Karnataka High Court
High Court Of Karnataka vs Bivulal @ Bivu @ Sanjay on 6 June, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR.JUSTICE H.BILLAPPA
Crl.R.C.No.1/2009 C/W Crl.A.1197/2008,
Crl.A.No.31/09 & Crl.A.No.441/2009
Crl.R.C.No.1/2009
BETWEEN:
High Court of Karnataka,
Bangalore.
Rep. by the Registrar General. ...Petitioner
(By Sri.P.M.Nawaz, Addl. SPP)
AND:
1. Bivulal @ Bivu @ Sanjay,
Age:18 years.
S/o.Devaranji
No.259, 3rd Cross,
Egipura,
Bangalore.
2. Kishan,
Age: 18 years,
S/o.Lalaranji,
2
3rd Cross, Venkatapura,
Koramangala,
Bangalore.
3. K.S.Chandrashekhar,
S/o.K.S.Venu,
Aged 19 years,
I Block, 6th Cross,
Venkatapura,
Koramangala,
Bangalore. ...Respondents
(By Smt.P.Archana Murthy, Adv., for R-1
By Sri.Aneer Ali Khan, Adv. for
M/s.Younous Ali Khan Assts., for R-2
By Safarish Gandhi.S., Adv., for V.K.Patil, for R-3)
*******
This Criminal Reference case is registered as required
under section 366 Cr.P.C. for confirmation of death sentence
awarded to accused No.1 Bivulal @ Bivu @ Sanjay,
S/o.Devaranji, Accused No.2 Kishan, S/o.Lalaranji and
accused No.3 K.S.Chandrashekar S/o.K.S.S.Venu by the IV
Addl. City Civil & Sessions Judge, Mayohall unit, Bangalore
by judgment of conviction dtd.12.12.08 in S.C.No.463/2008.
Crl.A.1197/2008
BETWEEN:
Kishan,
S/o.Lalranji,
Aged about 18 years,
3rd Cross, Venkatapura,
Koramanagala,
Bangalore. ...Appellant
(By Sri.Aneer Ali Khan, Adv., for
3
M/s.Younous Ali Khan, Assts.,)
AND:
State by
Vivek nagar P.S.
Bangalore.
Rep. by
The State Public Prosecutor,
High Court of Karnataka,
High Court Buildings,
Bangalore. ...Respondent
(By Sri.P.M.Nawaz, Addl. SPP)
******
This Crl.A. is filed under section 374 Cr.P.C. by the
advocate for the appellant praying to set aside the judgment
and order dated 12.12.2008 passed by the Addl. City Civil &
Sessions Judge, Mayo Hall Unit, Bangalore (CCH-21) in
S.C.No.468/2003 convicting the accused No.1 to 3 for the
offence P/U/S 364-A and 302 of IPC R/W.Sec 34 of IPC and
sentenced to pay a fine of `.10,000/- for each of the offences.
Crl.A.No.31/09
BETWEEN:
K.S.Chandrashekar,
S/o.K.S.S.Venu,
Aged 19 years,
1st Block, 6th Cross,
Venkatapura, Koramanagala,
Bangalore. ...Appellant
(By Sri.Sabarish Gandhi.S., Adv., for
DM & Assts.,)
4
AND:
State of Karnataka,
By Viveknagar Police,
Viveknagar,
Bangalore.
Rep. by Learned State
Public Prosecutor. ...Respondent
(By Sri.P.M.Nawaz, Addl. SPP)
******
This Crl.A. is filed under section 374(2) Cr.P.C. by the
advocate for the appellant praying to set aside the judgment
and order dated 12.12.2008 passed by IV Addl.City Civil and
S.J.., Mayo Hall, Bangalore in S.C.No.468/03-convicting the
appellant/accused No.3 for the offence punishable under
section 364-A and 302 of IPC R/W Sec.34 of IPC and
sentencing him to death for the offence P/U/S/364-A of IPC
and also Sec.302 of IPC and sentenced to pay a fine of
`.10,000/- for the each of offences P/U/S 364-A of IPC and
302 of IPC and also prayed that, acquit the appellant of all
charges and set him at liberty.
