Karnataka High Court

Sri Jayarama vs The State Of Karnataka on 13 July, 2022

Bench: Dr.H.B.Prabhakara Sastry

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JULY, 2022

                            BEFORE

 THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.459 OF 2018

BETWEEN:

Sri. Jayarama
S/o. Nanjegowda @ Nanjappa,
Aged about 60 years,
R/at, Chattanahalli village,
Santhebachalli Hobli,
K.R. Pete taluk
Mandya district - 571234.

                                                 ..Petitioner
(By Sri. Pratheep K.C., Advocate)

AND:

The State of Karnataka
Rep. by Shravanabelagola Police
Station, Hassan District,
Rep. by its
State Public Prosecutor
High Court of karnataka
Bengalore - 01.
                                                .. Respondent

(By Sri. K. Nageshwarappa, High Court Govt. Pleader)

                                    ****
                                                       Crl.R.P.No.459/2018
                                   2


      This Criminal Revision Petition is filed under Section 397 read
with 401 of the Code of Criminal Procedure, 1973, with the
following prayer:

         " Wherefore, it is prayed that, this Hon'ble court may be
   pleased to call for the records in C.C.No.187/2011 on the file of
   Senior Civil Judge and JMFC at Channarayapatna, peruse the
   same, allow the revision petition and set aside the judgments
   dated 10-11-2017 passed by the IV Additional District and Session
   Judge at Hassan in Crl.A. No.123/2017 and in C.C.No.187/2011
   dated 17-06-2017 passed by Senior Civil Judge and JMFC at
   Channarayapatna and acquit the petitioner for the offence
   punishable under Sections 369 of the IPC in the interest of justice
   and equity.

      This Criminal Revision Petition having been heard through
physical hearing/video conferencing hearing and reserved on
06-07-2022, coming on for pronouncement of Orders this day, the
Court made the following:
                             ORDER

The present petitioner was accused in Criminal Case

No.187/2011, in the Court of the Senior Civil Judge and

J.M.F.C., Channarayapatna, (hereinafter for brevity referred to

as "the Trial Court"), who, by the judgment of conviction and

order on sentence dated 17-06-2017 of the Trial Court, was

convicted for the offence punishable under Section 369 of the

Indian Penal Code, 1860 (hereinafter for brevity referred to as

"the IPC") and was sentenced accordingly.

Crl.R.P.No.459/2018

Aggrieved by the same, the accused preferred an appeal

in Criminal Appeal No.123/2017, in the Court of the 4th

Additional District and Sessions Judge, Hassan District (Sit at

Channarayapatna) (hereinafter for brevity referred to as the

"the Sessions Judge's Court"), which, after hearing both side,

dismissed the appeal, by confirming the judgment of

conviction and order on sentence passed by the Trial Court.

It is challenging the judgments passed by both the Trial Court

as well the Sessions Judge's Court, the accused/petitioner

herein has preferred the present revision petition.

2. The summary of the case of the prosecution in the

Trial Court was that, on the date 30-10-2009, at about 6:00

p.m., near the shop of PW-4 - Satisha at Hosahalli, within the

limits of the complainant Police Station, the accused

kidnapped a child by name Harshita, who is the daughter of

PW-3 - Pratibha, with an intention to take away the silver leg Crl.R.P.No.459/2018

chain which she was wearing and thus has committed an

offence punishable under Section 369 of the IPC.

3. The accused appeared in the Trial Court and

contested the matter through his counsel. The accused

pleaded not guilty. As such, in order to prove the alleged guilt

against the accused, the prosecution got examined in all

thirteen (13) witnesses from PW-1 to PW-13, got marked

documents from Exs.P-1 to P-7(a) and produced one Material

Object as MO-1. However, neither any witness was examined

nor any documents were got marked on behalf of the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

5. The Trial Court and the learned Sessions Judge's

Court's records were called for and the same are placed before

this Court.

Crl.R.P.No.459/2018

6. Learned counsel for the accused/revision petitioner

and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

7. Heard the learned counsels from both side. Perused

the materials placed before this Court including the impugned

judgments passed by both the Courts and also the Trial Court

and learned Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision

petition is:

Whether the impugned judgments of conviction and order on sentence passed by the Trial Court as well the Sessions Judge's Court, holding that the accused (petitioner herein) has committed the alleged offence punishable under Section 369 of the Indian Crl.R.P.No.459/2018

Penal Code, 1860, warrants any interference at the hands of this Court?

