B R Halesh vs The State Of Karnataka
2023 Latest Caselaw 1565 Kant

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                                                        CRL.A No. 1258 of 2011




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 24TH DAY OF FEBRUARY, 2023

                                            BEFORE

                   THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

                              CRIMINAL APPEAL NO. 1258 OF 2011

                   BETWEEN:

                   1.   B R HALESH
                        S/O RUDRAPPA
                        AGE 24 YEARS,
                        OCC:COOLIE, R/O CHIRADONI VILLAGE
                        CHANNAGIRI TALUK,
                        DAVANAGERE DISTRICT.

                   2.   HALESH
                        S/O KARIBASAPPA
                        AGED 32 YEARS,
                        OCC:COOLIE,
                        R/O CHIRADONI VILLAGE
Digitally signed        CHANNAGIRI TALUK
by SANDHYA S
                        DAVANAGERE DISTRICT.
Location: HIGH
COURT OF
KARNATAKA                                                           ...APPELLANTS

                   (BY SRI. B S PRASAD, ADVOCATE (PH)

                   AND:

                   THE STATE OF KARNATAKA
                   BY HOLEHONNUR POLICE
                   BHADRAVATHI.

                                                                   ...RESPONDENT

                   (BY SRI. S.VISWA MURTHY, HCGP (PH)
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                                           CRL.A No. 1258 of 2011




     THIS CRL.A. IS FILED U/S. 374(2) CR.P.C BY THE ADV.,
FOR THE APPELLANTS PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO SET ASIDE THE JUDGMENT/ORDER DATED
25/26.11.11 PASSED BY THE P.O., FTC, BHADRAVATHI IN
S.C.NO.95/11 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 366 R/W 34 OF IPC AND
THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO R.I.
FOR ONE YEAR EACH AND FINE OF RS.300/- EACH, IN DEFAULT
OF PAYMENT OF FINE AMOUNT, THEY SHALL UNDERGO FURTHER
IMPRISONMENT FOR 3 MONTHS, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366 R/W SEC. 34 OF IPC.

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

                           JUDGMENT

This appeal is filed against the judgment of conviction

and order of sentence dated 25-11-2011/26-11-2011 passed

in SC No.95/2011 by the Presiding Officer, Fast Track court,

Bhadravathi, convicting the appellants-accused Nos. 1 and 2

for the offence under Section 366 read with Section 34 of

IPC and sentencing them to undergo rigorous imprisonment

for one year each and to pay a fine of Rs.300/- each in

default to undergo further imprisonment for three months.

2. The factual matrix of the case is that, PW4-victim

girl was residing along with her grandmother at

Channmumbapura village. Her father Thippesh and mother

CRL.A No. 1258 of 2011

Renukamma have expired. Her younger sister Seema was

residing with her mother's mother Laxmamma at Chiradoni

village. Victim girl was studying in a high school in Lingapura

village. Victim girl's father's sister- Kamalamma (PW1) was

staying at B.Beeranahalli village. PW1-Kamalamma has a

daughter by name Sudha. There was a naming ceremony of

her daughter's child in the house of PW1-Kamalamma.

Accordingly, relatives of Kamalamma had come to attend the

function and victim girl also came to the house of PW1-

Kamalamma at B. Beeranahalli village and she was staying

with them even after completion of the function. On

21-04-2009, PW1-Kamalamma went to attend the collie work

and returned to her house at 3.30 p.m., and by that time,

she found three strangers sitting in her house and on

enquiry, they informed their names as, Halesh, Halesh and

Rudrappa. Further, they have also informed that Halesh s/o

Karibasappa had some relatives in Arahatholalu village.

PW1-Kamalamma treated them by offering tea and coffee.

Thereafter, said three persons informed her that victim girl's

grandmother Laxmamma and maternal uncle -Shivamurthy

CRL.A No. 1258 of 2011

had been severely injured in the accident, are in serious

condition and they were remembering victim girl and

requested PW1-Kamalamma to send her with them. PW1-

Kamalamma had informed them that they may go back to

the their village and she will follow them along with victim

girl. Those persons informing and applying pressure saying

that victim girl is required immediately by Laxmamma and

took her with them on a bike. Thereafter, PW1-Kamalamma

went to the house of Laxmamma at about 6.30 p.m. and

found that Laxmamma and Shivamurthy had not met with

any accident and they came to know that some false

information was given to them. Later on, all of them

searched for the victim girl and the persons who had taken

her. Later on, she lodged complaint on 22-4-2009 at about

7.15 p.m. The said complaint came to be registered in Crime

No. 104/2009 of Holehonnur Police Station for the offence

under Section 363 read with Section 34 of IPC against

appellants-accused Nos. 1 and 2 and also another person by

name Rudresh son of Hanumanthappa. The police after

completion of investigation filed a chargehseet against

CRL.A No. 1258 of 2011

appellants-accused Nos. 1 and 2 only for the offence under

Section 366A read with Section 34 of IPC. The jurisdictional

Magistrate had taken cognizance and committed the case to

the Sessions Court.