Crl.A.No.441/2009
BETWEEN:
Bivulal @ Sanjay,
S/o.Devaranji,
Aged about 18 years,
No.259, 3rd Cross,
Ejipura,
Bangalore. ...Appellant
(By Smt.P.Archana Murthy, Adv.,)
5
AND:
The State of Karnataka,
By Viveknagar Police Station,
Bangalore. ...Respondent
(By Sri.P.M.Nawaz, Addl. SPP)
*****
This appeal is filed under section 374(2) Cr.P.C by the
advocate for the appellant praying to set aside the judgment
of conviction and sentence dated 12.12.2008 passed by the IV
Addl. City Civil & Sessions Judge, Bangalore (CCH-21) in
S.C.No.468/2003 convicting the accused for the offence
P/U/S 364-A and 302 of IPC and sentencing him to pay a fine
of `.10,000/- for each of offences P/U/S 364-A and 302 of
IPC.
Crl.R.C and appeals coming on for Hearing this day,
K.SREEDHAR RAO. J., delivered the following:
JUDGMENT
The material facts of the prosecution case disclose that one Vishal, aged about 6 years and one Nikil, aged about 7 years are the deceased 1 and 2 (for short 'D1 and D2'). One Mahaveerchand, PW-2 is the father of D1 Vishal. One Gowthamchand, PW-3 is the complainant and father of D2 Nikil and brother of PW-2. D1 and D2 were playing near their house on 24.3.2003 in the evening around 7.30 p.m. They did 6 not return home even at 9.00 p.m. The complainant made extensive efforts to trace the children but in vain. On the same day at 11.10 p.m. he gave a missing complaint to the police. The said complaint is registered on the same day.
2. In the course of investigation, it reveals that, on 25.3.2003 at around 12.15 p.m., one person from a public booth telephoned to PW-2 informing that the children are with him and that he would again call him after some time. The caller did not again call PW-2.
3. The police however after enquiries found that the call was made from Raichur. PW5, the brother-in-law of PW2 along with the inspector PW-22 goes to Raichur. They meet Raichur police. The accused were apprehended on 26.3.2003 at 10.00 p.m. and on 27.3.03 at the voluntary instance of A1 to A3, A1 to A3 led the panchas towards Lingasugar road and at some distance from agricultural college, in a barren land of one Amar Khed, in a thorny bush, the dead bodies were traced. PWs.2 and 3 were informed and they came to the 7 venue where the dead bodies were found. The police came and identified the dead bodies as that of D1 and D2. Inquest mahazar is conducted. The post mortem report discloses that the death is homicidal death. At the voluntary instance of A1 to A3, from their respective houses blood stained clothing of D1 and D2 and the accused were recovered and were sent to FSL along with other blood stained articles. The FSL report is marked at Ex.P47 and P48. However, serology report is not produced and marked.
4. The accused are charged for committing the offence punishable U/s.302 and 364-A r/w 34 of IPC.
5. The prosecution version further discloses that A1 to A3 after kidnap took D1 and D2 in the auto of PW-18 to majestic and they also purchased some eatables from the shop of PW-19. The photos of the deceased were published in Prajavani on 28.3.2007.
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6. PW-12 is the conductor of the KSRTC Bus. His evidence discloses that A1 and A3 travelled in the bus along with D1 and D2 from Bangalore to Sindhanoor and he has identified A1 and A3 in the T.I. parade.
7. The evidence of PW-19 discloses that on 24.3.03 around 7.00 p.m. the accused brought D1 and D2 and purchased chips. The shop of PW-19 is by the side of the house of D1 and D2. The accused came with D1 and D2 and purchased chips and took them away.
8. PWs 12, 18 and 19 have identified the accused in the T.I. parade.
9. PW-11 is the STD booth owner at Raichur and his version discloses that A-1 and A-3 had come to the booth, D1 and D2 were in the custody of A1 and A3 made the telephone call on 25.3.03 at about 12.15 p.m. He has identified A1 and A3 in the T.I. parade.
