eye witness to the incident. Perusal of her evidence would indicate that she had withstood the test of cross examination and has reiterated the statement made by

her before jurisdictional Court and has categorically stated that on the date of incident, she was returning to the village along with victim girl at about 6.00 p.m. and when they arrived near a stream at Duppihalla, accused forcibly caught hold of the hand of P.W.2 – Kamala though she protested and forcibly took her away. She has also stated that at that time, accused gave threat to other persons who tried to prevent him and thereafter she ran and came to the house of complainant – P.W.1 and had informed the illegal and criminal act of accused. As such, taking into consideration said evidence, trial Court has rightly accepted the same. Hence, incident of kidnap of P.W.2 by accused has been rightly accepted by the trial Court.

11. The evidence of P.W.4 namely, mother of victim which is corroborative in nature is also accepted by trial Court since nothing worthwhile was elicited in the cross examination to discredit her testimony. P.W.5 who came to be examined by the prosecution namely, Sri Kataiah in whose house the victim girl P.W.2 is said to have been confined had turned hostile and he has not supported the case of prosecution and it is not in dispute that he is the close relative of the accused. However, one intriguing factor which has remained unanswered by the prosecution as well as not discussed by the trial Court is the fact that accused is also from the same village where victim girl was residing. There is no mention by the prosecution witnesses as to the nature of enquiry made by the parents of the victim girl with the parents of the accused inasmuch as, C.W.3 who was accompanying the victim girl at the time of alleged kidnap had specifically and categorically informed the complainant – P.W.1 about the accused having kidnapped the victim girl. If it were to be so, parents of the accused in the normal course would have first approached the parents of the accused who were also residents of same village. For reasons best known, they have not approached and this fact has not been examined by the trial Court. However, on account of the testimony of the eye witness – P.W.3 having been rightly accepted or in other words, nothing worthwhile having been elicited in her cross examination to discredit her testimony, trial Court has accepted her statement which cannot be found fault with. Witnesses to the panchanama or mahazar - Ex.P-5 i.e., P.W.7 – Mr.Parashuram and P.W.8 – Sri Sharanappa have admitted their signatures found in the panchanama/mahazar – Ex.P-3 and drawing up of Mahazar – Ex.P-3 has been proved by the prosecution. In fact, owner of the poultry farm where victim girl and P.W.3 were said to be working as coolie has not certified or stated with precision that these two girls were working in his poultry farm as coolie.

12. However, considering the material placed before the Court, learned Sessions Judge has rightly arrived at a conclusion that accused had kidnapped the minor girl – P.W.2 by threatening her and she should marry him and with an intention to have sexual intercourse with her, she had been kidnapped by appellant. As such, this Court is of the considered view that learned Sessions Judge was justified in arriving at a conclusion that offence alleged against appellant had been proved by the prosecution beyond reasonable doubt.

13. However, learned Sessions Judge while sentencing the appellant for the offence on account of accused having not voluntarily come forward for plea bargain by moving an application, has convicted the appellant for five (5) years of simple imprisonment with fine of ` 25,000/- and default sentence of one (1) year simple imprisonment.

14. Hon'ble Apex Court in the case of B.G.GOSWAMI vs DELHI ADMINISTRATION reported in AIR 1973 SC 1457 has held while ordering quantum of sentence following aspects have to be kept in mind and has observed as under:

"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing ht guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the

society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs.200/- to Rs.400/-. Period of imprisonment in case of default will remain the same."

15. Appellant has already undergone sentence from 24.09.2012 till date namely, he has undergone imprisonment for 4 years 11 months and 25 Days as on date. Taking into consideration remission that would be allowed to a convict, this Court is of the considered view that sentence already undergone by the appellant would suffice and this Court cannot lose sight of the fact that at the time of admitting the appeal and suspending his sentence, had ordered appellant for depositing fine amount which appellant had been unable to deposit and as such, he has remained in custody and has undergone the sentence of imprisonment imposed on him. Considering the facts and circumstances above stated and the fact that substantive period of sentence has already been undergone by accused in this case and appellant is young aged about 24 years and he being the sole bread earner in the family and has to support his family members including his parents and the fact that they are in utter poverty and also the fact that appellant would have realized his mistake committed in past and being remorseful of his act to the society which he belongs to, the period of sentence already undergone by him would have definitely brought about transformation. Hence, this Court is of the considered view that he should be given chance to reform himself and contribute to the society in a positive manner of which he is part and parcel.

Hence, I proceed to pass the following:

JUDGMENT

• (i) Criminal appeal is hereby partly allowed.
• (ii) Judgment of conviction dated 24.09.2012 passed by Additional Sessions Judge, Fast Track Court, Chitradurga in S.C.No.22/2012 is hereby confirmed. Sentence imposed by the trial Court including default sentence is modified to the extent of

imprisonment which has already been served and undergone by the accused.

• (iii) Trial Court shall issue release order for release of the accused forthwith in S.C.No.22/2012.
• (iv) Registry is directed to transmit the records to the jurisdictional Court forthwith.

Registry is directed to issue operative portion of this judgment to learned Advocate appearing for appellant and also to the jurisdictional Jail Superintendent to release the appellant forthwith.

SD/- JUDGE

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