3. The prosecution examined ten witnesses as PWs 1 to

10 and got marked the documents Exs.P1 to P6 and Ex.D1

came to be marked in the evidence of PW4. The statement

of accused under Section 313 of Cr.P.C. was recorded.

4. After hearing the arguments on both sides, the trial

Court formulated the points for consideration and convicted

the appellants-accused Nos. 1 and 2 for the offence

punishable under Section 366 of IPC. The said judgment of

conviction and order of sentence has been challenged by the

appellants-accused Nos. 1 and 2 in this appeal.

5. Heard the arguments of Sri B.S.Prasad, learned

counsel for the appellants-accused Nos. 1 and 2 and Sri S.

Viswa Murthy, learned HCGP for the respondent-State.

6. The learned counsel for the appellant argued that

there are material contradictions in the evidence of PWs 1

and 4. As per the averments of Ex.P1-complaint, PW1 is the

CRL.A No. 1258 of 2011

eye witness in whose presence accused persons took the

victim girl with them. But as per her evidence, she came to

her house subsequently and came to know that accused

persons took the victim girl with them giving false

information that her relatives were admitted in the hospital

as they have sustained injuries in the accident. He

contended that daughter of PW1 was also present in the

house when the accused came there and the said daughter

Sudha has not been examined by the prosecution. Even the

husband of PW1 was in the house at the time of alleged

kidnap, but he has not been examined by the prosecution.

The name of the victim girl is 'Mary'. PW1 has stated that her

real name is 'Rekha' and she will call her with nick name as

'Mary'. He contends that the school records produced by

PW2, pertaining to 'Mary' and not pertaining to 'Rekha'. As

per the evidence of PW4- victim girl, she met the police and

conductor on the way when the accused persons were taking

her. But the prosecution has not chosen to examine the said

police and the conductor. The PW4 has admitted in her cross-

examination that, accused No.1 is her relative through her

CRL.A No. 1258 of 2011

mother and the same has not been taken into consideration.

As per the evidence of PW4, she was taken to Dharmasthala.

But none of the persons from Dharmasthala were examined.

The trial Court has not taken into consideration the Ex.D1-

statement of the victim girl wherein she has stated that these

appellants-accused Nos. 1 and 2 have not kidnapped her and

she voluntarily went along with them. He said, Ex.D1 is the

statement recorded by PW10 and in his cross-examination,

he has admitted that PW4-victim girl has stated before him

as per Ex.D1. He contends that contents of Ex.D1 which is

the statement of the victim girl falsifies her evidence given

before the Court. The Trial Court has not given benefit of

doubt taking into consideration the contents of Ex.D1 to the

appellants-accused Nos. 1 and 2. It is the defence of the

accused that Shivamurthy, PW7 relative of PW1 was having

enmity with the accused persons and therefore, a false case

came to be foisted against the appellants-accused Nos. 1 and

2.

7. PW7 has admitted in his cross-examination that

there was a quarrel between him and the accused persons

CRL.A No. 1258 of 2011

about 5 to 6 years back and they are not in talking terms.

One Santhosh, the relative of PW1 intends to marry the

victim girl and therefore, PW4 victim girl and other witnesses

have given false evidence against appellants-accused Nos. 1

and 2. On these grounds, he has prayed to allow the appeal

and acquit the appellants-accused Nos. 1 and 2 .

8. Learned HCGP submits that the trial Court on

proper appreciation of evidence on record rightly convicted

the appellants-accused Nos. 1 and 2. He has supported the

reasons assigned by the trial Court. He further argued that

the evidence of PWs 1 and 4 is sufficient to convict the

appellants-accused Nos. 1 and 2 for the offence charged

against them. On these grounds, he sought for dismissal of

the appeal.

9. On the grounds made out and considering the

arguments advanced, the following point arises for

consideration:

Whether the trial Court erred in

convicting the appellants-accused Nos. 1 and

2 for offence under Section 366 of IPC?

CRL.A No. 1258 of 2011

10. My answer to the above point is in the affirmative,

for the following:

REASONS

11. PW4 is the victim girl and her parents are no more

and she was residing with her mother's mother Laxmamma

at Channmumbapura village. She had come to the house of

PW1-Kamalamma, for naming ceremony of the child of

Sudha, the daughter of PW1. When PW4 was staying in the

house of PW1, on 21-4-2009, these appellants-accused Nos.

1 and 2 came there and took the victim girl stating that her

grandmother Laxmamma and uncle Shivamurthy have

sustained injuries in the accident and they are in hospital. It

is alleged that they kidnapped the said victim girl PW4 with

an intention to marry her.

12. PW4-victim girl deposed that appellants-accused

Nos. 1 and 2 came to the house of PW1 and took her from

there on motor cycle stating falsely that her grandmother

and uncle met with an accident and they sustained severe

injuries. She also deposed that they threatened her and

accused No.1 forced her to marry him.

