Karnataka High Court
Narendra Bhat S/O Vasantha Bhat And Kum. ... vs The State Of Karnataka Represented By ... on 20 December, 2007
Equivalent citations: ILR2008KAR1327
JUDGMENT H.V.G. Ramesh, J.
1. This appeal is against the order of conviction and sentence passed by the II Addl. Sessions Judge, Mangalore, D.K. in S.C. No. 105/98 order dated 31.1.01.
2. The case of the prosecution is that, one M. Vittaldas Shenoy who is a resident of Vyshali apartments situste near Mangala Stadium, Gandhinagar, Mangalore, has a son by name Upendra Shenoy; the said child was going to Mangala Baby Sitting situated at Gandhinagar and he was being taken to sohool everyday in an autorickshaw; the first accused mother one Nirupama Bhat was working with the complainant and the first accused used to come there to drop her to the complainant's house in a motor cycle and he had acquaintance with the 2nd accused and both of them were moving together, the first accused was running transport business having (sic) and when he had sustained loss in the said business, both accused Nos. 1 and 2 thought of kidnapping the child of the complainant for ransum and that on 13.1.98 around 11.45 am. the complainant received the phone call from the house stating that the child Shenoy did not come home and that a letter was thrown in the front door of their house wherein it was written that the child is being kidnapped and it was demanded to pay Rs. 15 lakhs to get back the child and also stated not to inform the police in this regard; later the complainant came to the house and meanwhile, the complainant's wife who went to the school made enquiry with one Suman Pal and Shanthi Baliga about the child; they told that around 11.30 a.m. a woman aged about 25-30 years wearing a chudidar came and told that she had come from the house of the complainant and that they are going to Goa and asked to send the child along with her and so saying, she took away the child; on hearing this aspect the wife of the complainant returned back to home and after informing the complainant, lodged the complaint around 2.00 p.m. on the very some day; the police who registered the case went to the house of the complainant and seized the letter and the cover said to have been found near the door, while searching for the accused, the Head Constable apprehended accused No. 1 around 2.00 am, in the night while he was going towards Mannagudde from Ladyhill side; later, he was brought to the station and on enquiry he gave the voluntary statement to the effect that he will show the child Upendra Shenoy who is in Srinivasapura; the said information was conveyed by the I.O. to the complainant and asked the complainant to come along with his wife; the complainant, his wife and one Vasudeva Pai and the police along with accused No. 1 went to Srinivaspura; the I.O. before going to Srinivasapura requested the Circle Inspector of Police to accompany them and thereafter, accused No. 1 took them to Anandbhavan Hotel stating that the child is in the house of the relative of accused No. 2; they saw the child along with accused No. 2 watching T.V. and arrested her and brought the child to Mangalore along with accused No 1; later, the I.O. conducted panchanama of the school from where the child was kidnapped and thereafter, after recording the statement of several witnesses and after completion of investigation filed the charge sheet. The accused were charge sheeted for the offence punishable under Section 364-A r/w Section 34 of IPC. Thereafter, since the accused pleaded not guilty and claimed to be tried, during the trial, the prosecution has examined in all 24 witnesses and got marked about 31 documents and two documents were marked on behalf of the respondent at Exs.D1 and D2. Thereafter, the accused was examined under Section 313 of Cr.P.C. and their defense was total denial. After hearing both sides, the learned Sessions Judge has convicted and sentenced the accused for the offence punishable under Section 363 r/w Section 34 of IPC and sentenced them to undergo R.I. for a period of three years and to pay a fine of Rs. 5,000/-, in default, to undergo R.I. for three months,
