Karnataka High Court
Suresh S/O Bhimashi Yatnal vs The State Of Karnataka on 13 January, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2025:KHC-K:167-DB
CRL.A No.200115 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.200115 OF 2022
(374(Cr.PC)/415(BNSS))
BETWEEN:
SURESH
S/O BHIMASHI YATNAL
AGE: 40 YEARS,
OCC: MASON WORK,
R/O: VADDAR ONI,
NEAR ANAND HOSPITAL,
VIJAYAPURA - 586 101.
...APPELLANT
Digitally signed (BY SRI B.C.JAKA, ADVOCATE)
by SWETA
KULKARNI
AND:
Location: HIGH
COURT OF
KARNATAKA THE STATE OF KARNATAKA
THROUGH CPI OF GOLGUMBAZ CIRCLE,
AT VIJAYAPURA - 586 101.
NOW REPRESENTED BY ADDL. S.P.P.
HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585 107.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. S.P.P.)
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NC: 2025:KHC-K:167-DB
CRL.A No.200115 of 2022
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO ALLOW THIS APPEAL AND SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 31.12.2021 IN S.C.NO.69/2017 PASSED BY
THE II ADDL. SESSIONS JUDGE, AT VIJAYPAURA, BY
ALLOWING THIS APPEAL AND CONSEQUENTLY ACQUIT THE
APPELLANT/ACCUSED OF THE CHARGES LEVIED AGAINST HIM
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 363,
364(A) AND 201 OF I.P.C., IN THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR DICTATING
JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAJESH RAI K) The appellant has filed this appeal against the judgment of conviction and order of sentence dated 31.12.2021 passed in Sessions Case No.69/2017 by the III Addl. Sessions Judge (hereinafter referred to as 'learned Sessions Judge' for short), Vijayapura, wherein the learned Session Judge convicted the accused for the -3- NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 offences punishable under Sections 363, 364-A, 302, 201 of IPC and sentenced him to undergo rigorous imprisonment for life and directed to pay a fine of Rs.25,000/-, in default of payment of fine, to further undergo simple imprisonment for a period of six months for the offence punishable under Section 302 of IPC. Accused is further sentenced to undergo rigorous imprisonment for a period of three months and he is directed to pay a fine of Rs.10,000/-, in default of payment of fine, further directed to undergo simple imprisonment for a period of three months for the offence punishable under Section 363 of IPC. The accused is also directed to undergo rigorous imprisonment for life and imposed a fine of Rs.25,000/-, in default of payment of fine, directed to undergo simple imprisonment for a period six months for the offence punishable under Section 364-A of IPC. The accused is also directed to undergo rigorous imprisonment for a period of three years and imposed fine of Rs.10,000/-, in default of payment of fine, directed to undergo simple imprisonment for a period of three months -4- NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 for the offence punishable under Section 201 of IPC. It is also directed that all the sentences shall run concurrently.
2. The brief facts which led to the trial of the appellant-accused are as follows:
P.W.1 is the father of deceased Akshay, lodged a complaint before the respondent-Police on 21.09.2015 as per Ex.P.1 alleging that he was residing in the house of one Shankar Yatnal i.e., P.W.7 on rental basis along with his family. By avocation, he was an Auto-Rickshaw driver.
His son Akshay (now deceased in this case) was studying in 3rd standard in Marathi School near Shivaji Circle. On 20.09.2015 at about 4.00 p.m., deceased Akshay went out to play, following which he never returned. The complainant's wife informed him about their missing child over a call. Thereafter, P.W.1 along with his wife searched for their son and found no traces of him. Upon enquiring with the relatives at Akkalkot, Mumbai and Mannur in Afzalpur Taluk and Malghan, they finally resorted to lodge a missing complaint before the PSI of APMC Police Station -5- NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 as per Ex.P.1 at about 8:30 p.m. The said complaint came to be registered in Crime No.82/2015 by the APMC Police for the offence punishable under Section 363 of IPC as per Ex.P.1 against unknown persons. Subsequently, on the following day i.e., 22.09.2015, P.W.1 received a telephone call from the kidnapper demanding a ransom of Rs.2,00,000/- to release his son. P.W.1 divulged the said development to the respondent-Police. P.W.11-the then PSI respondent-Police, conducted an investigation by analyzing the call register of the mobile number bearing 9730123593 of the complainant-P.W.1 and also analyzed the calls he received from the kidnapper. On analyzing CDR, P.W.11 came to know that the P.W.1 has received ransom call from the mobile number i.e., 9743542273.
