K.H.Balakrishna vs The State Of Karnataka

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1006 OF 2011

K.H. BALAKRISHNA … APPELLANT

VERSUS

THE STATE OF KARNATAKA … RESPONDENT

J U D G M E N T

PANKAJ MITHAL, J.

1. The appellant K.H. Balakrishna is the accused who

has been convicted under Sections 366, 342 and 506

IPC and sentenced to rigorous imprisonment for a

period of 3 years, 3 months and 2 years respectively

in all the above offences separately and all the

sentences have been directed to run concurrently and

Signature Not Verified with fines of Rs.2500/-, Rs.500/- and Rs.2000/- Digitally signed by SONIA BHASIN Date: 2023.03.21 15:10:18 IST Reason: respectively and in default to pay the above amounts

with a further simple imprisonment for six months, 2

fifteen days and three months respectively for all

the three offences.

2. The appellant was charge sheeted after investigation

pursuant to the First Information Report dated

29.10.1996 lodged by one B.Y. Chinnanna. The

Presiding Officer, Fast Track Court-VI Bangalore,

vide judgment and order dated 26.02.2005 held him

guilty for the above offences and sentenced him as

aforesaid. The appeal preferred by the appellant to

the High Court has been dismissed vide judgment and

order dated 20.07.2010.

3. The appellant has thus preferred this appeal

challenging the above two judgments and his

conviction.

4. The story as unfolded in the FIR is that Lakshmi,

the daughter of the complainant’s brother at around

10.30 a.m. on 25.10.1996 was going to Kamala Nursing

Home, when the appellant along with his followers

came from behind and put some liquid on her nose,

made her unconscious and kidnapped her. 3

5. The aforesaid Lakshmi PW2 in her statement

categorically stated that her marriage was arranged

with one Sundar and the engagement ceremony was

performed on 10.06.1996. The marriage was fixed for

6/7th November, 1996 but before the date of the

marriage, she was kidnapped on 24.10.1996 while she

was entering the first block of the Kamala Nursing

Home, Bangalore where her mother was admitted. The

appellant came in a white ambassador which stopped

near her. He pulled her inside the car and put a

handkerchief with chloroform on her nose. In the

car, besides the driver, there was one another

person. She did not know the names of the driver and

the said person. They locked the car from inside

and took her to a farm house on the outskirts of

Bellary where they stayed for three days. Then they

went to Sholapur where she insisted that she should

be permitted to talk to her mother. She was allowed

to telephone her. She gave the telephone number of

her uncle, that is of the complainant. She was 4

allowed to talk to him whereupon she narrated the

entire incident. She told her uncle that she has been

forcibly taken away by the appellant and that the

appellant wants to marry her but she has refused as

her marriage is already settled. The appellant

threatened to kidnap her sister also if she refused

to marry him. At Sholapur, the appellant took her

to the house of her sister Mala and brother-in-law

Shivashankar Godake, where his mother was also

present. Her marriage was performed with appellant

at Venkateshwara temple Sholapur forcibly in the

presence of all. After marriage she spent two days

in the said house and then went to Pune where they

stayed for 3/4 days in a lodge. On her request that

she wants to meet her mother, the appellant brought

her back to Bangalore on the condition that she will

tell everyone that she had married him with her own

free will and consent. On reaching Bangalore by

overnight train, they stayed in a lodge and while

going to Mahalakshmi Layout in the auto, she saw her 5

brother Raju nearby Anjanaya temple and shouted his

name whereupon her brother took her home.

6. In cross-examination she accepted that she knew the

appellant since 1993. The appellant had visited her

house in connection with the proposal of marriage

but her uncle had not accepted the proposal as he

was not in a government job. The appellant used to

visit her house frequently but there was no

inclination of any marriage between the two. He

never used to write letters or telephone her. The

appellant never beat her or troubled her in any way

while they were together. He never even touched her

or forced himself upon her even after the marriage

was performed at Venkateshwara temple. He did not

trouble her in any manner. She has not married him

of her own free will and had not gone with him by

choice. She was later married on 5th December, 1996

with Sundar as arranged.

7. The above statement of the PW2, the victim reveals

that the incident of her kidnapping as alleged 6

happened on 24.10.1996 while she was going to the

Nursing Home to attend to her mother. She had

remained with the appellant accused for about 20/23

days and in this period, they had remained at Bellary

for three days, for 4/5 days at Sholapur, where their

marriage was performed in a temple in the presence

of the sister and mother of the appellant.