3. Heard the learned Counsel for the appellants/accused and the learned Government Pleader.
4. It is the argument of the learned Counsel appearing for the appellants that after filing of the complaint and after arresting accused No. 1, test identification parade has not been conducted and even according to the prosecution the lady who took the child was not known to the child, but later it has developed a different story by making alterations in the complaint; the trial Court has also disbelieved the opinion of the handwriting expert as to the letter said to have been written by accused No. 1; even if the prosecution version is believed that the child was found along with accused No. 2 watching TV, after recovery of the child, neither accused No. 2 nor the child was produced before the Magistrate at Srinivasapura; the prosecution has tried to connect the situation and the very procedure adopted is only to implicate the accused and to make believe the story; neither the child was found in the house of accused No. 2 nor the child has identified to the effect that accused No. 2 has taken the child from the school; the case of the prosecution is entirely based on circumstantial evidence. It is further submitted that there must be cogent and connecting link in the chain of circumstances to point the guilt towards the accused and that except the evidence of I.O. and the complainant who are the interested witnesses there is no other witness to speak about the recovery of the child in the house of accused No. 2; only to show the recovery of child at Srinivasapura, in the name of a fictitious person the Mahazar has been conducted which is not supported by any such circumstances and since there was a land dispute between the complainant and the accused, in order to falsely implicate accused No. 1 who is well off, a false case has been foisted and there is no need for the accused No. 1's mother to work in the house of the complainant for a paltry sum and also then is no reason why the child has to be kidnapped and taken immediately to Srinivasapura; the story of the prosecution arresting accused No. 1 in the midnight around 2.00 a.m. that too going on a street is highly unbelievable; neither the accused has been identified by the child nor the accused had shown the child at Srinivasapura as stated by the prosecution and if really the child has been recovered at Srinivasapura along with accused No. 2 necessarily they would have produced them before the Srinivasapura Magistrate for the purpose of authenticity. Under such circumstances the finding of the trial Court that the child was recovered along with accused No. 2 is erroneous and without appreciating the material evidence on record and accordingly, submitted that unless the chain of circumstances are so connecting to establish consistently with the hypothesis of the guilt of the accused the accused cannot be held guilty.
5. In support of his arguments, he relied upon the following judgments reported in:
(i) AIR 1990 SC 2140 in the cute of Kishore Chand v. State of Himachal Pradesh wherein the Apex Court has held that, all circumstances from which conclusion of the guilt is to be drawn must be fully established, the facts so established must be consistent with hypothesis of guilt of accused, any circumstance consistent with innocence of accused then necessarily the benefit of doubt has to be extended.
(ii) 1996(4) Crimes 74 in the case of Jaspal Singh @ Pall v. State of Punjab to contend that identification of the accused in the Court cannot be accepted as a reliable one in the absence of test identification parade.
(iii) 1996 Crl.L.J. 317 in the case of M. Abbas v. The State of Karnataka to contend that alleged voluntary statement of accused cannot be taken as substantial evidence and also one more decision in the one of Mohammad Abdul Hafeez v. State of A.P. to the similar effect.
(iv) in the case of State of Punjab v. Bhajan Singh and Ors. to contend that mere suspicion against the accused, however strong it may be, is not sufficient to take place of proof and warrant a finding of guilt of the accused.
(v) 1977 Crl. L.J. 711 (SC) in the case of Magan Biharilal v. State of Punjab to contend that expert opinion must always be received with great caution.
Accordingly, submitted that in the absence of any connecting link in the chain of circumstances merely on some alleged voluntary statement the recovery of the child at the instance of accused No. 1 cannot be held to be proved that too when either the child or accused No. 2 was not produced before the judicial magistrate for its authenticity.
6. Per-contra, the learned Government Pleader has submitted that the letter written is in the handwriting of accused No. 1 coupled with recovery of child at the instance of accused No. 2 at Srinivasapura which are sufficient to prove their involvement in the alleged offence. P.Ws. 3 and 4 have also deposed to the effect of identifying accused No. 2 while taking the child and it is sufficient to hold the guilt of the accused in kidnapping the child for ransom and there is no illegality in the order of conviction and sentence passed. Accordingly, in support of his argument, he relied upon the judgment reported in 2003 Crl.L.J. 2548 in the case of Visveswaran v. State Rep. by S.D.M. wherein the Apex Court has held that the commission of crime can be proved by circumstantial evidence and the identification of the accused in a Court or in a test identification parade is not sine qua non for conviction and Court not to get swayed by minor contradictions or discrepancies and defective investigation.
7. In the light of the arguments advanced, let me consider, whether the trial Court has committed any error or perversity in convicting the accused for the alleged offence punishable under Section 363 r/w Section 34 of IPC? and whether the prosecution has proved the case against the accused beyond reasonable doubt, in connecting the links in the chain of circumstances to point the guilt of the accused, as the case is based on circumstantial evidence?