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10. PWs 2 and 3 have testified to the circumstance of D1 and D2 missing on 24.3.03 at around 7.00 p.m. and about giving the complaint to the police on the same day and PW-2 also speaks about the telephone call received on 25.3.03 informing that the children are with the caller and that the caller would call him again. He further submitted that the caller did not call back. The police on the basis of call particulars identified that the caller was from Raichur. PWs 2 and 3 have stated that A1 was working with PW3 and about a week before the incident there was a quarrel between PW-3 and A1 with regard to payment of remuneration for the work done. The said quarrel is stated to be the motive for committing the offence as a revenge.
11. The evidence of PW-5 discloses that he is the brother-in-law of PW-2 and after the call particulars were ascertained by the police, himself and PW-22 goes to Raichur and they meet the inspector of Raichur west police station and he speaks about the arrest of the accused on 26.3.03. 10 On interrogation, he says that the accused 1 to 3 led the police and panchas to a barren land in a thorny bush which is at a little distance from the agricultural college where bodies were pointed out. At that time, PWs 2 and 3 also come to the scene at the place of recovery.
12. The evidence of PW-11 discloses that he is the owner of the STD booth and that on 25.3.03 A1 and A3 had come, A3 made the call from his booth and D1 and D2 were in the custody of A1 and that the said witness has identified A1 and A3 in the T.I. parade conducted on 28.4.03.
13. The evidence of PW-18, the auto driver discloses that the auto was stopped by A1 and in his company D1 and D2 were there. They boarded the auto. Thereafter A2 and A3 also boarded the auto and he left them at KSRTC bus stand at majestic. PW-18 further says that, on seeing the photographs of the deceased, when the police were making enquiries in the bus stand, he volunteered and informed 11 about the fact of A1 to A3 travelling in the auto along with D1 and D2 from Honnarpet to Majestic.
14. The evidence of PW-19 discloses that on 24.3.03 around 7.00 p.m. A1 came with D1 and D2 to the shop which is close by to the residence of D1 and D2 and purchased chips and took them away. In the cross examination, PW-19 states that PWs.2 and 3 did not make enquiries with him about the missing children and after coming to know about the murder of children, the police made enquiries with him and he told them about the above fact and he identified A1 in the T.I. parade.
15. PW-9 is the panch witness. He testifies to the fact that the accused led him and the police, pointed out the place where the children were killed and also the place where the dead bodies were concealed in the bush. The stone used for killing was pointed out at the spot. The witness also identifies A1 to A3 as the persons who led them to the place where the 12 dead bodies were concealed. The recovery of the dead bodies is made around 4.30 a.m. in the night hours.
16. PW-22 is the investigating officer of J.C. Nagar police station. His evidence discloses that after getting particulars of the telephone call, he along with PW-5 meets the inspector of Raichur West police station and with his assistance and with the staff of his police station made attempts to trace the accused and the accused 1 to 3 were apprehended in Raichur railway police station and they were produced before him. Therefore, he testifies to the discovery of dead body at the instance of A1 and A-3.
17. DW-1 is examined on behalf of Accused no.2 to prove that accused no.2 was arrested by the Police and he was detained in the police station on 24.03.2003 at about 8.30 p.m. and that he is no way involved in commission of the offence. DW-2 is the sister of accused no.3 and is examined on behalf of the accused no.3. She testifies to the fact that on 24.03.2003, accused no.3 was in the house and also on 13 25.03.2003 and thus denies the involvement of accused no.3 in committing the offence.
18. The trial court upon consideration of the evidence found that accused nos.1 to 3 are convicted for the offence U/Ss.364A and 302 read with Section-34 of I.P.C. The accused persons have been awarded death sentence. It is pertinent to note that the accused were awarded death sentence by the judgment dated 16.04.2005. This Court had set-aside the order of conviction and sentence and the matter was sent to the trial court, on the ground that the accused was not properly cross-examined. In the second round of remand, the accused were remanded and sentenced to death by the impugned judgment.
