Karnataka High Court
Sri.Sandeep Galad vs The State Of Karnataka on 4 June, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 100099 of 2020 C/W
CRL.A No. 100051 of 2020,
CRL.A No. 100145 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.100099 OF 2020 C/W
CRIMINAL APPEAL NO.100051 OF 2020
CRIMINAL APPEAL NO.100145 OF 2020
IN CRL.A.NO.100099 OF 2020:
BETWEEN:
IRANAGOUDA PATIL
AGE: 36 YEARS, OCC: NIL,
R/O: AMATUR, TQ: BAILHONGAL,
DIST: BELAGAVI.
...APPELLANT
(BY SRI.VYAS DESAI, ADVOCATE FOR
SRI.JAGADISH PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally signed by
BHARATHI H M R/BY ITS STATE PUBLIC PROSECUTOR,
Location: HIGH
COURT OF THROUGH KITTUR POLICE STATION,
KARNATAKA HIGH COURT OF KARNATAKA BENCH, AT: DHARWAD.
DHARWAD BENCH
Date: 2024.06.14
11:07:45 +0530
...RESPONDENT
(BY SRI.M.B.GUNDAWADE, ADDL STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION
AND SENTENCE IMPOSED BY THE SPECIAL COURT (COURT FOR
SEXUAL ASSAULT ON CHILDREN) AND ( SC/ST ATROCITIES COURT )
AND III ADDL. DISTRICT AND SESSIONS COURT BELAGAVI, U/S
143,147,366A, 344,370(4) R/W 149 OF IPC AND U/S 3(1)
(XII)(2)(V) OF SC/ST ATROCITIES ACT, 1989 BY ITS JUDGMENT AND
ORDER OF SENTENCE DATED 17/01/2020 AND 20/01/2020 ACQUIT
THE APPELLANT FOR OFFENCE U/S 143,147,366A,344,370,R/W 149
OF IPC AND U/S 3(1) (XII)(2)(V)SC/ST ATROCITIES ACT, 1989 IN
THE INTEREST OF JUSTICE.
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CRL.A No. 100099 of 2020 C/W
CRL.A No. 100051 of 2020,
CRL.A No. 100145 of 2020
IN CRL.A.NO.100051 OF 2020:
BETWEEN:
SMT. MANJULA ADIVEPPA CHOUDAPPANAVAR
@ MANJULA W/O. AMRUTLAL SHAHA,
AGE: 55 YEARS, OCC: NIL,
R/O: HOLINAGALAPUR, BAILHONGAL,
BELAGAVI.
...APPELLANT
(BY SRI.R.M.JAVED, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH KITTUR PS,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA BENCH,
AT: DHARWAD.
...RESPONDENT
(BY SRI.M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
SEEKING TO CALL FOR THE LCR AND SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION PASSED BY SPL COURT (COURT FOR
PROTECTION OF SEXUAL ASSAULT ON CHILDREN AND SC/ST (P)
ATROCITIES COURT) AND III ADDL. DISTRICT & SESSIIONS JUDGE,
BELAGAVI IN SC NO.88/2016 DATED 17/01/2020 & SENTENCE
DATED 20.01.2020, SENTENCING THE APPELLANT (ACCUSED NO.1)
TO PAY A FINE AMOUNT OF RS.2,000/- IN DEFAULT TO PAY FINE, TO
UNDERGO SIMPLE IMPRISONMENT OF ONE MONTH, FOR THE
OFFENCE PUNISHABLE U/SEC.143 IPC, TO PAY A FINE OF RS.5,000/-
IN DEFAULT TO PAY FINE, TO UNDERGO SIMPLE IMPRISONMENT OF
ONE MONTH FOR OFFENCE U/SEC.147, TO UNDERGO SIMPLE
IMPRISONMENT FOR 1 YEAR AND TO PAY A FINE AMOUNT OF
RS.5,000/-, IN DEFAULT TO PAY FINE AMOUNT, TO UNDERGO
SIMPLE IMPRISONMENT OF THREE MONTH FOR OFFENCE U/SEC.344