10. It was the argument of the learned counsel for the

petitioner (accused) that there is no satisfactory evidence to

establish that the alleged kidnapped girl was below the age of

ten years, as such, one of the essential ingredients of Section

369 of the IPC is not fulfilled, thus, the said offence is not

made out against the accused /petitioner herein. It was his

other point of argument that, the alleged recovery of the

alleged silver leg chain from the possession of the accused has

also not been proved. However, the Trial Court, without

noticing the shortcomings in the evidence led by the

prosecution, has erroneously held the accused guilty of the

alleged offence.

11. Learned High Court Government Pleader, in his

argument, with more emphasis, repeatedly submitted that,

the evidence of PW-4 and PW-5 proved the alleged offence of

kidnapping the girl Harshita by the accused. He further Crl.R.P.No.459/2018

submitted that the recovery of silver leg chain at MO-1 has

been established by the evidence of PW-6 and PW-13. He also

submitted that, PW-1 and PW-3 have said that the kidnapped

girl was going to Baby sitting School, as such, she was aged

below four years.

Finally stating that the accused has not stated as to how

the leg chain at MO-1 came into his possession, as such, an

adverse inference has to be drawn in the matter against the

accused, the learned High Court Government Pleader relied

upon a judgment of the Hon'ble Apex Court in the case of

Prahlad Vs. State of Rajasthan reported in (2019) 14

Supreme Court Cases 438. With this, he submitted that the

impugned judgments passed by both the Courts below do not

warrant any interference at the hands of this Court.

12. Among the thirteen (13) witnesses examined by the

prosecution, PW-1, PW-2 and PW-3 are the material

witnesses, who spoke about the accident.

Crl.R.P.No.459/2018

13. PW-1(CW1) - Sri. Pradeep is the complainant/

informant in this case, who has stated that, Baby Harshita is

his neice, i.e. the daughter of his sister Pratibha and was

studying in Baby Sitting in Good Citizens School at

Hadenahalli. Everyday, he used to pickup Harshita from her

house and drop her to the School vehicle near the shop of

Satisha. Further, every evening, he used to pick up the girl

Harshita from near the shop of Satisha and drop her back on

his motor cycle to her house. On the date 30-10-2009, there

was some delay in he coming to the shop of Satisha for

picking up the said girl. At 5:30 p.m., on the said date, his

sister Pratibha telephoned him, stating that her daughter Baby

Harshita had not come home. He went near the shop of

Satisha and by enquiry with Satisha came to know that some

unidentified person has secured a chocolate to said girl

Harshita and took her towards Hosahalli Road. He stated that

when he proceeded in Hosahalli Road for about 6 to 7 kms.

and enquired a person there near Korakalu Matha, he was Crl.R.P.No.459/2018

informed that an unidentified person had brought the child in

an auto rickshaw driven by CW-2 and when he has been

taking out the ornaments from the person of Harshita, at that

time, he has been caught and detained. The witness stated

that he saw that both the accused and Harshita were there. He

enquired the accused and came to know that he was a person

by name Jayarama, a resident of K.R. Pete. The witness has

stated that, in that connection, he has lodged a complaint with

the Police as per Ex.P-1. He has identified the leg chain of

Harshita at MO-1. He was subjected to a detailed cross-

examination, wherein he adhered to his original version.

14. PW-2 (CW-2) - Manju has stated that, being an

autorickshaw driver, earlier, when he was driving his

autorickshaw in the route between Hirisave and

Shravanabelagola, on the date 30-10-2009, between the time

5:30 p.m. to 6:00 p.m. near a Peepal tree at

Shravanabelagola, where a shop is located, the accused drove Crl.R.P.No.459/2018

his autorickshaw along with the child stating that, he wanted

to go to Hosahalli. However, the passenger did not get down

at Hosahalli place, but stated that he intended to go to

Sundalli, where also he did not alight but told that he would

alight at Juttanahalli. Before they could reach Juttanahalli, the

accused got down near Korakalu Matha and took that girl

towards a lonely place and on enquiry by this witness about

the child, the accused had stated that she was his grand

daughter. The witness further stated that since there was one

more passenger in the autorickshaw, who was supposed to go

about 100 meters away from there, he dropped her there and

being suspicious about the other passenger (accused) who got

down with the child, he asked CW-3 - Suresha to join him who

was there in Juttanahalli Auto Stand and both of them came

back near Korakalu Matha. There, they saw that accused had

removed the leg chain worn by the child. The witness stated

that, after taking the accused and the child to a nearby house

and noticing the identity card which was with the child, he Crl.R.P.No.459/2018

informed the Police. The Police came to the spot and took the

accused into their custody. The witness stated, thereafter the

Police drew the spot panchanama as per Ex.P-2, to which, he

has put his signature. Nothing could be elicited in favour of

the accused in his cross-examination, on the other hand, he

has stated that, since he now and then used to take the said

child in his autorickshaw, he knew the said child. He has

further stated that, when he saw the leg chain worn by baby

Harshita, it was in the pocket of the accused.