19. Thus a reference is made for consideration of the death penalty imposed by the trial court. The accused nos.1 to 3 have filed separate appeals, challenging the order of conviction and the sentence. The counsel for accused no.1 submits that the conviction under Section 364(A) is bad in 14 law. There is absolutely no evidence on the part of PW-2 and PW-3 that ransom was demanded in the telephone call made. The trial court only on surmises without any legal evidence has come to the conclusion that a ransom of Rs.6 lakh was demanded. Further, the conviction under Section 302 of I.P.C. is also bad in law because the discovery of the dead body at the voluntary instance of accused no.1 by PW-11, 12, 18 and 19 is concocted and an untangible evidence. The statements of the said witnesses is not examined by the I.O. in the course of witnesses. Very strangely, these witnesses are directly summoned for identification of the accused in the T.I parade. These circumstances, creates serious doubt on the veracity of the I.T. parade and the veracity of the evidence of PW-12, 18 and 19. The circumstance of discovery of the dead body at the voluntary instance of accused no.1 is concocted and not a credible circumstance.
20. The motive suggested for committing the crime to the effect that there was a quarrel between accused no.1 and 15 PW-2 and PW-3 before, regarding payment of remuneration and therefore, the accused no.1 bearing grouse has caused murder along with accused nos.2 and 3 does not constitute a strong motive for committing murder of two children. If accused had a grouse, he would have taken vengeance against PW-3 and not against the deceased. There is discrepancy in the case of the prosecution and therefore the order of conviction is bad in Law.
21. The counsel for the accused no.2 submits that the evidence of PW-11 does not indict presence of accused no.2 along with PW-2 and PW-3, when accused no.1 purchased chips from the shop. The evidence of PW-11, conductor of KSRTC bus discloses that in his bus accused no.1 and 3 travelled along with D1 and D2 from Bangalore to Sindhanoor. The presence of accused no.2 is not spoken. The evidence of PW-12 telephone booth owner, does not indicate the presence of accused no.2 with the company of accused no.3. His evidence only disclose that accused no.3 made a call 16 and accused no.1 was holding the children. The evidence of PW-18 that accused no.1 to 3 travelled in auto along with children is a flimsy piece of evidence and does not suggest the guilt of accused no.2 in causing the murder and that apart there is no motive for accused no.2 to commit the murder. Accused no.2 has been falsely implicated.
22. The discovery of dead body at the voluntary instance of accused no.1 is concocted. There is discrepancy in the place of arrest of accused no.1 and 3. The arrest of accused no.1 to 3 in railway station is a artificial circumstance because the police had no clue of identity of accused no.1 and 3 to have arrested them at the railways station. Therefore, it is strenuously argued that the accused no.2 has been falsely implicated and the conviction of accused no.2 by the trial court is without proper evidence.
23. The counsel appearing for accused no.3 submitted that accused no.3 is a stranger and he has no motive to commit the offence. The evidence of T.I. parade is not 17 acceptable in law because the statements of witnesses who identified the accused in the T.I. parade are not recorded before they are summoned to identify the accused in the T.I. parade. The circumstance of arrest of accused no.3 and recovery of the dead body at the voluntary instance of accused no.1 is concocted. The recovery of the dead body and the joint statement of accused no.1 and 3 is also concocted and untenable in law and that cannot be the basis for conviction of accused no.3.
24. Sri.P.M.Nawaz, Addl. SPP, strenuously contended that the conviction of accused nos.1 and 3 for offence U/s.302 of I.P.C. is fully substantiated by credible and valid evidence. PW-2 and PW-3 speaks about the motive and they also corroborate about the discovery of the dead body at the voluntary instance of accused nos.1 to 3. The evidence of PW- 5 discloses that he along with PW-22 went to Raichur after getting the clue of the telephonic call and with the assistance of Raichur West Police Station and with the staff of Vivek 18 Nagar Police station, Bangalore, they made efforts to trace the accused and accused nos.1 to 3 were arrested and brought before PW-24.
25. Upon interrogation by PW-24, the accused himself lead the police and the panchas to the place where the dead bodies were concealed. The evidence of PWs-11, 12, 18, 19 cannot be rejected only on the ground that their statements were not recorded. The evidence of PW-11 clinchingly disclose the guilt of accused nos.1 and 3 and he speaks to the fact that accused nos.1 and 3 had come with the children and accused no.3 made the telephonic call and accused no.1 was holding the children and he identified accused nos.1 and 3 in the T.I. Parade. There is nothing in the cross-examination to suspect the veracity of the evidence of PWs-12, 18 and 19. The same cannot be rejected as concocted only on the ground that their statements U/s.161(3) of Cr.P.C. was not earlier recorded before they were summoned to identify the accused 19 in the T.I. parade. It may be only a technical lapse on the part of the I.O.
