- 1 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO. 100141 OF 2015 (C) BETWEEN: 1. PRALHAD @ PALLU ISHWAR DESAI S/O ISHWAR DESAI, AGE: 32 YEARS, OCC: PRIVATE SERVICE, R/O: DAROLLI, TQ: KHANAPUR, DIST: BELAGAVI. 2. UDAY MARUTI LOHAR S/O MARUTI LOHAR, AGE: 25 YEARS, OCC: PRIVATE SERVICE R/O: PEERANWADI, TQ: AND DIST: BELAGAVI. 3. BABAN PIRAJI PEDNEKAR S/O ISHWAR DESAI, AGE: 26 YEARS, OCC: PRIVATE SERVICE, R/O: PEERANWADI, TQ: AND DIST: BELAGAVI. 4. SATISH @ SACHIN GOVIND DESAI S/O GOVIND DESAI, AGE: 23 YEARS, OCC: PRIVATE SERVICE, R/O: DAROLLI, TQ: KHANAPUR, DIST: BELAGAVI. 5. MOHAN RAMU PATIL S/O RAMU PATIL, AGE: 26 YEARS, OCC: PRIVATE SERVICE R/O: NILAJI, TQ: AND DIST: BELAGAVI. 6. SANDEEP NAGENDRA LOHAR S/O NAGENDRA LOHAR, AGE: 26 YEARS, OCC: PRIVATE SERVICE R/O: PEERANWADI, TQ: AND DIST: BELAGAVI. … APPELLANTS (BY SMT. RESHMA MADIWALAR, ADVOCATE FOR SRI. T. HANUMAREDDY, ADVOCATE) AND: THE STATE OF KARNATAKA, BY KHANAPUR POLICE, DIST: BELAGAVI, Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.01.28 15:15:48 +0530 - 2 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 R/BY SPP HIGH COURT OF KARNATAKA, DHARWAD. … RESPONDENT (BY SRI. ASHOK T. KATTIMANI, AGA) THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C., PRAYING TO ALLOW THE APPEAL, SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED IN S.C.NO.177/2011 ON THE FILE OF THE LEARNED IX ADDITIONAL DISTRICT AND SESSION JUDGE, BELAGAVI, P/U/S 143, 366 AND 368 R/W 149 OF IPC DATED: 24.07.2015, CONSEQUENTLY ACQUIT THE APPELLANTS FROM ALL THE CHARGES LEVELED AGAINST THEM. THIS APPEAL IS COMING ON FOR, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR ORAL JUDGMENT 1. This appeal under Section 374(2) of Cr.PC is filed by the accused, who have been convicted for offences punishable under Sections 143, 363, 366, and 368 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) by the impugned judgment of conviction and order of sentence dated 24.07.2015, passed in Sessions Case No. 177/2011 by the learned IX Additional District and Sessions Judge, Belagavi. 2. According to the prosecution, on 11.08.2010 at 7:30 a.m., CW4 (the victim), the daughter of the complainant (CW1), was proceeding to the Government College, Khanapur, with her friends CW5, CW6, and CW7, after alighting from a bus. Accused No. 1, who had persistently insisted that CW4 marry him despite her resistance, allegedly forced her into a Maruti Omni van where accused Nos. 2 to 6 were present. The accused then kidnapped - 3 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 CW4. Upon receiving information about the incident from CW5 over the phone, CW1 searched for CW4 and eventually lodged a complaint with the police. 3. On the same day, the accused transported CW4 in the Maruti Omni van to various locations, including Belagavi, Mangalavadi, and Jamboti, where she was allegedly confined in a shed overnight. During her confinement, accused No. 1 repeatedly pressured CW4 to marry him, and other accused also allegedly supported this demand. 4. On 12.08.2010, the accused brought CW4 to Belagavi, from where she managed to escape near the bus stand. On 13.08.2010, based on CW4’s identification, the police conducted a spot mahazar in the presence of panchas. 5. To substantiate its case, the prosecution examined PWs. 1 to 7 and presented documentary evidence marked as Exs. P1 to P9. After analyzing the evidence on record, the learned Sessions Judge concluded that the prosecution had successfully proven the guilt of the accused beyond all reasonable doubt. Consequently, the impugned judgment of conviction and order of sentence was passed. 6. Learned counsel for the appellants submitted that the prosecution failed to establish the guilt of the accused beyond reasonable doubt for the following reasons: • CW5, Asharani, who allegedly informed PW1 (the victim’s mother) about the kidnapping, was not examined by the - 4 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 prosecution, despite her statement being recorded under Section 161 of the Criminal Procedure Code, 1973 (“Cr.P.C.”). • PW1, in her testimony, admitted that she does not own a mobile phone and that there is no landline at her residence. This contradicts the prosecution’s version that Asharani informed PW1 about the incident over the phone. • PW3, an eyewitness, identified all the accused but admitted during cross-examination that she had not seen accused Nos. 2 to 6 in the Maruti Omni van, thereby raising doubts about their involvement. • It was contended that the entire case was falsely fabricated at the instance of the victim’s uncle, Ramesh Desai, who holds a high position in a sugar factory, and that the complaint was lodged after deliberation with Ramesh Desai and other villagers. 