IPC, TO UNDERGO R.I. SENTENCE FOR 10 YEARS FOR OFFENCE
U/SEC.366A IPC AND FINE OF RS.20,000/- IN DEFAULT TO PAY FINE
AMOUNT, TO UNDERGO R.I FOR 3 YEARS, TO UNDERGO RIGOROUS
IMPRISONMENT FOR LIFE FOR THE OFFENCE PUNISHABLE UNDER
SEC.370(4) IPC AND SENTENCED TO PAY FINE OF RS.20,000/- IN
DEFAULT TO UNDERGO R.I. FOR 3 YEARS AND TO UNDERGO 6
MONTHS S.I FOR THE OFFENCE PUNISHABLE U/SEC.3(1)(xii) OF
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CRL.A No. 100099 of 2020 C/W
CRL.A No. 100051 of 2020,
CRL.A No. 100145 of 2020
SC/ST ACT AND FINE OF RS.3,000/- IN DEFAULT TO UNDERGO 1
MONTH OF S.I. AND TO UNDERGO TEN YEARS R.I. FOR THE
OFFENCE PUNISHABLE U/SEC.3(2)(v) OF SC/ST ACT AND FINE OF
RS.20,000/- IN DEFAULT TO PAY FINE TO UNDERGO 3 YEARS R.I.
AND THEREBY ACQUIT THE ACCUSED NO.1 / APPELLANT.
IN CRL.A.NO.100145 OF 2020:
BETWEEN:
SRI. SANDEEP GALAD
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: HALAGA, MAHAVEER GALLI,
TQ AND DIST: BELAGAVI.
...APPELLANT
(BY SRI.SRINAND A. PACHHAPURE AND
SRI.RAJENDRA R.PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH KITTUR POLICE STATION,
NOW REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA DHARWAD,
BENCH AT DHARWAD.
...RESPONDENT
(BY SRI.M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO CALL FOR RECORDS IN S.C. NO. 88/2016 AND
SET ASIDE THE JUDGMENT OF CONVICTION DATED 17.01.2020 AND
ORDER OF SENTENCE DATED 20.01.2020 PASSED BY THE SPECIAL
COURT FOR (PROTECTION OF CHILDREN FROM SEXUAL OFFENCES,
ACT) AND S.C./S.T (PREVENTION OF ARTOCITIES), ACT & III ADDL.
DISTRICT AND SESSIONS JUDGE, BELAGAVI IN SESSIONS CASE NO.
88/2016 FOR THE OFFENCE PUNISHABLE UNDER SECTION 143, 147,
366(A), 344 AND 370 (4) R/W SECTION 149 OF IPC AND SECTION
3(I)(XII) AND 2(V) OF S.C/S.T. (P.A) ACT, AND ACQUIT THE
APPELLANT/ ACCUSED NO.3.
THESE CRIMINAL APPEALS COMING ON FOR FURTHER
HEARING, THIS DAY, MOHAMMAD NAWAZ J., DELIVERED THE
FOLLOWING:
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CRL.A No. 100099 of 2020 C/W
CRL.A No. 100051 of 2020,
CRL.A No. 100145 of 2020
JUDGMENT
The Judgment and order dated 17.01.2020 passed by
the Special Court and III Additional District and Sessions
Court, Belagavi is assailed in these appeals by accused
Nos.1 to 3.
2. Vide impugned judgment, the trial Court has
convicted the accused Nos.1 to 3 for the offences
punishable under Sections 143, 147, 366A, 344, 370 r/w
149 of IPC and Section 3(1)(XII)(2)(v) of SC/ST(POA) Act,
1989. The trial Court has acquitted accused Nos.4 and 5 of
the charged offences.
3. Crl.A No.100051/2020 is preferred by accused No.1,
Crl.A.No.100099/2020 is preferred by accused No.2 and
Crl.A.No.100145/2020 is preferred by accused No.3.