Accordingly, P.W.11 conducted investigation by finding out the user of the said mobile and it was revealed that one Shankar Yatnal i.e., the uncle of the accused i.e., P.W.7 was using the said mobile number. On enquiring Shankar, he in turn revealed that the accused was residing along with him on the first floor of the house where P.W.1 was -6- NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 residing and he further stated that the accused was using the said mobile and that he was absconding for the last two days i.e., from 22.09.2015. Following which the respondent-Police apprehended the accused on 24.09.2015. On enquiry, the Police recorded the voluntary statement of the accused as per Ex.P.18, wherein the accused revealed that on 20.09.2015 at about 4:00 p.m. he kidnapped the son of P.W.1 master Akshay from Bambala Agasi and he took him to Jyoti Pipe Factory and murdered him by assaulting. Thereafter, he disposed the corpse by throwing it near the hill station closer to the factory. He further revealed that he covered the corpse with size stones and also admitted that he would show the place of burial.
3. Thereafter, the accused led the Investigation Officer, P.Ws.1 to 3 and the Assistant Commissioner to the place of burial. By removing the size stones, he showed the corpse of the son of P.W.1. Accordingly, the respondent-Police conducted the investigation by drawing -7- NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 relevant mahazars. P.Ws.1 and 3 the parents of the deceased identified the corpse of their son based on the clothes he worn at the time of missing. Subsequently, P.W.13, with the permission of the jurisdictional Magistrate invoked Sections 364-A and 302 of IPC in the crime and conducted further investigation. After recording the statement of the witnesses and obtaining necessary documents from the concerned authorities, P.W.13 laid the charge-sheet against the accused for the offences punishable under Sections 363, 364-A, 302 and 201 of IPC before the committal court.
4. On committal of the case before the learned Sessions Judge, the learned Sessions Judge having found prima facie case against the accused, framed the charges for the aforementioned offences. The accused pleaded not guilty to the charges and claimed to be tried.
5. In order to prove the charges leveled against the accused, the prosecution in total examined 13 witnesses before the Sessions Court as PW-1 to PW-13, -8- NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 marked 30 documents as Exs.P-1 to P-30 and identified 7 material objects as M.Os-1 to 7.
6. After completion of prosecution evidence, the learned Sessions Judge read over the incriminating evidence of the material witnesses to the accused as stipulated under Section 313 of Cr.P.C. However, the accused denied the same. The defence of the accused is one of total denial and that of false implication. However, the accused neither examined any witness nor got marked any documents on his behalf.
7. After assessment of the oral and documentary evidence placed before the Sessions Judge, the learned Sessions Judge convicted the accused for the charges leveled against him and sentenced him as stated supra. The said judgment is challenged under this appeal.
8. We have heard the learned counsel for the appellant Sri B.C. Jaka and learned Additional State Public Prosecutor for the respondent-State. -9-
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9. The primary contention of the learned counsel for the appellant is that the judgment challenged under this appeal suffers from perversity and illegality since the learned Sessions Judge failed to appreciate the evidence on record in a right perspective. He further contended that, the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt as the entire case rests on circumstantial evidence and there is not an iota of evidence linking to the crime as relied by the prosecution. The learned Sessions Judge convicted the accused based on surmises and conjecture without appreciating the evidence in right perspective. According to him, the learned Sessions Judge convicted the accused solely based on evidence of P.Ws.1 and 3 i.e., the father and mother of the deceased who are the hearsay witness to the incident. P.W.2, the Panch witness though supported the case of the prosecution, on perusal of his evidence, the drawing of relevant mahazars at the place of incident and also the place where the corpse was recovered at the instance of the accused are not drawn as per law and there is a
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 contradiction in the evidence of P.W.2 and the contents of the mahazars.