26. Further, immediately upon arrest and tracing the dead body, the T.I. parade is conducted. The evidence of PW- 12 who is the conductor of the K.S.R.T.C. bus cannot lightly be brushed aside, only on the ground that his statement under Section-161(3) is not recorded by the I.O. PW-12 is a public servant and there is no reason for him to give a false statement and identification of accused nos.1 and 3 in the T.I. is a credible evidence against them. The evidence of PW-19 disclose that accused no.1 on the date of kidnap at 7.00 p.m. came with D1 and D2 and purchased chips in the shop of PW-19 which is nearby the house of D1. But in the cross- examination, the witness has stated that PW-1 and PW-3 did not make any enquiries with him. Therefore, he had no occasion to inform about the last seen circumstance of D1 and D2 in the company of accused no.1 and he says that after finding the dead body and after coming to know the 20 murder, the police made enquiry and at that time he informed about the last seen circumstance of D1 and D2 and accused purchasing chips.
27. The evidence of PW-18 the auto driver disclose that accused no.1 boarded the auto at vanarpet and accused nos.1 and 2 also boarded the auto and went from vanarpet to majestic bus stop. The witness says that on seeing the photograph of the children in Prajavani on 28.05.2003, when police were making enquiries at the auto-stand and bus- stand, he volunteered and informed of the fact that D1 and D2 along with accused no.1 and 3 travelled in his auto, that he identified the accused in the T.I. Parade on the same day within a couple of hours after revealing the information to the police. Therefore, it was argued that non-recording of statement of PW-18 under Section -161(3) of Cr.P.C. does not dent the veracity of the evidence of PW-18 and the witness is truthful witness and there is no reason attributable as to why PW-18 has to give false evidence.
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28. The evidence of PW-9 who is a panch-witness would disclose that, when he was summoned to the police station accused nos.1 and 3 were in the police station and all of them led the police and other panch to the place where the dead bodies were concealed. The witness stated that the discovery of the dead bodies were made in the night hours around 4.00 a.m. In the cross-examination he confirms and reiterates that it was accused nos.1 and 3 led them to the place where the bodies were concealed. There is nothing elucidated in the cross-examination of PW-9 to disbelieve the veracity of the evidence.
29. PW-22 disclose the efforts made by him in investigating the case and in apprehending the culprits. The evidence of Tahsildar, PW-13 disclose that he conducted the T.I. parade and PWs.12, 18 and 19 have identified the accused in the T.I. parade. The post morterm report discloses that the death of D1 and D2 is homicidal.
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30. It is strenuously argued on the basis of above evidence, the conviction is sound and proper. Further, the murder committed is a gruesome murder in a most inhuman and atrocious way. The death sentence awarded is sound and proper and needs to be confirmed.
31. Upon thorough consideration of the submission made at the Bar and the evidence adduced by the prosecution by the evidence of PW-2 and PW-3, the circumstance of missing of D1 and D2 gets established. Further, the evidence of PW-2 discloses that he received a telephonic call from a landline stating that the children are with the caller and that he would call him again. The second call did not come according to his evidence. Further, the particulars of the phone call were ascertained by the police. His evidence further discloses that there was a quarrel between the accused no.1 and PW-3 and PW-2 before regarding payment of remuneration. The said quarrel is said to be the motive for commission of the offence by the prosecution. 23
32. The evidence of PW-5 further discloses that he accompanied PW-22 to Raichur and he gets a message of apprehension of accused and thereafter himself and PW-3 goes to Raichur. They along with accused, panchas and police directly go to the place where the dead bodies were concealed and discovery proceedings were conducted and dead bodies were identified. The evidence of PW-3 is on similar lines.
33. The evidence of PW-5 reveals the fact that he goes along with PW-22 to Raichur and that PW-22 and Raichur police make efforts to trace the accused and that accused nos.1 and 3 were apprehended and brought to the police station and they led the police and panchs to the place where the dead bodies were concealed and that resulted in the discoveries of dead bodies of D1 and D2.