8. Therefore, the appellants contended that the impugned judgment of conviction and order of sentence is unsustainable in law and liable to be set aside. 9. Learned Additional Government Advocate for the State argued that the testimony of the victim (CW4), coupled with the statements of CW5 and the eyewitnesses (PWs. 3 and 5), establishes the involvement of the accused in the kidnapping and abduction. It was further submitted that the Trial Court, after carefully appreciating the evidence on record, rightly convicted the accused, and there are no grounds to interfere with the judgment. - 5 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 10. The primary issue for consideration is whether the prosecution has established the guilt of the accused beyond all reasonable doubt and whether the judgment of conviction and order of sentence passed by the Trial Court is legally sustainable. 11. PW1, the complainant and mother of the victim, lodged the FIR on 11.08.2010, alleging that her daughter was kidnapped by accused No. 1 and others while on her way to college. In her testimony, PW1 reiterated the contents of her complaint but admitted during cross-examination that she neither used a mobile phone nor had a landline at her residence. This creates a significant inconsistency, as the prosecution’s case hinges on the claim that PW1 was informed about the incident by Asharani (CW5) over the phone. 12. Despite the critical role of CW5 in the case, the prosecution failed to examine her as a witness, nor did it provide any justification for her non-examination. This omission undermines the prosecution’s case, as CW5’s testimony could have clarified whether she indeed informed PW1 about the incident and provided corroboration for other witnesses’ statements. 13. The complainant, PW1, also admitted that the complaint was lodged after discussions with her brother, Ramesh Desai, and other villagers. Given Ramesh Desai’s influential position, this raises the possibility of the complaint being motivated by extraneous considerations. - 6 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 14. PW2 – panch witness to the spot mahazar, deposed that the place from where the victim was confined at Ex.P3, and Ex.P4 is the seizure panchanama. In the cross-examination, he admitted that the signatures were taken in the police station. Therefore, the spot and the seizure panchanamas are not proved by the prosecution through panch witnesses. 15. PW3 – Abhisha, who was present along with the victim at the time of incident, has supported the case of the prosecution, and stated that the accused, who were present before the Trial Court, are the persons, who have kidnapped PW5. In the cross- examination, she has stated that at the time of incident, she had not seen the accused Nos.2 to 6, who were in the Maruthi Omni van. As a result, the identification of accused Nos.2 to 6 by PW3 is not proved, and her testimony raises doubt about the incident. 16. PW4, who is the elder sister of the victim, has supported the prosecution's case, but she is not an eye witnesses to the alleged incident. 17. PW5 is the victim/survivor and she stated that she was kidnapped by the accused No.1 along with five other accused, and she was kept in a tin shed for one night, where all the accused insisted her to marry the accused No.1, and on the next day, when the accused took her to Belagavi, she managed to escape near the bus stand. In the meanwhile, she learnt that her mother lodged the FIR. In her examination-in-chief, she has admitted that the accused had not tortured her physically and mentally. She further - 7 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 admitted that the tin shed in which she was confined was not locked, and she had not made any efforts to escape. She further stated that it is false to suggest that her friends viz: Abhisha, Asharani and Yugandhara were not present as of the date of incident. 