8. The trial Court has noted that the evidence on record would indicate that the prosecution has established about the confinement of the child in the house of one Srinivas Rao by accused persons and the child was recovered at the instance of accused No. 2 watching T.V. and the said house was shown by accused No. 1 from where the police have arrested accused No. 2 and took the custody of the child. Further, it has noted that the child has been given to their parents without brining to the Court and without the orders of the Court and there is a lapse on the part of the investigation to this extent, however, that by itself is not sufficient to hold that the child was not at ell there in the house of one Srinivas Rao along with accused No. 2. It has farther noted that the complaint was given to the police as per Ex.P1 wherein it is stated that Rs. 15 lakhs has been demanded by the accused persons through the letter which is said to have been thrown in front of the house of the complainant and for the best known reasons, the said letter and the cover has not been given by the complainant to the police at the time of lodging the complaint and although it is alleged by the prosecution that the cover has been seized along with the letter on the same day, the seizure mahazar has not been sent to the Court on the very same day. As regards the letter which was found near the door of the house of the complainant it has noted that as per the prosecution the letter was written in Kannada and it is in the handwriting of accused No. 2 and the amount of Rs. 15 lakhs was written in English and it is in the handwriting of accused No. 1 and it has held that in the normal course if anybody writes the letter in Kannada he would write the amount also in Kannada and there is no necessity for the other person to write the amount and that itself shows that the letter has not come into existence as stated by the prosecution and accordingly, it has been disbelieved by the trial Court. Even with respect to accused No 1 coming near the house of the complainant and dropping the letter on the date of the alleged incident for which the prosecution has relied upon the evidence of one Venkappa Moolya, the trial Court has disbelieved the version of the prosecution on the ground that mere suspicion cannot take the place of proof so also on the ground that the mahazar has not been sent to the Court on the very same day. Further, the trial Court referring to the cross-examination of the handwriting expert with regard to the examination of the handwriting in the said letter with that of some of the documents which were said to be in custody of accused Nos. 1 and 2 like diary, greeting etc., it has noted that the handwriting expert has admitted that he has not stated in particular about the relative size of the capital letters and small letters and that he has not measured the angles in degrees and also the space in between the two lines and two words. Thus, relying upon the ratio of the Apex Court with respect to the opinion of the handwriting expert, it has noted that the comparison of handwriting is at all times as a mode of proof, hazardous and inconclusive and that the evidence of the person acquainted with the handwriting is of much more value than that of the handwriting expert. Accordingly, after having discussed in detail, the trial Court was of the view that the prosecution has Med to prove beyond reasonable doubt that the said letter at Ex.P5 is in the handwriting of accused Nos. 1 and 2 and that they have asked for ransom in order to release the child. Further, it has also noted that the entire case is not based on the circumstantial evidence and that the child has been recovered on the voluntary statement of accused No. 1 at Srinivasapura along with accused No. 2 and thus, it has come to the conclusion that accused Nos. 1 and 2 are involved in the commission of offence punishable under Section 363 of IPC and accordingly, convicted them. Of course, the trial Court tried to base its conviction on the so-called voluntary statement of accused No. 1 which lead to the recovery of the child along with accused No. 2 in the house of one Srinivas Rao at Srinivaspura.
9. It is the argument of the learned Counsel for the appellants that there is a evidence of P.W. 1 to the effect that he had been informed by the police around 2.30 a.m. on 14.1.98 that the child is safe at Srinivasapura, but as per the prosecution accused No. 1 was arrested around 3,00 a.m. and thereafter his statement is recorded. This fact depicts that even before recording the so-called voluntary statement of accused No. 1, the child was found in the custody of accused No. 2 at Srinivasapura which goes to show that only to make out a case against accused Nos. 1 and 2 a false story has been concocted which takes away the case of the complainant and favours the accused. It is his further argument that if really accused No. 1 was arrested around 3.00 a.m. they could have very well produced him before the Magistrate and would have taken permission to trace the child at Srinivasapura and there is no such remand order or taking him to police custody through the Magistrate and there is a total non-compliance of the procedure of which it was followed it would have inspired the confidence that accused No. 1 was arrested at 3.00 a.m. and that he had given the voluntary statement.
10. Since the trial Court itself has disputed the version of the prosecution as to the letter written by accused Nos. 1 and 2, which was said to be found near the house of the complainant, then the accused need not explain this aspect. The only thing which has to be examined is to how far the prosecution has proved the case against the accused persons and whether accused No. 2 was arrested and the child was recovered at Srinivasapura in the house of one Srinivas Rao on the voluntary statement of accused No. 1.