34. The evidence of PW-11 discloses that accused no.3 made a telephonic call on 25.03.2003 and accused no.1 had come with children, who are D1 and D2 and he identified 24 accused nos.1 and 3 in the T.I. parade and also identified the photographs of D1 and D2 and stated that these were the two children who were in the company of accused no.1 when accused no.3 made the telephonic call.
35. The evidence of PW-12 discloses that accused no.1 and 3 travelled in the bus along the D1 and D2 and he had identified the photograph of D1 and D2 as the children who travelled with accused no.1 and 3 in the bus and identified accused no.1 and 3 in the T.I. Parade. The evidence discloses that they had travelled from Bangalore to Sindhanoor and they got down there. The fact that the statement of the witnesses under Section 163(3) of Cr.P.C. was not recorded by the I.O. is not a ground by itself to reject the testimony regarding the identification of accused nos.1 and 3 in the T.I. parade, for the reason that he volunteers and informs the police making enquiries at the bus stand and he is immediately taken to T.I. parade.
25
36. The evidence of PW-18 disclose that accused nos.1 and 2 travelled in the auto along with D1 and D2. The photographs of D1 and D2 are identified by the witnesses. The evidence of PW-9 discloses that accused no.1 brought D1 and D2 to the shop which is close-by to the residence of D1 and D2 and accused no.1 purchased chips. The cross- examination of PW-19 also discloses that since PW-2 and PW- 3 did not make any enquiry with him, he did not have any occasion to reveal and had no occasion to suspect the foul play. It is only when the police made enquiry after the murder was detected, he gave information. The basic complaint against PWs-12, 18 and 19 is that their statement under Section 161(3) Cr.P.C. was not recorded at all by the I.O. and these witnesses were directly summoned to the T.I. parade for identification.
37. On thorough consideration, we do not find that failure to record the statement U/s.161(3) of Cr.P.C. does not in any way dent the credibility of the said witnesses because 26 of the fact that the investigation was conducted very swiftly. It is after publication of the photos of the children in the newspaper, the witnesses were found and after getting clues from the accused, these witnesses were identified and summoned to the Viveknagar police station on 27.03.2003 and that they had identified accused nos.1 and 3 in the T.I. parade. The identification in T.I. parade is credible and the witnesses had no clue about accused nos.1 to 3. It is only at the time of the T.I. parade, that they had seen them, which was in the short course of time. Therefore, the identification at T.I parade is credible.
38. There was a delay in conducting the T.I parade by one month and there was no reason on the part of the investigation agency not to conduct the T.I. parade immediately within the short course of time within a couple of days after the arrest and discovery.
39. The above evidence adduced by the prosecution discloses the circumstances of motive. The last seen 27 circumstances of D1 and D2 with accused no.1 in the evidence of PW-11, the telephone booth owner, is further testified with the evidence of PW-12 the conductor of KSRTC, that he had seen D1 and D2 with the company of accused nos.1 and 3 travelling from Bangalore to Sindhanoor. The evidence of PW-11 would disclose that D1 and D2 were in the company of accused nos.1 and 3 and making telephonic call from the booth would give a clue about the whereabouts of the accused and missing children.
40. The evidence of PW-18 discloses that D1 and D2 were with the company of accused nos.1 and 2 travelling from Vanarpet to Majestic bus stand. The circumstance of discovery of dead body at the voluntary instance of accused nos.1 to 3 is corroborated by PW-9 who is the panch-witness and the evidence of PW-5 who is the brother-in-law of PW-2 and PW-3 who identified accused nos.1 and 3 in the T.I. Parade before the police.
28
41. On thorough analysis of the evidence, it clinchingly establishes the guilt of the accused nos.1 and 3. The evidence of PW-18 shows that accused no.2 travelled along with accused nos.1 and 3 along with the children from vanarpet to KSRTC bus stop and he did not accompany them in the bus. But the discovery evidence and keeping company with accused nos.1 to 3 at the time of arrest and the discovery of the dead body at the voluntary instance of accused nos.1 to 3 is testified by PW9 and PW-5 would disclose the guilt of accused no.2's participation in committing the crime and also sharing a common intention in committing the crime.