10. The learned counsel submitted that the last seen witness P.W.4 has not comprehensively supported the case of the prosecution and there is an inordinate delay in recording his statement. As such, the prosecution collectively failed to prove the circumstance of last seen theory. Further, there are material contradictions and omissions in the evidence of P.Ws.1 and 3 regarding their missing child so also the participation of the accused in the crime by demanding ransom. The mobile number produced by P.W.1 and other information of his receiving a ransom call by the accused is collectively not proved as the call register produced by the prosecution is silent on call details. In such circumstances, the learned Sessions Judge erred while convicting the accused for the offences punishable under Sections 364-A and 302 of IPC. Further, he contended that the prosecution also failed to prove the circumstance of identifying the corpse by P.Ws.1 and 3
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 i.e., parents of the deceased. Since they identified the corpse only based on the clothes i.e., the shirt and trouser worn by the deceased on the date of missing. However, it is the specific case of Investigating Officer and the Doctor that the corpse was totally decomposed. In such circumstance, the prosecution has abjectly failed to prove the guilt of the accused. Accordingly, he prays to allow the appeal by setting aside the impugned judgment of conviction and order of sentence.
11. Refuting the above submissions made by the learned counsel for the appellant, the learned Additional SPP contends that the judgment challenged in this appeal neither suffers from perversity nor illegality and no exception can be taken from the judgment passed by the Sessions Court for the reasons indicated by the Sessions Court under the well reasoned judgment. The evidence has also been analyzed in a great detail by the Sessions Court. Therefore, no question of any interference is called for with the conviction order recorded in the impugned
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 judgment. By enunciating his submission, the learned Addl. SPP argued that the evidence of P.Ws.1 and 3 i.e., parents of the deceased categorically established the fact that the accused is solely responsible for the kidnap and murder of their son Akshay. Further, the accused also demanded ransom from P.W.1. The said aspect is affirmatively proved by the prosecution by placing the evidence of the call register details and also by placing the certificate under Section 65B of the Information Technology Act from the concerned officer of the Airtel Company. Further, the accused himself led the Police and P.Ws.1 to 3 and the Assistant Commissioner-P.W.12 to the place of burial of the corpse and at his instance the corpse of the deceased was recovered. This pivotal circumstance has unambiguously proved the charges leveled against the accused. He further contended that the last seen theory under the circumstantial evidence is also proved by the prosecution by examining P.W.4, who categorically stated that he had seen the accused and the deceased on 20.01.2015 near the place from where the corpse was
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 recovered. Albeit there is delay in recording his statement, the said delay was adequately explained by P.W.4. Further, the motive for the incident i.e., amount demanded by the accused is proved by the evidence of P.W.1 and the call details i.e., Ex.P.27. In such circumstance, the learned Addl. SPP submitted that the minor contradictions in the evidence of material evidence does not go to the root of the prosecution case and the prosecution clearly proved the guilt of the accused beyond all reasonable doubt and the appeal deserves to be dismissed.
12. Having heard the learned counsel for the appellant so also the learned Addl. SPP and also after perusal of the entire evidence on record, the points that arise for our consideration are:
(a) Whether the judgment under this appeal suffers from any perversity or illegality?
(b) Whether the learned Sessions Judge is justified in convicting the accused for the
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 offences punishable under Sections 363, 364(A), 302 and 201 of IPC?
13. We have independently analyzed the entire oral and documentary evidence on record in order to appreciate the respective contention of the learned counsel for the parties. Before delving into analyzing the evidence on record as stated supra, this case totally rests upon circumstantial evidence. As per the settled position of law laid down by the Hon'ble Apex Court way back in the year 1993 i.e., in the case of Sarbir Singh Vs. State of Punjab reported in 1993 Supp (3) SCC 41, the Hon'ble Apex Court in paragraph No.6 held as under:
"6. It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. In countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country.
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 That is why Courts have insisted (i) the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established; (ii) all the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be such as to exclude every hypothesis but the one sought to be proved; (iii) the circumstances should be of a conclusive nature; and (iv) the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused.
14. The principles enunciated in the above case is also reiterated in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 and Hon'ble Apex Court laid the golden principles to prove the case based on circumstantial evidence. The said principles also reiterated in the recent judgment of the Hon'ble Apex Court in the case of Shankar Vs. State of Maharashtra reported in 2023 SCC Online SC 268, wherein the Hon'ble Apex Court has summarized the guidelines to convict the accused in the case which are based on circumstantial evidence.