Thereafter, they have stayed in a lodge for 3/4 days

in Pune before returning to Bangalore and during all

this period she was not at all maltreated by the

appellant rather he behaved with her in a most decent

manner. He never touched her, beat her or troubled

her in any manner.

8. The fact that the appellant had known the PW2 since

1993 when he first visited her house in context with

a marriage proposal leaves no doubt that both of them

were known to each other and used to meet despite

the fact that their marriage proposal was turned

down. The appellant had been visiting her house

though he never used to telephone her or write 7

letters to her. In short, they were not only known

to each other, but they had some kind of friendship

or liking for each other to which there was

apparently no objection from the other family

members.

9. It may be worth noting that there is no evidence on

record to prove that the mother of the PW2 was in

fact hospitalised in the Nursing Home. The absence

of such evidence casts a doubt on the story that PW2

was kidnapped while going to the Nursing Home. Her

statement compels the court to draw a legitimate

inference that as she had known appellant, she

herself may have managed to elope with him and it is

for this reason that the appellant never misbehaved

with her or took advantage of her company, rather

helped her in getting her connected with her family

members. The conduct of the appellant and that PW2

was known to appellant gives an impression that

possibly she had managed to elope with the appellant 8

just before her marriage for reasons best known to

her.

10. Secondly, she was kidnapped on 25.10.1996 and the

FIR was lodged on 28.10.1996 only after she had

informed of the incident to her uncle on telephone

in the presence of the appellant. None in the family

thought it proper to lodge a report with police even

though she had not reached the Nursing Home or had

not returned home after attending her mother. They

waited for her phone call and only on her narration

of the incident that her uncle lodged the FIR.

11. PW2 had been frequently moving with the appellant

from one place to another either in car or train but

there is no evidence that she ever tried to escape

or go back home. There is no evidence either to

prove that she resisted the marriage or was not happy

in the company of the appellant. On the other hand,

the appellant kept her well and honoured all her

request. He allowed her to call her mother and even

permitted her to talk to her uncle. The appellant 9

himself talked to her uncle. All this clearly proves

that the appellant never forced himself upon her in

any manner.

12. The defence evidence specially that of DW2, the

mother of the appellant fortifies the fact that there

was a marriage proposal of the appellant with PW2

and that the appellant had gone to her house to see

her in that connection. The family of the appellant

had expressed interest to take PW2 in marriage and

every one had expressed their willingness for the

said marriage but the proposal was dropped as the

appellant was not having a government job. The

appellant had come with PW2 to Sholapur and their

marriage was performed in the temple in the presence

of many people and that pictures were taken and the

marriage function was videographed. Significantly,

the videography of marriage at Sholapur reveals that

PW2 was wearing a special dress for the marriage and

wore a smile. The smiling photographs of the PW2

cannot be under any compulsion as she was not smiling 10

in one or two pictures but in most of them and as

such the pictures appear to be natural.

13. The entire evidence on record in no way reflects that

the appellant had any intention to kidnap PW2 for

the purpose of marriage. They appear to have gone

together to various places and may have married.

14. The impugned judgment and orders of the courts have

completely failed to take into consideration the

above aspects of the matter in holding the appellant

to be guilty of the offences solely on the basis of

the statement of PW2, which as described above is

not sufficient to prove the appellant guilty.

15. It is important to note that PW2 is happily married

since 1996 with Sundar as arranged by her family.

The appellant has also been married elsewhere, as

informed by the counsel. He has already suffered

the ordeal of the pendency of the criminal

prosecution since 1996 and as such, we are not in

favour of extending his agony any further. 11

16. In the aforesaid facts and circumstances, we are of

the opinion that conviction and the sentence as

awarded by the trial court and confirmed by the High

Court cannot be sustained in law. Accordingly, the

judgment and order of the trial court dated

26.02.2005 and that of the High Court dated

20.07.2010 are set aside and the appellant is

acquitted. The appeal is allowed and the bail bonds

are discharged.

………………………………………………J. [V. Ramasubramanian]

………………………………………………J. [Pankaj Mithal] New Delhi;

March 21, 2023.