42. The evidence of PW-11 and PW-12 clearly discloses that accused nos.1 to 3 are together and came to the booth along with the children and accused no.3 made the telephonic call. The telephonic particulars from the telephone booth corroborates the time at which he received the call informing that the children are with the caller. 29
43. PW-11 is totally an independent witness. He has identified the photos of the D1 and D2 and stated that these are children who were brought by accused nos.1 and 3 to the booth. The statement has been recorded by the I.O. under Section 161(3) Cr.P.C. before he was summoned to identify the accused in the T.I. parade and he has successfully identified the accused in the T.I. parade.
44. PW-12 is the conductor of KSRTC bus and there is no reason to attribute motive for giving false evidence. It is quite natural that after getting information of the accused that they were travelling from Raichur to Bangalore, naturally they would have made enquiries about the bus plying between Bangalore and Raichur. There is nothing in the cross-examination to suspect the veracity of the evidence of PW-12, 18 and 19 who also speak about the last seen circumstances of the deceased of D1 and D2 in the company of PW-18 and the photos of D1 and D2 was published in Prajavani on 28.03.2003. The police were making enquiries in 30 the bus stand and he had seen photo and voluntarily informed that he had carried the children along with three persons. The fact that this statement was earlier not recorded is not a circumstance to disbelieve their evidence. PWs.12, 18 and 19 have successfully identified the accused in the T.I. parade and there is nothing elucidated in the cross- examination to disbelieve their veracity.
45. PW-19 is also a natural witnesses who is the shop keeper of a condiment shop which is near to the house of PW-
2. He say that accused no.1 brought the two children on the date of kidnap and purchased chips and took away the children and he has successfully explained that he could not inform this fact to PW-2 or PW-3. Because they were never making enquiry and he never knew about the murder and only on investigation he revealed the fact and thereafter he was summoned and he identified the accused in the T.I. parade. Again the evidence of the accused in the T.I. parade is 31 credible and anything that is brought to evidence is fully corroborated by the independent witnesses.
46. PW-9, who is a panch-witness, identified the dead body, which was found in a place which could not have been noticed by anybody. It is only the accused who had concealed the dead body who knew the location of the dead body and they lead the police and panchas that resulted in discovery of the dead body. Therefore on all consideration of facts and circumstances, the order of conviction of accused nos.1 to 3 U/s.302 read with Section-34 of IPC is sound and proper.
47. However, conviction U/s.364(A) of IPC does not appear to be sound and proper, because there is no whisper about the demand of ransom by the accused in the evidence of PW-2 and PW-3. It is only on surmise that the trial court has convicted the accused U/s.364(A) of IPC. The facts and evidence would warrant conviction U/s.364(A) of IPC, which also carries the punishment of life imprisonment. There is no charge against the accused U/s.364(A) of IPC. Even 32 otherwise, only one life sentence can be granted and there cannot be a duplicated life sentence U/s.364(A) of IPC.
In that view of the matter, the appeals of the accused are partly allowed. The conviction under Section 364(A) of IPC is set-aside and conviction under Section 302 r/w section 34 of IPC is confirmed.
With regard to penalty the trial court has awarded death sentence, Shri. P.M., Nawaz, Addl. SPP strenuously submitted that the murder is a gruesome murder of young innocent children. They have been murdered in an inhuman way. Therefore, the death sentence awarded has to be confirmed.
On thorough consideration of the facts, we find that the case does not appears to be one of the rarest of rare case. It may be fact that it is a gruesome murder and two innocent children have been murdered. But none the less, the murder does not appear to be rarest of rare case, which calls for death sentence. Accordingly, the death sentence awarded by 33 the trial court is modified and accused nos.1 to 3 are sentenced to life imprisonment.
It is further directed that accused nos.1 to 3 shall not be given commutation after completion of fourteen years of imprisonment as a matter of routine. The accused have to serve the life sentence and they should be in jail in terms of Section 57 of I.P.C. Accordingly, the reference and appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE dvr/jj: