Basappa vs The State of Karnataka

S. Sujatha, J—Heard the learned counsel appearing for the parties. The appellant was the accused No. 3 in the Court below, appeal arises on the following facts and circumstances:

The prosecution case is that, on 26.02.1999, the father of the victim P.W.10 lodged a missing complaint before the Vidyagiri Police station stating that his daughter by name Veena was missing and same was registered under Crime No. 29/1999 and on 01.03.1999, the father of the victim again lodged complaint against unknown accused for the offence punishable under Section 365 of IPC, registered under Vidyagiri police Station, Dharwad in Crime No. 35/1999 on which, further investigation was proceeded with. On 02.03.1999, accused Nos. 1 and 2 were arrested and remanded to judicial custody, later on released on bail. Vidyagiri P.S. Dharwad filed charge sheet against all the accused for the offence punishable under Section 365 of Indian Penal Code, 1860 (hereinafter referred as ''IPC for short), numbered as C.C. No. 188/1999 on the file of III CJM, Dharwad, proceeded with the trial against the accused for the offence punishable under Section 365 of IPC. During trial, the prosecution filed an application under Section 323 of Code of Criminal Procedure, 1973 (hereinafter referred to as ''Cr.P.C for short) to commit the case to the Sessions Court, though it was rejected by III CJM, Dharwad, was allowed by the Sessions Court in revision and accordingly, the case was committed to the Sessions Court for trial, numbered as Sessions Case No. 20/2011, transferred to the III Fast Track Court, Dharwad for trial. Thereafter, charges were framed against the accused for the offences punishable under Sections 364-A and 365 of IPC. The charge having read over to the accused, no guilt was pleaded by the accused, trial was proceeded with. Prosecution in support of their case examined P.Ws. 1 to 17 and got marked Ex. P1 to P13. Incriminating statements arising out of the prosecution case were recorded under Section 313 of Cr.P.C, the same was denied by the accused. It is the case of the prosecution that accused No. 3 along with other accused Shantawwa and Veerabasaya kidnapped the victim C.W.6-P.W.14 who was aged about 12 years for ransom by threatening her that her uncle was escaped from the jail and he will commit murder of her parents and her uncle. After kidnapping the victim, the victim was kept in the house of C.W.14 Huligewwa and C.W.15 Smt. Lankawwa, thereby committed the offenses punishable under Section 364 and 365 of Cr.P.C. The trial Court on the said facts framed the following points:

i) Whether the prosecution has proved beyond reasonable doubt that this accused along with other accused kidnapped victim on 26.02.1999 at 10.15 a.m. from her school threatening her that one Shashidhar who is her uncle has escaped from the jail and he will commit murder of her, her parents and uncle and hence uncle had informed victim to go to Hubli and hence by persuading the victim, he kidnapped the victim for the purpose of ransom and thereafter kept the victim in the house of Huligewwa and Smt. Lankawwa and thereby committed an offence punishable u/s. 365 of Indian Penal Code?

ii) Whether prosecution has proved beyond reasonable doubt that this accused No. 3 along with other accused abducted the victim and by his conduct it give rise a reasonable apprehension that such person may be put to death or hurt or cause hurt in order to compel to pay ransom and thereby accused committed an offence punishable u/s. 364A Indian Penal Code?"

The same were answered in the affirmative.

The trial Court after considering the evidence led by the parties extensively, passed an order under Section 235(2) of Cr.P.C, convicted the accused for offences punishable under Sections 364-A and 365 of IPC and sentenced to undergo imprisonment for life with fine of Rs. 10,000/- in default to undergo simple imprisonment for a period of three months.

The said judgment and order on sentence is challenged in this appeal by accused No. 3 contending that there is no clear allegations against the present appellant/accused No. 3 to attract the basic ingredients of Section 364-A of IPC and as such the conviction is unsustainable.

The learned Additional State Public Prosecutor justified the judgement and sentence of order passed by the Court below. It is contended that that accused No. 3 along with the other accused committed the offence of kidnap, which is proved by the prosecution beyond all reasonable doubt. The involvement of accused No. 3 in the commission of offence is clear from the evidence adduced by the witnesses. It was the pre plan made by all the accused to kidnap the victim for ransom. The trial Court after considering the evidence placed on record and guilt having been proved beyond reasonable doubt convicted the accused under Section 364-A and 365 of IPC, which does not call for any interference by this Court.

We have heard the learned counsel for the parties and perused the material on record.

P.W.14 who in her examination-in-chief has stated that, prior to the incident on some quarrel between her uncle Shashidhar and aunt Sumangala as regards property rights, Shashidhar had stabbed her aunt with knife. On the complaint given by her father, her uncle Shashidhar was convicted in that offence and at that time she was studying in 7th Standard in Basel Mission School, Dharwad. It is elicited by her that on 26.02.1999 when she had been to the school with uniform, the accused Basappa along with other accused Veerabasayya and Shantavva came to the school at 10.15 a.m. and informed that her uncle Shashidhar had escaped from jail, he would commit murder of her family including her and as such, it is necessary for her to go to Hubli with Shantavva, believing the said words of her uncle, Veerabasayya she went to Hubli in a tempo along with Shantavva and watched a movie in a cinema theater. When she came out from the theater after seeing movie, the accused Basayya and Veerabasayya met her, again she was sent to watch another movie in Apsara theater, thereafter, Shatavva took her to a building, which was under construction near Keshwapur. Even on the next day, she met appellant/accused Basappa and Veerabasayya near Bankapur Chowk, where the accused collected telephone number of her house, made a call and directed her to speak to her mother. Accordingly, she informed her parents to take her back. Later on, she was taken to the house of one Lankavva at Haveri. During the cross-examination, it is elicited that she had seen the accused No. 3 along with Veerabasayya, another accused who was coming to the house of her uncle Chandrashekar with Veerabasayya.

Thus, it is clear that, this witness has seen the accused No. 3 even prior to the occurrence of the incident along with Veerabasayya. It is only on the advise given by her uncle Veerabasayya, persuaded by accused No. 3 it is said that the victim followed Shantavva though she was a stranger, on the threat given by Veerabasayya that her uncle Shashidhar has escaped from the jail and he would commit her murder, the evidence of this witness is further corroborated by evidence of P.W.5 and 6. P.W.6 elicited that, one Shantavva had brought the victim to her house on the pretext that the victim has to obtain the school certificate. P.W.5-Lankavva has also admitted that absconding accused Shantavva had brought the victim to her house at Haveri. Both these witnesses have identified the photo of the victim i.e., Ex. P5. The complainant P.W.4 who is father of the victim has also stated that on the fateful day, his daughter did not return home from the school, he searched for her and later gave a missing complaint. Later on, after coming home he received phone call made to his brother''s phone number 743710 stating that his daughter was with them and he has to get her released by giving ransom. The evidence of mother P.W.10, uncle P.W9 and father C.W.1 of the victim clearly corroborate the version of the prosecution regarding demanding money after kidnap. The evidence of P.W.17-Investigating Officer also corroborates that he trapped the phone call made to the house of the victim. After tracing the phone number, went to the telephone booth of Haveri in the car of Irayya and traced Shantavva. On the say of Shantavva the victim was traced in the house of Lankavva at Haveri.

The presence of the accused No. 3 along with other accused persuading the victim to go along with Shantavva threatening her that her uncle released from the jail would murder her, clearly shows the involvement of the accused No. 3 in the committal of offence of kidnap for the purpose of ransom. Appellant has instigated the victim by going to her school and thereafter, near cinema theater at Hubli. It is not the case of accused No. 3 merely accompanying the other accused, i.e., a plan hatched by all the accused together conspiring to kidnap the victim for ransom demanding money. The sequence of events projected by the prosecution proves the alleged offence committed by accused No. 3.

Thus, it is established beyond doubt that the accused No. 3 along with other accused have persuaded this victim to go with Shantavva with the ulterior motive of ransom and demanded money. Initially C.W.1, 4 had only given missing complaint and later on after receiving phone call demanding ransom, FIR was filed as per Ex. P9 against the unknown persons, which has set the law in motion.

No ground is made out by the appellant to interfere with the well considered judgment and order passed by the trial Court. Prosecution has established the case beyond all reasonable doubt, the involvement of the appellant in the commission of offence kidnapping the victim for ransom.

In the context, it would be beneficial to refer to the judgment of the Apex Court in the case of State of U.P. Vs. Shri Kishan, (2005) CriLJ 333 : (2004) 10 JT 289 : (2004) 10 SCALE 150 : (2005) 10 SCC 420 , has held thus:

"Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g., where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against social interest, which needs to be cared for, and strengthened by string of deterrence inbuilt in the sentencing system.

The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society''s cry for justice against the criminal."

Further, learned counsel appearing for the appellant contended that the alleged threat by the accused is not proved beyond doubt by the prosecution. As such, it warrants the modification of sentence imposed by the Court below. It is argued that even assuming the involvement of the accused in the commission of an offence of kidnapping, it falls only under Section 363 of IPC and not under Section 364-A and Section 365 as held by the Court below. However, we notice that there was no threat held out by the accused to the victim. Hence, the case falls under Section 363 of IPC and not under Section 364-A of IPC. We see considerable force in the arguments advanced by the counsel for the appellant as regards reducing the sentence and to modify the judgment passed by the Court below. Hence, we reduce the sentence to four years rigorous imprisonment, which is justifiable in the facts and circumstances of the case.

Accordingly, the appeal is partly allowed, convicting the appellant for the offence punishable under Section 363 of Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for four years. The period of sentence undergone by the accused shall be set-off against the term of imprisonment imposed and the liability shall be restricted to the remainder, of the term of imprisonment of four years now imposed on the accused.