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15. Keeping in mind the above principles, when we analyze the evidence on record and also the circumstantial evidence relied by the prosecution, the following aspects are draw our consideration:
(i) The homicidal death of deceased Akshay:
In order to prove the homicidal death of the deceased, the prosecution has relied on the evidence of PW.9-doctor who conducted the autopsy on the corpse of the deceased and issued the post-mortem report as per Ex.P18.
On perusal of Ex.P18, the Doctor has
mentioned that the deceased sustained
external injuries as under:
(a) Communited fracture seen over the occipital region extending from right mastoid process to left mastoid process. On further examination brain was liquefied and large number of larvae seen.
(b) Contusion seen over the ankle region both right and left.
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16. After examining, P.W.9-Doctor has opined that the death is due to 'haemorrhage and shock as a result of blunt injury to vital organs (brain)'. PW.9 deposed in support of contents of Ex.P18. Though the learned counsel for the accused cross-examined PW.9 questioning that the scientific examination was not conducted by an expert, the Doctor stated that there is no need of such an examination to state the cause of death. As such, there is a clear corroboration between the testimony of PW.9 and contents of Ex.P18. Further, the prosecution also relied on the inquest panchanama drawn on the corpse of the deceased as per Ex.P7 by PW.12-the then Assistant Commissioner of Vijayapura. On perusal of Ex.P7, the same reveals that the corpse was decomposed. The parents of the deceased i.e., PWs.1 and 3 identified the corpse of their son based on the clothes found on the corpse. PW.2 is the pancha witness for Ex.P7. He deposed that the accused showed the place and the mahazar was drawn to that effect as per Ex.P10 and also Ex.P7 the inquest mahazar. Further, PWs.1 and 3 also deposed about the injuries found on the
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 corpse of the deceased. Hence, a conjoint reading of the evidence of PW.9-Doctor, PW.12-the then Assistant Commissioner, PW.2-pancha witness for Ex.P7 and also the evidence of PWs.1 and 3 coupled with Exs.P18, 7 and 10, we are of the considered view that the prosecution has proved the homicidal death of the deceased Akshay beyond reasonable doubt.
17. To connect the accused with the homicidal death of the deceased, the prosecution relied on the following circumstances:
(a) Missing of the deceased, lodging of complaint by PW.1 and arrest of the accused.
18. As per the evidence of PW.1, his son Akshay was missing from 20.09.2015 at about 9.00 a.m. and later, he along with his wife-P.W.3 searched for their son and were unable to find him. Hence, on the same night at about 8:00 p.m., he visited the Police Station and lodged the missing complaint as per Ex.P1. Based on this, the
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 respondent-Police registered an FIR as per Ex.P3 for the offence punishable under Section 363 of IPC. According to PW.1, on the following day i.e., 21.09.2015, he received a call from an unknown person demanding a ransom of Rs.2,00,000/-. He stated that the kidnaper threatened PW.1 stating that should he fail to hand over the ransom amount he will kill his son. Following which, PW.1 informed the same to the Police and handed over his mobile phone to them. Accordingly, PW.11-Veena Mohan, the then PSI conducted investigation by obtaining the call detail records (CDR) of the mobile phone of the complainant i.e., 9730123593. Further, PW.11 deposed before the Court that on analyzing the CDR of the said mobile phone number, she learnt that PW.1 received a ransom call from the mobile bearing number 9743542273. As such, an investigation was conducted and PW.7-Shankar Yatnal was arrested, who is none other than the uncle of the accused. Upon enquiry, PW.7 revealed that though the said mobile number belonged to him, the same was taken by the accused and he was missing since 22.09.2015. Thereafter,
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 the entire CDR was obtained by PW.11 as per Ex.P27 and PW.11 arrested the accused on 24.09.2015. On further investigation, it is revealed that, as many as 60 calls were received by PW.1 from the above-mentioned mobile number within a span of 3 to 4 days demanding ransom. After arrest of the accused, PW.11 recorded his voluntary statement as per Ex.P18, wherein the accused confessed to the crime and produced two mobiles as per MOs.3 and
4. On 21.01.2015, PW.1 gave his further statement before the police as per Ex.P2 wherein he reiterated the contents of Ex.P1 and also deposed about the confession made by the accused before the police at his presence. As such, on perusal of the above evidence of PWs.1, 11, 4 and 5, the prosecution proved the circumstantial evidence of missing of the child, lodging of complaint by PW.1, demanding of ransom by accused and arrest of the accused.