11. The evidence of P.W. 1 who is the complainant is to the effect that he was sending his son Upendra Shenoy to Mangala Nursery at Gandhinagar and at that time he was residing at Vaishali apartment; on 13.1,98 around 10.00 a.m. the child was sent to Baby Sitting in an autorickshaw and on that day around 10.00 a.m. he had been to the Port for business purpose; by 12.45 p.m. he received a phone call from his wife stating that the child did not return from nursery and that around 1230 p.m. she opened the door and found a cover along with the letter which was thrown in front of the door wherein there was a writing stating that they have kidnapped the child and if they want the child back they have to give Rs. 15 lakhs and it is also stated that if they give complaint to the police there will he problem for their other child; later the complainant returned home and in the meanwhile two of the teachers from the Baby Sitting had come to his house and he had also called his brother-in-laws and later after deliberation he filed the complaint to the Barke police mound 2,30 p.m. Further according to him, when he enquired the teachers of the baby sitting they told that around 11.00 a.m. a lady wearing chudidar aged about 24-25 years came stating that the child has to be taken to Goa by their parents and asked them to send the child and so saying they have taken the child. After filing of the complaint they searched for the child in the house of his friends and later they slept around 12.00 p.m. and around 2.30 am. Ashokan, Police Snb-Inspector phoned to him stating that the child is safe at Srinivasapura and that accused No 1 Narendra Bhat is at police station and also stated that the (sic) of Narendra Bhat has taken the child to Srhuvaspura via Hassan. Later, the complainant secured his brother-in-laws around 4.00 a.m. and around 5.00 a.m. they went to Bharke police station and spoke to the PSI and from them they went to Srinivasapura in a Tata Sumo and a Maruti car along with his wife, brother-in-laws and also accused No. 1 and they reached Srinivasapura around 3.00 p.m. and there they found the child in a hotel of the relative of accused No. 2 wherein the child was watching T.V. along with accused No. 2 and they took the child along with the accused No. 2 and went to Srinivasapura police station and there the statement of the complainant and others was recorded as per Ex.P2 and on the next day around 1.00 p.m. they brought back the child. According to the complainant, the mother of accused No. 1 was working as a cook in their house for about one month from November to December and that she was residing in Bijai Apartments and she was stating that they have got financial constraints and also asked him to get the parties to sell their flat and according to him, he has not seen accused No. 2 earlier.
11.1 P.W. 2 is the wife of P.W. 1. She has also spoken to the similar effect.
11.2 P.W.3 is one Sumana Pai who is said to be running the Pre-Nursery at Gandhinagar along with one Shanthi Baliga which runs between 10.00 a.m. to 12.00 noon and according to her, the children come to Nursery by authorickshaws and also by cars and the child of the complainant used to come to the Nursery during 1997-98 and that about one and a half month prior to the incident a lady had come to the school and she had enquired about admitting the child to the school and also about the fee structure and later on the date of the incident around 10.00 a.m. that lady had again come and asked not to send Upendra Shenoy in autorickshaw and that she will come and pick up the child and later around 11.00 a.m. she came and asked her to send the child; when P.W. 3 asked as to why she did not bring any note from the parents, she replied that she had come in the morning and that the parents are packing the things and that they are busy, thereafter P.W. 3 called the child and asked as to how that lady is related to him, first the child did not talk anything with the lady, later, the child replied that she is Pachi, then she handed over the child to that lady and that she is accused No. 2 and she took away the child; later around 12.00 noon P.W. 2 came to the school end asked about the child for which P.W. 3 replied that the child was taken by a lady stating that (hey are going to Goa for which P.W.2 told that the child is being kidnapped and there is a letter in this regard and later P.W. 3 called her husband and she along with one more teacher Shanthi Baliga went to the house of P.W. 2 and they decided to give the complaint to the police.
11.3 P.W. 4 is one Shantha Baliga who is said to be running the Nursery along with P.W. 3 and they both are friends and she has also spoken to the similar effect to that of P.W. 3.
11.4 P.W. 5 is one Venkappa Moolya who is said to be the Watchman of Vaishali Apartments. His evidence is to the effect that on the date of the incident around 12.30 p.m. P.W. 2 told him that the child did not return from the Nursery and he was asked as to anybody had come there and then he told her that the son of the lady who was working in their house had come there around 12.00 p.m. and that he used to daily drop her in his scooter and as such, he has acquaintance with accused No. 1 and on that day accused No. 1 who came there went to upstairs and returned back.
11.5 P.W. 6-Srinivas Rao who is a resident of Srirrivasapura was examined to the effect that accused No. 2 was found in their house along with the child. But he has totally turned hostile to the version of the prosecution.