15. PW-3 (CW-4) - Pratibha, who is the mother of the

alleged kidnapped child Harshita has stated that, her

daughter Harshita was studying in baby sitting in Good

Citizens School at Hadenahalli. She further stated that, PW-1

is her elder brother who used to take her daughter Harshita

from her house and get her boarded to the School vehicle

near the shop of Satisha and in the evening, he used to pick

her up and drop her back to her home. On the date Crl.R.P.No.459/2018

30-10-2009, since Baby Harshita did not come even at 5:30

p.m., though regularly she used to be back before 5:00 p.m.,

she telephoned to her brother (PW-1) who, after confirming

that Baby Harshita had not returned to her home, went near

the shop of Satisha and enquiring him, proceeded to Korakalu

Matha, where he found the accused and their child Harshita.

She also stated that when she saw her child Harshita, the leg

chain worn by her was not in her legs. In her cross-

examination, she admitted a suggestion as true that she is

only a hear-say witness and that she has seen her child on

the said date, only after she was brought back to the home by

her brother, as such, she has not seen the incident as an eye

witness.

16. The next set of witnesses are PW-4(CW-5) - Satisha

and PW-5 (CW-6) - Gireesha. Both these witnesses have

stated that the Police had drawn a panchanama near the shop

of Satisha as per Ex.P-3, which was the place of kidnap of Crl.R.P.No.459/2018

the child. Thus, the evidence of PW-1 to PW-3 alone speaks

about the alleged kidnapping of the girl Harshita and the

alleged role of the accused in the said incident. Whereas, the

evidence of PW-4 and PW-5 only speaks about the Police

drawing a scene of offence panchanama at the alleged place of

kidnap of the child Harshita as per Ex.P-3.

17. However, the learned High Court Government

Pleader for the respondent - State, in his argument

repeatedly submitted that, the evidence of PW-4 and PW-5

proves the alleged offence of kidnapping by the accused,

despite the Court repeatedly bringing to his notice that, they

are the panchas for the alleged scene of offence panchanama,

who have not even whispered anything about the alleged act

of alleged kidnapping of Kum. Harshita. Still, the learned High

Court Government Pleader insisted that, his submission that

their evidence i.e. of PW-4 and PW-5 proves the offence of Crl.R.P.No.459/2018

kidnapping against the accused be taken on record.

Accordingly, his specific submission is taken on record.

18. In the cross examination of PW-1 to PW-3, it is not

denied that Baby Harshita was the daughter of PW-3 -

Pratibha and that PW-1 - Pradeep is the elder brother of

PW-3. It is also not denied that every day, PW-1 used to drop

the said girl Harshita to board her School vehicle near the

shop of Satisha and in the evening pick her up back and drop

her to her home. The evidence of PW-1 and PW-3 that, on

the date 30-10-2009, PW-1 had dropped the child Harsihita to

School vehicle in the morning near the Shop of Satisha and

that she was found missing in the evening as she did not

return home upto 5:30 p.m., is also not denied.

19. PW-3 has stated that, seeing that her daughter had

not come home even at 5:30 p.m., she telephoned to her

brother (PW-1) and enquired with him. It is thereafter the

said PW-1 proceeded to the shop of Satisha and enquiring Crl.R.P.No.459/2018

there and getting the information from the people, went to the

Korakalu Matha, a lonely place at a distance of about 6 kms.

to 7 kms. from the place of the shop of Satisha (PW-4) and on

enquiry with the local people there, he came to know that the

accused had brought the said child Harshita to the said place

and had removed the leg chain worn by her and was beginning

to remove her ear rings, however, was caught by the people

there and was detained.

20. Though an attempt was made in the cross-

examination of PW-1, to weaken his statement made in his

examination-in-chief in that regard, however, the witness

adhered to his original version. On the other hand, he has

given more information about the details collected by him

before proceeding to the place called Korakalu Matha and he

approaching the said place where Harshita and accused were

said to have been detained by some people there. An attempt

was made in his cross-examination by making a suggestion to Crl.R.P.No.459/2018

the witness that, the said witness and accused had enmity, as

such, PW-1 was giving false evidence, however, the said

suggestion was not admitted as true by the witness.

21. The other witness who has strongly supported the

case of the prosecution and who is the star witness in the case

of the prosecution case is, PW-2 - Manju, an autorickshaw

driver. As analysed above, he has stated that, the accused

along with the child Harshita had travelled in his Autorickshaw

and extending the place of their alightment, the accused

ultimately got down near Korakalu Matha, as such, by the

conduct of the accused and also noticing that the child with

whom he was travelling had also occasionally travelled in his

autorickshaw, PW-2 got suspicious about the behaviour of the

accused and after dropping a co-passenger at a distance of

about 100 metres away at a place called Juttanahalli, he,

accompanied by another auto driver by name Suresha came

near Korakalu Matha, only to see that the accused had already Crl.R.P.No.459/2018

removed the leg chain worn by the child Harshita and was in

the said place.

This witness, in his cross-examination, has given more

details as to how he got suspicious about the conduct of the

accused and made it clear that the child Harshita was known

to him since she had travelled in his autorickshaw earlier. He

has also stated that, he made enquiry with the accused about

his alleged relationship with the child and was told that the

said child was his grand daughter, however, he did not believe

the said statement of the accused. He has shown the reason

of his returning back to the said place, stating that since he

got suspicious about the conduct of the accused, he had to

come back only to see that the said accused had brought the

child only to take away the leg chain worn by her, which

according to this witness, was found in the pocket of the

accused. Thus, even though the evidence of PW-3 is a hear-

say about the alleged incident, but the evidence of PW-1 and

PW-2 clearly establishes that the child Harshita was found in Crl.R.P.No.459/2018

the custody of the accused, in the evening of the date

30-10-2009.

Undisputedly, the accused, was, in no way, related to

the said child. The evidence of PW-1 and PW-3 that, every

day, PW-1 was dropping the child Harshita to the School

vehicle near the shop of Satisha and was picking her up back

from the same place in the evening, as such, on the date

30-10-2009 also, he had dropped the girl in the morning to

the School vehicle near the shop of Satisha, has remained un-

denied. Therefore, it is proved beyond doubt that, on the

said date, even though PW-1 was expected to pick the child

Harshita back from near the shop of Satisha while she was

alighting in School vehicle, however, on the said day, there

was some delay in he going there near the shop of Satisha

and in the meantime, the accused had taken that girl by

getting her a chocolate from the shop of PW-2 - Satisha and

taken her in the autorickshaw of PW-2 to a lonely place called

Korakalu Matha, which was at a distance of about 6 kms. to Crl.R.P.No.459/2018

7 kms. away from the shop of Satisha. Therefore, the accused

taking the child Harshita with him without the knowledge or

consent of her parents and lawful guardians, stands

established.

22. The main point of argument of the learned counsel

for the petitioner (accused) was that, the age of the girl

Harshita has not been proved to be below ten years, as such,

the offence under Section 369 of the IPC has not been proved.

Section 369 of the IPC, as one of its ingredients, makes

it essential that, the age of the alleged kidnapped child must

be under the age of ten years. Admittedly, in the case on

hand, none of the witnesses examined by the prosecution

have spoken about the specific age of the kidnapped girl

Harshita, as on the date of the incident. Though the

Investigating Officer could have secured her School Certificate

or Date of Birth Certificate, however, he has not produced the

same before the Court. It is taking advantage of the same, Crl.R.P.No.459/2018

the learned counsel for the petitioner vehemently submitted

that proof of the age of the kidnapped girl Harshita has not

been established by the prosecution.

23. PW-1, PW-2, PW-3 and PW-4 have stated that, the

kidnapped girl Harshita was a child. No doubt, none of them

have stated the exact age of the child, but PW-1, who is the

maternal uncle of the said child and PW-3 - the mother of the

child have specifically and categorically stated that the child

Harshita was studying in Baby sitting in Good Citizens School

at Hadenahalli. Though neither the date of Birth Certificate

nor the School Certificate regarding the age of the girl has

been produced, the un-denied statements of PW-1 and PW-3

that baby Harshita was studying in Baby sitting, would itself

go to show that, she was aged below ten years as on the date

of the incident. Since the regional age limit to study in baby

sitting which is an early Schooling prior to Lower Kinder

Garden (LKG) and Upper Kinder Garden (UKG) would be below Crl.R.P.No.459/2018

the age of four years, thus, it is established that, as on the

date of incident, the kidnapped girl Harshita was aged below

ten years, as such, one of the essential ingredients of Section

369 of the IPC is made out.

24. The finding that, the prosecution has established

that it was the accused who kidnapped the child Harshita, is

further corroborated by the evidence of

PW-10 and to some extent by the evidence of PW-11.

25. PW-10 (CW-14) - Krishnegowda, the then Police

Constable of the complainant Police Station has stated in his

evidence that, as per the information received by his Station,

on the date 30-10-2009 that, the localites had detained the

accused near Korakalu Matha Road, himself and the Head

Constable (HC-184) accompanied their Police Sub-Inspector

and all of them went to the said place and enquired the person

who was detained there. The detenue stated his name as

Jayarama S/o. Nanjappa. He was taken into custody by the Crl.R.P.No.459/2018

Police Sub- Inspector and was returned to the Police Station.

The identification of the accused was not objected in his

evidence.

26. PW-11 (CW-3) - Suresha, though was shown to be

an eye witness and the person accompanying PW-2, however,

he stated that, on the date of incident, when he was driving

his autorickshaw from Belagola to Hirisave, having seen a

gathering, he stopped there and saw that the Police were

enquiring the accused. With respect to the accused taking

away the leg chain and ear rings of a child, he stated that, he

has not seen the incident happening. He was treated as

hostile and the prosecution was permitted to cross-examine

him. Though in his cross-examination, he has not admitted

suggestions made to him by the prosecution, however, he

admitted one suggestion as true that, when the accused

revealed his identity in the enquiry in the spot the maternal

uncle of the child took up the child with him, stating that he Crl.R.P.No.459/2018

would lodge a complaint in the Police Station. The said

statement has not been specifically denied in the cross-

examination by the witness. Therefore, at the spot of the

alleged offence of taking away the leg chain of the child near

Korakalu Matha, the accused, keeping the custody of the child

with him and the general public including PW-2 detaining the

accused etc. would further corroborate the evidence of PW-1,

and PW-2, as analysed above, as such, the said fact stands

proved.

27. It was also the argument of the learned counsel for

the petitioner that the alleged recovery of the chain from the

possession of the accused at MO-1 has not been established

by the prosecution. In that connection, the prosecution has

examined PW-6 and PW-8 as the panchanama witnesses for

the panchanama at Ex.P-4, which panchanama is said to have

been drawn at the time of seizure of the silver leg chain at

MO-1. The said witnesses did not support the case of the Crl.R.P.No.459/2018

prosecution. Though they admitted that they had put their

signatures and identified them at Ex.P-4(a) and P-4(b),

however, both of them have stated that, they have put their

signatures at different places than the one mentioned in the

panchanama. Even after treating them hostile, the

prosecution could not get any support from them.

28. Though PW-6 and PW-8, the panchas for the alleged

seizure panchanama have not supported the case of the

prosecution regarding recovery, still, the evidence of other

material witnesses, more particularly of PW-2 supports the

case of the prosecution.

As analysed above, the witness (PW-2) has specifically

stated that, when he saw the kidnapped child in the custody of

the accused, near Korakalu Matha Road, the accused had

removed the leg chain worn by the child. The witness has

identified the said chain at MO-1. He reiterated the same

even in his cross-examination and categorically stated that Crl.R.P.No.459/2018

when he saw the accused, the leg chain of the child which he

had removed from the possession of the child was in his

pocket. The said statement that the chain at MO-1 was in the

pocket of the accused was not denied in his further cross-

examination. The said evidence of PW-2 was put to the

accused while recording his statement under Section 313 of

the Code of Criminal Procedure, 1973 (hereinafter for brevity

referred to as "the Cr.P.C."). Except stating that the said

statement is not true, the accused has not given any

explanation as to how come the said chain came to be in his

possession. Similarly, the evidence of PW-13 (CW-15) -

Investigating Officer that, the said chain at MO-1 was seized

from the possession of the accused by drawing a seizure

panchanama as per Ex.P-4, though was denied by the

accused, but, no where the accused has given any reason or

explanation in his statement under Section 313 of the Cr.P.C.,

as to how come the said chain came to be in his possession.

Crl.R.P.No.459/2018

It is on this point, the learned High Court Government

Pleader for the respondent relied upon the decision of the

Hon'ble Apex Court in Prahlad's case (supra), wherein the

Hon'ble Apex Court, in the case before it, which was for the

offences punishable under Sections 376 and 302 of the IPC, in

paragraph 11, was pleased to observe as below:

"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."

Thus, when the accused is required to speak about

certain incriminating statements made against him, if he

keeps quiet or maintains silence, it leads to an adverse

inference against him. Thus, in the instant case also, the

evidence of PW-2 and PW-13 that the leg chain was with the Crl.R.P.No.459/2018

accused and that it was seized from his possession, though

denied, but having not been appropriately reasoned by the

accused under Section 313 Cr.p.c., an adverse inference can

be drawn against him. Further, no where the accused has

given any reason as to how come he took the custody of the

child and took her from near the shop of Satisha upto

Korakalu Matha road. These aspects clearly go to prove that