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(b) Recovery of corpse of the deceased at the behest of the accused.
19. According to PW12, the Assistant Commissioner of Vijayapura and PW13-the Investigating Officer, after arrest of the accused on 24.09.2015, his voluntary statement recorded as per Ex.P18 and the accused reveled that he would show the place of kidnap, burial of the corpse of the deceased. Accordingly, P.W.22 summoned P.W.2 the pancha to the Police Station so also P.Ws.1 and 3 i.e., the parents of the deceased and in their presence, the accused confessed and also led all these witnesses to the place of burial i.e., near Jyoti Pipe Factory and on removal of the sized stones, the police found the corpse of the deceased in a decomposed state. PWs.1 and 3 identified the corpse based on the clothes worn by him at the time of his kidnap.
20. Further, PW.12, the Assistant Commissioner drew the inquest panchanama on the corpse as per Ex.P7. P.W.2 and other panchas were present. PW13-the
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 Investigating Officer also drew the mahazar in the said place as per Ex.P10. P.W.2 was very much present at the time of drawing Ex.P10. Nevertheless, PWs.1 and 3 were also present along with the Assistant Commissioner.
21. It is the contention of the learned counsel for the appellant that the corpse was decomposed as per the evidence of PW9-Doctor. As such, there is no such possibility of identifying the corpse by PWs.1 and 3 i.e., the parents of the deceased. Further, he submitted that though the blood samples were drawn from PWs.1 and 3, there was no such DNA examination conducted by the concerned authorities. As such, the prosecution has failed to prove that the corpse recovered at the instance of the accused belongs to the son of PWs.1 and 3.
22. As discussed supra, on perusal of Ex.P1 the missing complaint lodged by PW1, wherein he has categorically mentioned the color of the shirt and trouser worn by the deceased at the time of missing. Later, PWs.1 and 3 both were identified the corpse based on the
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 said clothes i.e., MOs.1 and 2. On careful perusal of the clothes mentioned in Ex.P1 and the color of MOs.1 and 2 seized under Ex.P12, there is a clear similarity. Moreover, PWs.1 and 3 being the parents of the deceased it cannot be presumed that the parents were unable to identify the corpse of their son after four to five days from the date of death though the body was in a partially decomposed state. Nevertheless, on perusal of the inquest panchanama Ex.P7, on question number 5, it has been answered that the height of the corpse was 4.2 inches. The same further clarifies that the corpse is of a male child. As such, the contention of the learned counsel for the appellant that PWs.1 and 3 failed to identify the corpse does not hold much water. Further, on perusal of the evidence of P.W.22 and P.W.2, they categorically stated that the accused volunteered before the Investigating Officer in the Police Station and thereafter he led them to the place of burial. As such, it is established that the said fact was exclusively within the knowledge of the accused. The prosecution has also placed the photographs of the corpse and the place of
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 burial as per Exs.P8 and P9. As such, in our considered opinion, the prosecution also proved the circumstance of recovery of the corpse at the instance of accused under Ex.P10. Further, he accused also showed the place where he murdered deceased by dropping sized stones on him. The Police drew mahazar of the said place as per Ex.P11. PW.2, further stated that the Police seized the clothes from the corpse under Ex.P12 as per MOs.1 and 2. All these mahazars were drawn by P.W.13-the Investigating Officer in the presence of P.W.2 and the parents of the deceased PWs.1 and 3. Though the defence cross- examined these witnesses at length, nothing worthwhile has been elicited from them to discard their testimony. The minor contradictions in respect of the time of drawing mahazars, may not itself be construed as a ground to disbelieve and discard the version of these witnesses. Hence, we are of the considered view that the prosecution has also proved the above circumstance.