11.6 P.W. 7 one Poovappa who is said to be the driver of the vehicle hearing No. CTX 7897 has been examined by the prosecution to the effect that he had been to Srirrivasapura along with the family members of the complainant to take back the child. He has not supported the version of the prosecution.
11.7 P.W. 8 one Vasudev Pai is the husband of P.W. 3, the teacher where the child was going to Nursery and he is the hearsay witness and he has spoken that he has learnt about the kidnapping of the child through his wife.
11.8 P.W. 9 one Venkatesh Kamath is the panch for the seizure of Exs.P5 and P7 the letter and the cover under the mahazar at Ex.P3. According to him, around 3.45 p.m. he and one more person were called by the police to the house of complainant and there the police have seized the letter and the cover under panchanama.
11.9 P.W. 10 is one Pratapohandra Rai who is the panch witness for the panchanama conducted regarding the recovery of the letter and the cover found near the house of P.W. 1. He has spoken to about the same.
12. P.W. 11 one Prakash Kamath is the panch for recovery of some greetings from the house of accused No. 2 and also diary from the house of accused No. 1. He has spoken to about the same.
13. P.Ws. 12 and 13 are the panchas for the seizure of the scooter under panchanama at Ex.P14 and they have spoken to about the same.
14. P.W. 14 is one Raghunath Pai is a circumstantial witness who is known to accused No. 1. He has deposed that he knows accused No. 1 and that earlier accused No. 1 was owning two or three lorries and they were residing at Bijai Apartments and the father of accused No. 1 is residing at Bangalore and mother of accused No. 1 is staying along with accused No. 1 and that he used to visit the house of accused No. 1. He has not supported the version of the prosecution in entirety. He has been cross-examined by the prosecution to the effect that around 2.00 a.m. on 14.1.98 accused No. 1 left his house in a Kinetic Honda stating that he has got some work and that police have arrested him around 2.00 am. in connection with the kidnap case, but he has turned totally hostile to the said version and also to the version of the prosecution that accused No. 1 has kidnapped the son of P.W. 1 from Vaishali Apartments.
15. P.W. 15 is one Umesh Prabhu He has deposed to the effect that about two years back he was returning from Mannagudde and at that time Bharke police called him stating that they have arrested accused No. 1 Narendra Bhat. When he went to the police station he found that Narandra Bhat was writing something. According to him, he was there in the police station for about half an hour and at that time accused No. 2 was also there and he has put his signature on the writings of accused Nos. 1 and 2.
16. P.W. 16, one Nirupama Bhat is the mother of the accused No. 1. Her evidence is that she was visiting Ramdev Apartments at Mangalore which belongs to her and her husband is working in Air Force and she is residing at Bangalore and one of her son Anil Bhat is residing at New York and accused No. 1 is also her son and is looking after the transport business having three lorries. He has taken loan from the finance company and accused No. 2 is her relative through her father. According to the prosecution, she was in financial difficulties as her son accused No. 1 had suffered loss in the business and also according to the prosecution this lady was going to the house of PW-1 and PW-2 for about one month and she was cooking in the house of PW-1. This version of the prosecution has not been supported by PW 16. According to the prosecution, accused Nos. 1 and 2 were on friendly terms, which was not to the liking of P.W. 16.
17. P.W. 17 is the mother of the accused No. 2 The prosecution has examined this witness to the effect that the accused No. 1 was in friendly terms with accused No. 2 and also he was sending greetings to her and that this accused No. 2 had kidnapped the child of PW1 and also arrested accused No. 2 in the house of Srinivas Rao at Srinivasapura on 14.1.1098. She has not supported the said version.
18. P.W. 18 is one Lawrence Saldanha. He has been examined to the effect that accused No. 1 was due of some amount to him. As per the evidence of this witness, accused No. 1 was due of Rs. 44,000/- towards purchase of tyres.
19. P.W. 19 is one Krishna Shetty. According to the version of prosecution on 13.1.1998, in the night between 11.15 p.m. to 11.30 p.m., he received a STD call to accused No. 1 from a lady and at that time, he called accused No. 1 to talk to her, The same has been denied by him.