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CRL.A No. 1258 of 2011

13. PW4 as per her evidence met with police and also

a conductor on the way and she did not disclose that the

appellants-accused Nos. 1 and 2 have kidnapped her. It is

her contention that they had threatened her. PW4 in her

cross- examination had admitted that accused persons are

her relatives from her mother's side. The aforesaid aspects

show that the PW4 victim girl was acquainted with the

accused persons.

14. On securing the victim girl, PW10 has recorded her

statement. When a portion of the said statement is

confronted to PW4, she had denied of she stating the same

before PW10. The said portion has been marked as Ex.D1.

15. PW10 in his chief- examination stated that he has

recorded the statement of the victim girl. In his cross-

examination, he has admitted that the victim girl has given

statement before him as per Ex.D1. By that, the defence has

established that PW4 has given statement as per Ex.D1

before PW10. The contents of Ex.D1 are relevant for

consideration to ascertain whether the PW4's evidence is to

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CRL.A No. 1258 of 2011

be believed or not. Therefore, the contents of Ex.D1 are

extracted as below:

"........¢£ÁAPÀ 22.04.09 gÀAzÀÄ zsÀªÀÄð¸ÀܼÀzÀ°è £À£ÀUÉ

ºÁ¯ÉñÀ£ÀÄ vÁ½ PÀnÖzÀ£ÀÄ. £ÀAvÀgÀ vÀjPÉgÉUÉ §AzÀÄ C°èAzÀ

ºÁ¯ÉòAiÀÄ ¸ÀA¨sÀA¢PÀgÁzÀ CgÉvÉÆüÀÆgÀÄ ªÀqÀØgÀ ºÀnÖAiÀÄ

ºÁ®¥Àà£À ªÀÄ£ÉUÉ §AzÀÄ EzÉݪÀÅ. £À£ÀUÉ ºÁ¯ÉñÀ ©£ï

gÀÄzÀæ¥Àà, ºÁ¯ÉñÀ ©£ï PÀj§¸À¥Àà £À£ÀUÉ C¥ÀºÀj¸À°®è.

£À£ÀUÀÆ ¸ÀºÀ ºÁ¯ÉñÀ£ÉÆA¢UÉ ªÀÄzÀÄªÉ DUÀ®Ä EµÀÖ

EzÀÄÝzÀjAzÀ DvÀ£ÉÆA¢UÉ ºÉÆÃVzÉÝ. ºÁ¯ÉñÀ £À£ÉÆßA¢UÉ

zÉÊ»PÀ ¸ÀA¥ÀPÀð ªÀiÁrgÀĪÀÅ¢®è".

16. As per the contents of Ex.D1, the appellants-

accused Nos. 1 and 2 have not kidnapped her. She went

along with them as she intended to marry accused No.1. The

very said contents of Ex.D1 goes to falsify the entire evidence

of PW4. The trial Court has not taken into consideration the

contents of Ex.D1 in assessing the evidence of PW4.

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CRL.A No. 1258 of 2011

17. PW1 is the complainant. Ex.P1 is the complaint. As

per the averments of Ex.P1, she saw three persons in her

house including accused Nos. 1 and 2, who took the victim

girl along with them giving false reason. Therefore, she is an

eye witness to the incident where the accused persons took

the victim girl with them. The PW1 has deposed that when

she came back from the work, she found that the victim girl

was not in the house and when she enquired, her daughter

Sudha told her that victim girl's relatives by name Halesh and

another Halesh took her stating that her grandmother and

uncle have met with an accident. The said aspect goes to

show that she is not an eye witness to the incident where

accused took the victim girl giving false information.

18. The marriage of the victim girl was fixed with one

Santhosh. PW4 in her cross-examination admits that her

marriage was fixed with one Santhosh who is the neighbour

of PW1-Kamalamma. She has denied the suggestion that she

has given false evidence as her marriage is fixed with

Santhosh.

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CRL.A No. 1258 of 2011

19. As per the evidence of PW4, on the way when the

accused persons were taking her, she met police and

conductor and the prosecution has not chosen to examine

them. Even the victim was taken to Dharmasthala. But no

one has been examined regarding the said aspect.

20. Considering all these aspects, including the

contents of Ex.D1, the evidence of PW4- victim girl does not

inspires the confidence of the Court and it appears to be not

believable one. As per the contents of Ex.D1, it is the victim

girl who voluntarily went along with the accused Nos. 1 and 2

as she intended to marry accused No.1. Considering all

theses aspects, the evidence on record is not sufficient to

convict the appellants-accused Nos. 1 and 2 for the offence

under Section 366 of IPC. Hence, the appeal deserves to be

allowed. Accordingly, I proceed to pass the following:

ORDER

The appeal is allowed.

The judgment of conviction and order of sentence

passed by the Presiding Officer, Fast Track Court,

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CRL.A No. 1258 of 2011

Bhadravathi, in SC No.95/2011 dated 25-11-2011/

26-11-2011 is set aside.

Appellants-accused Nos. 1 and 2 are acquitted for the

offence under Section 366 of IPC.

The fine, if any, deposited by the appellants-accused

Nos. 1 and 2 is ordered to be refunded.

Sd/-

JUDGE

tsn*