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(c) Last Seen Theory:
23. Aside from the above circumstance, the prosecution has also relied on the last scene theory i.e., the accused and deceased were found at the place where the corpse was recovered on 20.09.2015 by PW4. On perusal of the evidence of PW4, he stated that, on 20.09.2015 at about 4:00 p.m. when he was traveling to Bijjarai Show Room near Indi Road, he found the accused and deceased approaching the hill-top i.e., near the Jyothi Pipe Factory. However, thereafter he went to Mumbai and returned on 24.09.2015. Upon his return, he learnt about the murder of the deceased. Accordingly, he stated the same before the Police. Though, there is a delay of 4 days in recording the statement of PW.4, the said delay has been properly explained by PW.4 stating that, after 20.09.2015, he went to Mumbai for four days and upon his return on 24.09.2015, he gave his statement before the Police. Admittedly, the corpse was recovered, the place where P.W.4 had seen the accused and deceased on
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 20.09.2015. Hence, there is no reason to disbelieve the evidence of P.W.4. As such, the prosecution also proved the last scene theory.
(d) Motive
24. The next circumstance of the prosecution relied is the motive for the commission of crime. As discussed supra, PW.1 in his evidence and also in his complaint- Ex.P1 lodged on the following date of incident i.e., on 21.09.2015, has clearly stated that his son was missing from 20.09.2015 and thereafter, he himself and his wife searched all the places and lodged the complaint. In his evidence, he has stated that, on the next day i.e., on the 21.09.2015, he has received a call to his mobile phone for a ransom of Rs.2,00,000/-. Thereby, he informed the same to the Police and handed over the mobile phone to them. On perusal of the evidence of PW.11, she analyzed the call details of the said mobile phone and came to know that the uncle of the accused was using the said mobile phone and on inquiry of the uncle of the accused-PW7,
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 came to know that the accused was the perpetrator of the crime. Accordingly, he has been arrested by the Police. Further, the call details of the mobile phone of P.W.1 and the deceased was obtained by the Investigating Officer as per Ex.P27. On perusal of Ex.P27, the same depicts that there are multiple calls exchanged in those numbers. Hence, the demanding of ransom by the accused is clearly proved and it goes without saying that the accused kidnapped the deceased for gain. As such, the motive for the commission of the crime is also proved by the prosecution.
25. Hence, on careful examination of all the above circumstance coupled with the evidence of material witnessed discussed supra clearly establishes the offences charged against the accused i.e., for the offences punishable under Sections 363, 364(A), 302 and 201 of IPC.
26. In order to convict the accused for the offence punishable under Section 364-A which are required to be
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 proved by the prosecution are summarized by the Hon'ble Apex Court in the case of the Ravi Dhingra Vs. The State of Haryana, reported in 2023 Online SC 199 as under:
(a) (i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and
(b) (ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or;
(c) (iii) causes hurt or death to such person in
order to compel the Government or any
foreign State or any Governmental
organisation or any other person to do or abstain from doing any act or to pay a ransom.
(d) Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either Condition
(ii) or (iii) has to be proved, failing which conviction under Section 364-A cannot be sustained."
27. Applying the law summarized by the Hon'ble Apex Court in the above case to the facts and circumstances of this case, P.W.1 the father of the
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 deceased has stated in his evidence that the accused not only kidnapped his son but also demanded a ransom of Rs.2,00,000/- from him through mobile phone. Further, the accused threatened him that, if he failed to arrange the said amount, he would kill his son. The evidence of P.W.11, the then PSI who initially obtained the CDR from the mobile phone belongs to P.W.1 clearly reveals that PW.1 had received more than 60 calls from the mobile number 9743542273 belonging to P.W.7. Further, the evidence of P.W.7 reveals that the mobile number 9743542273 belonged to him and the said mobile was used by the accused on the date of incident and accused went absconding ever since. In such circumstances, the provisions of Section 364(A) of IPC clearly complied with in the instant case. Moreover, the prosecution successfully proved the recovery of MOs.1 and 2 i.e., the mobile phones at the behest of the accused based on his voluntary statement Ex.P.18. PW2-panch witness also deposed and validated to that effect.