20. P.W. 20 is the person who sent the FIR to the magistrate on 131.1998 around 3 p.m.
21. P.W. 21 is the Head Constable of Bharke police station. According to his evidence, on 13.1.1998 around 2.15 p.m. he received an information that a child has been kidnapped. When he reached Vaishali Apartments around 4.15 p.m., he learnt that accused No. 1 Narendra Bhat had kidnapped the child and this aspect has been told to him by PSI Ashokan and in the night around 2.15 a.m., they found a perron walking in a suspicious manner and later they arrested him and identified that he is the person by name Karendra Bhat.
22. P.W. 22 is the PSI Ashokan who has conducted the investigation.
23. P.W. 23 is the then Circle Inspector of Police of Srimvasapura police station.
24. P.W. 24 is the hand writing expert.
25. The evidence on record discloses that PW-1 had not seen accused No. 2 at all As per the prosecution version and also as per the evidence of PW-3, this accused had visited the school earlier where the child was sent for pre-nursery. If the version of PW-1 is taken into consideration (hen there is no question of accused No. 2 working in the house of PW-1, rather it is the mother of accused No. 1 who worked there. It is not the case of PWs. 1 and 2 that accused No. 2 was there in their house and that she had been to nursery to enquire about the child's admission to the school. As noted by the trial Court, even in the complaint there is overwriting as regards the identity of accused No. 2 and instead of the word white in colour, the word black colour has been inserted. The prosecution version is to the effect that the lady actually went to get the child from the nursery around 11 a.m. on 13.1.1998, but PWs. 3 and 4 have identified accused No. 2 for the first time before Court. This aspect of identifying accused No. 2 before the Court for the first time has to be viewed with suspicion coupled with the discrepancy found in the complaint as to the complexion of accused No. 2 which puts the entire case of the prosecution in jeopardy. The child is 3½ years old. The police have not explained as to how this lady took the child from the school on that day. It is the prosecution version as put forth through the evidence of PW-1 and 2, P.W. 22-PSI Ashokan of Bharke police station and P.W. 23-the circle inspector of police that PWs. 1 and 2 were present along with accused No. 1 and on the information furnished by accused No. 1 that accused No. 2 is in the house-cum-hotel of one Srinivasa Rao along with the child, thereafter, they traced the child along with accused No. 2.
26. Except the evidence of the police and the parents of the child who have spoken to about the arrest of accused No. 1 on the intervening night of 13.1.98 and 14.1.98 around 2 a.m. and that after receiving the information, all of them went in a Tata Sumo to Srinivasapura and traced the child, no other witnesses supported the version of the prosecution in this regard. Even if the evidence of P.W. 1 and the police is accepted as to the tracing of child in the house-cum-hotel of one Srinivasa Rao along with accused No. 2, the major discrepancy is that the police have not moved the remand application in time, although accused No. 1 was arrested in the intervening night of 13.1.98 and 14.1.98. As per mandate of Section 57 of Cr.P.C., no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. The remand memo that is produced before the Magistrate Court by the PSI of Bharke police station is dated 15.1.1998 and accused Nos. 1 and 2 were produced at 3.00 p.m. After the arrest of the accused No. 1 on the intervening night of 13.1.98 and 14.1.98, neither accused No. 1 was produced before the magistrate at Mangalore nor at Srinivasapura. Even to believe the story of the prosecution, if accused No. 1 had been arrested on 14.1.98 around 2 a.m. in the morning, then necessarily he should have been produced before the Magistrate in the morning hours of 14.1.98 or within the reasonable time or could have sought permission for police custody to trace out the child on the voluntary statement said to have been given by the accused No. 1.