18. PW6 is the owner of Maruthi Omni van, and has not supported the case of prosecution, and stated that the accused No.2 had not taken Maruthi Omni van, which was used for commission of crime. The prosecution has not examined two alleged eye witnesses viz: Asharani and Yugandhara, although their statements were recorded under Section 161 of Cr.PC. 19. PW7 is the Investigating Officer, who conducted the investigation, and submitted the charge sheet. In his examination- in-chief, he supported the case of prosecution. In the cross- examination, he has stated that Theerthakunde village is about 15 to 20 kms. from Khanapur, and 25 kms from Belgaum, and in between two places, there are fifteen to twenty villages, and two villages are viz: Jamboti and Peenawadi, and in between two places, there are two police out posts at Jamboti and Forest Department check post, and also there is Excise Department check post, and there are road signals in between the Congress road and CBT. 20. Although PW5 – victim has testified that she was abducted by the accused, however, the eye witnesses viz: Asharani and Yugandhara, who were present at the time of incident, had not been examined. PW3, who is one of the eye - 8 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 witnesses, has not identified the accused Nos.2 to 6 at the time of incident, but identified in the Court at the time of tendering evidence. 21. CW5, who is a crucial witness in the case and is alleged to have informed PW1 (the complainant) about the incident over the phone, was not examined by the prosecution. The prosecution’s case rests on the assertion that CW5 conveyed the information about the alleged kidnapping to PW1 telephonically. However, this claim becomes highly questionable, as PW1 unequivocally admitted in her testimony during cross-examination that she neither uses a mobile phone nor has a landline connection at her residence. This admission casts serious doubt on the prosecution’s version of events, as the primary mode of communication between CW5 and PW1, as alleged, is not supported by evidence or practical possibility. 22. Further, the prosecution has failed to provide any plausible explanation for the non-examination of CW5, whose testimony could have been pivotal in corroborating the prosecution’s narrative regarding the alleged kidnapping. The absence of CW5’s testimony creates a significant lacuna in the prosecution’s case, undermining its reliability and raising questions about whether due diligence was exercised during the investigation and trial. 23. The evidence on record raises a reasonable doubt as to whether the victim (CW4) was forcibly kidnapped by Accused Nos. 1 to 6, as alleged, or whether she voluntarily accompanied - 9 - NC: 2025:KHC-D:1282 CRL.A No. 100141 of 2015 them. This doubt is further strengthened by the fact that the victim did not appear to offer any resistance from the time of the alleged abduction until her eventual escape. Such suspicion must enure to the benefit of the accused, as it is a well-settled principle of law that when two views are possible, the view favorable to the accused must be adopted. Convicting the accused solely on the basis of suspicion would not be justified. 24. In view of the foregoing, it is clear that the prosecution has failed to discharge its burden of proof in the present case. Therefore, the accused are entitled to an acquittal of all charges leveled against them. Accordingly, I pass the following: ORDER i) Criminal appeal is allowed. ii) The impugned judgment of conviction and order of conviction dated 24.7.2015 passed in Sessions Case No.177/2011 by the learned IX Addl. District and Sessions Judge, Belagavi, is hereby set aside, and the accused are acquitted of the aforesaid offences. iii) The bail bond, if any, stands discharged. BKM CT:BCK LIST NO.: 1 SL NO.: 34 Sd/- (HEMANT CHANDANGOUDAR) JUDGE