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28. To further buttress the evidentiary value of the same, we rely on the decision of the Hon'ble Apex Court in the case of Muhammad Arif @ Ashfaq Vs State (NCT of Delhi), reported in 2011 (13) SCC 621, wherein the Hon'ble Apex Court in paragraph No.60 has held as under:
"60. It has come in the evidence that the active mobile phone has two components i.e. the mobile instrument and the SIM card. Every mobile instrument has a unique identification number, namely, instrument manufactured equipment identity (for short "IMEI number"). Such SIM card could be provided by the service providers either with cash card or post-paid card to the subscriber and once this SIM card is activated the number is generated which is commonly known as mobile number. The mobile service is operated through a main server computer called mobile switching centre which handles and records each and every movement of an active mobile phone like day and time of the call, duration of the call, calling and the called number, location of the subscriber during active call and the unique IMEI number of the instrument used by the subscriber during an active call. This mobile switching centre manages all this through various subsystems or sub-stations and finally with the help of telephone towers. These towers are actually base transreceiver stations also known as BTS. Such BTS covers a set of cells each of them identified by a unique cell ID. A mobile continuously selects a cell and exchanges data and signalling traffic with the corresponding
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 BTC. Therefore, through a cell ID the location of the active mobile instrument can be approximated."
29. Further, in another decision of the Hon'ble Apex Court in the case of Gajraj Vs State (NCT of Delhi), reported in 2011 (10) SCC 675, in paragraph No.16 of the judgment, it is held as under;
"16. The evidence produced by the prosecution is based on one irrefutable fact, namely, every mobile handset has an exclusive IMEI number. No two mobile handsets have the same IMEI number. And every time a mobile handset is used for making a call, besides recording the number of the caller as well as the person called, the IMEI numbers of the handsets used are also recorded by the service provider. The aforesaid factual position has to be kept in mind while examining the prosecution evidence."
30. By the above findings of the Hon'ble Apex Court in the judgments, it is clear that the electronic evidence placed by the prosecution relying on the conversation between the mobile phones can be relied since every mobile handset has an exclusive IMEI number. No two mobile handsets have the same IMEI number and each
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 time the mobile handset is used for making a call besides recording the number of the caller, the person called and the IMEI numbers of every handset are also recorded by the service provider. Hence, the above evidence of the CDR can be relied to connect the accused with the alleged crime since the said evidence comes well within the ambit of Section 8 of the Evidence Act. As held by the Hon'ble Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu, reported in (2005) 11 SCC 600. Hence, on careful perusal of the law laid down by the Hon'ble Apex Court in the above judgments so also the evidence placed by the prosecution, we are of the considered view that the prosecution has successfully laid hand of the accused and proved that he is the perpetrator of the crime.
31. On perusal of the overall evidence placed by the prosecution and also the above circumstances relied by the prosecution and considering the nature of the crime and the manner in which it was planned and committed,
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 the motive for the commission of the crime, the conduct of the accused i.e., before demanding ransom, committing the murder of deceased establishes his cruel act. In such circumstances, the brutal act of the accused is proved by the prosecution by relying on relevant circumstances of the evidence of conclusive nature. The circumstance relied by the prosecution discussed supra, are consistent with the hypothesis of the guilt of the accused. Aside from the accused, none-else have committed the murder of the deceased for any reasons. Even otherwise, the accused failed either to put forward or prove such defence which would break the chain and would give a different interpretation than that of what is pleaded by the prosecution. In such circumstances, we are of the view that the golden principles laid down by the Hon'ble Apex Court in the case of Sharad stated supra and subsequent judgments are proved and the learned Sessions Judge has rightly convicted the accused for the charges leveled against him. Therefore, we find no good grounds to interfere with the judgment of conviction and order of
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NC: 2025:KHC-K:167-DB CRL.A No.200115 of 2022 sentence passed the Sessions Court. Accordingly, we answer point No.1 in the negative and point No.2 in the affirmative and proceed to pass the following:
ORDER
(a) The appeal is hereby dismissed.
(b) The judgment of conviction and order of sentence dated 31.12.2021 passed in Sessions Case No.69/2017 by the learned III Addl. Sessions Judge, Vijaypaura is affirmed.
Sd/-
(S. SUNIL DUTT YADAV) JUDGE Sd/-
(RAJESH RAI K) JUDGE BL,MSR List No.: 1 Sl No.: 29