27. Of course, the trial Court, believing the version of the prosecution and also the voluntary statement of accused No. 1 and also the evidence of P.Ws. 1 and 2 and the police witnesses that the accused No. 2 was found along with the child in the house of one Srinivasa Rao, has convicted accused Nos. 1 and 2 stating that accused No. 2 has kidnapped the child from the school and that accused No. 1 has assisted accused No. 2 for a ransom. However, the trial Court has not accepted the expert's opinion as to the letter at Ex.P5, which is said to be in the handwriting of accused Nos. 1 & 2, on the ground that the same cannot be relied upon. As noted above, the identification of accused No. 2 is also not done in accordance with law, then remains the involvement of accused No. 1. As per the evidence of PW-1 he received a message from Bharke police station around 2.30 a.m. in the morning on 14.1.98 that the child is safe at Srinivasapura, but whereas, the voluntary statement of the accused is recorded around 3 a.m. When the police have informed around 2,30 a.m. to PW-1 that the child is traced even much before recording the voluntary statement of the accused No. 1, this shows that the police have concocted the story to implicate accused No. 1. The evidence of PW-21, the Head Constable is that they arrested accused No. 1 in the morning hours of 14.1.98 between 2.15 a.m. and 2.30 a.m. and later he produced him before the PSI before 3.00 am. Even the evidence of PW-22, PSI is that around 3 a.m. on that day, accused No. 1 was produced before him by the head constable and thereafter, Ms voluntary statement was recorded. According to the version of the prosecution, they have taken the voluntary statement of accused No. 1 on 14.1.1998 wherein he disclosed that the child is with accused No. 2 at Srinivasapura. The evidence of PW-5, one Venkappa Moolya, the watchman is to the effect that he had seen the mother of accused No. 1 when she had come to the house of PW-1. PW-6, one Srinivas Rao has not supported the version of the prosecution to the effect that accused No. 2 took the child and had kept in his house. As per the prosecution, PW-7 is the taxi driver who took accused No. 1 along with PW-1 and 2 from Mangalore to Srinivasapura, but, he has not supported the said version.
28. As pea the prosecution version the child Upendra Shenoy was found missing on 13.1.98 and that around 11 a.m., one lady took the child from the school and thereafter, on suspicion they arrested accused No. 1 on the intervening night of 13.1.98 and 14.1.98 and except that, there is no other evidence to accept the version of the prosecution to show that accused No. 2 had taken the child from the school around 11 am. on that day. Although, the evidence of PWs. 1 and 2 is there to the effect of recovery of child viz. Upendra Shenoy at Srinivasapura at the instance of accused No. 2, but for having travelled from Mangalore to Srinivasapura, the taxi driver has not supported the said version and also except the voluntary statement that is said to have been recorded by accused No. 1, there is no cogent evidence to convict accused No. 1 and the police have also failed to follow the procedure in arresting the accused and producing them before the magistrate within 24 hours of arrest or seeking permission for police custody. As noted earlier, as per Section 57 of the Cr.P.C., police have to comply with the provisions of the said Section to produce the accused to the nearest Magistrate within 24 hours of his arrest. No special orders have been obtained by them from the Magistrate to take the accused from Mangalore to Srinivasapura after Ms arrest. Section 167 contemplates that when a person is arrested and detained in custody and if investigation is not completed within 24 hours, the officer incharge of the police station shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary made and shall at the same time forward the accused to such magistrate. Even assuming that accused No. 1 is arrested at Mangalore, to show that he was taken to Srinivasapura immediately after the arrest, there was no impediment to produce accused No. 2 along with the child before the Magistrate at Srinivasapura for the purpose of authenticity. This has also not been done by the prosecution. In the circumstances, there is a doubt on the veracity of the prosecution evidence as to whether really this child was traced at the instance of accused No. 1 and he was in the custody of accused No. 2.
29. Under the circumstances and in view of the discussions made above, in the absence of connecting link in the chain of circumstances, merely based on the alleged voluntary statement said to have been given by accused No. 1 and on the basis of recovery shown by the police supported by the evidence of P.Ws. 1 and 2, when some of the witnesses have turned hostile as to the recovery of the child along with accused No. 2 and also when there is no supporting evidence regarding identifying accused No. 2, as per the ratio laid down in the decision reported in 1996 (4) Crimes 74 (SC) In the caw of Jaspal Singh v. State of Punjab, the identification of the accused in the Court cannot be accepted as reliable identification in the absence of test identification parade held during investigation. Further, in so far as the arrest of Accused No. 1 is concerned, there is non-compliance of mandatory provisions under Section 57 of Cr.P.C. in not producing him before the Magistrate immediately after his arrest within 24 hours and this act of prosecution has to be suspected as to the arrest of accused No. 1 and also recovery of child at the instance of accused No. 1 and as noted above in the decision reported in 1989 Supp. (2) SCC 706 in the case of Padala Veera Reddy v. State of Andhra Pradesh and Ors. (sic) in the Apex Court has held that mere suspicion does not take the place of proof and is not enough to hold the accused guilty of the offence. The finding of the trial Court is only based on recovery without examining the manner in which the investigation is conducted and the accused were identified by the witnesses. Hence, while extending the benefit of doubt, the accused are acquitted of the offences alleged.
30. For the foregoing reasons, while acquitting the accused of the above said offence with which they are charged, the impugned order of the trial Court is set aside and the appeal is allowed.