4. Briefly stated, case of the prosecution is that on
16.09.2015, accused Nos.4 and 5 by inducing the minor
girl (victim No.1) in the guise of taking her to a fair,
abducted her and took her to the house of accused No.1
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situated at No.436 in Holenagalapura and confined her in
the said house. Further, on 02.10.2015 at about 3 p.m.,
accused No.3 knowing very well that victim No.2 belongs
to Scheduled Caste and she is a minor, induced her to
accompany him in the guise of taking her to the house of
his relative in Holenagalapura to attend a birthday party
and took her to accused Nos.1 and 2 with an intention to
receive money and sell her and thereby both the accused
committed the offences charged against them.
5. In order to establish the guilt of the accused persons,
the prosecution in all examined 24 witnesses and got
marked 34 documents.
6. The defence of the accused was one of total denial,
however, no evidence was led on their behalf.
7. The learned Sessions Judge on appreciation of the
oral and documentary evidence on record was pleased to
acquit accused Nos.4 and 5 of all the offences. However,
found accused Nos.1 to 3 guilty and convicted them.
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8. We have heard the learned counsels appearing for
accused Nos.1 to 3 and learned Addl. SPP appearing for
respondent-State and perused the evidence and material
on record.
9. PW.1 is the Police Sub-inspector of Kittur Police
Station. He is the complainant. The complaint is marked
as EX.P4. PWs. 2 and 4 are the panch witnesses to Ex.P1-
spot mahazor. PWs. 3 and 7 are the victims. PWs. 5 and 6
are the panch witnesses to EX.P6-mahazar drawn in the
house of PW.24, in Gujarath. PW.8 is the Secretary of one
Spandana Samste who accompanied the police officials to
the house of accused No.1 in Holenagalapura. PW.9 is an
independent witness who accompanied the raiding party to
the house of accused No.1 in Holenagalapura. PW.10 is the
Head Constable, a member of the raiding party, who
accompanied PW1 to the house of accused No.1. PW.11 is
the owner of the house where accused No.1 was residing
and PW.12 is her husband. PW.13 is the photographer who
took Ex.P3 photo of the accused persons. PW.14 is the
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Assistant Sub-Inspector who registered the case and
issued FIR-Ex.P12 to the jurisdictional Court. PW.15 is the
investigating officer / Dy.S.P. who conducted the
investigation and filed charge sheet. PW.16 is the Police
Constable who carried the FIR to the Court. PW.17 and 18
are the Head Masters of the school where the victims
studied. They issued Ex.P15 and Ex.P33 -transfer
certificates pertaining to the victims. PW.19 is the
Tahasildar who issued the Caste Certificate pertaining to
PW.3 and accused No.3, marked as Ex.P18. PW.20 is the
Child Protection Officer, Belagavi who accompanied PW.1
and other police officials to the house of accused No.1.
PW.21 is the Tahasildar who issued the caste certificate of
accused Nos.1 and 2 as per Ex.P21. PW.22 is the Assistant
Sub-inspector who apprehended accused Nos.4 and 5 and
submitted Ex.P.32 report to the investigating officer.
PW.23 is the Tahasildar who issued the caste certificate of
accused No.5. PW.24 is the husband of accused No.1.
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10. It is the specific case of the prosecution that both the
victims were minors and one of the victim belong to
scheduled caste and they were procured by the accused
persons by deceitful means and confined in the house of
accused No.1 for the purpose of selling and performing
their marriage. It is the further case of the prosecution
that one of the victims was taken to Rajupura village,
Vijayapur taluk, Savarakanta District, in the state of
Gujarath and kept in the house of PW.24 with an intention
to perform her marriage.
11. Among the prosecution witnesses, PWs.2 to 7,
PWs.9, 11, 12 and 24 have turned hostile to the
prosecution case. The prosecution is therefore relying on
the evidence of PWs.1, 8, 10, 15 and 20 to establish that
the minor victims were wrongfully confined in the house of
accused No.1 and that the accused were engaged in
trafficking of the minor victims for sexual exploitation and
also the evidence of PWs.17, 18, 19, 21 and 23 to
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establish that victims were minors and one of the victim
belong to scheduled caste.
12. The learned counsels appearing for the accused
would contend that there is no serious dispute about the
caste of one of the victims and also the age of the victims.
They would contend that the prosecution has failed to
establish the allegations leveled against the accused
persons since the victims themselves have turned hostile
and their evidence does not help the prosecution in any
way. They contend that the witnesses on whose evidence,
the prosecution is relying are interested witnesses and
without corroboration from any independent witnesses, it
cannot be held that the prosecution has been able to
establish the guilt of the accused persons beyond all
reasonable doubts.
13. It is the further contention of learned counsel
appearing for the accused persons that the prosecution
has utterly failed to establish that one of the victims was
taken to Gujarath for the purpose of trafficking and
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confined in the house of PW.24 as there is no evidence to
show that she was confined in the said house as alleged by
prosecution and even PW.24 has turned hostile. They
would contend that there is discrepancy in the evidence of
PW1 and PW.15 regarding the place of confinement of the
said victim. It is therefore, contended that the trial court
having acquitted accused Nos.4 and 5, was not justified in
convicting accused Nos.1 to 3 for the charged offences,
without there being any sufficient material placed on
record to show that the victims were confined either in the
house of accused No.1 or in the house of PW.24 and they
were procured by deceitful means for the purpose of
trafficking.
14. Learned Addl. SPP contended that even though the
victims have not supported the prosecution case, the
raiding team led by PW.1 has found the minor victims in
the house of accused No.1. He contended that PWs.8 and
20 are the independent witnesses and they cannot be
termed as interested witnesses and therefore, their
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evidence establishes that the victims were present in the
house of accused No.1 and they have clearly stated that
on enquiry the victims have stated about they being
confined by the accused in the said house. He has
therefore contended that the trial court after considering
the entire evidence and material on record has rightly
convicted the appellants/accused Nos.1 to 3 and therefore,
sought to dismiss the appeals.
15. We have carefully gone through the entire evidence
and material on record and considered the rival
contentions.
16. A reading of the evidence of PW.1 would show that
he received an information that the accused were
attempting to sell two minor girls (victims) for the purpose
of prostitution and trafficking. He along with his team
accompanied by CWs.8 and 9 (PWs.8 and 20) conducted a
raid in the house of accused No.1 situated at
Holenagalapura village. He has deposed that, they found
the minor victims in the said house who disclosed their
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names. Further, they revealed that they were brought to
the said house by accused Nos.4 and 5.
17. In his evidence PW.1 has stated that one of the
victim (PW.7) revealed to him that earlier she was taken
to Rajasthan by the accused for trafficking and then she
was brought back and confined in the house of accused
No.1. He has stated, that the second victim (PW.3) was
also brought to the house of accused No.1 for the purpose
of trafficking. He has drawn a mahazar as per Ex.P1 in the
house of accused No.1.
18. It is pertinent to see that PW.15 who took over
investigation and conducted further investigation and filed
charge sheet has not stated that one of the victims was
taken to Rajasthan by the accused. He has stated that he
went to Gujarath and conducted a mahazar as per EX.P.6
in the house of PW.24. As per Ex.P6, the said mahazar
was conducted in the house of PW.24, situated in
Vijayanagara taluk, Gujarath State. Even PW.10-Police
constable who accompanied PW.1 to the house of accused
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No.1 has also deposed that when PW1 enquired the
victims, one of the victims (PW.7) revealed that she was
taken to Rajasthan by the accused persons. Whereas,
PW.8 has not at all deposed about the said victim
revealing about the accused persons taking her to
Rajasthan. On the other hand, she has stated that accused
No.1 has taken the said victim to Gujarath. PW.20 has not
deposed about the victims revealing before them about
the accused persons taking or confining one of the victim
in the house of PW.24 in Gujarath. On the other hand, she
has stated that the victims were being taken to Rajasthan
for the purpose of trafficking.
19. PWs.2 and 4 the panch witnesses to EX.P1-spot
mahazar conducted in the house of accused No.1 have
turned hostile and not supported the case of prosecution.
Similarly, PW.24 in whose house one of the victim was
alleged to be confined has also turned hostile. The said
PW.24 has stated that no mahazar was drawn in his house
and he has not shown the spot as per Ex.P6, but his
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signature was obtained at Bailhongal Police Station. Both
the panch witnesses namely PW5 and PW.6 to Ex.P6- the
mahazar said to have been drawn in the house of PW.24 in
Gujarath have turned hostile and not supported the case
of prosecution. Both the said witnesses have stated that
they have attested their signatures on Ex.P6 at Bailhongal
Police Station, in the office of PW.15-Dy.S.P.
20. PW.11-owner of the house of accused No.1 where
the raid was conducted has deposed in her evidence that
she has not rented her house to any of the accused and
she is not aware of the incident. Further deposed that she
has not given any statement to the police. Similarly
PW.12, husband of PW.11 has also deposed that they have
not given their house on rent to the accused persons.
21. It is contended by the learned Addl. SPP that PWs.8
and 20 are independent witnesses and their evidence
clearly reveal that victims were present in the house of
accused No.1 and on enquiry they informed them that
they were brought by the accused persons for the purpose
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of trafficking and confined in the said house. It is
therefore, his contention that the prosecution has
established the charges leveled against the accused
persons.
22. The above contention of the learned Addl. SPP that
the charges leveled against the accused have been proved
merely because the victims were present in the house of
accused No.1, cannot be accepted. We have already
noticed the discrepancy in the evidence of prosecution
witnesses including the evidence of PW-8 and PW-20. It is
also relevant to mention that, in the cross-examination,
PW-8 has admitted that in her statement it is not written
she has enquired the victims. She has further admitted
that she has signed Ex.P-1 in the police station. Be that
as it may, both the victims, who were examined as PW-3
and PW-7 have given a complete goby to the prosecution
case. They have denied that the accused have either
confined them in the house of accused No.1 or kidnapped
or abducted them for the purpose of trafficking or having
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been taken to Rajastan or Gujarat. They have denied that
the accused have made any attempt to perform their
marriage by taking money.
23. The learned Addl. SPP has contended that the
statements of the victims were recorded before the
learned Magistrate at Kittur, as per Exs.P-8 and P-25 and
therefore, the said statements have to be taken into
consideration to convict accused Nos.1 to 3.
24. It is well established that the statement recorded
under Section 164 of Cr.P.C. itself is not substantive piece
of evidence. The said statement has to be corroborated
by the witness while giving evidence before the Court.
Both the victims examined as PW-3 and PW-7 have not
supported the case of prosecution. The statements marked
at Exs.P-8 and P-25 are therefore not corroborated by the
maker of the statements. Both the victims have denied
that they have given such statements which are marked
as Exs.P-8 and P-25.
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25. Learned Sessions Judge has taken into consideration
the statements of the victims recorded as per Exs.P-8 and
P-25 and the statements said to have been made by the
victims before PW-1, PW-8 and PW-20. When the victims
themselves have turned hostile, the question of accepting
Ex.P-8 and Ex.P-25 does not arise and the evidence of the
raiding party cannot be taken into consideration to hold
that the prosecution has established the charges leveled
against the accused persons beyond reasonable doubt.
The reasons assigned by the learned Sessions Judge for
convicting the appellants/accused Nos.1 to 3 are not in
accordance with law. Hence, the impugned judgment and
order of conviction and sentence passed against the
appellants are liable to be set aside. Accordingly, we pass
the following:
ORDER
(i) Appeals are allowed.
(ii) The judgment and order dated 17.01.2020
passed in S.C.No.88/2016 by the Special
Court and III Addl. District and Sessions
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Court, Belagavi, convicting the
appellants/accused Nos.1 to 3 for the
offences punishable under Sections 143,
147, 366A, 344, 370 read with Section 149
of IPC and under Sections 3(i)(XII)(2)(v) of
the SC/ST (POA) Act, 1989 is hereby set
aside.
(iii) The appellants/accused Nos.1 to 3 are
acquitted of the above offences.
(iv) If any fine amount is deposited, the same
shall be refunded to the accused.
(v) The bail bonds of the appellants/accused
Nos.1 to 3 stand cancelled.
Sd/-
JUDGE
Sd/-
JUDGE
HMB-paras-1-23
Naa-para-23 to end
